The Corporation of the Canadian Civil Liberties Association v. Ontario Civilian Commission on Police Services

[Indexed as: Corp. of the Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services)]

86 O.R. (3d) 798

Court of Appeal for Ontario,

Labrosse, Doherty and Blair JJ.A.

November 21, 2006*

• The judgment was recently brought to the attention of the Editors.

Police -- Complaints -- "Directly affected" -- Complainant witnessing alleged police misconduct, speaking to officer involved and finding incident disturbing -- Ontario Civilian Commission on Police Services not erring in refusing to deal with complaint -- Complainant not being "directly affected" by conduct as required by ss. 57(1) and 59(5) of Police Services Act -- Police Services Act, R.S.O. 1990, c. P.15, ss. 57(1), 59(5).

R alleged that he saw a police officer use excessive force against a woman while escorting her from a store. He claimed that he was stunned and shaken by the incident and that he spoke to the officer and noted his badge number. R filed a formal complaint under the Police Services Act relating to the officer's conduct. The Ontario Civilian Commission on Police Services refused to deal with the complaint as R was not a person "directly affected" by the officer's conduct as that term is used in ss. 57(1) and 59(5) of the Act. R's application for judicial review of that decision was granted. The majority of the Divisional Court found that R was "directly affected" by the conduct. The Commission appealed.

Held, the appeal should be allowed.

It was unnecessary to decide the issue of the appropriate standard of review as, assuming that correctness was the appropriate standard, the interpetation given to "directly affected" by the majority of the Divisional Court was wrong. The use of the word "directly" signifies an intention to narrow the scope of standing. There must be a degree of proximity before a person affected would be able to lodge a complaint. "Directly affected" has been interpreted to mean having a personal and individual interest as distinct from a general interest which pertains to the whole community. R was "affected" by the conduct in question, but not "directly affected".

APPEAL from the judgment of Cunningham A.C.J.S.C.J., Lane and Molloy JJ. (2005), 2005 32928 (ON SCDC), 80 O.R. (3d) 787, [2005] O.J. No. 3875 (Div. Ct.), allowing an application for judicial review of a decision of the Ontario Civilian Commission on Police Services. [page799]

Cases referred to Canadian Union of Public Employees, Local 30 v. Alberta (Public Health Advisory and Appeal Board), 1996 ABCA 6, [1996] A.J. No. 48, 178 A.R. 297 (C.A.) Statutes referred to Police Services Act, R.S.O. 1990, c. P.15, s. 57(1) [as am.]

Leah Price, for appellant. Crawford Smith and Jennifer Conroy, for respondents.

[1] Endorsement by THE COURT: -- This appeal relates to whether the applicant, Mr. Rolfe, a total stranger who believed that he witnessed a brutal act of police misconduct, can make a public complaint under s. 57(1) of the Police Services Act, R.S.O. 1990, c. P.15. The section allows a member of the public who is "directly affected" by the conduct that is the subject of the complaint to make a public complaint.

[2] The applicant witnessed an incident involving what he believed amounted to an unprovoked assault on an unknown woman by a Toronto Police Service Officer.

[3] The Chief of Police and the Ontario Civilian Commission on Police Services held that the applicant was not "directly affected" and thus could not bring a complaint. The majority of the Divisional Court allowed Mr. Rolfe's application for judicial review, set aside the Commissioner's decision and remitted the matter to the Chief of Police to be treated as a public complaint.

[4] Both the majority and dissenting judgment of the Divisional Court are well reasoned and persuasive.

[5] That being said, it is not necessary to decide the difficult issue of the appropriate standard of review as, in our view, assuming that correctness is the appropriate standard of review as held by both the majority and dissent, the majority's interpretation is wrong.

[6] As stated by Associate Chief Justice Cunningham, in dissent, the word "directly" signifies an intention to narrow the scope of standing. At para. 27 of his reasons, he pointed out:

It would be unreasonable to conclude that the Legislature intended each and every witness to alleged misconduct could interject themselves into the process of resolving public complaints, including becoming a party to any hearing and having rights of appeal from any decision taken. Moreover, no useful purpose would be served by having this matter designated as a public complaint since the matter has been fully investigated and dealt with by the Chief of Police. Treating this as a public complaint would allow Rolfe to obtain personal information concerning the alleged victim and to make decisions about the processing of the complaint. Indeed, I see no utility in having Rolfe's complaint designated as a public complaint. In fact mischievous results could arise from doing so.

And at para. 38:

There can be little doubt that Rolfe was "affected" by the impugned conduct. However, that is not enough. He has no personal interest in the matter. If the Legislature intended to include anyone "affected" by police conduct, it would not have included the word "directly" in the legislation. By including [page800] the word "directly", the Legislature clearly sought to carefully circumscribe the right of complaint. By including the word "directly" as an adverb, the Legislature must have intended there to be a degree of proximity before a person "affected" would be able to lodge a complaint.

[7] This interpretation is well supported on the authorities referred to in his decision.

[8] "Directly affected" has been interpreted to mean a personal and individual interest as distinct from general interest which pertains to the whole community. See Canadian Union of Public Employees, Local 30 v. Alberta (Public Health and Advisory Board), 1996 ABCA 6, [1996] A.J. No. 48, 178 A.R. 297 (C.A.).

[9] We agree with the conclusion of the Associate Chief Justice that Mr. Rolfe could not provide the necessary link that he was "directly affected".

[10] We would allow the appeal essentially for the reasons of the Associate Chief Justice.

[11] We make no order as to costs.

Appeal allowed.