Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211222 DOCKET: M53009 & M53015 (C67952)

Fairburn A.C.J.O. (Motions Judge)

BETWEEN

Her Majesty the Queen Respondent

and

Nicholas Doering Appellant

Counsel: Alan D. Gold, for the appellant Jamie Klukach and Samuel Greene, for the respondent Joseph Markson and Kate Robertson, for the proposed intervener, the Police Association of Ontario Michael Lacy and Philip Wright, for the proposed interveners, Canadian Police Association and Toronto Police Association

Heard: December 16, 2021 by video conference

Endorsement

[1] These reasons pertain to two applications brought pursuant to r. 30 of the Criminal Appeal Rules, Court of Appeal for Ontario, for leave to intervene in an appeal from conviction: R. v. Doering, C67592, reasons for judgment reported at 2019 ONSC 6360. The appeal is scheduled to be heard February 9, 2022.

[2] The appellant is a police officer who was tried in a judge-alone trial in the Superior Court of Justice. He was convicted of two offences, both of which were said to have occurred in the course of his duties: (1) criminal negligence causing death, contrary to s. 220(b) of the Criminal Code, R.S.C., 1985, c. C-46; and (2) failing to provide the necessaries of life, contrary to s. 215(2)(b) of the Criminal Code.

[3] In response to multiple 9-1-1 calls, the appellant was dispatched to a location where a woman, Ms. Debra Chrisjohn, had been seen behaving erratically. It is not in dispute that Ms. Chrisjohn had ingested a great deal of methamphetamine. Nor is it in dispute that the degree of toxicity in her body was such that she ultimately succumbed to a heart attack.

[4] When he arrived on scene, the appellant placed Ms. Chrisjohn in the back of his police vehicle. He eventually drove Ms. Chrisjohn to another location and placed her into the custody of a different police service that had an outstanding warrant for her arrest. Ms. Chrisjohn died while in the custody of the other police service.

[5] The defence conceded at trial that Ms. Chrisjohn needed medical assistance while she was in the appellant’s custody and that the failure to get her that assistance endangered her life. Despite that concession, the defence argued, and the trial judge accepted, that the appellant did not know or subjectively appreciate that Ms. Chrisjohn needed that assistance.

[6] Therefore, one of the primary issues in dispute at trial was whether the appellant’s conduct amounted to a marked departure (or a marked and substantial departure for purposes of the criminal negligence count) from the standard of care of a reasonably prudent police officer in the circumstances. Of course, those circumstances engage a commonplace occurrence in the world of policing: the interaction between police officers and individuals in various states of impairment. The trial judge concluded that the appellant’s failure to obtain medical attention for Ms. Chrisjohn constituted a sufficient departure from the standard of care of a reasonably prudent police officer and that convictions should be entered on both counts.

[7] The appellant contends that the trial judge made numerous factual and legal errors when arriving at the conclusion that he was guilty of both failing to provide the necessaries of life and criminal negligence causing death.

[8] There are two applications for intervention before the court: (1) Canadian Police Association & Toronto Police Association (“CPA/TPA”); and (2) Police Association of Ontario (“PAO”). Collectively, I will refer to the CPA/TPA and PAO as the “Associations”. The appellant consents to and the respondent opposes both applications.

[9] Multiple criteria inform whether to grant leave to intervene in an appeal as a friend of the court, including the general nature of the case to be heard, the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167; R. v. M.C., 2018 ONCA 634, at para. 9.

[10] While it is rare to permit an intervention in a criminal case unless a constitutional issue is raised, there is no rule against such interventions. It remains a question of whether the proposed intervener will make a useful contribution beyond that offered by the parties without causing an injustice to the parties: R. v. McCullough (1995), 24 O.R. (3d) 239 (C.A.), at p. 243.

[11] The respondent acknowledges the experience and expertise of the Associations. This is beyond question.

[12] The CPA represents approximately 60,000 police service personnel in Canada and about 160 police services. The TPA has about 8,000 members. The PAO represents more than 28,000 uniformed police officers and civilian employees of municipal police services. All three associations have developed significant expertise in issues relating to policing, and the CPA and PAO have previously offered their expertise through interventions in cases involving issues of import to the practice and regulation of policing. A few examples suffice: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053; Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292, 110 O.R. (3d) 536; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66.

[13] In my view, the Associations have a real, substantial, and identifiable interest in the subject matter of this appeal.

[14] At a granular level, I agree with the respondent that this is a fact-intensive case. The appellant challenges some of the trial judge’s important factual conclusions. Even so, the appellant also directs his submissions at the legal approach taken by the trial judge, including on the following issues: (1) the legal approach to what a reasonably prudent police officer would have appreciated in the circumstances; (2) the determination of the applicable standard of care in the absence of expert evidence as to the professional standards applicable to police officers; and (3) the failure to consider the relevance of a mistake of fact in relation to offences of objective liability.

[15] While I accept that it is possible that this appeal may ultimately turn on certain factual conclusions reached by the trial judge, specifically as they relate to the interactions between the appellant and the deceased and other police officers and medical personnel, at this stage, it is simply too early to know. All that is known with certainty now is that, given the subject-matter underpinning the convictions in this case, a police officer’s criminal liability arising from a failure to obtain medical attention for an intoxicated individual could have implications for policing in general.

[16] The CPA/TPA wishes to advance a number of arguments that can be collapsed into two overarching submissions: (1) a police officer’s on-the-job experience with intoxicated persons should be taken into account when assessing what a reasonably prudent officer would do in any given circumstance; and (2) there are important policy, operational, and resource implications arising from the potential for criminal liability if a police officer falls below the legal standard of care.

[17] The PAO wishes to advance submissions on the following three points: (1) the importance of considering mistakes of fact by a police officer when determining that officer’s liability for criminal negligence; (2) the need to avoid placing undue emphasis on police policy when conducting a proper reasonable standard of care analysis; and (3) the need for expert evidence when determining the content of the standard of care exercised in a professional setting.

[18] The respondent opposes the interventions on several bases.

[19] First, the respondent argues that the applicants’ proposed arguments reveal a clear partisanship on the facts and the outcome of the appeal.

[20] The respondent’s position is not without merit. The CPA/TPA’s written argument in particular is riddled with references to the evidence in this case and, at points, appears to weigh in on the merits. I agree with the respondent that the CPA/TPA position, as it currently stands, does not properly confine itself to the legal issues it purports to advance and that this is problematic.

[21] The reality is that interveners’ arguments will typically support one side or the other. As noted in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 28: “It should scarcely surprise, indeed it would seem almost the very essence of intervention, that the position to be advanced by a proposed intervenor would tend to support that of one of the original litigants and oppose that of the other.” Accordingly, the simple fact that interveners support one side or the other is not in and of itself inappropriate. The difficulty arises where interveners, as friends of the court, weigh in on the actual merits of the appeal. No party should have to face the addition of what are tantamount to other parties opposite. That is the problem with the CPA/TPA position as it is currently cast. Even so, it is a problem that can be easily overcome.

[22] Despite their written argument on this application crossing the line into the actual merits of the appeal, the Associations are advancing legal issues that are properly the subject of intervention. In my view, they can make a useful contribution on those issues while staying entirely away from the merits of the appeal. I am satisfied that with a properly crafted order, the interveners will confine themselves to the legal issues to be addressed, stay out of the facts of this case, and not take a position on the merit of the appellant’s position or the actual outcome of the appeal. Should they fail to comply with that order, as with all interventions, it will be open to the panel hearing the appeal to disregard the intervention as unhelpful.

[23] The respondent also opposes the applications on the basis that the interveners are proposing to both: (1) expand the issues on appeal; and (2) repeat what the appellant has already said.

[24] I do not perceive the interveners to be expanding the issues on appeal. Rather, they are providing fresh perspectives on the issues already before the court. This is the sine qua non of an intervention. There are no new legal issues being advanced; only new ideas about how to approach those issues.

[25] To the extent that the objection centres on duplicative submissions, I have reviewed the appellant’s factum. While there is some duplication, such as on the point involving the relevance of a mistake of fact to the mens rea of criminal negligence, the submissions are duplicative only at the most basic level. While the appellant raises the issues, the Associations expand on them and offer fresh perspectives on how to approach them.

[26] The respondent also resists the CPA/TPA intervention on the basis that the arguments pertaining to strategic policy and operational demands are not useful and, in any event, impermissibly augment the record. This submission cannot succeed.

[27] It is a matter of common sense that there may be policy and resource implications arising from questions involving the standard of care associated to situations where police officers are dealing with impaired individuals. This is not something upon which evidence is required. As with all cases, the court will not be deciding this case in a vacuum. Interveners with expert insight into the professional environment at issue may provide a helpful context within which the appeal will be decided.

[28] Finally, the respondent argues that the interveners – all police associations – will create an imbalanced perspective on appeal owing to the lack of input from other public interest groups who can raise countervailing policy-based considerations. The fact is that no other public interest groups sought to intervene on this appeal. Had they done so, those applications would have been heard at the same time as these ones.

[29] The interveners have a real, substantial, and identifiable interest in the subject matter of this appeal. Properly developed and constrained, their submissions will be relevant and useful to the court. In my view, no prejudice will be caused to the parties by granting the leave to intervene applications.

[30] Accordingly, the interveners are granted intervener status as friends of the court on the following terms:

I. The interveners may each file a factum of up to ten (10) pages in length. II. The interveners’ factums shall be filed not later than January 7, 2022. III. To account for any new arguments that may need responding to, the respondent’s factum may be up to an additional 10 pages in length. IV. The interveners shall not raise new issues or adduce any new evidence. V. The interveners shall not supplement the record or make any submissions on the merits of the appeal. VI. The time allowed for oral argument, if any, shall not be decided until the interveners’ factums have been filed and considered. VII. There shall be no costs awarded for or against the interveners on this application or on the appeal proper.

[31] Applications granted.

“Fairburn A.C.J.O.”