Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180
CITATION: Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180
DIVISIONAL COURT FILE NO.: DC-16-612-JR
DATE: 20190108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Morawetz R.S.J., Mullins and Matheson JJ.
BETWEEN:
Faye Stanley, Yasin Stanley, Yusuf Stanley and Taufiq Stanley
Applicants
– and –
Chief of Police of the Toronto Police Service, Office of the Independent Police Review Director and Constable Christopher Howes
Respondents
Selwyn A. Pieters, for the Applicants
Alexandra D. Ciobotaru, for the Respondent, Chief of Police of the Toronto Police Service
Jean Iu, for the Respondent, Office of The Independent Police Review Director
Lawrence Gridin, for the Respondent, Constable Christopher Howes
HEARD at Toronto: October 29, 2018
REASONS FOR DECISION
MULLINS J.
[1] This is an application for judicial review of the decision of the Director of the Office of the Independent Police Review dated December 10, 2015. The Applicants ask that this decision be quashed, that the Director’s decision of March 4, 2015 be reinstated and that there be a referral to the Toronto Police Service (“TPS”) for a disciplinary hearing regarding the conduct of Constable Christopher Howes under the Police Services Act, R.S.O. 1990, c. P-15 and the Office of the Independent Police Review Director Rules of Procedure.
[2] Complaints were filed on July 3, 2014 at the Office of the Independent Police Review Director (“OIPRD”) by and on behalf of Faye Stanley and her three sons, who are the Applicants in this proceeding. The complaints arose from the circumstances under which a search warrant was executed at the Stanley home in the early morning hours of April 25, 2014.
[3] On March 4, 2015, the Director wrote to the Applicants saying that he had completed his investigation, concluded that there was evidence of misconduct regarding Constable Howes and that the findings regarding this officer would be forwarded to the Chief of TPS for adjudication.
[4] Two months later, the Director wrote to the Applicants indicating that since his decision of March 4, 2015, it had been brought to his attention that there may be inaccuracies in his report. As well, the allegation regarding the search warrant had not been fully investigated. The Director indicated that he had decided to re-open his investigation, but he did not disclose to the Applicants that it was the TPS that had raised inaccuracies with him nor that he had had discussions with TPS about changing his decision. This information came to the Applicants’ attention in these court proceedings.
[5] The Director released a second decision on December 10, 2015. That decision, which is challenged in this application, found that all of the issues raised in the Applicants’ complaints were unsubstantiated, including those against Constable Howes.
Background
[6] On April 25, 2014, the Emergency Task Force and the Guns and Gangs Task Force of the TPS executed a search warrant at the Applicants’ home. The police had received information that there was a firearm located at the home. None were found.
[7] There is significant dispute about the conduct of the officers during the execution of the search warrant. The Applicants claimed that Constable Howes had stomped twice on Yasin Stanley’s head/neck while he lay prostrate on the ground with his hands handcuffed behind his back. Constable Howes’ account was that Yasin was not handcuffed at the time and he used force once by using his foot to push Yasin’s head back to the ground as Yasin tried to lift himself from the floor. Yasin was subsequently taken to hospital and released later that morning, having been diagnosed with a “contusion/minor head injury.”
[8] The complaints to the OIPRD included allegations that the officers destroyed property, physically assaulted and made deliberate attempts to humiliate two of the young men, uttered threats and used racial epithets toward at least one of them. As well, Ms. Stanley requested to see the search warrant at the time of the search and was shown only a one-page document, which referenced appendices that were not provided to her.
[9] The OIPRD conducted an investigation of the complaints. An Investigative Report was prepared, dated March 4, 2015. As set out in the report, there was sufficient evidence to conclude that Constable Howes had committed misconduct and therefore the allegation of unnecessary exercise of authority against him was substantiated. All of the other allegations could not be substantiated.
[10] On March 4, 2015, the Director wrote to the Applicants informing them that the investigation had been completed. He indicated that after “careful investigation” he found that there was evidence of misconduct regarding Constable Howes and the matter would be forwarded to the Chief of the TPS for adjudication. The Director further stated that the misconduct was of a serious nature.
[11] After the release of the March 4, 2015 decision, the OIPRD was contacted by Acting Inspector Russell Jarosz of the TPS, who raised concerns about the decision.
[12] The record before us does not contain a complete account of what transpired, however, it contains a letter from Acting Inspector Russell to the Director dated March 25, 2015 that begins as follows: “Thank you for revisiting your decision of March 4, 2015, in relation to Constable Christopher Howes….” The letter further refers to a telephone communication in which the Director told Acting Inspector Jarosz that “although the findings of misconduct against Constable Howes would not be altered,” the Director would allow the matter to be treated as “less serious” and therefore be eligible for disposition without a hearing. The record before us also includes an email dated April 15, 2015, which shows that there were further communications between these parties.
[13] Having been told by the TPS of alleged inaccuracies in his understanding of the evidence, the Director agreed to re-open the investigation. Reportedly, he found some areas of concern, namely that Constable Howes’ interview was not accurately summarized in the report.
[14] The Director wrote to the Applicants on May 6, 2015 notifying them that inaccuracies in the earlier report had been identified and that the Applicants’ complaints relating to the search warrant had not been fully investigated. The Director indicated that he would be re-opening the investigation and suspending all of his previous investigative findings. The Director did not disclose to the Applicants that it was the TPS that had raised inaccuracies with him nor that he had discussions with TPS about changing his decision.
[15] The OIPRD conducted second interviews with Faye Stanley, Constable Howes, and a Constable Balint and prepared an Addendum to the earlier Investigative Report dated September 22, 2015.
[16] On December 10, 2015, the Director wrote to the Applicants notifying them that the investigation was complete and he had concluded that all allegations of misconduct were unsubstantiated, including those against Constable Howes.
Delay
[17] This application was brought on December 22, 2016. The Respondents raised a preliminary objection that this application should be dismissed due to the delay of more than a year before it was commenced and further delay thereafter.
[18] The Applicants were originally represented by counsel at the African Canadian Legal Clinic, which was de-funded. The Applicants continued to pursue their complaints, ultimately retaining Mr. Selwyn Pieters, and the transfer took some time. It also appears that the Applicants were trying to have this matter adjudicated by the Human Rights Tribunal, which declined to consider their application. The evidence explaining the delay largely came from counsel, which ought not to be the normal approach, but it was based on matters of public record.
[19] The delay was lengthy. However, I note that there were no submissions advanced at the oral hearing that there was any actual prejudice arising from the delay. In this case, we are not prepared to exercise our discretion to dismiss this application for delay.
Issues
[20] The Applicants raised a number of issues, summarized as follows:
Whether the OIPRD had the authority to re-open the investigation and reconsider the decision of March 4, 2015;
Whether there was a breach of procedural fairness arising from the OIPRD’s dealings with the TPS in the course of reopening the investigation and changing the decision; and,
Whether the amended decision was reasonable regarding both Constable Howes and the search warrant.
[21] The search warrant issue is not properly before us. That issue involved another officer, not Constable Howes, who was not given notice of these proceedings. We are therefore not addressing that issue.
[22] As set out below, we conclude that the issue of procedural fairness determines the outcome of this application and we therefore need not address the remaining issues. For procedural fairness, the issue is whether or not the requisite level of procedural fairness was provided.
Procedural Fairness
[23] The Applicants submit that there was a breach of procedural fairness arising from the OIPRD’s handling of the inquiry from the TPS and failure to disclose how, or by whom, assertions of inconsistencies arose which, evidently, prompted the Director to re-open the investigation and re-consider his decision. It is apparent from the record before this Court that the TPS raised issues with the OIPRD and that there were discussions about changing the decision that had already been made and communicated to the Applicants. None of those discussions were disclosed.
[24] The OIPRD argues that the decision to re-open the investigation did not deny the Applicants procedural fairness since they were notified of the decision to re-open and permitted to participate insofar as one of the Applicants was interviewed again in the re-investigation. As well, the OIPRD states that the decision to re-open was not one that conclusively altered the outcome of the investigation. It was simply a decision to have a second look at the outcome. Further, the TPS submits that there is nothing improper about the TPS, as essentially the prosecutor moving forward with the adjudication, talking to the investigator without including the complainants. However, the record before us shows a discussion about the Director changing his decision, not about advancing the adjudication by the Chief of Police.
[25] Pursuant to s. 68(1) of the Police Services Act, the Independent Police Review Director is required to investigate every complaint retained by him or her and every investigation is to be reported in a written report. At the conclusion of the investigation, the Director must decide whether the complaints are substantiated or unsubstantiated.
[26] Under s. 68(3), if, at the conclusion of the investigation, the Director believes on reasonable grounds that the conduct of a police officer who is the subject of a complaint constitutes misconduct, the Director “shall refer the matter, together with the written report, to the chief of police of the police force to which the complaint relates.” Under s. 68(5)(6), the chief of police is then required to hold a hearing or, if the misconduct is not of a serious nature, the chief of police may deal with the matter informally.
[27] The investigation of the Applicants’ complaints resulted in a report of March 4, 2015 and a decision of the Director. In that decision, the Director indicated that after careful investigation he found that there was evidence of misconduct regarding Constable Howes and the matter would be forwarded to the Chief of the TPS for adjudication. Section 68 of the Act then provided for mandatory steps to be taken by the Chief of Police of the TPS. Instead, there were undisclosed discussions with the Director about changing his decision.
[28] As is emphasized by the name of the decision-maker, the Director of the Office of Independent Police Review was obliged to conduct an independent investigation and reach an independent decision. This independence is central to the OIPRD’s role in providing a public complaints system against police officers in Ontario: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824 (Div. Ct.), at para. 49. Here, in circumstances which belie the independence of the OIPRD, the Director had undisclosed discussions with the TPS about changing his decision and, ultimately, he did change his decision. These undisclosed communications give rise, at least, to an appearance of unfairness and compromise the independence of the Director.
[29] We therefore conclude that there was a breach of procedural fairness in reaching the decision that is challenged in this application for judicial review.
Order
[30] The Director’s decisions regarding the complaints relating to Constable Howes are quashed and those complaints shall be referred back to the OIPRD for a fresh investigation by an investigator other than those who were involved in the earlier investigations, report and decision by a Director’s delegate.
[31] The Applicants are not seeking costs.
Justice A.M. Mullins
I agree _________________________________
Regional Senior Justice G.B. Morawetz
I agree _________________________________
Justice W. Matheson
Released: January 8, 2019
CITATION: Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180
DIVISIONAL COURT FILE NO.: DC-16-612-JR
DATE: 20190108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Morawetz R.S.J., Mullins and Matheson JJ.
BETWEEN:
Faye Stanley, Yasin Stanley, Yusuf Stanley and Taufiq Stanley
Applicants
– and –
Chief of Police of the Toronto Police Service, Office of the Independent Police Review Director and Constable Christopher Howes
Respondents
REASONS FOR decision
Released: January 8, 2019