Lochner v. Ontario Civilian Police Commission, 2019 ONSC 458

CITATION: Lochner v. Ontario Civilian Police Commission, 2019 ONSC 458

DIVISIONAL COURT FILE NO.: 621/18

DATE: 20190117

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: silvano lochner, Applicant

AND:

ontario civilian complaints commission, Respondent

BEFORE: Swinton, Corbett and Doyle JJ.

COUNSEL: Silvano Lochner in person

Matthew Peachey and Gun Koleoglu, for the Respondent

HEARD at Toronto: January 16, 2019

ENDORSEMENT

The Court

[1] The applicant seeks judicial review of a decision of the Ontario Civilian Police Commission (the “Commission”) dated August 27, 2018 in which the Commission refused to investigate police officer conduct in an incident in which the applicant’s brother was tasered on August 11, 2006.

[2] Pursuant to s. 25(1) of the Police Services Act, R.S.O. 1990, c. P.15 (as it appeared on December 21, 2008), specific parties, such as the Solicitor General, have the right to request an investigation of police conduct by the Commission. Otherwise, the Commission has the discretion whether to commence an investigation into the conduct of a police officer. An individual citizen like the applicant has no right to request a public investigation.

[3] Assuming, without deciding, that the applicant has standing to bring this application for judicial review and that declaratory relief would be available to him if he were successful, we nevertheless conclude that this application has no merit. The Commission reasonably exercised its discretion not to proceed with an investigation, given the time that has passed since the initial event and the extensive airing these issues have had in prior court proceedings.

[4] The Commission did not err in its treatment of Molloy J.’s decision (Lochner v. Ontario (Attorney General), 2018 ONSC 2994 (S.C.J.)). Molloy J. did not make a factual finding that there were three tasers deployed against the applicant’s brother. However, she did find that the remedy of mandamus sought in the proceeding before her would be inappropriate, as the proceeding was an abuse of process. We note that the Court of Appeal has dismissed an appeal from that decision in December 2018 for the reasons of Molloy J. and the Justice of the Peace whose decision was under review.

[5] Nor did the Commission err in its treatment of an Ambulance Call Report made on the night of the incident or the Hendrikse report. As the applicant argued before us, the Ambulance Call Report would likely be admissible in evidence in a court of law (see Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608). The Commission did not find otherwise. Rather, it found that “this solitary note is not sufficient evidence to justify a formal investigation.” This conclusion is reasonable.

[6] The Hendrikse report is not evidence of the number of tasers deployed against the applicant’s brother, which is clear on the face of the report.

[7] There is no basis to support the applicant’s allegations that the Commission acted for an improper purpose and tried to cover up police wrongdoing.

[8] The Commission’s decision was entirely consistent with its public interest mandate and within a range of reasonable outcomes, given the circumstances of this case.

[9] Accordingly, the application for judicial review is dismissed. Costs to the respondent fixed at $500.00 all inclusive.

Swinton J.

Corbett J.

Doyle J.

Date: January 17, 2019