C.M. v York Regional Police, 2019 ONSC 7220
CITATION: C.M. v York Regional Police, 2019 ONSC 7220
DIVISIONAL COURT FILE NO.: DC-125/19
DATE: 20191213
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, MYERS, and O’BONSAWIN JJ.
BETWEEN:
C.M.
Applicant
– and –
YORK REGIONAL POLICE
Respondent
– and –
THE CRIMINAL LAWYERS’ ASSOCIATION
Intervenor
– and –
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervenor
Nader R. Hasan and Justin Safayeni, for C.M.
Melissa Insanic, for York Regional Police
M. Bojanowska, for The Criminal Lawyers’ Association
Robert A. Centa and Glynnis Hawe, for The Canadian Civil Liberties Association
HEARD at Toronto: November 28, 2019
REASONS FOR DECISION
F.L. Myers J.
This Proceeding
[1] C.M. seeks judicial review of the decision of York Regional Police to include information in a Police Vulnerable Sector Check (“PVS Check”) concerning a criminal charge that was withdrawn seven years ago. He asks the court to set aside the decision and order the police to release a PVS Check that does not contain any reference to the withdrawn charge.
[2] The respondent York Regional Police disagrees and submits that its decision was reasonable. It also asserts that because it is the body that is charged with protecting vulnerable members of the public whom a PVS Check is intended to protect, the court should not substitute its own view on the merits even if the decision is set aside. Rather, if the decision is set aside, York Regional Police asks the court to remit the matter back to it for re-hearing.
[3] Two intervenors were granted permission to participate in this proceeding to advance administrative law arguments rather than any position on the merits as between the parties. The Criminal Lawyers’ Association advances the principal submission that in responding to a request for a PVS Check, the police are not entitled to consider or have any regard to undisclosed information about the applicant that was not the subject of any criminal charges. It also submits that the police should not be entitled to disclose in PVS checks charges that were withdrawn as part of a plea bargain. Counsel argued that doing so may undermine the considerations that went into the plea bargain and interfere with counsel’s ability to represent and advise her client. The Canadian Civil Liberties Association submits that the PVS Check process must comply with basic and fundamental principles of natural justice and procedural fairness as set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC).
[4] For the reasons set out below, I set aside the decision of York Regional Police dated December 21, 2018 and remit the application for reconsideration to the “police record check provider” under s.1(1) of the Police Record Checks Reform Act, 2015, SO 2015, c.30 (the “PRCR Act”) for decision in accordance with s.10 of that statute.
Background
[5] In August, 2011 the police charged C.M. with sexual assault contrary to s.271(1) of the Criminal Code, RSC 1985, c C-46 and sexual interference with a person under 16 years of age contrary to s.151 of the statute. At the time, C.M. was employed as a counsellor at a summer day camp. The charges related to an incident between C.M. and a seven-year-old camper under his supervision.
[6] The police also received complaints that C.M. had engaged in inappropriate, sexualized behaviour towards three other children at the camp within several days of the event that had resulted in the criminal charges against him. The children were ages eight, nine, and 11 respectively. These allegations were recorded by the police in documents referred to as “occurrence reports”. No charges were laid against C.M. as a result of these incidents. Moreover, there is no evidence that the occurrence reports were ever disclosed to C.M., his criminal lawyer, or to the Crown Attorney who prosecuted the criminal charges at the time.
[7] In 2011, C.M. was 18 years old. He suffered and suffers from diagnosed mental health and neurodevelopmental challenges. His medical treatment required him to take several medications to assist him in his daily life. One of his medications had a potential side effect of causing seizures. Some time prior to the incidents, C.M. suffered a grand mal seizure. Accordingly, under his doctor’s care, C.M. adjusted his medications. All four of the incidents referred to above occurred during an 11-day period during which C.M. was not taking a full dose of the medication that had likely caused his seizure. His treating psychiatrist reported at the time:
I believe strongly that had he never had the single seizure and consequently stayed on the full complement of medication treatment which helped curb his impulsivity and facilitated his executive functioning, this adverse behavioural situation would not have occurred.
[8] After significant pre-trial engagement with the trial judge, the Newmarket Crown Attorney and C.M.’s counsel agreed upon a plea bargain under which the charge of sexual interference was withdrawn and rather than pleading guilty to sexual assault, C.M. pleaded guilty to the lesser and included charge of common assault. The trial judge accepted a joint submission on sentence of a conditional discharge.
[9] The Crown Attorney and the judge were satisfied that C.M. did not present a danger to the public. The sentence of a discharge was agreed upon principally to protect C.M. from the negative effects of a criminal record on his future employment prospects. The Crown Attorney specifically submitted to the court that he was satisfied that C.M. was not a person who seemed likely to re-offend.
[10] C.M. is now 26 years old. He continues to deal with his challenges but he has had no further interaction with the criminal justice system. Updated psychological assessments identify no basis for concern for a repetition of the events that occurred when he was under-medicated for a time eight years ago. His treating psychologist reports that he has learned to manage his impulsivity and that he has a great deal of shame and guilt over his offence.
[11] C.M. graduated from high school and enrolled in a community college. He was not successful in that endeavour. In the spring of 2018, he decided to apply for a course in technical production in the performing arts at a community college. C.M. likes drama and is hopeful that his interest will help motivate him to achieve academic success and acquire marketable job skills in his favoured area.
[12] To qualify for admission to the college course, C.M. was required to demonstrate his interest by volunteering in a drama-related program or setting. C.M. applied for a volunteer position at a local theatre. The theatre requires applicants to obtain a PVS Check.
[13] A PVS Check is a form of partial criminal record search available under s.6.3(3) of the Criminal Records Act, RSC 1985, c C-47. A PVS Check provides a focused reference on whether the applicant has any criminal past specifically involving vulnerable people like children and those in a position of dependence upon others.
[14] C.M. applied to York Regional Police for a PVS Check as required by the theatre as a condition of allowing him to volunteer in its programs. In June, 2018, C.M. received his PVS Check. It made no reference to the assault charge to which he pleaded guilty. It is common ground that under s.6(1)(b) of the Criminal Records Act, police may not disclose any record of a conditional discharge after more than three years have elapsed since the day on which the offender was sentenced.
[15] However, York Regional Police included in C.M.’s PVS Check a reference to the sexual interference charge that had been withdrawn as part of the plea bargain.
[16] C.M. submitted a request for reconsideration and asked for the removal of the reference to the withdrawn charge from the PVS Check. His counsel included with the request for reconsideration a significant amount of material concerning the details of the plea bargain, his medical records from that time, and updated psychological information. Counsel made factual and legal arguments submitting that the applicable policies and guidelines prohibited the inclusion in PVS Checks of information about charges that had not resulted in convictions.
[17] By letter dated December 21, 2018, York Regional Police denied C.M.’s reconsideration request. After providing some rote information about security checks the entire operative body of the letter provides:
When considering a request for reconsideration, York Regional Police takes the following criteria into account:
Date of the incident;
Age of the applicant at the time of the incident;
Information available that relates to the applicant including, if available Crown notes;
Details of the incident including any written information provided by the applicant or others who had contact with the individual at the time of the incident if available.
We have also reviewed our use of the Exceptional Disclosure Assessment Tool as outlined in section 9 of the Guidelines.[^1] In accordance with our policy and the Guidelines, a [PVS Check] may include non-conviction information in exceptional cases where the non-conviction record gives rise to a concrete and compelling concern for the safety of vulnerable persons. Please note that as part of the process, we have taken into consideration the incident that resulted in the charge in question as well as three additional incidents involving allegations of inappropriate sexual conduct by [C.M.] against children aged 8, 9 and 11 years at the same day camp where [C.M.] was employed as a counsellor.
Having reviewed your correspondence and the materials relating to the above incident, it is our respectful opinion that the decision to disclose the non-conviction in your clients [PVS Check] is reasonable in all of the circumstances. As a result your request to exclude the aforementioned non-conviction from [C.M.’s PVS Check] is respectfully declined.
[18] Counsel for C.M. objected to the use by the police of the three other alleged incidents in the reconsideration process. The occurrence reports relating to those incidents had not been disclosed to C.M. He had no opportunity to address the allegations that they contained or to know the case made against him. York Regional Police only disclosed the three occurrence reports to C.M.’s counsel in correspondence exchanged after the reconsideration decision was released.
[19] York Regional Police also disclosed in that correspondence that the decision-makers had consulted with the officer responsible for investigating C.M.’s criminal case. She was also the officer who was in charge of the handling of the other three alleged incidents. Apart from noting that the investigating officer agreed with the reconsideration decision, the content of the communications among the decision-makers and the officer were not recorded or disclosed to C.M.
[20] C.M. also made a request for information about the reconsideration process under freedom of information procedures. Further information was disclosed to C.M. in response to this request. The court raised a concern with the scope of the information disclosed to C.M. in response to his freedom of information request. Some of the information disclosed appears to violate the rule of deliberative secrecy. Lax J. confirmed in Noble China Inc. v. Lei, 1998 14708 (ON SC), that the rule applies to administrative decision-makers. She described the rule in this way:
The rule on deliberative secrecy
The confidentiality principle or the rule on deliberative secrecy has always been regarded as a hallmark of judicial independence and one worthy of protection. It was reaffirmed by the Supreme Court of Canada in MacKeigan v. Hickman, 1989 40 (SCC), [1989] 2 S.C.R. 796, 61 D.L.R. (4th) 688 in regard to judicial immunity. There, Madam Justice McLachlin observed at p. 830 S.C.R., p. 720 D.L.R., that the principle of judicial immunity articulated in the early case of Knowles' Trial (1692), 12 How. St. Tr. 1167 has, in subsequent cases, affirmed the immunity of judges from compulsion to testify about judicial proceedings in which they have been involved. One of the subsequent cases referred to by Madam Justice McLachlin is Duke of Buccleuch v. Metropolitan Board of Works (1872), L.R. 5 H.L. 418. Another is Agnew v. Ontario Assn. of Architects (1987), 1987 4030 (ON SC), 64 O.R. (2d) 8, 26 O.A.C. 354 (Div. Ct.). Both concerned the issuance of summonses to adjudicators; in the first, to a statutorily appointed arbitrator; and in the second, to members of a professional licensing commission.
[21] In this decision, I have ignored information that was disclosed to the parties regarding communication among the decision-makers that appears to violate the rule of deliberative secrecy.
The LEARN Guidelines
[22] The LEARN Guidelines were published by the Ontario Association of Chiefs of Police in 2014. They were an attempt to standardize practices across the province for various types of police record checks including PVS Checks. The LEARN Guidelines were the product of study that included wide industry consultation. The opening paragraph describing the genesis of the LEARN Guidelines publication is very instructive:
There is an increasing demand for police record checks, both in the private and voluntary sectors. Canadian academics researching the impact of releasing police contact and non-conviction records have found that the disclosure of these records is serving as a barrier in areas as diverse as employment, volunteer and educational opportunities, housing, public assistance, insurance, and immigration. This occurs because employers, volunteer coordinators, educators, and others, who are receiving and making decisions based on non-conviction entries, frequently do not understand what a police contact or non-record is, and have little or no guidance as to how this information should factor into their decision-making process. The result is that many organizations adopt the most risk-averse position, automatically disqualifying a wide range of individuals solely on the basis of these records.
Our objective has been to find the right balance between providing information for the safety of our communities and protecting the privacy, human rights, and presumption of innocence of individuals. [Emphasis added.]
[23] C.M.’s concern in this case is precisely encapsulated in the foregoing paragraphs. He fears that no one will hire him or let him volunteer with the report in his PVS Check of a charge of sexual interference with a child. While some might say that it is open to C.M. to explain the entry to potential employers or volunteer coordinators, he submits that in the real world it would be highly challenging if not impossible to overcome the negative reference. The effect of the reference to the withdrawn charge in his PVS Check, C.M. argues, is to leave him unable to qualify for education and employment in the field in which he hopes to spend his adult life working productively. This is the very type of barrier that led to the LEARN Guidelines being developed.
[24] The LEARN Guidelines set out a very strict and narrow test for the inclusion of information in PVS Checks about criminal charges that did not lead to convictions. In arriving at this construct, the Guidelines balanced competing factors including protecting public safety, protecting vulnerable people, respecting the presumption of innocence, and avoiding creating discriminatory barriers to employment and similar fundamental elements of a free society.
[25] The chapter of the LEARN Guidelines relating to PVS Checks is premised on an initial decision about what to include in a PVS Check being made by a police officer in the ordinary course under the Criminal Records Act. If the applicant objects to a withdrawn charge being included in a PVS Check, the LEARN Guidelines provide for the applicant to make a request for reconsideration to a panel of senior officers.
[26] The reconsideration process outlined in the LEARN Guidelines involves a consideration of specifically listed issues by the panel at first instance. It is not an appeal from the police officer who made the initial disclosure decision.
[27] The LEARN Guidelines provide for the reconsideration decision-makers to consider the four factors set out in the respondent’s letter listed above. It then describes the considerations for the release of non-conviction information (i.e. charges that did not result in a conviction) in a PVS Check:
In exceptional circumstances, non-convictions may be considered for release on a [PVS Check]. These cases should rarely arise, and the vast majority of record checks should be processed according to the presumption of innocence enshrined in the Canadian Charter of Rights and Freedoms [S. 11(d))] and not disclosed.
There may be specific, exceptional cases where a non-conviction record gives rise to concrete and compelling concern for the safety of vulnerable persons. Concerns were expressed with two categories of predatory crimes: child sexual predators and fraud schemes targeting the elderly or otherwise vulnerable persons.
Recent non-conviction records that show a clear, evidenced pattern of alleged predation of vulnerable persons, sexually or financially, may meet the threshold for disclosure. The focus of this assessment should not be based on general behavior [sic] prediction, but rather identifying those who knowingly target vulnerable persons to facilitate the commission of these types of criminal acts. [Emphasis added.]
[28] The respondent found that C.M.’s situation met the test for disclosure in the LEARN Guidelines and upheld the decision to disclose the criminal charge of sexual interference that was withdrawn when C.M. pleaded guilty to assault.
Grounds for Judicial Review
[29] C.M. submits that his sexual interference charge cannot possibly meet the very narrow test for disclosure of non-conviction information described in the LEARN Guidelines. The charge was withdrawn after detailed consideration by the Crown Attorney and the court for the very purpose of protecting his future employment prospects from the barrier of a criminal record. He argues that there is simply no reasonable way in light of the result
of the criminal charges, his progress since then, and the current medical assessments, that the police can hold a concrete and compelling concern that he presents a rare and exceptional case of a predator who knowingly targets children for sexual crimes under the LEARN Guidelines.
[30] More particularly, C.M. submits that the reconsideration decision by York Regional Police to include reference to the withdrawn charge in his PVS Check is unreasonable because:
a. The police were not entitled to use the information about other incidents in the three undisclosed occurrence reports as part of their assessment under the LEARN Guidelines;
b. The police failed to apply the PRCR Act that came into force before the reconsideration decision was released;
c. The police misapprehended the applicable test under the LEARN Guidelines as they could not have reasonably concluded that he fit the rare and narrow exception from the general prohibition against disclosing non-conviction information in PVS Checks; and
d. The process followed by the police was not fair.
[31] York Regional Police submit that the decision-makers were entitled to consider all information regarding C.M. in their files including the undisclosed occurrence reports.
[32] On the second point, York Regional Police submit that the PRCR Act is not retrospective and therefore it did not apply to the reconsideration decision in this case. The decision-makers applied the LEARN Guidelines and not the PRCR Act. The decision-makers did not meet the definition of “police record check providers” under s.1(1) of the PRCR Act. Counsel for York Regional Police conceded that if the court finds that the PRCR Act applied at the time of its reconsideration decision, then the decision must be set aside as it was not taken under the statute. There is no decision under the PRCR Act yet.
[33] On the remaining two grounds, York Regional Police submit that its decision was reasonable and that the process that it utilized met the minimal standard of fair procedure that it was required to provide to C.M.
Jurisdiction
[34] This court has jurisdiction to review the respondent’s decision under s.2(1) of the Judicial Review Procedure Act, RSO 1990, c J.1.
Standard of Review
[35] I assume that the standard by which the court assesses the respondent’s decision in this case is one of reasonableness. That means that the court will consider whether in the reconsideration decision dated December 21, 2018, the decision-makers disclose sufficient justification, transparency, and intelligibility in their decision-making process. The court will consider whether the decision falls within a range of possible, acceptable outcomes which are defensible on the facts of the case and the applicable law. See: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[36] In Queensway Excavating & Landscaping Ltd v. Toronto (City), 2019 ONSC 5860, at para. 60, this court recently reiterated that there is no standard of review analysis necessary on the issue of procedural fairness. Either C.M. was provided with procedural fairness or he was not. See: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11.
Procedural Fairness
[37] Regardless of what information the decision-makers were entitled to consider, they were always subject to an overriding and fundamental duty to protect C.M.’s rights to notice of the case he had to meet, to make submissions on the information that was being considered by the decision-makers, and to participate in a fair and meaningful decision-making process. And this they did not do.
[38] At para. 62 of the Queensway decision, Ellies RSJ discussed the determination of the scope of the duty of fairness owed by a decision-maker:
The nature of the duty of procedural fairness varies with the context in which the administrative decision is being made: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 21. In Baker, the Supreme Court identified five factors important to determining the content of the duty of fairness in the context of a particular administrative decision, namely:
(1) the nature of the decision being made, (2) the nature and terms of the statutory scheme involved and the role of the decision within that scheme, (3) the importance of the decision to the affected party, (4) the legitimate expectations of the affected party, and (5) the decision maker's choice of procedure.
[39] My analysis of the Baker factors follows.
Factors (1) and (3) – The Nature and Importance of the Decision
[40] I have already quoted from the opening section of the LEARN Guidelines discussing the widespread consensus on the importance of police record checks. It noted specifically that including non-conviction information in PVS Checks creates risks to peoples’ “employment, volunteer and educational opportunities, housing, public assistance, insurance, and immigration”.
[41] The decisions at issue therefore involve vitally important aspects of peoples’ lives. In Kalo v Winnipeg (City of) on behalf of Winnipeg Police Service, 2018 MBQB 68, Lanchbery J. describes a person’s interest in their PVS Check as “exceptionally high”. In Henri v. Canada (Attorney General), 2016 FCA 38, the Federal Court of Appeal characterized a person’s interest in a security clearance check associated with an application for employment as being “of enormous personal importance”.
[42] In Wallace v. United Grain Growers Ltd., 1997 332 (SCC), at paras. 93 and 94, the Supreme Court of Canada emphasized the importance of employment in this way:
[93] …The vulnerability of employees is underscored by the level of importance which our society attaches to employment. As Dickson C.J. noted in Reference Re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, at p. 368:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
[94] Thus, for most people, work is one of the defining features of their lives. Accordingly, any change in a person's employment status is bound to have far-reaching repercussions.
[43] In my view, the reconsideration decision at issue in this case is situated at the high end of importance under the first and third Baker factors.
Factor (2) – The Statutory Scheme
[44] In this case the reconsideration decision was made under LEARN Guidelines that did not have statutory force. I will say more about the PRCR Act below. The LEARN Guidelines themselves make clear the importance of the issues to the individuals involved and the barriers erected by misunderstanding and misuse of PVS Checks in society at large. While the LEARN Guidelines call for an initial decision that is not bounded by formal process, the reconsideration decision takes the opposite approach. It explicitly provides for participation by the applicant for the PVS Check and positively requires the decision-makers to consider information submitted by him or her. The Guidelines continue:
The reconsideration process should be clear, transparent and available to the public in areas such as the front counters of police divisions, web-site etc.
[45] While not requiring an oral hearing resembling a court process, a transparent process that provides for input of the person affected is contemplated for the purposes of the second Baker factor.
Factor (4) – Reasonable Expectations
[46] As counsel to the Canadian Civil Liberties Association submitted, there is some basis for people engaged in the process to expect fair treatment in light of the explicit references to the LEARN Guidelines in the PVS Check document itself and the transparency provided by the publication of the LEARN Guidelines on the relevant pages of the police website and otherwise.
[47] This fourth Baker factor strikes me as occupying a less significant place in the overall balancing under consideration in this case however. There is no indication on the facts of this case of any specific expectation being violated apart from the fundamental question of notice that is dealt with principally by the other factors.
Factor (5) – The Process Utilized by the Decision-Maker
[48] In this case, the decision-makers spoke to the investigating officer and reviewed the three occurrence reports in order to satisfy themselves that this was the “exceptional case where the non-conviction record gives rise to a concrete and compelling concern for the safety of vulnerable persons” as found. But they made these inquiries without any notice to the applicant.
[49] At para. 71 of the Queensway decision of this court, Ellies RSJ wrote:
Perhaps the most important aspect of the duty of procedural fairness is the right to be heard before a decision is made. This is a requirement at even the lowest levels of procedural fairness: Mavi v. Canada (Attorney General), 2011 SCC 30, 2 S.C.R. 504, at para. 11.
[50] A party who is entitled to notice to participate in a decision-making process is entitled to do so effectively. He or she is entitled to notice of the case against him or her. The party is entitled to know and be heard on all the relevant issues and information before the decision-makers. Requiring a fair and meaningful process does not mean that the party will always succeed. But notice of administrative decision-making that affects peoples’ rights, benefits, and interests is not just for show. It is to ensure that the decision-makers are apprised of all the relevant facts and issues before they make their decision.
[51] In Kane v. Bd. of Governors of U.B.C., 1980 10 (SCC), the Supreme Court of Canada made the point this way:
- It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellate authority must not hold private interviews with witnesses (de Smith, Judicial Review of Administrative Action (3rd. ed.) 179) or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya, [1962] A.C. 322 at p. 337, " ... know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. ... Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other."
Outcome of Baker Analysis
[52] Considering all the Baker factors, I agree with Mr. Centa’s submission that for C.M. to vindicate even the most minimal right to notice and to participate meaningfully in a fair process, he was entitled to know all the information that the decision-makers had before them and to make submissions on that information.
[53] Mr. Centa made another important point that requires comment. In R. v. Grant, 2009 SCC 32, at para. 154, the Supreme Court of Canada cautioned that, “[a] growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified “low visibility” police interventions in their lives.” That is, as visible minorities and vulnerable people are at risk of having more contacts with the police, it follows that they are at risk of having more non-conviction information about them in police databases.
[54] Mr. Centa submits that the social context of the issues in this case makes the need for transparency and fair process even more important. The practice at issue risks prejudicially impacting visible minorities and those in vulnerable communities - including those with mental health issues like C.M. - by increasing disproportionately the existing barriers that they already face. That is, because some groups have more contacts with the police generally, the police have collected or generated more non-conviction information about them. This increases the risk that those who already face discriminatory barriers to full participation in our society will also be more at risk of adverse outcomes in PVS Checks as well.
[55] In my view, disadvantaged groups face a double whammy as one potentially prejudicial outcome is layered upon another to further increase existing discriminatory barriers. Mr. Centa submits that this concern does not require a special test that depends on the status of the applicant. Rather, he asks for recognition of the fact that the process has a real potential of an invidious and prejudicial impact on disadvantaged people to bolster the importance and need for a transparent and fair process. I agree.
[56] It follows that the reconsideration decision of York Regional Police dated December 21, 2018 must be set aside.
Reasonableness
[57] Apart from the procedural concerns, in my view, the reconsideration decision dated December 21, 2018 does not meet the requirements of intelligibility, transparency, and justifiability set out in Dunsmuir. I say this with reference as well to the requirement from Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, that the court consider not just the reasons provided by the decision-maker but the background circumstances and the record as well.
[58] The respondent provided no reasoning as to how it found C.M. to meet the conditions of the LEARN Guidelines that it said it was enforcing. It simply made an assertion and then found the notion “reasonable”. I see it as incongruous that the decision-makers used the impact of three occurrence reports and a discussion with the investigating police officer to justify a conclusion on the withdrawn charge. I see no path of reasoning in the record by which the decision-makers reached the conclusions required by the LEARN Guidelines that this is a “rare” and “exceptional” case in which “recent non-conviction information” shows a “clear, evidenced pattern of alleged predation” not just in C.M.’s general behaviour but that the record provides a “concrete and compelling concern” that he “knowingly target[s] vulnerable persons to facilitate the commission of these types of criminal acts”.
[59] To be clear however, I am not finding that C.M. does not meet the LEARN Guidelines for disclosure of non-conviction information. That task is not assigned to me. It is for the police to make the appropriate inquiries and reach appropriate conclusions under their assigned mandate. I make no finding about what a decision-maker properly instructed might or might not find. My finding, as a reviewing court, is that in what has been presented in the record I see no path that might have been followed by the decision-makers to reach the conclusions that they reached in the December 21, 2018 reconsideration decision.
[60] It follows therefore that the reconsideration decision dated December 21, 2018 must be set aside on this ground too.
Remedy
[61] C.M. also raises an issue about the proper remedy in this application. He submits that this case presents a binary outcome; either his withdrawn charge stays in the PVS Check or it comes out. He therefore submits that if the court accepts his submissions and sets aside the reconsideration decision, the court should substitute its own decision requiring York Regional Police to issue a PVS Check that does not mention the withdrawn charge.
[62] C.M. argues that sending the matter back to the respondent for further consideration will further delay his situation of educational limbo and cause him distress that is unnecessary since the binary outcome is certain in any event.
[63] York Regional Police argues that this is not a proper case for the court to substitute its own decision. Rather, it submits that the court should remit C.M.’s request to it for further consideration under the LEARN Guidelines or the PRCR Act as appropriate.
There Should be a Decision under the PRCR Act
[64] The PRCR Act came into force November 1, 2018. The statute became effective after C.M. applied for reconsideration but before the reconsideration decision of December 21, 2018. The statute deals expressly with reconsideration of decisions to disclose non-conviction information in PVS Checks. It is common ground among the parties, that while phrased slightly differently in places, the LEARN Guidelines served as the template for the relevant provisions of the PRCR Act. There is no material difference in the substance of the issues that were before the decision-makers before or after the proclamation of the PRCR Act.
[65] However, s.1(1) of the PRCR Act requires the appointment of a delegate of the Chief of Police or other identified individuals, whom it defines as a “police record check provider,” to be the principal decision-maker. The statute sets out specific consultations that the “police record check provider” must make to arrive at a reconsideration decision. Counsel for York Regional Police concedes that the decision-makers in this case were not the people required by the PRCR Act.
[66] The Court of Appeal has determined that when a statutory amendment changes the identity of an administrative decision-maker but not the substance of the decision, it is procedural only and therefore it applies immediately to cases that are already ongoing. In addition, as the PRCR Act does not prejudice the existing rights and obligations of any party, it falls into an exception to the principle against retrospectivity. See: Peel (Police) v Ontario (Special Investigations Unit), 2012 ONCA 292, at paras 73 and 80; and R. v. R.S., 2019 ONCA 906, at para.27.
[67] Whether phrased as meeting the presumption that a procedural statute applies immediately or as an exception to the presumption against retrospectivity, I find that the PRCR Act applied to the reconsideration decision. No decision has been made under the statute as yet. Therefore, the reconsideration decision dated December 21, 2018 must be set aside on this basis as well.
[68] As a result, there is no decision properly before the court for review. On a re-hearing, the proper decision-makers will make their decisions informed by the proper inputs in a fair process. If judicial review is then sought by either side, the court will have a considered decision for review. This is the proper paradigm for administrative decision-making and judicial review. The person whom the Legislature wishes to exercise the statutory power of decision should do so. Until a proper decision is made, it is premature for this court to consider the issues.
Were the Decision-Makers entitled to consider the Three Occurrence Reports?
[69] Much of the argument made on behalf of C.M. at the hearing before us concerned the issue of whether the decision-makers under the LEARN Guidelines were entitled to consider and rely upon untested information in the three undisclosed occurrence reports and the information provided by the investigating officer. Argument focused on the precise wording of the LEARN Guidelines as contrasted to sections of the PRCR Act and a regulation enacted under the statute.
[70] In my view, this is an issue for the proper decision-maker to decide under the PRCR Act with fair input from C.M. This is but one of several issues that arise under the PRCR Act that have yet to be heard and decided. Another issue raised at the hearing in court, for example, was whether the fact that the Criminal Records Act prohibits the disclosure of C.M.’s conditional discharge renders absurd an interpretation of the PRCR Act that allows disclosure of a charge arising out of the same incident that the Crown Attorney saw fit to withdraw.
[71] The outcome remains to be decided under the PRCR Act. The decision-makers’ path of reasoning involving the foregoing and other issues remains for determination.
[72] Therefore, this is not the type of exceptional case in which this court can confidently determine that there is only one possible outcome available were the matter to be remitted to the decision-maker for re-hearing. I cannot find that a re-hearing would be “pointless” as was the case in 2274659 Ontario Inc. v Canada Chrome Corporation, 2016 ONCA 145, at para. 69 to 72.
Order
[73] The reconsideration decision of the respondent dated December 21, 2018 to disclose non-conviction information in C.M.’s PVS Check is set aside. I remit C.M.’s reconsideration application to the police record check provider under s.1(1) of the PRCR Act for decision in accordance with s.10 of that statute.
Costs
[74] It was a term of the order granting the intervenors the right to participate that they have no entitlement to nor liability for costs. Therefore, none is ordered.
[75] As to the parties, C.M.’s counsel provided the court with their Costs Outline at the hearing of the application. Counsel for York Regional Police did not bring a Costs Outline to the hearing despite being required to do so by Rule 57.01(6).
[76] Under the normative approach in Ontario, costs are presumptively awarded to the successful party on a partial indemnity basis. The Divisional Court operates on the expectation that counsel for the parties will settle costs. The likely outcomes are well understood. Counsel are requested to advise the registrar when they settle costs.
[77] If counsel cannot lead their clients to resolution, the respondent may submit no more than three pages of submissions on costs by December 31, 2019. If the respondent chooses to deliver costs submissions, counsel shall include a copy of her Costs Outline as well.
F.L. Myers J.
I agree _______________________________
Kiteley J.
I agree _______________________________
O’Bonsawin J.
Release Date: December 13, 2019
CITATION: C.M. v York regional Police, 2019 ONSC 7220
DIVISIONAL COURT FILE NO.: DC-125/19
DATE: 20191213
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, MYERS. and O’BONSAWIN JJ.
BETWEEN:
C.M.
Applicant
– and –
YORK REGIONAL POLICE
Respondent
– and –
THE CRIMINAL LAWYERS’ ASSOCIATION
Intervenor
– and –
THE CANADIAN CIVIL LIBERTIES ASSOCIATION
Intervenor
REASONS FOR JUDGMENT
F.L. Myers J
Released: December 13, 2019
[^1]: The Guidelines referred to are the Law Enforcement and Records (Managers) Network, Guideline for Police Record Checks, dated March 28, 2011 (the “LEARN Guidelines”) that are discussed below.