[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): Potter v. Office of The Independent Police Review Director, 2021 ONSC 1602
DIVISIONAL COURT FILE NO.: DC-20-2585 DATE: 20210305
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Before: Ellies R.S.J., Swinton and McCarthy JJ.
BETWEEN:
STEVEN G. POTTER
Steven G. Potter, self-represented
Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Carla Goncalves, for the Respondent
Respondent
HEARD at Ottawa (by videoconference): February 25, 2021
THE COURT
Overview
[1] The Applicant, Steven G. Potter, seeks judicial review of a decision of the Office of the Independent Police Review Director (“OIPRD”) dated January 27, 2020 that decided not to refer his complaint against the Ottawa Police Service (“OPS”) for investigation.
[2] For the reasons that follow, the application is dismissed, as the decision was reasonable.
The Legislative Context
[3] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario. Pursuant to s. 59 of the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), members of the public may make a complaint to the OIPRD about the policies or services provided by a police force or the conduct of a police officer. When a complaint is received, the staff review it to determine whether the complaint should be referred for investigation.
[4] There is a presumption that a complaint will be screened in unless it is screened out in accordance with the criteria found in s. 60 of the PSA. For example, a complaint may be screened out if it is brought more than six months after the facts on which it is based occurred (s. 60(2)). For purposes of the present application, s. 60(4) is important. It states:
The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
The complaint is frivolous or vexatious or made in bad faith.
The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.
Having regard to all the circumstances, dealing with the complaint is not in the public interest.
[5] Rule 6 of the OIPRD’s Rules of Practice also sets out criteria to be applied in the screening process. In accordance with Rule 6.1, the Director must first determine whether the complaint relates to the conduct of a police officer or to the services or policies of a police service. In accordance with Rule 6.2, the Director has the discretion to request further information:
6.2 When more information is required to screen the complaint or assign it for investigation, the OIPRD will request such other information as required from either the complainant or the police service. The police liaison officer may be required to supply the OIPRD with information to assist in screening or assigning the complaint for investigation.
[6] Rule 6.4 deals with the concept of the “public interest”, setting out factors that may be considered:
6.4 In determining whether or not to deal with a complaint, the Director will have regard to the public interest. Public interest will always involve a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:
(i) the effect of a decision to deal or not to deal with a complaint on public confidence in the accountability and integrity of the complaints system
(ii) the number of complainants involved
(iii) the seriousness of the complaint, including the seriousness of the harm alleged
(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint
(v) whether there are issues of systemic importance or broader public interest at stake
(vi) the likelihood of interfering with or compromising other proceedings
(vii) whether another venue, body or law can more appropriately address the substance of the complaint.
[7] Finally, Rule 6.5 states that “It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct.”
The Factual Background
[8] The Applicant is a self-described political pundit, documentary film producer, and handyman. He states that he has filed complaints with various law enforcement agencies since 2013, alleging that he has been the victim of a sustained criminal harassment campaign.
[9] On March 12, 2018, the Applicant filed a complaint with the OPS alleging that he was the victim of an organized stalking campaign. This complaint included video evidence of the alleged harassment conducted by unknown individuals driving red cars in the vicinity of his home and workplace. The next day, on March 13, 2018, the Applicant was visited at his home by the Ottawa Police Service Mental Health Unit. The Applicant states that this unit concluded that his complaint was not the result of an underlying mental health issue.
[10] Some months later, he made another complaint to the OPS about red car stalking and provided videos and licence plate information. The Applicant claims that he tried to contact the investigating officer several times between March 18, 2018 and January 2019 without success. Having been unsuccessful, he then contacted the OPS via Twitter and urged it to investigate the alleged crimes being committed against him.
[11] The Applicant states that three OPS officers appeared at his home on February 1, 2019, allegedly to investigate a stolen car, but he believed they were engaging in harassment, and he videotaped his interactions with them.
[12] On April 29, 2019, the Applicant was involved in a roadside incident involving the driver of a red car that had cut in front of his vehicle. The Applicant states that while he was initially punched 10 to12 times by the other driver before defending himself, the OPS officers who reported to the scene investigated him for assault, rather than his attacker. No charges were laid.
[13] The Applicant continued to videotape what he says were over 1,000 red car incidents. He states that one of the alleged perpetrators of the red car harassment called the police on October 4, 2019, to complain that the Applicant was following him too closely in his vehicle. The Applicant received a warning.
[14] The Applicant states that, on November 21, 2019, he followed and filmed an alleged perpetrator, a driver of a red car, and the alleged perpetrator coincidentally located an OPS vehicle parked at a convenience store and sought police assistance. On December 12, 2019, the Applicant again confronted an alleged perpetrator of the organized stalking campaign, which resulted in the individual calling OPS to file a complaint. The Applicant states that this call resulted in his son being threatened with arrest.
[15] On December 13, 2019, the Applicant again contacted the OPS after learning that his son was threatened and attempted to have the police investigate the organized stalking campaign.
[16] On January 17, 2020, the Applicant contacted the OPS and filed a third criminal harassment complaint, again providing video evidence of the red cars.
The Complaint to the OIPRD
[17] Because of the failure of the OPS to respond to his complaints, the Applicant made a complaint to the OIPRD on January 20, 2020. He made his complaint online, using the designated form to do so. He included 12 typed pages of detail about his complaint. He also tried to attach copies of his videos, but the file was too large, and an error message was sent to him indicating that it had not been received.
[18] The complaint alleges that the red car conspiracy is state-sanctioned and politically motivated. The Applicant alleges that the OPS has attempted to falsely imprison, debase, dehumanize, and torture him. He also alleges that his human rights and rights under the Canadian Charter of Rights and Freedoms are being violated. For example, the first two paragraphs of the particulars state:
This complaint to your office, the Office of the Independent Police Review Director (OIPRD), covers actions and inactions of the Ottawa Police Service (OPS) that implicates them as accomplices to an illegal surveillance, harassment and psychological torture campaign against me, Steven Potter (the complainant) over the span of 23 months.
The complexity of this crime makes it rather difficult to put into words, but I will do my best to elaborate several situations and interactions with the OPS that will demonstrate the OPS has colluded to falsely imprison me and/or are covering up serious crimes against me and/or are active accomplices in a psychological torture campaign against me under the direction of Federal Law Enforcement and other Federal Level Agencies.
The OIPRD Decision
[19] In a letter dated January 27, 2020, the OIPRD determined that it would not refer the Applicant’s complaint for investigation because to do so would not be in the public interest. It stated,
Based on the information in your complaint and the passage of time it would be difficult to conduct an investigation into the broad allegations of misconduct that you have alleged over the last year. Therefore, the Director has determined that it is not in the public interest to send your complaint for investigation.
[20] Staff comments on the complaint analysis form, made prior to the decision, observed that the only referable matter was the refusal of the OPS to accept a complaint on February 1, 2019, but that occurred more than six months prior to the OIPRD complaint. The rest of the allegations disclosed no misconduct by police officers.
The Standard of Review
[21] The Applicant seeks judicial review of this decision. The standard of review is reasonableness (Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65 at paras. 10 and 25).
Analysis
[22] While the Applicant makes arguments seeking relief under the Charter and for a finding that he is a victim of crime, this Court, on this judicial review application, can only determine whether the OIPRD made an unreasonable decision when it refused to refer his complaint for investigation.
[23] The Applicant argues that the decision is unreasonable because it was made without consideration of the video evidence. He also believes that there may have been improper discussion with the OPS and other political actors during the screening process. Finally, he also argues that the decision is unreasonable because the OPS has failed to investigate his complaints fairly and has become involved in the harassment against him.
The videos
[24] The OIPRD did not have the videos the Applicant had tried to submit electronically. The Applicant also sent a covering email with his complaint form, stating that the videos were with the OPS, and the OPS had been made aware that the folder with the videos was for the OIPRD.
[25] Although the OIPRD did not have the videos, it did have a detailed description of each of the videos set out in the 12 pages of particulars attached to the Applicant’s complaint form. The Applicant, in oral argument before this Court, stated that a great deal of the video evidence shows red cars passing by either the Applicant’s workplace or home around the time he went to work or returned home.
[26] The OIPRD makes its screening decision on the basis of the material submitted to it, unless, in accordance with Rule 6.2, it believes that it needs further information from the complainant or the police. In the present case, the OIPRD did not exercise this power to obtain further information, making its decision on the material before it.
[27] Given the level of detail in the complaint, explaining the Applicant’s concerns and describing the content of the videos, the OIPRD was able to understand the content of the videos when it made its decision. It reasonably concluded that it had no need to obtain further information or to ask for the videos, as there was a sufficient basis for it to carry out its duties under the Act.
The reasonableness of the decision
[28] It is evident from the OIPRD decision letter that it considered the details set out in the complaint. The essence of the complaint was the failure of the OPS to investigate the Applicant’s complaints about the red car conspiracy and the participation of the OPS in harming him because of its failure to act. The OIPRD concluded that it was not in the public interest to investigate further, in part because of the general nature of the complaint, which lacked detail about the alleged misconduct of any of the unnamed officers, apart from their failure to investigate. As well, the OIPRD stated that “[b]ased on the information in your complaint and the passage of time, it would be difficult to conduct an investigation into the broad allegations of misconduct that you have alleged over the last year.”
[29] While we realize that the Applicant feels he is the victim of a conspiracy, there is no basis for judicial intervention in this case. The OIPRD decision is logical and transparent, and the reasons are sufficient to explain the outcome. As well, the outcome is reasonable, given the facts, the broad allegations made and the governing legislation.
[30] Admittedly, there were some errors of fact in the decision letter. For example, the letter states that the period over which the alleged conduct occurred was February 1, 2019 to December 19, 2019, when in fact the complaint related to conduct beginning in March 2018. In addition, the letter referred to alleged harassment by one red car, when in fact, the complaint form describes hundreds of red car incidents. However, these errors do not undermine the reasonableness of the decision as a whole. As Vavilov notes, minor missteps that are peripheral to the merits do not require judicial intervention (at para. 100).
Conclusion
[31] Accordingly, the application for judicial review is dismissed. The parties have agreed that there will be no costs.
___________________________ Ellies R.S.J.
Swinton J.
McCarthy J.
Date of Release: March 5, 2021
CITATION: Potter v. Office of the Independent Police Review Director, 2021 ONSC 1602
DIVISIONAL COURT FILE NO.: DC-20-2585 DATE: 20210305
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Swinton and McCarthy JJ.
BETWEEN:
STEVEN G. POTTER
Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondent
REASONS FOR JUDGMENT
The Court
Date of Release: March 5, 2021