CITATION: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303
DIVISIONAL COURT FILE NO.: 531/20
DATE: 2021/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D. Edwards, Matheson JJ.
B E T W E E N:
Dilrukshi Wijayaratnam
Self-represented Applicant
Applicant
- and -
Office of the Independent Police Review Director
Miriam Saksznajder for the Respondent
Respondent
HEARD at Toronto (by videoconference): September 20, 2021
REASONS FOR JUDGMENT
D. Edwards J.
Overview
[1] The Applicant seeks judicial review of the Office of the Independent Police Review Director’s (“OIPRD”) decision made on September 17, 2020, to not proceed with her complaint against three Toronto police officers on the basis that the decision is unreasonable, and that she was denied procedural fairness.
[2] She also seeks to have affidavit evidence that was not before the OIPRD be admitted on this review.
[3] For the following reasons, I admit only Exhibits FFFF to JJJJ of the affidavit. Further, the Applicant’s application is dismissed, as the decision was reasonable, and the Applicant was not denied procedural fairness.
OIPRD
[4] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario.
[5] A member of the public may complain to the OIPRD about policies or services of a police force, or the conduct of individual police officers.
[6] Once a complaint is received, it is screened to determine whether it will proceed to an investigation (s. 59 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”)).
[7] All complaints are presumptively screened “in”, unless the OIPRD exercises its legislative discretion to screen the complaint “out”.
[8] The grounds to screen “out” are set out in s. 60 of the PSA:
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 of the circumstances, dealing with the complaint is not in the public interest.
[9] “Public interest” is not defined in the PSA; however, the OIPRD has provided guidance in Rules 6.4 and 6.5 of the OIPRD Rules of Procedure (“Rules”):
6.4 In determining whether or not to deal with the complaint, the Director will have regard to the public interest. Public interest will always include 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 deal with a complaint on public confidence in the accountability and integrity of the complaint 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
6.5 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.
[10] 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) of the PSA).
[11] Under Rule 6.2 the Director has the discretion to request further information.
[12] At the time of the Applicant's complaint, Rule 17 permitted the Director to reconsider his decisions:
17.1 The Director may, at any time, correct a typographical error, error of calculation, misstatement, ambiguity, technical error or other similar error made in his or her decision up for determination.
17.2 The Director may reconsider his or her decision when it is in the public interest to do so, and having regard to any relevant considerations including, but not limited to, the following:
(i) the need to correct an error of fact or law, defect in the procedure or improper application of its mandate or jurisdiction
(ii) there is new information which was not available at the time of the original decision that may have reasonably affected the outcome
(iii) the extent to which any party has relied on the original decision
(iv) the extent to which any party or person has been affected by the original decision
(v) the balancing of interests between the need for the finality of decisions and the prejudice to all parties
The Factual Background
[13] On January 4, 2018, the Applicant visited Division 42 of the Toronto Police Service to bring charges against a man who was a citizen of, and at that time, a resident of Australia. She met with Detective Bortoluss, who took a video recorded statement and issued an arrest warrant for that man for sexual assault.
[14] In April 2018, the Applicant followed up with Detective Bortoluss about charges for bigamy, alleging the man was already married in Australia when he married the Applicant in Toronto in 2012.
[15] Subsequently, the matter was reassigned to Detectives Sean Pitcher and Warren Entvistle. The Applicant had many interactions with Detective Pitcher as she wished to have the man charged with bigamy and trafficking in humans.
[16] Eventually she was advised that neither charge would be forthcoming.
[17] In December 2019, the Applicant contacted Superintendent Tony Riviere to express dissatisfaction. The Superintendent informed the Applicant about the OIPRD complaint system.
The Complaint to the OIPRD
[18] On July 8, 2020, the Applicant filed a complaint with the OIPRD against Detective Sean Pitcher, Detective Warren Entvistle, and Superintendent Tony Riviere regarding her interactions with the officers and their investigations into her allegations. The complaint and attachments totalled almost 300 pages.
[19] After she received the OIPRD decision she wrote two letters to the OIPRD explaining that she possessed further evidence and wanted the decision to be re-considered. The OPIRD informed her that there would be no reconsideration on October 15, 2020.
The OIPRD Decision
[20] On September 17, 2020, the OIPRD released its decision.
[21] The decision confirmed that the complaint related to the Applicant’s interactions with three police officers between July 1, 2018 and July 21, 2019.
[22] The decision noted that the complaint was filed beyond the six-month time limit, but it acknowledged the Applicant’s stated reasons for that delay.
[23] The decision identified the Applicant’s main complaints to be the officers’ decision not to lay additional charges against the man allegedly committing crimes against her, and that she was treated with disrespect, shame and humiliation by those officers. She ascribed this treatment to her gender and ethnicity.
[24] In declining to pursue the complaint, the OIPRD noted that police are entitled to exercise discretion when laying criminal charges, and that “the officer’s exercise of discretion not to take any further action would not constitute misconduct under the Police Services Act.”
[25] The decision letter stated that there was no evidence to suggest bias or differential treatment based on the Applicant’s ethnicity or gender.
[26] The decision concluded:
Therefore, given the above and considering the passage of time and the nature of your complaint, the Director has determined that it would not be in the public interest to continue to deal with your complaint.
Fresh Evidence
[27] The Applicant seeks to introduce fresh evidence by way of an affidavit. On a judicial review, the Court will normally consider only the material that was before the administrative decision-maker. In this case, that material is found in the Record of Proceedings. However, in certain limited circumstances, evidence that is not in the Record of Proceedings may be considered on judicial review – for example, to demonstrate a denial of procedural fairness that is not apparent from the record (see, for example, Queensway Excavating & Landscaping Ltd. v. City of Toronto, 2019 ONSC 5860 (Div. Ct.) at para. 46).
[28] The Respondent consents to the admission of Exhibits FFFF through JJJJ, as these items, dealing with reconsideration, were inadvertently not included in the Record of Proceedings since the Respondent did not appreciate from the notice of application for judicial review that this issue was being raised by the Applicant.
[29] The other material that the Applicant seeks to rely on does not fall within the limited circumstances in which additional evidence may be admitted on judicial review. I strike her affidavit from the Application Record, with the exception of Exhibits FFFF through JJJJ, which are admitted on consent.
Court’s Jurisdiction
[30] The Divisional Court has jurisdiction to hear this application pursuant to ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Issues
[31] The issues in this matter are the following:
Was the Applicant denied procedural fairness?
Was the OIPRD’s screening decision unreasonable?
Standard of Review
[32] The parties agree that the standard of review on the merits of the screening decision is reasonableness.
[33] In considering whether a decision is reasonable, I must consider whether the decision as a whole is transparent, intelligible and justified. Judicial review is concerned with both the outcome of the decision and the reasoning process that led to that outcome (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 15).
[34] There is no standard of review on questions of procedural fairness. Instead, this Court must determine whether the requisite level of procedural fairness in the circumstances has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Positions of the Parties
[35] The Applicant seeks judicial review of the OIPRD’s decision on the basis that the decision is unreasonable and that she was denied procedural fairness. In my analysis below I have grouped together within those two general issues, the specific reasons for the Applicant’s position.
[36] The OIPRD asserts that the decision was reasonable and that the Applicant was not denied procedural fairness.
Analysis
Procedural Fairness
[37] The Applicant has argued that she was denied procedural fairness throughout the screening process in three distinct ways.
[38] She asserts that the Director breached his duty to consult with her prior to making his screening decision contrary to Rule 6.2; that the Director breached Rules 17.1 and 17.2 by failing to grant her request for reconsideration of the decision; and these breaches of procedural fairness are indicative of a reasonable apprehension of bias against her on the part of the OIPRD.
[39] First, the Court of Appeal has determined that the statutory power of decision exercised by the Director during the screening process to be “clearly at the lower end of the statutory decision-making in terms of deliberative process, rights affected and complexity.” The Court also acknowledged that the PSA does not contemplate the need for a hearing or notice or impose any procedural requirements on the Director’s screening process (Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363 at para. 46).
[40] Rule 6.2 confers a discretion on the OIPRD to request further information from a complainant. The Applicant provided the OIRPD with a complaint totaling almost 300 pages. The Director reasonably concluded that he had sufficient information to permit an understanding of the alleged misconduct and that he could determine whether the complaint on its face could constitute misconduct. His failure to seek further information did not constitute procedural unfairness.
[41] Further, the OIPRD does not have a positive duty by statute or by its Rules to consult with the complainant prior to making a screening decision.
[42] Second, the OIPRD has no statutory duty to undertake a re-consideration. At the time, under its Rules, the Director had a discretionary right to reconsider, but no obligation to do so.
[43] Therefore, the OIPRD’s decision to not re-consider did not constitute any procedural unfairness.
[44] Third, the Applicant alleged that there was an apprehension of bias in the screening process which resulted in her being denied procedural fairness.
[45] The Applicant asserted that the failure of the Director to consult prior to making the decision and the refusal to allow her a re-consideration demonstrated bias. However, as noted above, the Director was under no obligation to do either.
[46] Further, after having reviewed the written interactions between the Applicant and the OIPRD, I am satisfied that there is no evidence of bias, real or apprehended, demonstrated during the screening process.
[47] In conclusion, I find that the Applicant was not denied procedural fairness by the OIPRD during the screening process.
Reasonableness of the Decision
[48] The Applicant submits that the Director’s decision was unreasonable. She asserts that the Director failed to appreciate the nature of her complaint and as a result failed to act in the public interest; that he erred in treating s. 60(2) of the PSA as a limitation period; and that the Director’s reasons were inadequate.
[49] I now turn to the first issue raised, namely whether the Director understood the nature of her complaint.
[50] I find that the Director understood that the Applicant’s primary complaints were that the officers were negligent in their investigation and, as a result, failed to lay the additional criminal charges that she requested, and that she was treated with disrespect, shame and humiliation by those officers based upon her ethnicity and gender.
[51] After having reviewed the Record and the written interactions between the Applicant and the officers, I am satisfied that the OIPRD reasonably concluded that there was no evidence of disrespect or differential treatment based upon the Applicant’s ethnicity or gender by the officers to the Applicant.
[52] The officers’ decision to not lay additional charges is one within their discretion and based upon the Record it was reasonable for the OIPRD to conclude that the officers’ decision to not do so, did not constitute misconduct.
[53] The Applicant disagrees with that decision. However, it is not the Court’s role on judicial review to determine whether we agree with the OIPRD decision, but rather whether the decision fell within the range of reasonable decisions, and I conclude that it did.
[54] As well, recall that Rule 6.5 states: “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.” Once the Director concluded that the complaint did not on its face disclose a breach, he was required by the OIPRD Rules to screen the complaint out.
[55] Second, the Applicant asserted that the Director’s decision was unreasonable because he dismissed her complaint as being outside of the six-month period referred to in s. 60(2) of the PSA.
[56] She submits that the six-month period should run from the date of her last interaction with police, or alternatively when she discovered that she could file a complaint with the OIPRD.
[57] First, although I agree that the Director does not reference exactly what time period he is referring to in that letter, in other words when the six-month period commenced, the PSA is clear that the period runs from the date “the facts on which [the complaint] is based occurred” (see s. 60(2) PSA).
[58] Second, the Director did not expressly rely on the limitation period. Indeed, he noted that there were explanations given by the Applicant for the delay.
[59] There is, perhaps, some ambiguity in the letter because the Director, in stating that the complaint would be screened out in the public interest, made reference to the passage of time, as well as the fact that the officers’ conduct would not give rise to an offence under the Code of Conduct. He could reasonably consider the passage of time as a factor in deciding whether it was in the public interest to investigate the complaint.
[60] Third, in any event, if one excludes consideration of the six-month period, I find that the Director’s decision to screen out the complaint as not in the public interest, is firmly supported by the Record, the PSA and Rules. Once the Director concluded that the complaint on its face did not disclose misconduct of the officers, he was required by the OIPRD Rules to screen the complaint out.
[61] Finally, the Applicant asserts that the reasons in the Director’s decision were inadequate and did not allow for judicial review.
[62] I find that the decision demonstrates an understanding of the essence of the Applicant’s complaint and provides an explanation as to why it was not in the public interest to send the complaint for investigation.
[63] It identified that there was no evidence of bias or differential treatment based upon ethnicity or gender.
[64] It explained that police have discretion in investigations and that the exercise of such discretion by an officer to not take further action would not constitute misconduct under the PSA.
[65] It may have been more easily understood by the Applicant, if the Director had said that where a complaint against an officer, on its face, did not disclose misconduct, then by operation of Rule 6.5, it was not in the public interest to “screen in” the Applicant’s complaint. As it was not in the public interest, the Director exercised his power to decline to continue to deal with the Applicant’s complaint.
[66] Nevertheless, I find that the reasons adequately describe what was decided and why.
[67] In conclusion I find that the decision was reasonable.
Summary
[68] For the above reasons the application is dismissed.
[69] As the OIPRD did not seek costs, there will be no order as to costs.
D. Edwards, J.
I agree ________________________________
Swinton J.
I agree ________________________________
Matheson, J.
Released: September 29, 2021
CITATION: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303
DIVISIONAL COURT FILE NO.: 531/20
DATE: 2021/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D. Edwards, Matheson JJ.
B E T W E E N:
Dilrukshi Wijayaratnam
Applicant
- and –
Office of the Independent Police Review Director
Respondent
REASONS FOR JUDGMENT
D. Edward J.
Released: September 29, 2021