CITATION: Parent, also known as Murray v. OIPRD, 2022 ONSC 1308
DIVISIONAL COURT FILE NO.: 626/19
DATE: 20220314
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: JASON PARENT, also known as JESSICA MURRAY, Applicant AND: INDEPENDENT POLICE REVIEW DIRECTOR (ONTARIO), WINDSOR POLICE PROFESSIONAL SERVICES, Respondents
BEFORE: Copeland J.
COUNSEL: Jessica Murray, self-represented Applicant/Moving Party Pamela Stephenson Welch, for the Office of the Independent Police Review Director, Respondent Aadil Nathani, for the Windsor Police Service Professional Services, Respondent
HEARD at Toronto (by videoconference): March 9, 2022
ENDORSEMENT
[1] The Moving Party, Jessica Murray, the Applicant in the main application, brings a motion to adduce six items of additional evidence in her application for judicial review. The underlying application seeks judicial review of the review and investigation by the Office of the Independent Police Review Director (“OIPRD”) of a police conduct complaint made by Ms Murray. The review and investigation of police conduct complainants is governed by the Police Services Act, R.S.O. 1990, c. P.15.
Procedural history of the application for judicial review
[2] By way of context, I will set out the procedural history of the review and investigation of the police conduct complaint. On September 17, 2018, Ms Murray complained to the OIPRD about the conduct of Constable Montino-Yong of the Windsor Police Service (the “WPS”). Constable Montino-Yong had interactions with Ms Murray on September 12 and 16, 2018 (which did not lead to arrest at that time). Without going into great detail, the thrust of Ms Murray’s complaint about Constable Montino-Yong’s conduct was that she alleged that the officer repeatedly threatened to arrest her for criminal harassment for conduct that she asserted was merely responding to an online ad for an apartment and was not criminal conduct. In the complaint, Ms Murray also raised that the officer may have acted out of bias against her based on her gender identity as a transgender woman. As I will explain, Ms Murray was arrested approximately one week later, and subsequently raised other issues within the police complaint.
[3] On November 2, 2018, the OIPRD screened the complaint and referred it to the WPS for investigation. On November 3, 2018, Ms Murray notified the OIPRD that she had been arrested and charged with criminal harassment on September 24, 2018. She also advised that the criminal charge was being prosecuted by the Chatham Crown Attorney’s office, rather than the Windsor Crown Attorney’s office, because of a conflict of interest. She requested that her police conduct complaint be investigated by an external body.
[4] On November 9, 2018, the WPS notified the OIPRD that the conflict of interest related to the Crown Attorney’s office, and not the WPS. However, the WPS also indicated that in light of the concerns expressed by Ms Murray, they did not believe that the WPS would be able to conduct an investigation that would satisfy her, and suggested that the complaint should perhaps be re-screened and sent for investigation by an outside agency
[5] On November 14, 2018, Ms Murray notified the WPS and the OIPRD that the criminal charge against her had been withdrawn by the Crown. At that time, she also alleged that her arrest for criminal harassment was unlawful and warrantless, and that it arose as a result of an improper/inadequate investigation by the WPS. She indicated that she expected an investigation into the matter.
[6] On December 14, 2018, the OIPRD notified Ms Murray that her complaint would remain with the WPS for investigation.
[7] The WPS investigation dealt with five allegations of misconduct against Constable Montino-Yong. The allegations related to Ms Murray’s interaction with Constable Montino-Yong on dates prior to her arrest on September 24, 2018. The decision of the Chief of the WPS based on the investigation was that the allegations in the complaint relating to Constable Montino-Yong were unsubstantiated. The WPS investigation did not consider Ms Murray’s allegations that her arrest on September 24, 2018 was unlawful and that the investigation that led to it was improper/inadequate.
[8] Ms Murray sought a review of the Chief of the WPS’s decision by the OPIRD.
[9] Following the review, in a decision dated August 29, 2019, the OIPRD confirmed that the misconduct investigation conducted by the WPS and the decision of the Chief of the WPS that the misconduct allegations against Constable Montino-Yong were unsubstantiated were both reasonable.
[10] Ms Murray then commenced the application for judicial review. In very summary form, the application for judicial review alleges that the OIPRD committed reviewable error in failing to investigate the legality of the arrest of Ms Murray, including the adequacy of the investigation leading to the arrest, and in assigning the WPS to investigate the complaint, rather than sending it to an outside agency.
[11] After the application for judicial review was commenced, while preparing the Record of Proceedings for the judicial review, the OIPRD came to the view that Ms Murray’s allegation of unlawful arrest raised on November 14, 2018 was not properly screened by the OIPRD, and as a result, was not investigated by the WPS or reviewed by the OIPRD. The OIPRD wrote to Ms Murray on December 20, 2019, to raise the issue about her complaints about the legality of her arrest not having been investigated. The OIPRD suggested that she could continue with her judicial review application, or the judicial review application could be suspended, and the OIPRD could investigate “separately” the misconduct allegation relating to the arresting officer and the legality of the arrest. The OIPRD also stated that if Ms Murray chose to suspend the application for judicial review so that the OIPRD could conduct an investigation of the allegations relating to the legality of the arrest, the issues that she had raised regarding the conduct of Constable Montino-Yong would not be re-investigated.
[12] By email dated December 21, 2019, Ms Murray declined the suggestion that the OIPRD at that stage investigate the allegation of the legality of the arrest. She declined the suggestion that the issues relating to the legality of the arrest be investigated separately from the other conduct she had complained of. Ms Murray explained that in her view, there was a pattern of harassing conduct by the police towards her, and the arrest could not be separated out from the other conduct.
[13] One final piece of context to assist in understanding the proposed additional evidence relates to the complainant in the underlying criminal harassment investigation. The complainant in the events leading to the attendance of Constable Montino-Yong at Ms Murray’s home on September 12 and 16, 2018, and to her later arrest for criminal harassment on September 24, 2018 is a woman I will refer to as “C.C.” The communications which were the subject of C.C.’s complaint to police involved Ms Murray sending emails related to an apartment rental. In her statement to police, C.C, said that the number, frequency, and tone of the emails caused her to feel harassed and afraid. Ms Murray’s position throughout was that she was simply inquiring about the apartment, and also that she came to believe that the person she was communicating with by email about the apartment was discriminating against her. Some of these emails were directed to an email with the name “Ryan Myon”. In her statement to police, C.C. said that the “Ryan Myon” email address was one of her email addresses.
The Additional evidence that the Moving Party seeks to tender
[14] The six items of evidence at issue in this motion are:
An email from C.C. to the Human Rights Tribunal of Ontario, dated November 27, 2020, confirming she was not communicating on behalf of “Ryan Myon.”
An excerpt of C.C.’s statement to the WPS in which she indicates that she uses the “Ryan Myon” email address.
An email from the Windsor Crown Attorney’s office to Ms Murray, dated February 23, 2021, explaining that the prosecution of the criminal harassment charge against her was transferred to the Chatham Crown Attorney’s office because of a conflict of interest, and that the conflict of interest was a prior employer-employee relationship between the Windsor Crown Attorney’s office and the complainant, C.C.
Ms Murray’s request, dated December 16, 2020, to the WPS under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”) for all records in its possession relating to her arrest in September 2018.
The WPS’ response to Ms Murray’s MFIPPA request, dated January 29, 2021.
A further excerpt from C.C.’s statement contained in the WPS occurrence report, with a large blank space in it (which Ms Murray intends to submit shows that there is a portion of the statement missing from this page).
[15] I summarize Ms Murray’s submissions about the relevance of each of these documents in my analysis below.
[16] The OIPRD takes the position that items 2 and 6 are already in the record before the court on the application, filed as part of the OIPRD’s Record of Proceedings. The OIPRD objects to the admission of items 1, 3, 4, and 5 on the basis that they are not relevant to the application and are incapable of having a bearing on the outcome of the application for judicial review.
[17] The WPS takes no position on the motion. It did not file any responding materials. Counsel attended the hearing of the motion, but made no submissions.
The Applicable law
[18] In 30 Bay ORC Holdings v. Toronto, 2021 ONSC 251 (Div. Ct.) at para. 114, this court recently summarized the circumstances in which a court will admit additional evidence on an application for judicial review.
In general, the evidence on an application for judicial review is restricted to the evidence that was before the original decision-maker. There are, however, exceptions to this general rule. What have come to be known as the Keeprite principles govern new evidence on judicial review: Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.) These principles were most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). There are three criteria:
(a) the materials ought to have been included in the record of proceedings (i.e., they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);
(b) although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below. The usual examples of materials that may be admissible on this basis are:
(i) to set out general background that would assist the court;
(ii) to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness; or
(iii) to show a complete lack of evidence to support a material finding of fact; and
(c) materials that are properly “fresh evidence” on the application.
Analysis
[19] The six documents that Ms Murray seeks to have admitted into evidence raise different issues, some of which are common between some of the documents. As such, rather than deal with them in numerical order, I will address them in the following order: First, documents 4 and 5; second, documents 2 and 6; and third, documents 1 and 3.
[20] It is not necessary to delve into the finer points of the law in relation to the admissibility of additional evidence on an application for judicial review in order to decide this motion. As I will explain below, two of the documents that Ms Murray seeks to tender have no relevance to any issue on the application for judicial review (documents 4 and 5). Two of the documents are already contained in the application record in the OIPRD Record of Proceedings (documents 2 and 6). The remaining two documents are potentially relevant, depending how the panel hearing the application views various issues in the application (documents 1 and 3). For reasons I explain below, I admit only the documents in the final category (documents 1 and 3). It will be for the panel hearing the application for judicial review to decide what relevance and weight, if any, those documents should be accorded in the application.
Documents 4 and 5
[21] Documents 4 and 5 are Ms Murray’s MFIPPA access to information request to the WPS for records relating to her arrest, and the WPS response to that access request.
[22] The claim of relevance that Ms Murray puts forward for these two documents is that, in her view, the available information is sufficient to “suspect some level of corruption has occurred”. Based on that assertion, Ms Murray wishes to adduce the MFIPPA access to information request and the WPD response as supporting a request she intends to make that the panel hearing the application for judicial review order the release of all remaining documents related to her arrest in a reinvestigation of the police complaint.
[23] Ms Murray’s theory of the relevance of documents 4 and 5 is flawed. The propriety of the decision of the WPS with respect to her MFIPPA access to information request is not before the court in this application for judicial review. The current application for judicial review only concerns the review and investigation of Ms Murray’s police conduct complaint.
[24] This court does not have jurisdiction within the scope of this application for judicial review to order release of documents under MFIPPA. There is a separate appeal process under MFIPPA to the Information and Privacy Commissioner (“IPC”) (and then the potential of reviewing in this court the decision of the IPC). Indeed, Ms Murray confirmed during the oral hearing of this motion that she is pursing an appeal to the IPC under MFIPPA. As a result, documents 4 and 5 are irrelevant to this application for judicial review.
[25] For these reasons, I do not admit documents 4 and 5 into the record.
Documents 2 and 6
[26] Documents 2 and 6 are already in the record on the application for judicial review. Both documents are in the Record of Proceedings of the OIPRD. Documents 2 and 6 are each one-page extracts from C.C.’s statement to the WPS that led to the criminal charge against Ms Murray. The full statement is found at tab 3-O of the Record of Proceedings (pp. B418 to B426 in CaseLines). Specifically, document 2 is at p. B422 of CaseLines, and document 6 is at p. B426 of CaseLines.
[27] Because both of these documents are already in the record, I do not admit them as additional evidence. It is unnecessary to do so. They are already in the record.
[28] Ms Murray conceded in submissions on the motion that it was not necessary to add document 2, because the copy already in the application record is identical to the copy she is seeking to tender as additional evidence.
[29] With respect to document 6, Ms Murray submits that the fact that the copy she proposes to tender as additional evidence is edited in the middle of the page supports an inference that there is a portion of C.C.’s statement to police that has been edited.
[30] I do not accept this submission. Ms Murray clarified in her oral submissions that the copy of document 6 that she proposes to tender as additional evidence was obtained by her as part of the response to her access to information request to the WPS, and that the portion missing in her copy was because of redactions for exemptions claimed by the WPS under MFIPPA. Whatever the merits of those claims for exemptions under MFIPPA (which are not before the court on this motion or the application for judicial review), adding the redacted copy of document 6 to the record on the application for judicial review would add nothing. A complete copy of that page of C.C.’s statement to police is already in the materials on the application in the OIPRD Record of Proceedings, at CaseLines p. B426.
[31] For these reasons, I do not admit documents 2 and 6.
Documents 1 and 3
[32] I find that documents 1 and 3 could potentially have relevance to the issues in the application for judicial review. Because it will ultimately be up to the panel hearing the application for judicial review to determine whether these documents are relevant, and the weight, if any, to assign to them, I limit my comments on the substance of the issues in the review.
[33] Document 1 is an email from C.C. to the Human Rights Tribunal of Ontario, dated November 27, 2020, confirming she was not communicating on behalf of “Ryan Myon.” Document 1 was created more than two years after Ms Murray’s arrest.
[34] Ms Murray asserts that its relevance to the application for judicial review is that it shows that C.C. was dishonest when she told police that she was Ryon Myon. I should be clear that I make no finding about this factual assertion in my ruling.
[35] Document 3 is an email from the Windsor Crown Attorney’s office to Ms Murray, dated February 23, 2021, explaining that the prosecution of the criminal harassment charges against her was transferred to the Chatham Crown Attorney’s office because of a conflict of interest, and that the conflict of interest was a prior employer-employee relationship between the Windsor Crown Attorney’s office and the complainant, C.C.
[36] Ms Murray asserts that the relevance of this document to the judicial review is that together with C.C.’s allegedly dishonest statement to police, it suggests that “she used her influence in the police and Crown’s office to have me arrested illegally”. Again, I should be clear that I make no finding about this factual issue in my ruling.
[37] The OPIRD submits that neither of these documents is relevant to the issues on the application for judicial review. The OIPRD submits that the only issues on the application for judicial review relate to the decision of the OIPRD to confirm the decision of the Chief of the WPS finding that the misconduct allegations against Constable Montino-Yong were unsubstantiated. The OIPRD submits that document 1 is not relevant to this issue because it is information that was not known to Constable Montino-Yong, and could have played no role in his actions, or in the assessment of whether there were grounds to find he committed misconduct. The OIPRD submits that document 3 relates to a conflict of interest within the Windsor Crown Attorney’s office, and not the police. For this reason, the OIPRD submits that document 3 is not relevant to the review of the conduct of Constable Montino-Yong.
[38] Ms Murray submit that these documents have relevance to the issues on the judicial review. She accepts that they do not affect the legality of the arrest if the information in documents 1 and 3 was not known to the arresting officer. However, she submits that they have relevance to the issue she raises in the application for judicial review that the police conduct investigation should have been conducted by an outside agency, and not by the WPS.
[39] I find that documents 1 and 3 are capable of having relevance to issues raised in the application for judicial review. One factor in my coming to this conclusion is that there is a dispute between the OIPRD and Ms Murray as to the scope of the issues properly covered by the application for judicial review. It will be for the panel to determine which of the issues raised in the application for judicial review are properly within the scope of the review.
[40] The issues raised by Ms Murray in the application for judicial review include whether there was reviewable error by the OIPRD in failing to assign an outside agency to investigate her police conduct complaint, and in failing to have the portion of her complaint about the legality of her arrest investigated.
[41] The OIPRD has already accepted that it failed to screen the aspects of Ms Murray’s police complaint relating to the legality of her arrest and the sufficiency of the investigation that led to the arrest, and as a result, these aspects of the complaint were not addressed in the investigation conducted by the WPS. However, the OIPRD now takes the position that despite this mistake, there are not grounds for relief by way of judicial review.
[42] As I have noted above, the issues raised by Ms Murray in the application for judicial review include whether the OIPRD committed reviewable error in not investigating the legality of her arrest and the adequacy of the investigation leading to the arrest, and in not assigning the investigation to an outside agency, rather than having it investigated by the WPS (which all parties accept it had the statutory authority to do).
[43] I do not weigh in on any of the issues before the panel – they are for the panel to decide. But I find that depending how the panel views the issues in the review and the record before the court, documents 1 and 3 could have relevance to issues raised in the review. Because I do not want to weigh in on issues that will be for the panel to decide, I will not say more about their potential relevance.
[44] Documents 1 and 3 are admitted into evidence on the application for judicial review. The parties may address the relevance and weight to be given to these documents in the context of the issues on the application in their oral submissions to the panel. It is for the panel to decide the ultimate relevance, if any, and weight to be given to documents 1 and 3.
Conclusion
[45] I allow the motion in part. Documents 2, 4, 5, and 6 are not admissible. Documents 1 and 3 are admissible. Ms Murray may serve and file a supplementary application record containing only documents 1 and 3 by March 29, 2022.
[46] As no party seeks costs of the motion, I make no order as to costs.
Copeland J.
Date: March 14, 2022