Citation and Court Information

CITATION: Parent v. OIPRD, 2022 ONSC 2221

DIVISIONAL COURT FILE NO.: 626/19

DATE: 2022-04-12

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jason Parent also known as Jessica Murray, Applicant

AND:

Office of the Independent Police Review Director and Windsor Police Professional Services, Respondents

BEFORE: Sachs, Backhouse and Matheson JJ.

COUNSEL: Self-represented Applicant

Patrick Brode, for the Windsor Police Service

Pamela Stephenson Welch, for the Office of the Independent Police Review

HEARD: April 8, 2022, by virtual hearing

ENDORSEMENT

[1] Jessica Murray (the “Applicant”) seeks judicial review of the September 3, 2019, decision of the Office of the Independent Police Review Direction (“OIPRD”) arising from an investigation into the Applicant’s complaints (the “Decision”). The Applicant asks that the Decision be set aside and for other relief. She challenges the findings about her original complaint and submits that the OIPRD should have, and failed to, investigate her second complaint.

[2] The Applicant filed a complaint with the OIPRD in September 2018, alleging misconduct by a police officer who had both left the Applicant a voicemail and had cautioned the Applicant in person about criminal harassment. The Applicant complained that the police officer had refused to provide his name and badge number upon request, failed to explain what constituted criminal harassment, put his foot in the door to stop the Applicant from closing it, called at about 4 AM using an unauthorized phone (not an official police phone) and had threatened the Applicant with arrest.

[3] Under the Police Services Act, R.S.O. 1990, c. P.15, if the Independent Police Review Director “screens in” the complaint, the Director may have the OIPRD investigate the complaint or refer the investigation to a police service. In this case, the Applicant’s complaint was screened in and was referred to the Windsor Police Service (“WPS”) for investigation.

[4] By email in November 2018, the Applicant advised the OIPRD that she had been arrested and charged with criminal harassment on September 24, 2018. The charges were withdrawn on September 24, 2018. The Applicant complained to the OIPRD that her arrest as unlawful and warrantless and that it arose from an improper investigation. She indicated that she expected an investigation into the arrest.

[5] Neither the WPS nor the OIPRD investigated the Applicant’s complaint about her unlawful arrest.

[6] The WPS investigator conducted an investigation into the original complaint but did not investigate the allegations that the Applicant’s arrest was unlawful, although the arrest is mentioned in the Investigative Report. The Chief of Police for the WPS concluded that the allegations of misconduct against the police officer were unsubstantiated.

[7] The Applicant requested a review by the OIPRD. The OIPRD concluded that the investigation was thorough and complete, the Chief’s decision was reasonable, and confirmed the Report. The OIPRD concluded that the WPS’s finding that the allegations were unsubstantiated was reasonable. The investigating officer had a basis for phoning and attending at the Applicant’s residence to caution her. The investigation did not find evidence supporting the allegation that the officer’s conduct was motivated by bias or that he acted in an unprofessional manner towards the Applicant. The investigator found that the officer did identify himself/his badge number, but it is likely the Applicant did not hear him.

[8] The OIPRD did not address the Applicant’s allegations relating to her arrest and now acknowledges that this was an oversight.

[9] The Applicant then brought this application for judicial review. The standard of review is reasonableness, as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 10. This is not a case where the presumption of a reasonableness review has been rebutted.

[10] The Applicant brought her application against both the WPS and OIPRD. We agree with the WPS that it should not have been a named party to the application because it did not exercise a statutory power of decision.

[11] As regards the OIPRD, we first consider the issues that arise because the OIPRD did not screen or investigate the complaint about the arrest. The Director acknowledges an error in the screening and subsequent review process in this regard. As set out in the OIPRD factum:

In cases such as this, where new allegations are raised after a complaint has been referred for investigation, the OIPRD will generally exercise one of two options: (i) the complainant will be advised that they are required to file a new complaint outlining the new allegation(s); or (ii) a determination will be made that the new allegation(s) should be consolidated with the existing investigation, and the service will be directed to investigate both the original and the new allegation(s) accordingly. Unfortunately, neither of these two options were exercised in this case.

Regrettably, this oversight eluded detection at the review stage as well.

[12] Once discovered, counsel for the OIPRD wrote to the Applicant and acknowledged the error. Counsel suggested that the application before the court could continue, or it could be suspended while the OIPRD investigated the allegation of the applicant's unlawful arrest. The OIPRD noted that if the applicant agreed to suspend her court application the other issues raised, about her original complaint, would not be reinvestigated (as was sought in the court application). The Applicant declined to suspend her court application.

[13] We find that the acknowledged failure to take the required statutory steps of screening and, when screened in, investigation renders the Decision unreasonable as regards the complaints surrounding the arrest. The OIPRD invites this court to exercise its discretion to decline to grant the remedy of having the complaint investigated now. The OIPRD relies on its (conditional) offer to investigate, made during the court process. The OIPRD further submits that we should find that the Applicant’s complaints about the arrest are wrong in law and that it is “unlikely” that an investigation would reveal grounds to find that misconduct occurred.

[14] In considering this issue, we take into account that the Applicant was (and is) self-represented, when considering the suggestion that she suspend her court process. Further, as put in the OIPRD factum, one of its main functions is to provide a process of investigation of public complaints about the conduct of police officers in Ontario. We do not know what would come out in an investigation of the arrest and are not prepared to exercise our discretion to deny a remedy in all the circumstances of this case.

[15] On this ground, we therefore conclude that an order is warranted, as set out below. However, we do not find that the delay in investigating the second complaint undermines the OIPRD Decision about the original complaint.

[16] The OIPRD Decision arising from the original complaint was reasonable and will not be quashed on this application for judicial review.

[17] The issue for the investigation was whether or not there were reasonable grounds to believe that police misconduct had occurred. If there are no reasonable grounds, the allegations of misconduct are called “unsubstantiated” and no further action is taken. The OIPRD Decision concluded that a reasonable investigation was conducted and the decision of the police chief, based on that investigation, was reasonable. In reaching its decision, the OIPRD noted the steps that had been taken in the investigation, including interviews of witnesses, the review of documents and other steps. The OIRPD reasonably concluded that that the Chief’s conclusions were supported by the evidence.

[18] The Director’s reasons for decision explained the basis upon which she confirmed the Chief’s decision, is internally coherent and followed a logical line of reasoning. While the Decision did not expressly refer to the conduct of putting a foot in the door, it found that the investigation was thorough and complete, and the investigation included that allegation and the police officer’s response to it. The Director also noted that the evidence did not show that the police officer acted in an unprofessional manner toward the Applicant.

[19] We therefore conclude that the OIRPD Decision on the original complaint was reasonable.

Orders

[20] The application is granted with respect to the Applicant’s complaint about her arrest on September 24, 2018, for criminal harassment. That complaint is referred back to the OIRPD for investigation by a different investigator.

[21] There shall be no order as to costs.

Sachs J.

Backhouse J.

Matheson J.

Date: April 12, 2022