Court File and Parties

CITATION: Poyton v. Office of the Independent Police Review Director, 2022 ONSC 2767

DIVISIONAL COURT FILE NO.: 978/21

DATE: 20220502

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PHILLIP POYTON, Applicant / Moving Party

AND:

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRCTOR, Respondent / Responding Party

BEFORE: D.L. Corbett J.

COUNSEL: Phillip Poyton, self-represented Applicant / Moving Party

Maeve Mungovan, for the Respondent / Responding Party

HEARD: February 28, 2022, at Toronto, by videoconference

ENDORSEMENT

[1] The applicant moves to add various items to the record of this application for judicial review. The motion is largely misconceived and is dismissed for the reasons that follow except that an order will go permitting Exhibit #38 to Mr Poyton’s affidavit to remain in the materials before the court on the application.

This Application

[2] Mr Poyton says that he was assaulted by another man, Mr Greasley, and seriously injured. He reported these events to PC Russell Balram of Peel Regional Police Service. PC Balram did not lay charges against Mr Greasley. Mr Poyton then made a complaint about PC Balram to the respondent. The respondent exercised his statutory discretion to screen out Mr Poyton’s complaint on the basis that sending the complaint to investigation would not be in the public interest. Mr Poyton brings this application asking this court to review the screening decision of the respondent.

The Record

[3] The respondent has served a record as required under the Judicial Review Procedure Act, RSO 1990, c. J.1, s.10. The respondent has redacted the record to delete personal information to protect privacy interests.

This Motion

[4] Mr Poyton moves for three types of relief:

(a) he seeks to adduce certain items that were not before the respondent when the screening decision was made;

(b) he seeks an order that the record be produced in unredacted form; and

(c) he seeks to cross examine the case officer in the respondent’s office who was responsible for preparing the file for the Director’s consideration and decision.

Issue (a) Materials that were not before the Respondent

[5] The Applicant seeks to adduce two newspaper articles (one from the BBC and the other from CTV news. Both articles address the many unsolved murders of Indigenous women, and the characterization of those murders as a “genocide”. No proper basis has been offered to justify adding these materials to the record when they were not before the decision-maker below: Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 OR (2d) 513 (CA). An allegation of systemic racism was not made to the respondent. Further, these articles are not admissible as evidence in this court as evidence of the truth of their contents in any event. In most circumstances, including this one, newspaper articles are classic hearsay evidence and are not admissible without an evidentiary foundation such as admissible expert evidence in which the truth of the articles is adopted.

[6] The Applicant also seeks to adduce a document dated December 28, 2021, setting out complaint handling levels in the respondent’s office. This document is posted on the respondent’s web site, and the respondent does not object to it being placed before the court on this application. On this basis I will allow it without considering its potential relevance: that question may be left in the hands of the panel hearing the application.

Issue (b) Redactions in the Record

[7] The respondent has redacted the record to remove personal information about persons involved in the case, to protect the privacy of those persons. The respondent has not sought to file an unredacted record with the court because, in the respondent’s view, none of the redacted information is material to the issues on the application.

[8] Mr Poyton has unredacted copies of most or all of the redacted documents: they are documents that he, himself, provided to the respondent and/or to PRPS. Much of the redacted information pertains to Mr Poyton himself.

[9] Mr Poyton understood that a complete record of what was before the respondent ought to be before this court on the application. Technically that is correct, and where it is necessary to do so, this court will direct that a redacted record be filed publicly and an unredacted record be provided to the court in a secure manner. As this matter was discussed in oral argument, Mr Poyton acknowledged the reasonableness of this approach. In the result, I dismiss the request that an unredacted record be filed, but I give the following directions for the information that has been redacted.

(a) If there is any redacted information in the record that Mr Poyton does not have, he may request an unredacted copy from the respondent for the purposes of this proceeding, on providing an undertaking not to divulge it to any person except as authorized by this court.

(b) If the respondent declines any request made by Mr Poyton under (a), it shall need to bring a motion before this court for a sealing order for that information.

(c) If the parties conclude that any of the redacted information needs to be provided to the court for the court to adjudicate the application on the merits, they shall provide this court with a consent, draft order, and an explanation of the request for a sealing order for this information to be provided to the court.

(d) If the parties disagree in respect to any issue under (c), the party wishing to have the redacted information placed before the court shall request a case conference with this court to schedule a motion on that issue.

This rather complicated procedure is established based on my assessment that, when the applicable principles were explained to Mr Poyton during the motion, he understood the underlying purpose of the redactions and accepted that there was no need to burden the application court with two records if redacted information is not material to the application. For example, Mr Poyton’s OHIP number is not material to the application, and he has an important privacy interest in seeing that this personal information of his is not included in a court file that will forever remain open to be viewed by any member of the public. I would add a caveat that documents that are already in the public record (such as a publicly available decision in immigration proceedings) would not seem to qualify as documents in respect to which a person may have a continuing privacy interest. Given these observations, the court hopes and believes that there will be few, if any, disagreements over this issue now that it is better understood.

Issue (c) Cross Examination of the Respondent’s Staff Member

[10] The moving party seeks to cross examine the respondent’s staff member who authored the letter setting out the respondent’s screening decision. This request is expressly precluded by s.26.1(10) of the Police Services Act, RSO 1990, c. P.15., as am. by SO 2007, c.5. Mr Poyton argues against this position on the basis that this application in Divisional Court is a hearing under Part V of the Police Services Act. It is not. The Police Services Act does not provide for an application to this court, either in Part V of the Act or anywhere else. An application for judicial review is a civil proceeding within the meaning of s.26.1(10) of the Act and is a proceeding under the Judicial Review Procedure Act. This request is expressly precluded by statute and is denied.

Disposition

[11] For these reasons the motion is dismissed, except in respect to Exhibit 38 to Mr Poyton’s affidavit. Exhibits 34 and 35 are struck out and shall be removed from CaseLines and the portions of Mr Poyton’s affidavit referencing that evidence shall not be considered by the panel hearing the application. The redactions issue shall be addressed in accordance with these reasons. The request to cross examine is dismissed.

[12] Order accordingly; there shall be no order as to costs.

D.L. Corbett J.

Released: May 2, 2022