CITATION: Korchinski v Office of the Independent Police Review Director, 2022 ONSC 6074

DIVISIONAL COURT FILE NO.: DC-21-856-JR

DATE: 20221102

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Swinton, and McCarthy JJ.

BETWEEN:

PETER KORCHINSKI

Applicant

– and –

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR

Respondent

Jason Bogle and Maressa Singh, for the Applicant

Miriam Saksznajder, for the Respondent

HEARD at Toronto (by videoconference): October 12, 2022

REASONS FOR DECISION

McWatt A.C.J.S.C.

BACKGROUND

[1] On May 27^th, 2020, multiple constables of the Toronto Police Service (TPS) responded to a call on the 24th floor of 100 High Park Avenue where, during interactions with the constables, Regis Korchinski-Paquet (“Regis”) fell to her death from an apartment balcony. The Special Investigations Unit (SIU) was contacted and conducted a criminal investigation into the matter, after which no charges were deemed warranted against any officer. After the SIU’s findings, the deceased’s father (the Applicant), filed a complaint with the Office of the Independent Police Review Director (OIPRD/the Director). After its investigation, the OIPRD concluded that there was insufficient evidence to believe any of the nine respondent officers had committed misconduct under the Police Services Act, R.S.O. 1990, c. P.15 (PSA).

[2] By way of a notice of application for judicial review, dated October 25, 2021, the Applicant seeks to quash the Director’s findings. The remedy he seeks is unclear. In his notice of application, he requests an order for mandamus requiring the Director to charge all respondent officers with misconduct under the PSA. The alternative relief he seeks is for this Court to find the respondent officers guilty of misconduct. Or he requests that an investigation be ordered into the actions of the respondent officers by a local police service. It is unclear whether the investigation requested is criminal in nature.

[3] It is not necessary, in any event, to consider a remedy here as I find that the Director’s conclusion that there were insufficient grounds to believe that the respondent officers had committed misconduct was reasonable. The rationale he used to reach that decision was transparent, intelligible and justified. The reasons support the conclusion reached. The application is dismissed. Here is why.

[4] This Court has jurisdiction to review the Director’s decision pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[5] The parties agree that the standard of review is reasonableness. The Applicant bears the onus of showing the decision was unreasonable (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras 81 and 292). A reviewing court must understand a decision maker’s reasoning process. The reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility. A court applying the reasonableness standard does not ask what decision it would have made in place of the administrative decision maker, attempt to ascertain the range of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. Instead, a principled approach to a reasonableness review is one which puts the decision-maker’s reasons first. What is a reasonable decision in each situation will always depend on the constellation of legal considerations and the factual context of the decision under review (Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 (Div. Ct.) at paras 16-20; Vavilov, supra, at paras 83-84, 90, 91, 100 and 102, 292, 293, 305, 313).

THE FACTS

[6] The OIPRD is the statutory body responsible for receiving, managing and overseeing all complaints made by members of the public about the conduct of police officers in Ontario. Any investigation it conducts seeks to determine whether there are reasonable grounds upon which to believe that an officer committed misconduct, as defined in the PSA Code of Conduct.

[7] The Applicant’s complaint to the OIPRD alleged, amongst other things, that the police failed to render assistance to his daughter after the family called 911 and asked for help in the aftermath of Regis’ two epileptic seizures. The Applicant complained that the police escalated the situation by not following training, using excessive force against her, failing to request the assistance of the Mobile Crisis Intervention Team (MCIT) and failing to take her mental health status into account.

[8] The OIPRD investigators met with the Applicant, his wife Claudette Beals, their son Reece Korchinski, and their lawyer. During the interview, the family expressed their unanimous concerns that the police had thrown Regis from the balcony and that they had planned to do so. They also alleged that members of the TPS had taken Regis’ phone from the scene to prevent criminal liability for their actions.

[9] The Director’s findings of fact can be summarized as follow:

(i) The 911 calls and dispatch information

[10] Shortly after 5:13 p.m. on May 27, 2020, Regis, her brother Reece and their mother Claudette each called 911 requesting police assistance. Ms. Beals advised that Regis and Reece were fighting and she wanted both removed from her home. She explained that Regis had a seizure that morning and that Reece ought to have known to stay out of her way. Bottles had been thrown, knives were pulled and there were punches to the face. Ms. Beals did not tell the police dispatch that Regis had mental health issues, nor did she ask that her daughter be taken to the Centre for Addiction and Mental Health (CAMH).

[11] In his call to 911, Reece complained that his sister had broken beer bottles and had run at him with knives. Reece told police that he had scratches but did not need an ambulance. He explained that Regis suffered from epilepsy and had two seizures that day. When asked specifically if Regis had any mental health issues, he told the police dispatcher, “Not that she’s diagnosed with, no, besides the epilepsy. It’s a health condition. It’s like she doesn’t know what she’s doing, right?”.

[12] Regis contacted 911 three times. In her first call, she said that Reece had attacked her and that she could not breathe. In her next call, she said Reece had punched her in the head and choked her, and that her mom jumped in and started attacking her too and that they had pulled out knives. When asked if anyone was diagnosed with mental health issues, she answered: “me, yes. I have epilepsy” and advised that she took magnesium for it. In her third call, she reiterated that she had just been attacked by her mother and brother.

[13] As a result of the calls, the initial radio dispatch was lodged as a “hotshot” for a domestic disturbance with the mother wanting her son and daughter removed. The dispatch advised responding officers that the daughter suffered from epilepsy and had two seizures that day. The information was then updated to indicate that the daughter had knives and the son had some injuries but did not require an ambulance. An ambulance was dispatched to the scene, nonetheless.

(ii) Arrival of the respondent officers

[14] The six officers who responded to the incident all drove there separately in accordance with COVID protocols which did not permit two officers in a car. The first to arrive was Constable VandenBrink, who had completed three months of service at the time. He attended with his emergency equipment activated, which in turn activated the In-Car Camera System (ICCS). Because the call involved weapons, he was told by dispatch to wait for back-up before going to the scene inside the building. He did not activate his ICCS microphone once he got upstairs to the disturbance.

[15] Constable Beaudoin arrived next. He activated his emergency equipment en route as traffic was heavy and he had to drive into oncoming lanes to reach the call quickly. Once he arrived on scene, he and Constable VandenBrink went up to the unit together. He did not activate his ICCS microphone once he got upstairs. Constable Villeneuve was the third officer on scene. He also had three months of service. He did not activate his emergency equipment en route but went immediately upstairs upon his arrival. He could not remember if he activated the microphone on his ICCS at any point.

[16] Constables Weddell and Mallinger then arrived from another call. Both had their emergency equipment on and activated their ICCS microphones. Constable Weddell had a sock-gun (a less-lethal use of force option) strapped across his body.

[17] Constable Beninger was the last to arrive. He did not have his emergency equipment activated but had activated his microphone when he arrived at the scene in the building.

(iii) Interaction with the family in the hallway

[18] Upon exiting the building’s elevator, Constables VandenBrink and Beaudoin were met by Ms. Beals. Regis was to the left of the hallway yelling at someone at the other end (likely Reece) and then she came over and told the officers that Reece had punched and choked her. She advised that she wanted him arrested. Around this time, Reece began to approach them from the other end of the hallway. Constables VandenBrink and Beaudoin moved into the space between Regis and Reece and put their arms up against the wall to prevent Regis from getting close to her brother.

[19] Constable Beaudoin approached Reece, asked him if he had possession of any weapons and performed a quick pat-down search. No weapons were found. Reece then took Constable Beaudoin inside the apartment to show him the damage that Regis had caused. Reece explained to the officer that Regis had seizures earlier in the day and that they had a fight about the volume on the television. She then grabbed some kitchen knives and they struggled over them.

[20] Constable Beaudoin asked Reece to stay in the stairwell next to the apartment while he spoke to Ms. Beals, who had come into the apartment. Ms. Beals told him that all three of them were on the lease but that she wanted Regis and Reece gone for the night and that she wanted Regis taken to CAMH.

[21] During this time, Constable VandenBrink remained in the hallway with Regis. She told him that Reece had hit her in the face and on her arms. Constable VandenBrink offered her an ambulance and asked how they could help. Constable Villeneuve arrived and spoke with Regis - also telling her that they were there to help. Regis repeated that Reece had choked and scratched her after they had an argument about the volume of the television, and she asked if Constable Villeneuve could help her. During the conversation, the officers maintained a distance from Regis and were calm and professional.

[22] The three officers then met in the middle of the hallway and shared what they had learned from the various family members. Regis continued to yell and was insistent on using the washroom. She approached the officers gathered in the hall and began to push her way past them. They moved their bodies and arms to try and stop her. It was around this time that Constables Weddell and Mallinger arrived from the elevator. Constable Weddell approached Regis from behind, took her by her shoulders and moved her behind the officers she was trying to get past. She stumbled briefly and then squatted as though she was going to urinate in the hallway. The officers then decided to let her go into the apartment to use the bathroom. Reece and Ms. Beals were taken into the stairwell. The paramedics, Civilian Witnesses 1 and 2, arrived around this time and set up near the stairwell.

(iv) In the apartment

[23] Constable Beaudoin went inside the apartment with Regis. She told him to get out, but he told her he could not as he was still investigating. Constables Villeneuve and VandenBrink entered the apartment shortly after Regis did. At one point, Ms. Beals also reentered the apartment and she and Regis continued to fight. Ms. Beals left the apartment shortly after.

[24] Regis went to the bathroom and phoned her father. Officers outside the unit heard parts of their conversation. She was yelling that Reece had assaulted her. She asked her father to come and get her.

[25] After getting off the phone with her father, Regis called a female friend, Witness 13. Around the same time, Constable Mallinger, who was outside, asked Civilian Witness 1, the female paramedic, to check on Regis. Civilian Witness 1 entered the apartment. Constable Beaudoin asked Regis to speak with the paramedic to get some help due to having had the two seizures that day. Regis then walked backwards towards the balcony, deliberately knocking over a large air conditioning unit as she did so. The noise of the unit falling caused the remaining officers to come to the unit doorway. Regis then went onto the balcony, alone, and shut the door. Constable Beaudoin recalled that she had her cell phone with her at the time.

[26] Constables Beaudoin and VandenBrink approached the balcony slowly. Constable Beaudoin told Regis to come back into the apartment. Regis lifted her upper body up and swung her leg over the balcony railing, appearing as though she wanted to get onto the neighboring balcony, which was separated by a divider. Not wanting to scare her, Constable Beaudoin began walking away from the balcony and radioed dispatch that Regis was going to the balcony next door. Constable VandenBrink told the other officers that Regis was on the neighbor’s balcony. Constable Weddell left the stairwell, where he had been with Reece, and went into the apartment. He told the officers to get out of the apartment so as not to scare Regis and then he went to knock on the neighbor’s door. When no one answered, he unholstered his sock-gun and went back into the apartment and onto the balcony. There, he learned that Regis had fallen.

ANALYSIS

[27] The Applicant has conceded that the OIPRD investigation revealed insufficient evidence to establish three of his eleven allegations of misconduct. The most serious one was that the respondent officers had thrown Regis off the apartment balcony.

[28] However, in relation to the remaining eight allegations of misconduct, he asks for the OIPRD decision to be quashed.

A. Investigative Deficiencies

[29] In addition to claiming that the Director’s findings were unreasonable, the Applicant has also alleged several deficiencies in the OIPRD investigation. However, the law does not require a perfect investigation and this Court will not intervene in the investigative steps made by a statutory decision-maker unless there is bad faith or patent unfairness (Law Society of Upper Canada v. Brooks, 2014 ONLSTH 183 at para 84; Society of Ontario v. De Rose 2018 ONLSTH 120 at para 77). Neither of these are present here. The Director’s discretion to take or not take certain investigative steps was reasonable and does not warrant judicial intervention.

B. Unlawful or Unnecessary Exercise of Authority – Excessive Use of Force

Use of force by the respondent officers

[30] The Applicant alleges that the respondent officers used unnecessary force against his daughter. During the OIPRD interview, Reece and his mother advised that the officers pushed Regis against the wall in the hallway. The Applicant now concedes, however, that Constables VandenBrink, Beaudoin and Villeneuve did not use excessive force against Regis in the hallway. He still challenges the Director’s finding that Constable Weddell did not use excessive force against Regis. The Applicant further submits that the OIPRD should have specifically reported on whether excessive force was used against Regis while she was in the apartment.

[31] The Director found that there was insufficient evidence to believe that any of the officers used excessive force on Regis. This decision was a reasonable conclusion.

[32] The investigation revealed that, as Constables Weddell and Mallinger exited the elevator, Regis was loudly saying that she had to “pee”. Constable Waddell approached her from behind as she was pushing past Constables VandenBrink, Beaudoin and Villeneuve, who were trying to prevent her from moving towards the apartment where her mother and brother were standing. Constable Weddell took her by her shoulders and moved her behind the three officers. On the video recording of this interaction, Regis appeared to stumble then squatted and said she would “pee” in the hallway.

[33] The Director found that Regis was “actively resistant” in trying to push past the officers who were trying to keep the peace and prevent her from reaching her family. The investigative report clearly articulated the rationale for the conclusion that the force used by Constable Weddell was both proportionate and necessary in the circumstances. There was no legal error in the Director’s decision, and there is no merit to the Applicant’s submission that the Director’s finding here was unreasonable.

[34] The Applicant’s second complaint that the OIPRD decision did not specifically address the use of force in the apartment has no merit. In fact, that issue was exhaustively vetted and reported on because of the Applicant’s allegation that his daughter had been thrown from the apartment balcony by the police. The investigation revealed that none of the officers had any physical contact with Regis while in the apartment. Consequently, there was no evidence of misconduct.

[35] Along the same lines, the Applicant complains that the OIPRD investigation was deficient because it did not obtain the ICCS recordings from the TPS directly, which were relevant to what went on in the apartment prior to Regis’ fall, but rather relied on the recordings obtained from the SIU. He also complains that the OIPRD investigation did not include an interview of Witness 13.

[36] The Applicant points to no evidence from which I could infer that the SIU corrupted or otherwise distorted the electronic files, or that in copying the audios for the OIPRD the files became distorted. The Respondent suggests, and I accept, that the reason the conversations from the ICCS microphones, activated by Constables Waddell and Mallinger’s ICCS, did not clearly record the moments leading up to Regis’ going onto the balcony was not because the files had been copied from the SIU file, but because the officers were not inside the apartment with her at the time.

[37] Witness 13 was Regis’ best friend and had known her for about two years. She was not present at the scene of the incident and did not know the circumstances of what had occurred at Regis’ apartment. Her evidence was that she spoke to Regis on the phone on a video call and saw that she was being attacked but could not say who the attacker was. The call was lost, and Witness 13 did not speak to Regis again. Counsel for the Applicant did interview Witness 13. The Director accepted that interview evidence and found that this witness saw nothing in the apartment, but that she did speak to Regis before her death and that she tried to call the deceased after their call was disconnected. It is, then, not accurate of the Applicant to claim that she had not been investigated.

[38] I will add that investigations are not expected to exhaust all possible avenues and interview all witnesses. Further, investigations conducted under the PSA, subsection 82(17), are to be conducted within six months of the date on which the complaint is retained by the OIPRD for investigation or referred to a police service for investigation. Given the limited time and available resources, the decision about whether to take investigative steps depends on several factors, including an assessment of the potential value of a witness’ evidence, considering other evidence gathered.

[39] As noted earlier, investigations also do not need to meet the standard of perfection. With respect to Witness 13, there is no evidence that the Director’s decision not to interview her was made in bad faith so that it either undermined the integrity of the investigation or the reasonableness of his decision. As it turned out, Witness 13’s evidence was of limited value.

C. Neglect of Duty

[40] The Applicant alleges that the Director erred in failing to find evidence of misconduct relating to the neglect of the respondent officers to: (i) notify the TPS Mobile Crisis Intervention Team (MCIT); (ii) review the historical occurrences involving Regis prior to attending the scene and taking into account her mental health history; (iii) use their de-escalation training; (iv) activate body cameras/recording microphones; and (v) provide full and frank accounts to the SIU of the events leading to Regis’ death (Deceit).

[41] The Director submits that his findings with respect to all these allegations fell within the realm of reasonableness and should not be interfered with. I agree with this submission as well.

[42] To establish Neglect of Duty, the evidence must prove: (i) a duty existed; (ii) the officer failed to discharge the relevant duty promptly and diligently; and (iii) there is no lawful excuse, good or sufficient cause or adequate reason to excuse the failure to discharge the duty (Provincial Constable K.M. Soley and the Ontario Provincial Police, 1996 17303 (ON CPC) at paras12 and 13).

[43] In dealing with the tort of negligent investigation, the Supreme Court of Canada, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para 73, set out the standard of care the police owe citizens in performing their duty as that of a reasonable police officer in similar circumstances. The Court said:

This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care.

[44] The reasonableness of an officer's conduct must be examined considering the circumstances as they exist at a particular time. An officer is expected to use discretion and judgment in the course of his duties and that discretion or judgment ought not to be examined scrupulously by the benefit of hindsight. Rather, an examination of the circumstances under which the officer exercised discretion or independent judgment is required (Brown v Ontario Provincial Police, 2006 ONCPC 9 at page10; Constable Steven Mousseau and the Metropolitan Toronto Police Force, 1981 3042 (ON CPC) at p. 4).

[45] As well, the impugned conduct must include an element of willfulness in the police officer’s neglect or there must be a degree of neglect which would make the matter cross the line from a mere job performance issue to a matter of misconduct. In other words, mere failure to comply is not enough. There must be some evidence of deliberateness or recklessness to the failure to comply or some meaningful level of moral culpability to attract disciplinary penalties (Brown, supra, at p.11); Allen v Alberta (Law Enforcement Review Board), 2013 ABCA 187 at para 33).

[46] As a breach of the Code is a serious finding against an officer which may result in significant penalties, not every misstep or failure to follow policy would “extend into the realm of misconduct.” (Kraljevic and Svidran, 2017 ONCPC 21 at para 24; P. (G.) v. Ontario (Attorney General), [1996] O.J. No. 1298 (Div.Ct.) at paras 85 to 87).

(i) Failure to contact the Mobile Crisis Intervention Team

[47] The MCIT is a partnership between Toronto area hospitals and the TPS. The program partners a mental health nurse and a specially trained police officer to respond to situations involving individuals experiencing a mental health crisis. The units are dispatched through the 911 system. The Applicant has conceded that the MCITs are not first responders and therefore are not dispatched to calls involving weapons or “unknown trouble” calls (Toronto Police Service Policy 06-04 -Emotionally Disturbed Persons).

[48] The engagement of the MCIT falls within the TPS’ Emotionally Disturbed Persons Policy, which defines an “emotionally disturbed person” (EDP) as including any person who appeared to be in a state of crisis or is mentally disordered. The policy defines a “person in crisis” as a person who suffers a temporary breakdown of coping skills but often reaches out for help, demonstrating that they are in touch with reality. According to the policy, an officer responding to a complaint of a suspected EDP has several obligations, including requesting the notification and attendance of the MCIT if available.

[49] The police here never requested the attendance of the MCIT - either initially or at any time during police interaction with Regis. The Applicant concedes that it was reasonable that the MCIT was not initially requested, as the call for service involved weapons. However, he submits that the MCIT should have been requested once the officers knew that there were no weapons and the Director failed to address this failure.

[50] The Director submits that he did properly address the issue in finding that the duty to contact the MCIT did not arise and, even if it did, the failure to have discharged that duty would not be considered neglect. This decision was reasonable and amply supported by the evidence.

[51] The first step in the analysis of whether the officers neglected their duty in failing to request the MCIT is to establish that a positive duty existed. The Applicant submits that the duty arose once the officers had satisfied themselves that weapons were no longer an issue because Regis was an “emotionally disturbed person” as defined in the policy and that she had a mental illness. She was a “person in crisis” because she was suffering a breakdown of coping skills and was asking for help and also because Ms. Beals asked the officers to take Regis to CAMH.

[52] First, the dispatcher, who is the first party responsible for dispatching the MCIT, in appropriate circumstances, did not classify this incident as a complaint of a suspected EDP. This is because the 911 calls were not about a mental health apprehension or an EDP. Instead, they were about a brother and sister engaged in a fight, with one or both having knives and their mother wanting them removed from the home. In other words, the calls were of a criminal nature.

[53] And, although the police were advised that Regis suffered from epilepsy and had two seizures earlier that day, epilepsy is a physical condition, not a mental health disorder (Epilepsy and Psychological Disorders | Epilepsy Foundation). The officers could not have inferred that she had a mental disorder simply because she had suffered two epileptic seizures. Once they arrived on scene, no one ever provided them with information that Regis had been diagnosed with a mental health disorder or had been previously apprehended under the Mental Health Act, R.S.O. 1990, c. M.7. In these circumstances, the officers’ not assessing Regis to be an “emotionally disturbed person” was reasonable. And the officers’ perception was consistent with that of the two paramedics at the scene as well as that of the MCIT coordinator.

[54] It was also reasonable for the officers not to have assessed Regis to be a “person in a state of crisis”. While she was clearly emotional and agitated, her behaviors could not be exclusively attributed to a breakdown of coping skills. Although the Applicant submits that his daughter was pleading for help for her mental health issues, the inference drawn by Constable Beaudoin and others is equally plausible and perhaps even more compelling – that the ‘help’ Regis was asking for was to have Reece arrested and/or removed from the apartment. She told all the officers that she wanted Reece arrested. She told her father that she wanted Reece out of the apartment. She commented that the police were not helping her because Reece was never arrested.

[55] Also, although Ms. Beals asked the officers on scene to take her daughter to CAMH, they could not have done so without Regis’ consent unless they had grounds to apprehend her pursuant to section 17 of the Mental Health Act, which they did not have. A request to take Regis to CAMH, alone, without accompanying information about a mental illness, did not provide a basis on which to believe that Regis fell within the policy. For all these reasons, the Director reasonably concluded that Regis did not fall within the TPS EDP policy, and consequently the officers did not have a positive duty to notify the MCIT.

[56] The Director also considered that, even if a duty existed, there was evidence that the officers had a reasonable excuse for not discharging it. The situation was dynamic and fast-paced from the outset. After satisfying themselves that there were no weapons, the officers sought to determine what had occurred and whether charges ought to be laid. The investigation was still in its early stages when Regis went into the apartment to use the washroom. It would have been premature at any point up until she went onto the balcony to have arrested her, apprehended her, or called the MCIT to attend.

[57] The Director found that the officers did not neglect their duties by failing to notify the MCIT during their interaction with Regis. His reasons were clearly articulated and were supported by the evidence. While the Applicant continues to disagree with the findings, he is unable to show any legal error in the Director’s reasons and has not discharged his burden to show the decision was unreasonable.

(ii) Failure to review historical occurrences prior to attending the scene, and ignoring Regis’ mental health history

[58] The TPS EDP policy requires that, in responding to a call relating to a person in crisis, the officers must conduct a computer check (CPIC check and firearms check). The respondent officers did not conduct these inquiries or review any historical occurrences prior to attending the call. The Applicant alleges their failure to do so, and their ignoring Regis’ mental health history, constituted a neglect of duty.

[59] The investigation revealed that there were approximately a dozen calls for service at the deceased’s residence between 2014 and May 27, 2020, one of which involved Regis being apprehended under Mental Health Act following an epileptic seizure. The remaining occurrences were not related to her mental health.

[60] The OIPRD found that Regis did not fall within the TPS EDP policy and therefore the duty to conduct a CPIC and firearms check, or to review past occurrences, was not engaged and, even if the duty were engaged, the officers had a lawful excuse for not discharging it. None of the officers could have read any occurrences while en route to the call as they were all driving. Once on scene, they immediately engaged with various family members. Constable VandenBrink was the exception as he had to wait for back-up. In any event, if the duty were engaged, he could not have reviewed occurrences while waiting, as he did not know when back-up would arrive, and he needed to be ready to go upstairs as soon as the second officer attended. Even once they satisfied themselves that there were no weapons, the officers could not abandon their investigation to stop and review prior occurrences. As well, the family did not provide the officers with any information about Regis’ past apprehension or prior mental health history. There was no information for them to have ignored.

[61] The Director’s finding that there was insufficient evidence to substantiate an allegation of neglect of duty was supported by the evidence and was clearly articulated in his report. His conclusions were reasonable.

(iii) Failure to use their de-escalation training

[62] As set out in the investigative report, communication, containment, and de-escalation are crucial in police interaction with people experiencing mental crises. The respondent officers were trained to focus on communication and rapport-building in these crises where an individual retains the ability to understand and behave rationally.

[63] The Applicant alleges that the officers failed to follow their de-escalation training and that the Director’s finding to the contrary was unreasonable. I disagree.

[64] This complaint does not specify which of the officers present on the scene failed to de-escalate matters. The Applicant’s submissions on this issue focus almost exclusively on the conduct of Constable Weddell. The Applicant also submits, for the first time on this application, that when all five officers were in the apartment, they failed to report the escalation of events.

[65] The Director found that all officers made appropriate efforts to de-escalate the situation. Contrary to the Applicant’s assertions that the situation was calm prior to police arrival, the evidence showed that Regis was extremely agitated when police arrived. Constables Beaudoin, VandenBrink and Beaudoin all spoke to her calmly and asked how they could help. They gave her space and created distance between her and Reece. Notwithstanding that she was a potential suspect in a criminal investigation, they permitted her to use her phone and to use the bathroom alone, all with a view to calming her down.

[66] The Applicant now submits that Constable Weddell escalated the situation when he went into the apartment with his sock-gun strapped across his body because, approximately thirty seconds later, Regis was on the balcony. It is unclear whether he takes the position that Constable Weddell unholstered the sock-gun in the apartment, which escalated the situation, or whether he lied about removing it before going into the apartment.

[67] Either way, the submission is contrary to the Director’s factual findings. The Director accepted Constable Weddell’s evidence that he did not go into the apartment and, therefore, did not have contact with Regis until after he heard someone say that she was on the balcony. He then went briefly to the doorway of the apartment and then to the neighbor’s unit. When no one answered at the neighbor’s unit, he removed his sock-gun as he went back into the apartment to see if Regis was on the balcony. This finding, which must be accorded deference, absence exceptional circumstances, did not support grounds to believe that Constable Weddell escalated the situation by having or unholstering his sock-gun in Regis’ presence or otherwise acted in a manner contrary to his training.

[68] For the first time on this application, the Applicant alleges that the officers committed misconduct by failing to engage further assistance when matters escalated in the apartment. This allegation was not raised in the Applicant’s complaint or interview and should not be raised now. In any event, the evidence showed that Constable Weddell asked dispatch to contact ETF, which they did. The Applicant has failed to discharge his burden to establish that the Director’s findings here were unreasonable.

(iv) Failure to activate the in-car camera system microphones

[69] The Applicant maintains that the Director’s finding was unreasonable when he decided that the officers’ not activating their ICCS microphones was a performance issue not misconduct. Again, I disagree.

[70] The Director recognized that the misconduct of Neglect of Duty requires that the failure to perform a duty without lawful excuse must cross the line from being a performance issue to a matter of misconduct. He concluded that the failure of the officers to activate their microphones did not result in the loss of key evidence as the evidence was otherwise captured on the microphones of Constables Mallinger and Weddell and on the building security video. The Director found that the situation was dynamic and that there was no evidence that the officers were acting in bad faith. His specialized expertise in policing, to which we owe deference, was also consistent with the law in this area that not every error in judgment or mistake amounts to misconduct.

[71] Constable Benninger believed he had activated his microphone and an honest mistake would not amount to misconduct. The Director also properly considered the circumstances in which Constables VandenBrink, Beaudoin and Villeneuve did not activate their equipment upon exiting the elevators, namely their immediate engagement with various family members.

[72] Additionally, two of the four officers had only three months’ service at the time of this incident. The Director found insufficient evidence to believe the respondent officers were reckless or that their shortcomings were deliberate so that their actions crossed the line from a performance issue into misconduct.

[73] While the officers should have activated their microphones when they exited the elevators, in accordance with the TPS policy, (TPS Policy 15-17 In-Car camera System) their failure to have followed policy is not automatically misconduct (Brown, supra, at p. 11; Allen, supra, at para 33).

[74] The Applicant’s concession that there was no evidence on which to find that the officers threw Regis off the balcony means there can be no inference that they deliberately did not turn on their microphones to avoid the video capture of this alleged conduct.

D. Deceit

[75] A police officer commits deceit if he or she willfully or negligently makes a false, misleading or inaccurate statement pertaining to their official duties. However, an inaccurate statement by itself, in the absence of proof of willfulness or intent to mislead, will not support a conviction (Cate v Peel Regional Police Service, 2002 74564 (ON CPC) at para. 41; Rollins v. PC W.J (Wayne) Desjardins and Ontario Provincial Police Service, 2020 ONCPC 10 at para 11).

(v) Failure to provide full and frank accounts to the SIU of the events leading to Regis’ death

[76] In his original complaint and interview, the Applicant alleged that the attending officers failed to provide fulsome statements to the SIU to shield themselves from criminal liability. The Director found no evidence to support this allegation. The Applicant now alleges that Constable Waddell lied to the SIU about removing his sock-gun and that Constable Mallinger lied to the SIU because she did not tell them that she had spoken to him on the phone from the apartment. The Director submits that the Applicant should not be able to raise these new issues for the first time on this review. I agree.

[77] In any event, the allegations are without merit. The Director found that Constable Weddell removed his sock-gun after Regis was already on the balcony, as he told the SIU. Further, there is no evidence to support that Constable Mallinger spoke with the Applicant and then lied about it through omission. The Applicant has never stated that he spoke to any officer that day. In fact, he told the OIPRD, during his interview, that he did not know police were even in the apartment that day.

E. Discreditable Conduct

Removal of the phone

[78] The Applicant continues to assert that Regis’ phone was taken from the scene by the respondent officers “to cover up their pre-and post-incident activities”. He maintains this position even in the face of his concession that the respondent officers did not throw Regis off the balcony. He maintains that the phone was taken by the police based on the evidence that it was never recovered; because the calls Civilian Witness 13 made to Regis after they were disconnected appeared on her phone screen as “cancelled” and because the Witness believed someone manually declined those calls; and also because of the evidence of Civilian Witness 14 that a member of the TPS called her two weeks after the incident asking questions that she believed could only be asked if someone had read her text messages with Regis.

[79] As part of the investigation into the missing cell phone, the Director served a summons on TELUS Communications. The information received confirmed that Regis’ final outgoing call was to Civilian Witness 13. No other outgoing calls were made afterwards. It also confirmed that Civilian Witness 13 made four calls to Regis after they were disconnected. However, the TELUS records showed that all these calls and other subsequent calls to the phone went to voice mail. They were not, as the Witness contended, “cancelled” or declined. In addition, the information provided by Civilian Witness 14 did not establish that she received a telephone call from the TPS two weeks after the incident. As a result, an inference that member(s) of the TPS had possession of Regis’ phone, manually declined her incoming calls and looked at her text messages was not supported by the facts. In the absence of evidence on the issue, the Director’s conclusion that there was insufficient evidence to believe that a member or members of the TPS had taken Regis’ phone was clearly laid out in his report and was a reasonable conclusion.

DISPOSTION

[80] The Application is dismissed.

[81] Because the Respondent asks that there be no cost Order made for or against them, there shall be no costs ordered in this matter

McWatt A.C.J.S.C.

I agree _______________________________

Swinton J.

I agree _______________________________

J. McCarthy J.

Released: November 2, 2022

CITATION: Peter Korchinski v Office of the Independent Police Review Director, 2022 ONSC 6074

DIVISIONAL COURT FILE NO.: DC-21-856-JR

DATE: 20221102

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C., Swinton, and McCarthy JJ.

BETWEEN:

PETER KORCHINSKI

Applicant

– and –

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR

Respondent

REASONS FOR DECISION

McWatt A.C.J.S.C.

Released: November 2, 2022