CITATION: Yen v. Office of the Independent Police Review Director, 2023 ONSC 1524
COURT FILE NO.: DC-22-00001318
DATE: 20230308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Lococo and Hooper JJ.
BETWEEN:
DAVID JAMES YEN
Applicant
– and –
OFFICE OF THE INDEPENDENT
POLICE REVIEW DIRECTOR
Respondent
David James Yen, Self-represented
Pamela Stephenson Welch, Counsel for the Respondent
HEARD by videoconference in Oshawa on January 24, 2023
HOOPER J.:
Overview
[1] The Applicant seeks judicial review of a decision of the Office of the Independent Police Review Director (“OIPRD”) not to proceed with his complaint against Acting Inspector Vickers (“A/Inspector Vickers”)
[2] The OIPRD is a civilian agency responsible for receiving, managing, and overseeing all public complaints against police in Ontario. The Notice of Application for Judicial Review seeks a reversal of the OIPRD decision on July 19, 2022 only. I say “only” because, as set out below, this was not the first complaint made to the OIPRD in relation to the same set of circumstances.
[3] The Applicant seeks to have the decision quashed and the matter remitted for fresh consideration by a different agency. The Applicant argues that the OIPRD decision is neither correct, nor reasonable.
[4] For the reasons set out below, I would dismiss the application.
Factual Background
[5] In 2018, a series of events occurred involving the mooring of the Applicant’s boat that resulted in the Applicant being charged with mischief. That charge was later withdrawn. The Applicant subsequently sought information as to the laying of the charge, including the service of the Summons. He did not receive answers that satisfied his concerns and, as he had every right to do, he filed a complaint to the OPP Professional Standards Bureau (“OPP PSB”) on March 10, 2020. His complaint was reviewed, with the conclusion that no criminal offence had been committed by any OPP officer.
[6] On April 20, 2020, the Applicant submitted a complaint to the OIPRD regarding his concerns about the actions of the seven officers of the Parry Sound OPP involved in the investigation and laying of the mischief charge from 2018. On June 18, 2020, the OIPRD sent a letter to the Applicant detailing why an investigation into the complaint was not in the public interest. The Applicant did not seek a judicial review of that decision.
[7] On September 14, 2021, the Applicant sent a letter to the OPP commissioner regarding the March 10, 2020 OPP PSB complaint. Acting Inspector Vickers was then assigned to follow up with the original complaint.
[8] On April 28, 2022, Acting Inspector Vickers wrote to the Applicant outlining the findings of his investigation. In that correspondence, Acting Inspector Vickers wrote the following:
Your correspondence has been reviewed by several officers, including me. The following is a response to your claims as listed in your most recent correspondence:
“Two OPP officers seized my mooring anchor without knowing their seizure authority or even knowing what offence may have been committed.” You went on to say the officers did not know what possible offence they were investigating. This claim is not supported by OPP records. The officer’s notes, reports and court documents support the position that the anchor was seized to support the Criminal Code offence of mischief.
Your paragraphs numbered 2 and 3 note, “I had the right to moor my vessel on Whitestone Lake” and “The OPP officers do not have the authority to seize a mooring anchor from Federal waters.” The officers were investigating a complaint of mischief and proceeded to seize the anchor as evidence to the offence of mischief. Your right to moor your vessel on the lake was not at issue. There is no evidence of police misconduct requiring further examination.
You stated in paragraph 4, “I attempted to discuss the unlawful seizure with the Parry Sound OPP S/Sgt and I was immediately charged with the Criminal offence of Mischief.” This complaint was classified as a mischief from the outset, not as a result of your communication with the Staff Sergeant.
In paragraphs 6 and 7, you describe the retention of the original copy of your summons as the “theft” of your document. It appears the original copy of your summons was given to you in error. When you attended the detachment to be fingerprinted, the officer sought to correct the error by retaining the original and by giving you a copy.
It is clear from our telephone conversation that you feel strongly about your beliefs that the officers from the West Parry Sound OPP Detachment committed misconduct through an improper or insufficient investigation, the violation of federal maritime laws, and the theft of documents. It is regrettable that your experiences with our police service were negative. Please be assured the OPP takes all allegations of misconduct seriously. After careful consideration, there is no evidence to support further examination and the matter is deemed to be closed.
I.D. Vickers A/Inspector, Professional Standards
[9] On July 5, 2022, the Applicant filed a complaint with the OIPRD against Acting Inspector Vickers in relation to his investigation into the OPP PSB complaint. The full complaint was in the record on this application. The OIPRD complaint repeats all of the allegations the Applicant made against the six OPP officers in March 2020 and alleges misconduct against Acting Inspector Vickers in failing to conduct a more fulsome investigation into those allegations.
[10] The July 5th OIPRD complaint was reviewed by a case coordinator who recommended the complaint be screened in and referred to another agency. That recommendation was thereafter considered by the Team Lead at the OIPRD who stated the following:
This new complaint appears to be a follow up to C's previous complaints that were screened out by the OIPRD. All three complaints stem from the OPP's investigation into a neighbour dispute that resulted in C being charged with Mischief on August 15, 2018. C subsequently directly submitted a complaint directly to the OPP's PSB alleging that several officers committed misconduct during their investigation of the dispute. It appears that the PSB investigation did not substantiate C's allegations. In this complaint, C provided additional information to support his allegations about the officers' actions and about what he considers neglectful investigation by Inspector Vickers as it did not rely on witness statements. Specifically, C states that the two officers who seized his mooring anchor did not know under what authority they did so and failed to tell him the specific offence he committed. He also argues that he was unlawfully charged with Mischief and that relevant evidence was not included in the Crown Brief for consideration. In his new complaint, C has provided additional voluminous details explaining his misconduct allegations against the officers he initially interacted with and against the PSB Inspector Vickers. However, the thrust of his complaint remains that he disputes the Mischief charge and disagrees with the conclusions of the PSB investigation.
Although I am inclined to recommend screening out this third complaint as NPI as the PSB appears to have investigated C's complaint albeit not to his liking, legal advice is required given the specific alleged investigation shortcomings C detailed in his submission. Assistance with screen out wording should this complaint be screened out would be appreciated.
[11] On July 19, 2022, the OIPRD wrote to the Applicant advising that the complaint would not proceed. Within that correspondence, the OIPRD outlined the chronology of the earlier complaints, its consideration of whether proceeding with the complaint is in the public interest, and concludes:
Based on the details provided, it appears A/Inspector Vickers addressed each of the concerns you raised, and he explained the various actions of the officers. The inspector also explained why he reached the conclusion that the officers did not commit misconduct. We have considered that “Police are not held to the standard of perfection, and the parties with a stake in an investigation are not entitled to a desired outcome. In order to find that an officer neglected his or her duties, there must be evidence of either wilfulness or a degree of neglect which would make the conduct of the officer cross the line from a mere performance consideration to a matter of misconduct”: Ontario Provincial Police and Sgt. Dalton Brown, OCCPS #06-09 (31 October 2006). While we understand that you strongly dispute A/Inspector Vickers’ conclusions, your disagreement does not necessarily mean that the Inspector conducted a negligent investigation. Further, even if there were some missteps in the investigation, neglect of duty requires either wilful neglect or a degree of neglect that constitutes misconduct. Upon a review of the entirety of the complaint, there is insufficient information to suggest that the investigative actions or inactions of A/Inspector Vickers would support a finding that he may have neglected his duties or committed a form of misconduct.
According, given the above, the Director has determined that it is not in the public interest to send the complaint for investigation.
[12] The Applicant has sought judicial review of that decision.
The OIPRD’s Complaint Process
[13] Pursuant to the Police Services Act, R.S.O. c. P15, s. 59(1) (“PSA”), members of the public may make a complaint to the OIPRD about the police in Ontario. The Director is required to review every public complaint and those complaints are presumed to be screened “in” unless the Director exercises his legislative discretion to screen the complaint “out”. The PSA gives the Director broad discretion to decide not to deal with a complaint and screen it “out”: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149.
[14] 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:
(1) The complaint is frivolous or vexatious or made in bad faith;
(2) The complaint could be more appropriately dealt with, in whole or in part, under another Act or another law;
(3) Having regard to all of the circumstances, dealing with the complaint is not in the public interest.
[15] “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 (“OIPRD Rules”) (see also Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para 9):
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 complaints 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.
Standard of Review
[16] The Applicant argues the standard of review of the OIPRD’s decision is correctness. The Respondent disagrees and asserts the standard of review remains the presumptive reasonableness standard under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para 23 (“Vavilov”).
[17] In Vavilov, the Supreme Court of Canada made it clear that the standard of review to be used on judicial review of a tribunal’s decision is presumptively reasonableness There are certain specified exceptions to this presumption, none of which apply here. In particular, this application does not raise a question of law or a legal question that is of central importance to the legal system as a whole. Accordingly, the Director’s decision to screen out the Applicant’s complaint is subject to review on a reasonableness standard: Komer v. Attorney General of Ontario, 2022 ONSC 2572 (Div. Ct.), at para. 14.
[18] The Applicant also raised an issue of procedural fairness. With respect to procedural fairness, the question is whether procedural fairness was accorded.
The OIPRD decision was reasonable
[19] The Applicant spent considerable time in his oral argument outlining the alleged misconduct of the officers involved in the investigation and laying of the 2018 mischief charge, including the issue involving replacing the original summons and his difficulties obtaining information through his Freedom of Information requests. However, those complaints are not the subject of the decision under judicial review. The OIPRD decision at issue on this application is the July 19, 2022 decision declining to move forward in the complaint against A/Inspector Vickers. The issue before this court is whether the OIPRD’s decision of July 19, 2022 was unreasonable.
[20] The Applicant relied heavily on the OIPRD’s internal case coordinator’s recommendation that the complaint be screened in and assigned to a different agency. However, that is only a recommendation. The Team Lead held a different view, and the Director made the ultimate decision. This is the process that has been established for these complaints, with more than one individual reviewing and considering whether the matter should be screened in or screened out. The fact that the Applicant disagrees with the final decision does not make that decision unreasonable.
[21] When considering if proceeding with a complaint is within the public interest, the OIPRD Rules specifically allow the Director to factor in whether the complaint relates to an incident or event that has already been the subject of an earlier complaint (Rule 6.4) and the OIPRD Rules state 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. (Rule 6.5) [emphasis added].
[22] 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, conduct a new analysis, or seek to determine the correct solution to the problem. Instead, the reviewing court must consider only whether the decision made by the decision-maker, including both the rationale for the decision and the outcome to which it led, was unreasonable: Vavilov; Martinez v. Office of the Independent Police Review Director, 2022 ONSC 887 at para. 18. There is nothing on the record before us to support such a finding.
Procedural fairness was accorded to the Applicant
[23] The Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 states that the degree of procedural fairness required of any administrative decision maker is to be determined by reference to all the circumstances of that decision. These include: (1) the nature of the decision being made, and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of the procedure made by the administrative decision maker itself.
[24] The legislative scheme of the Police Services Act provides the Director with the discretion to decide not to deal with a complaint under s. 60(1). The summary nature of the initial screening process does not attract a high level of procedural fairness.
[25] The Applicant did not point to any part of that process that was unfair save and except the case coordinator’s initial recommendations being changed upon further review. The fact that the team lead did not agree with the recommendations of the case coordinator does not make the process unfair.
[26] The Applicant’s complaint was received, reviewed by a case coordinator, reviewed again by a Team Lead, with the ultimate decision being made by the Director. That decision was communicated to the Applicant with reasons. The process met the Respondent’s duty of procedural fairness.
Conclusion
[27] The Applicant has not established that the OIPRD’s decision was unreasonable or that the process was unfair. I would dismiss the application for judicial review.
[28] No costs were sought and accordingly, I would not award costs.
Hooper J.
I agree_______________________________ Lederer J.
I agree_______________________________ Lococo J.
Released: March 8, 2023
CITATION: Yen v. Office of the Independent Police Review Director, 2023 ONSC 1524
COURT FILE NO.: DC-22-00001318
DATE: 20230308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Lococo and Hooper JJ.
BETWEEN:
DAVID JAMES YEN
Applicant
– and –
OFFICE OF THE INDEPENDENT
POLICE REVIEW DIRECTOR
Respondent
REASONS FOR JUDGMENT
Hooper J.
Released: March 8, 2023