CITATION: Chaubet v OIPRD, 2023 ONSC 2587
DIVISIONAL COURT FILE NO.: 125/23
DATE: 20230427
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
Title: Christelle Chaubet Applicant
AND
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Respondent
BEFORE: Leiper J.
COUNSEL: Christelle Chaubet self-represented Applicant
Heather Mackay counsel for the Respondent
HEARD: In writing
Date of Decision: April 27, 2023
ENDORSEMENT
[1] In 2022, the applicant, Christelle Chaubet, made several complaints to the Office of the Independent Police Review Director (OIPRD), stemming from her allegations that as the biological daughter of Barry Sherman and she has information about a suspect which the Toronto Police Service failed to investigate as part of an ongoing homicide investigation.
[2] The OIPRD decision of November 5, 202,2 screened out Ms. Chaubet’s complaints as being frivolous and provided detailed reasons that included this explanation:
Section 60(4) of the Police Services Act permits the Independent Police Review
Director not to deal with a complaint if, in his opinion, having regard to all of the
circumstances, dealing with the complaint is not in the public interest.
A review of the information you provided in your complaint indicates that you
raised the same allegations in your previous complaints to the OIPRD, [redacted] regarding the information you provided to the Toronto Police Service investigation [redacted].
Please note that the police have the discretion to determine whether or not to embark on an investigation of the information provided to them. In this case, we have carefully reviewed your complaint and while we understand your concerns, it appears that the police investigation into this matter is still ongoing. Furthermore, the police have an inherent discretion to determine what steps should be taken within an investigation. Whether an investigative step was appropriate depends on a number of circumstances. In fact, there may be circumstances when the officers are prohibited from performing an action based on the information provided to them. It is rare for courts and tribunals to second guess the police with respect to decisions made in the course of an investigation. As such, the decision of the officer not to investigate the information you provided is not unreasonable. The Police Services Act sets out screening criteria for public complaints and allows the OIPRD to decide which complaints should proceed and which should not proceed to investigation. Therefore, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, having regard to all the circumstances, the OIPRD has decided not to investigate your complaint.
Please be advised that the Police Services Act, our governing legislation, does not provide for an appeal from the classification and screening of complaints conducted by the OIPRD. Accordingly, our file is now closed. If you wish to challenge this decision, you may bring a judicial review application in the Divisional Court which is a branch of the Superior Court of Justice. Information about the judicial review process is attached for your information.
A copy of your complaint as well as our decision not to proceed has been forwarded to the Chief of the Toronto Police Service for his records.
[3] At a case conference on April 3, 2023, I invited the parties to provide submissions on whether Ms. Chaubet’s application should be dismissed pursuant to r. 2.1.01, of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.
[4] Both parties made submissions on the question of whether this proceeding should be dismissed pursuant to Rule 2.1. Ms. Chaubet was given an opportunity of reply to the submissions filed on behalf of the OIPRD.
[5] For the following reasons, I conclude that Ms. Chaubet’s application for judicial review should be dismissed pursuant to r. 2.1.01 and r. 2.1.02.
[6] Ms. Chaubet submits that the Divisional Court has jurisdiction to receive applications for judicial review from decisions made by administrative bodies and tribunals in Ontario which exercise statutory powers of decision. The OIPRD meets those criteria. I agree with her submission on the jurisdictional point.
[7] Ms. Chaubet further submits that the nature of her request for judicial review arises from the seriousness of her allegation that she has information about a suspect in a serious homicide. She submits that it is a breach of s. 4(2) of the Police Services Act RSO 1990, c P.15 which defines adequate and effective police services, at a minimum as:
Crime prevention.
Law enforcement.
Assistance to victims of crime.
Public order maintenance.
Emergency response.
[8] Ms. Chaubet submits that her tips to the police deserve investigation. Her application for judicial review seeks mandamus based on “circumstances [to] prevent Toronto Police from investigation the elements I have provided [and] is an error.”
[9] Counsel for the OIPRD submits that the application for judicial review should be dismissed as frivolous because it seeks an order in mandamus which would appear to require the OIPRD direct the TPS to investigate the information provided by Ms. Chaubet. As confirmed by a panel of the Divisional Court in Homes v. White [2013] O.J. 2886 (Div. Ct.), “there is no private or public law duty owing by the police to investigate a complaint.”
[10] The OIPRD submits that this relief is not available on the judicial review because its mandate is limited to determining whether there has been police misconduct. Mandamus is not available to require a police service to investigate a matter in a particular way.
[11] I agree. The discretion afforded to the Toronto Police Services in carrying out investigations means that the OIPRD is not able to direct how an investigation shall be carried out. By extension, although judicial review is available to review the exercise of the OIPRD as to matters within its mandate, where a complaint falls outside its statutory power of decision, a review of that complaint similarly cannot succeed. I conclude that the application for judicial review is thus “frivolous” in that it cannot hope to succeed.
[12] Accordingly, I dismiss the application for judicial review by virtue of r. 2.01.
_______________________________ Leiper J.
Released: April 27, 2023