Court File and Parties

CITATION: Murray v. Office of the Independent Police Review Director, 2023 ONSC 288

COURT FILE NO.: 636/22

DATE: 2023-01-09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JESSICA MURRAY, Applicant AND: Office of the Independent Police Review Director, Respondent

BEFORE: D.L. Corbett J.

COUNSEL: Ms Murray, self-represented

HEARD: In Chambers, In Writing

Endorsement

D.L. Corbett J.

[1] Ms Murray complained to the Office of the Independent Police Review Director (“OIPRD”) about conduct of police in connection with allegations of harassment against her. The respondent investigated and concluded that the complaint was unsubstantiated. Ms Murray sought judicial review in this court and was successful in part: as acknowledged by the OIPRD at the first application for judicial review, during the course of the prior complaint Ms Murray initially complained about police conduct respecting a caution given to her by police, and subsequently also complained about her arrest on charges of criminal harassment. The OIPRD investigated the first basis of the complaint, but not the second. This court ordered:

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. (2022 ONSC 2221, para. 20)

[2] The OIPRD conducted an investigation and provided a review report on October 7, 2022.On October 24, 2022, Ms Murray requested an internal review of the report. The OIPRD accepted this request for an internal review.

[3] On November 17, 2022, the OIPRD advised the applicant that the sole remaining police officer named in Ms Murray’s complaint had resigned from their employment and was no longer a police officer. The OIPRD advised that, pursuant to s.90 of the Police Services Act, it had no jurisdiction to continue its investigation into the matter, and so the review request would proceed no further.

[4] Ms Murray then commenced this proceeding, seeking review of the OIPRD report and that this court adjudicate the underlying complaint, since the OIPRD had lost jurisdiction to do so. Ms Murray alleged that this court has inherent jurisdiction to carry on with the complaint now that the OIPRD has lost jurisdiction.

[5] This court directed the Registrar to issue a notice pursuant to R.2.1 that the court was considering dismissing the application as frivolous, vexatious and/or an abuse of process, and set out the following concerns giving rise to the R.2.1 notice:

Justice Corbett directs that notice be given pursuant to R.2.1 of the Rules of Civil Procedure that the court is considering dismissing the application as frivolous, vexatious and/or an abuse of process as a result of the following concerns.

1. A panel of this court referred the applicant's complaint about her arrest on September 24, 2018, for criminal harassment back to the OIPRD for investigation by a different officer (2022 ONSC 2221, para. 20).

2. The applicant pleads that the OIPRD process directed by this court was completed and the review report provided to the applicant by the OIPRD on October 7, 2022.

3. On October 24, 2022, the applicant requested internal review of the report, which the respondent OIPRD agreed to do.

4. On November 17, 2022, the applicant received notice from the OIPRD that the sole remaining officer implicated in the applicant's complaint had resigned, and thus the OIPRD had no further jurisdiction into the matter, pursuant to s.90 of the Police Services Act.

5. The applicant acknowledges that the OIPRD has no further jurisdiction in this matter. She alleges that this mean that jurisdiction over her complaint now lies in the court:

"... the cessation clause in the PSA correctly transfers jurisdiction over the matter to the superior court, due to the court's inherent jurisdiction, due to its common law power of certiorari and due to the statutorily enacted JRPA. The judicial review process simply has nothing to do with the PSA."

6. The Divisional Court is not a court of inherent jurisdiction. It is a statutory court and has only the jurisdiction conferred upon it by statute. The PSA does not contain any provision transferring complaints from the OIPRD to this court after the OIPRD loses jurisdiction.

7. The Divisional Court's jurisdiction does include the power of judicial review, as provided in the JRPA. This power includes common law review remedies including an order in the nature of certiorari. On the facts alleged by the applicant, the OIPRD arguably made a decision or took an action on October 24, 2022 (sic) when the investigative report was delivered. The applicant pursued internal review of that report but the OIPRD lost jurisdiction before that review was completed. In all these circumstances, it is arguable that it would be open to this court to consider a claim for certiorari in respect to the October 24, 2022 (sic) report.

8. However, no purpose would be served by judicial review of the report of October 24, 2022 (sic). The purpose of the report was to inquire into and consider whether disciplinary action should be taken against a police officer in respect to the circumstances of the complaint. Such disciplinary action is not available against a former police officer, as provided in s.90 of the Police Services Act. This court has no freestanding jurisdiction to inquire into the applicant's complaint or to order any of the remedies she seeks in respect to the complaint.

9. The complaint process under the Police Services Act ceases to apply to an officer after he resigns from the police force. That ends the matter. It would defeat the Legislature's clear intent to permit further proceedings in this matter to go forward in this court.[^1]

[6] Several emails were received from Ms Murray in response to the R.2.1 notice, with different versions of responding submissions. Ms Murray advised that she believed there had been some third-party intervention, modifying her document, and she was concerned that there was some sort of clandestine interference going on. The court’s primary concern is obtaining Ms Murray’s submissions in the form in which Ms Murray intends them to be. Therefore, the court directed that Ms Murray upload her submissions to CaseLines. She would be able to review the document so uploaded to satisfy herself that it reflected the submissions she wishes to make. Ms Murray forwarded her submissions to the court by email again and also uploaded them to CaseLines. I have relied on the submissions uploaded to CaseLines.

[7] I understand Ms Murray’s frustration. Her lengthy, detailed argument, which she describes as an “essay”, is based on the fundamental principle of public law that arguable legal claims may be brought to an administrative body or court for adjudication. If no administrative body or court has statutory jurisdiction over a legal claim, then, as a matter of first principles, a court with inherent jurisdiction must have jurisdiction over that claim: in a society governed by the Rule of Law, there is always recourse available somewhere for adjudication of a legal claim. Ms Murray is self-represented, and if she has been unable to identify the correct venue for her claim, then it is the responsibility of the court to guide her in the right direction. In aid of her argument, Ms Murray has expounded on:

• The intersection of certiorari and inherent jurisdiction
• “misplaced, if widespread, American ideas about local or “state” jurisdiction in Canadian law”
• “using the Socratic method, resulting in the construction of a simplified syllogism”
• “self-certiorari” (“as a life tactic, is under-utilized and highly advised, so long as it does not reach a level of neuroticism”)
• The second Quebec Reference (the provincial legislature “cannot in any way interfere with the federally distributed inherent jurisdiction of the s.96 court of inherent jurisdiction”)
• “federalism as an unchecked leviathan in Canadian constitutional law”
• “this application is one of inherent jurisdiction, explicitly, that makes a request for certiorari over the exercise of the specific judicial function of evaluating the legality of an arrest (habeas corpus), which is the core jurisdiction of the s.96 court of inherent jurisdiction”
• The OIPRD does not have original jurisdiction to rule on the legality of an arrest, but may consider and decide this question to the extent that it is necessary to so do to carry out its role investigating a complaint (my words, synthesizing the applicant’s argument)
• An OIPRD decision that includes findings about the legality of an arrest may be raised as a basis for an estoppel in other proceedings in which this issue is raised (such as a civil claim or a human rights claim) (my words, synthesizing the applicant’s argument).
• The OIPRD report is “patently unreasonable” and “contains defamatory statements” about the applicant, and may be used against the applicant in related civil and/or administrative proceedings

The “essay” goes on at great length, including references to Plato, Aristotle, two of Shakespeare’s plays, Thomas Hobbes, James Madison, The Communist Manifesto, John Stuart Mill, George Orwell, Noam Chomsky, Pierre Trudeau, Albert Einstein, Monty Python, Norm Macdonald, Leonid Brezhnev, plus “gratuitous use of Homeric epithets” which “abound throughout”.

[8] The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.

[9] The subject-matter of the applicant’s complaint to the OIPRD has disappeared. This court has no more jurisdiction to decide this complaint than does the OIPRD. This does not leave a “gap” to be filled by a court of inherent jurisdiction: there is no subsisting claim now that the police officers implicated in Ms Murray’s complaint have all left their employment with police services. Ms Murray’s concern that there must be a court with jurisdiction to rule on the legality of the arrest is misplaced: court’s do not rule on factual issues in the abstract: if the legality of the arrest is relevant to a subsisting legal claim, the court with jurisdiction over that claim may decide the point.

[10] However, there is one aspect of Ms Murray’s application which could be pursued in this court: a request for an order in the nature of certiorari quashing the OIPRD report of October 7, 2022. No further remedy is now possible: this court cannot remit the matter back to the OIPRD for further proceedings, nor may this court take original jurisdiction itself to decide the complaint.

[11] What would be the point of such an application? Ms Murray is concerned that the findings in the report could be used against her in other civil or administrative proceedings (such as a civil claim or a claim to the Human Rights Tribunal). It is not clear that principles of issue estoppel could lead to this result, in this case, but I acknowledge Ms Murray’s concern on this point and conclude that I should not decide this question summarily under R.2.1: this concern is at least arguable.

[12] The report of October 7, 2022 is now the OIPRD’s final word on Ms Murray’s complaint. She objects to it. She has exhausted the process available at the OIPRD as a result of the OIPRD’s loss of jurisdiction to decide her review request. Her only recourse now is to this court. In my view, she is entitled to challenge the report of October 7, 2022 for the limited purpose of seeking an order setting aside the report. No further remedy will be available to her – if she succeeds, the report would be quashed, and the matter would then be at an end, the complaint never having been decided.

[13] The Notice of Application, as currently framed, is aimed at seeking a fresh decision from this court, which is not available. It is extremely prolix and unfocused and fails to engage in a systematic way with the one issue that can be brought to this court. I see no practical way in which this court can strike portions of the Notice of Application to restrict it to the one issue this court is permitting to proceed. In these circumstances, the practical way in which to proceed is to strike out the Notice of Application, with leave to Ms Murray to deliver a fresh Notice of Application restricted to the relief of certiorari, as described in this decision.

[14] On this basis, order to go striking out the Notice of Application, with leave granted to Ms Murray to deliver a fresh Notice of Application seeking certiorari quashing the report of October 7, 2022. If Ms Murray decides to bring this fresh application she shall serve her new Notice of Application by February 10, 2023 and shall provide a copy of the fresh Notice of Application to this court by email by February 13, 2023. There shall be no order as to costs of this application to the date of this decision.

D.L. Corbett J.

Date: January 9, 2023

[^1]: In the direction the court mis-stated the date of the OIPRD report – the correct date is October 7, 2022; October 24, 2022 is the date on which OIPRD agreed to conduct a review of the report.