CITATION: Murray v. Independent Police Review Director (Ontario), 2023 ONSC 4372
DIVISIONAL COURT FILE NO.: 636/22 DATE: 20230728
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Matheson and Nishikawa JJ.
BETWEEN:
JESSICA MURRAY
Ms Murray, self-represented Applicant
Applicant
– and –
INDEPENDENT POLICE REVIEW BOARD (ONTARIO)
Heather Mackay, for the Respondent
Erika Hodge, for the Ontario Provincial Police
Respondent
Bryce Chandler, for the Chief, Windsor Police Service
In Writing: June 1, 2023
ENDORSEMENT
The Court
[1] The background to this matter is set out in the panel decision of this court dated (2022 ONSC 2221) and the decision of D.L. Corbett J. dated January 9, 2023 (2022 ONSC 7255).
[2] Ms Murray provided her submissions, and each of the OIPRD, Windsor Police Chief and the OPP provided submissions. Ms Murray then provided reply submissions dated May 26, 2023. We have considered all of these submissions.
Disposition
[3] We are satisfied that this matter is premature and should be dismissed for that reason. We are also satisfied that this conclusion may be reached on the basis of the written materials filed and that no purpose would be served by directing an oral hearing or further materials.
The Decision Below
[4] The decision below is that of the Windsor Chief of Police, dismissing Ms Murray’s complaint as unsubstantiated. The basis for this conclusion is set out in the OPP investigative report submitted to the Windsor Chief of Police pursuant to ss. 66 and 67(2) of the Police Services Act, RSO 1990, c. P.15 (the “PSA” or the “Act”).
[5] Ms Murray challenged this decision to the OIPRD, as was her right. The OIPRD agreed to review the impugned decision. Then, before this review was completed, the police officers who were the subject-matter of the complaint left their employment as police officers. The OIPRD advised Ms Murray of this and advised that it had no jurisdiction to continue further with its review since there was no police officer still employed whose conduct could be the subject-matter of a complaint process.
[6] In her initial Notice of Application, Ms Murray asked this court to undertake a review of the impugned decision and reasons in place of the OIPRD. That proceeding was dismissed pursuant to r.2.1 (2022 ONSC 7255). One term of that dismissal was an order permitting Ms Murray to serve a fresh amended notice of application restricted to seeking administrative law remedies that were possibly available in respect to the impugned decision (in this instance, certiorari) on the basis that Ms Murray’s review and appeal rights had been frustrated and the impugned decision was otherwise unreviewable.
[7] Ms Murray delivered a fresh amended notice of application pursuant to the court’s directions. During the case management process, none of the potential respondents indicated an intention to appear in the application, and all initially advised that they would not oppose certiorari provided that no further remedy was granted. This would have had the effect of eliminating the Chief of Police’s decision, and the report upon which it was based, and there the matter would have ended.
[8] Ms Murray’s materials were provided, and she raised concerns with the r.2.1 disposition, and with whether the remaining issues before the court concern the decision of the Chief of Police or the OPP report upon which that decision was based. Counsel for the Chief of Police then delivered a short factum, arguing that the application is moot, and no collateral basis exists to justify the court exercising its jurisdiction to hear the matter.
[9] Subsequently, written argument was received from the OIPRD, the OPP and the focus of argument shifted from mootness to prematurity.
The Application Is Premature
[10] When the OIPRD refers a complaint by a member of the public for investigation by a police service, the professional standards unit (PSU) of that police service investigates the complaint and prepares an investigative report. The investigative report, which contains the PSU’s recommendations regarding the disposition of the complaint, is given to the Chief of the police service to which the subject officer belongs. The Chief then decides whether to adopt the findings in the investigative report. The final decision regarding whether misconduct has been committed by the subject officers (whether the complaint is “substantiated” or “unsubstantiated”) is therefore that of the Chief.
[11] In this matter, the OIPRD referred the investigation of the complaint to the OPP. At the conclusion of the OPP’s investigation, the OPP’s Report was sent to the Chief of the Windsor Police Service to make a final determination of whether the applicant’s allegations were substantiated or unsubstantiated. The Chief determined that they were unsubstantiated.
[12] The OPP Report is not reviewable on judicial review and cannot be quashed by this Court because the OPP acted in an exclusively advisory role; the power of decision regarding whether misconduct was committed by the subject officers was reserved to the Chief of the Windsor Police Service. The Chief was not bound by the opinion and recommendations in the OPP Report when he made his decision regarding the conduct of the subject officers.
[13] As recently stated by this Court (Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board, 2022 ONSC 1608, para. 51):
Under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant relief in relation to decisions, not recommendations. Thus, the recommendations of the Board are not reviewable.
As applied to the circumstances of this case, the Divisional Court does not have jurisdiction to grant relief in respect to the OPP Report.
[14] The applicant’s complaint was found to be unsubstantiated by the Chief of the Windsor Police Service. The applicant then asked the OIPRD to conduct a review of that decision pursuant to section 71 of the PSA. That review had to be stopped pursuant to section 90 of the PSA, because the subject officers resigned on August 9, 2022 and October 12, 2022 and the OIPRD therefore lost jurisdiction over the complaints.
[15] Section 90 of the PSA states:
(1) If at any time after a complaint about the conduct of a police officer is made under this Part and before the complaint is finally disposed of the police officer resigns, no further action shall be taken under this Part in respect of the complaint after the date of resignation.
(3) Despite subsection (1), if the police officer who resigned is employed by a police force within five years of the date of resignation, this Part shall apply to the police officer in accordance with the regulations.
(4) In the circumstances described in subsection (3), if the police officer is employed with a police force other than the police force from which he or she resigned, the police officer is deemed, for the purposes of the complaints process under this Part, to be employed with the police force from which he or she resigned, except that an action that shall be taken with respect to the matter by a chief of police under subsection 84 (1) or by a board under subsection 84 (2) or 85 (3) after the complaints process is resumed shall be taken by the chief of police or board, as the case may be, of the police force in which the police officer is employed following the resignation.
[16] If a subject officer resigns before a complaint is finally disposed of, section 90 requires that the complaint process will be stopped at whatever stage it has reached as of the date of the resignation. However, that complaint may be restarted if the subject officer becomes employed as a police officer with any police service in Ontario within five years of his or her resignation. In this case, the five years will not elapse until August and October 2027.
[17] Thus, the process below is effectively in abeyance, but could resume if either of the subject officers becomes employed as a police officer with any police service in Ontario during the five-year period specified in s. 90 of the PSA. Until the process below resumes, or the five-year period runs its course, the process below has not been completed, and recourse to this court is premature: Kahissay v. Insurance, 2023 ONSC 3650 (Div. Ct.) and Awada v. Allstate Insurance Company, 2021 ONSC 8108 (Div. Ct.); see also Ontario (Liquor Control Board) v. Lifford Wine Agencies Ltd. (2005), 2005 25179 (ON CA), 76 OR (3d) 401 (CA); Aon Inc. v. Towerhill Developments Inc., [2010] O.J. No. 2698 (Div. Ct.).
[18] If either of the subject police officers becomes employed as a police officer before the five-year period has expired, then the process below will resume before the OIPRD. If this employment does not happen, then we agree with the submissions of the Chief of the Windsor Police Service that the application will be moot: the subject officers cannot be disciplined once they have left their employment as police officers, and thus there is nothing left to adjudicate before the OIPRD or before this court.
The Applicant’s Concerns About Potential Uses of the OPP Report
[19] In this court’s r.2.1 decision in this case (2022 ONSC 7255, para. 11), the court identified a concern raised by the applicant as follows:
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.
[20] This court now has the benefit of the respondents’ submissions on this point and is satisfied that these concerns are misconceived. The PSA contains sections both of specific application to the OIPRD, and of general application to “every person engaged in the administration of” Part V of the PSA – “Complaints and Disciplinary Proceedings”:
Section 26.1 of the PSA provides:
(9) The Independent Police Review Director, any employee in the office of the Independent Police Review Director, any investigator appointed under subsection 26.5(1) and any person exercising powers or performing duties at the direction of the Independent Police Review Director shall preserve secrecy in respect of all information obtained in the course of his or her duties under this Act and shall not communicate any such information to any person except, (a) as may be required in connection with the administration of this Act and the regulations; (b) to his or her counsel; (c) as may be required for law enforcement purposes; or (d) with the consent of the person, if any, to whom the information relates.
(10) The Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5(1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director shall not be required to give testimony in a civil proceeding with regard to information obtained in the course of his or her duties, except at a hearing held under Part V.
(11) A document prepared in the course of his or her duties under this Act by the Independent Police Review Director, an employee in the office of the Independent Police Review Director, an investigator appointed under subsection 26.5(1) or a person exercising powers or performing duties at the direction of the Independent Police Review Director is not admissible in a civil proceeding, except at a hearing held under Part V….
Section 83 of the PSA provides:
(7) No person shall be required to testify in a civil proceeding with regard to information obtained in the course of his or her duties under this Part, except at a hearing held under this Part.
(8) No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.
Section 95 of the PSA provides:
Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except, (a) as may be required in connection with the administration of this Act and the regulations; (b) to his or her counsel; (c) as may be required for law enforcement purposes; or (d) with the consent of the person, if any, to whom the information relates.
[21] These provisions have been interpreted to mean that information gathered in the course of an investigation directed by the OIPRD, including an investigative report, are not admissible in a civil action or a proceeding before the Human Rights Tribunal of Ontario: Hewitt v. Doyle, 2021 ONSC 6655, paras. 6, 19 and 28; Sanaee v Grad, 2016 ONSC 4718, para. 6; Koroma v Peel (Regional Municipality) Police Services Board, 2017 HRTO 1248, para. 28; Fields v Ontario (Ministry of Community Safety and Correctional Services), 2018 HRTO 55, para. 28
[22] In light of these provisions, we are satisfied that the OPP Report may not be used against Ms Murray in other legal proceedings, and thus that the prospect of such use does not give rise to “exceptional circumstances” that could lead this court to hear an application that is moot or premature.
Disposition
[23] The application is dismissed, without costs.
[24] Ms Murray has been clear that she disagrees with this court’s disposition of the r.2.1 issue respecting her original application (2022 ONSC 7255). An appeal from the r.2.1 decision lies to the Court of Appeal, with leave from that court (see, for example, Tran v. OIPRD, 3207, para. 7). Likewise, an appeal from our decision lies to the Court of Appeal, with leave from that court. If leave is sought respecting both decisions, the parties should alert the Court of Appeal that the decisions are related and that it might be efficient for both leave motions to be heard together.
“D.L. Corbett J.”
“Matheson J.”
“Nishikawa J.”
Date of Release: July 28, 2023
DIVISIONAL COURT FILE NO.: 636/22 DATE: 20230728
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Matheson and Nishikawa JJ.
BETWEEN:
Jessica Murray Applicant
– and –
Independent Police Review Director (Ontario) Respondent
REASONS FOR DECISION
Date of Release: July 28, 2023