REASONS FOR DECISION

Stewart J.

Nature of the Proceeding

[1] The Applicant has brought an application for judicial review of the Reconsideration Decision dated May 4, 2022 of the Peel Regional Police Service (the “PRP”) which refused to remove non-conviction information relating to him in its response to his request for a Vulnerable Sector Check (“VSC”) pursuant to the Police Records Checks Reform Act, S.O. 2015, c. 30 (the “PRCRA”).

[2] The Applicant seeks an order quashing the Reconsideration Decision on the basis that it is unreasonable and/or incorrect.

[3] The PRP takes the position that the Reconsideration Decision is reasonable and should not be disturbed. In the alternative, should the Court decide that the Reconsideration Decision is unreasonable, the PRP requests that it be remitted for further reconsideration with any guidance from the Court as may be considered by it to be appropriate.

[4] For the reasons that follow, I would dismiss this application.

Background

[5] This dispute has a somewhat lengthy history as set out below.

[6] On November 9, 2020 the Applicant sought to obtain a VSC from the PRP after receiving a request from the City of Toronto following his interview for a position in the City’s Parks, Forestry, and Recreation Department.

[7] On November 24, 2020, the PRP issued the requested VSC to the Applicant which included non-conviction information relating to the Applicant concerning the following charges against him:

(a) Aug 2, 2016 – Criminal Harassment – Acquitted

(b) Aug 10, 2018 – Sexual Assault – Withdrawn

(d) Aug 11, 2020 – Harassing Communications – Stayed

[8] Charges (b), (c), and (d) arose from the same course of events.

[9] The non-conviction information was included in the VSC after the PRP had completed an Exceptional Disclosure Assessment form pursuant to ss. 9 and 10 of the PRCRA. Sections 9 and 10 of the PRCRA provide as follows:

Disclosure in accordance with Schedule

A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule.

Exceptional disclosure of non-conviction information, vulnerable sector check

(1) This section applies with respect to the disclosure of non-conviction information in response to a request for a vulnerable sector check in respect of an individual.

Criteria for exceptional disclosure

(2) Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria:

The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22(2)(c).
The alleged victim was a child or a vulnerable person.
After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:

i. Whether the individual appears to have targeted a child or a vulnerable person.

ii. Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.

iii. When the incident or behaviour occurred.

iv. The number of incidents.

v. The reason the incident or behaviour did not lead to a conviction.

vi. Any other prescribed considerations.

Format of disclosure

(3) When disclosing a record containing non-conviction information authorized for exceptional disclosure, the police record check provider shall ensure that the record contains the definition of “non-conviction information” found in this Act and that the information is clearly identified as such.

Reconsideration

(4) If the individual submits a request for reconsideration in accordance with the regulations, the provider shall, within 30 days after receiving the reconsideration request, reconsider its determination in accordance with any requirements prescribed by the Minister.

Result of reconsideration

(5) Non-conviction information shall not be disclosed if, after a reconsideration, the provider determines the information does not meet the criteria listed in subsection (2).

[10] An Exceptional Disclosure Assessment form was completed by the PRP and contained a list of questions and answers that included additional information about the reasons for the initial decision to disclose the non-conviction information, as well as a list of persons consulted in the process.

[11] The answers to the questions on the form confirmed that the four charges against the Applicant fell within the list of offences for exceptional disclosure and stated that each of the incidents included victims under the age of 18. The additional information given on the form included details about why the Applicant was not convicted on the charges.

[12] In the case of the first charge of Criminal Harassment, the Applicant was alleged to have repeatedly contacted the victims, including a child, in a persistent attempt to meet with them despite having been told to stop. The trial judge had expressed a reasonable doubt about one of the elements of criminal harassment – that it had caused the adult victim to fear for her safety – which was not established by the evidence to the requisite degree. There was no dispute, however, that the events had actually occurred.

[13] In the case of the charges of Sexual Assault and Sexual Interference, the Applicant was alleged to have repeatedly kissed a 6-year-old child close to her mouth and to have ignored repeated requests from her, her mother and others to stop. This conduct was alleged to have occurred between September 2017 and January 2018.

[14] The second charge of Criminal Harassment involved the same family as the allegations giving rise to the charges of Sexual Assault and Sexual Interference. The Applicant was alleged to have made repeated unwanted contact with the mother and her children and had persistently indicated that he loved her children and wanted to play with them, despite having been told to stop. It was alleged that he refused to leave the children’s residence when directed to do so and left various unsolicited gifts for the children at the residence, causing the mother to consider removing her children from school and relocating the family.

[15] The Crown was reluctant to proceed to trial of these charges since the mother did not want to subject the children to criminal proceedings, and because police intervention had effectively resulted in the cessation of the Applicant’s behaviour.

[16] On December 11, 2020, the Applicant submitted a request for reconsideration of the VSC response and sought removal of the non-conviction information contained in it.

[17] On December 15, 2020 the PRP refused the reconsideration request. The PRP provided reasons for this refusal, which included the basis for its determination that the requirements imposed by ss. 9 and 10 of the PRCRA had been met:

(a) The four charges to which the non-conviction information relates are for offences specified in the regulations made under subsection 22(2)(c) of the PRCRA;

(b) At least one of the alleged targeted victims in each of the charges was a child or a vulnerable person;

[18] The Applicant sought judicial review of the reconsideration decision. On January 11, 2022 his application was granted by a panel of the Divisional Court (see: A.S. v. Peel Regional Police, 2022 ONSC 127).

[19] On the judicial review application, the Applicant had submitted that the decision was unreasonable because the process followed by the PRP was procedurally unfair. He also argued that the second and third requirements of the test for exceptional disclosure under s. 10 of the PRCRA had not been met and that, in particular, the interpretation of “alleged victim” applied by the PRP in the decision was overly broad.

[20] The Divisional Court panel expressed the opinion that the PRP’s interpretation of “alleged victim” was reasonable in the circumstances as at least one of the alleged victims in each charge was a child or vulnerable person.

[21] However, the Applicant succeeded in his argument that the process followed had been unfair to him. The material submitted on the judicial review application demonstrated that the decision-maker had received additional information about the charges that had included details about why the Applicant was not convicted of the charges as well as the names of individuals who were consulted in the PRP’s process of completing the Exceptional Disclosure Assessment form. This information had not been provided to the Applicant as part of the VSC reconsideration process. Rather, he had been given only a Response Form setting out a list of the four charges with dates, locations, and the disposition of each charge. The Divisional Court panel considered that the Applicant should have been given more complete information so that he might know the case he had to meet before making any submissions to the PRP in the reconsideration process.

[22] The Divisional Court panel therefore considered that the overall reasonableness of the decision could not be assessed fully because the arguments raised on the third requirement of the test (reasonable grounds to believe that the individual has been engaged in a pattern of predation) overlapped with the areas in which the Applicant had been denied procedural fairness. Since the Applicant had not been given a full opportunity to make submissions before the decision was made it could not be assumed that the decision-maker had before it all relevant information that was necessary to determine the third requirement issue.

[23] As a result, the Divisional Court panel ordered that the reconsideration process be carried out again, and by a different decision-maker.

[24] In accordance with the decision of the Divisional Court panel, on March 11, 2022 the Applicant submitted a second request for reconsideration of the contents of the VSC to the PRP and requested that the non-conviction entries be removed. In support of his request he also submitted that a videotaped statement made by S.M. (the mother of the children involved in the charges referred to in paragraph 6 (b), (c) and (d) above) should be made available to the decision-maker for review on the reconsideration and made additional submissions concerning the information not provided to him on his first reconsideration request.

[25] On May 4, 2022 the PRP issued the Reconsideration Decision. The decision rejected the Applicant’s request that the non-conviction information be deleted from the VSC.

[26] The PRP found that the charges to which the information relates were for offences specified in the regulations made under s. 22 of the PRCRA. It also determined that each of the charges involved at least one child or vulnerable person as a victim and that all other requirements for exceptional disclosure as set out in ss. 9 and 10 of the PRCRA had been met.

[27] Although the PRP agreed that S.M.’s videotaped statement indicated that she had neither expressed any fear of the Applicant nor had she indicated any concern that he had ever touched her child inappropriately, it also noted that she stated that the Applicant had continued to kiss and hug the child as well as the child’s brother despite having been told repeatedly to stop doing so by them, by S.M., and by S.M.’s fiancé.

[28] As to the third requirement for disclosure, the PRP found that there were reasonable grounds to believe that the Applicant has been engaged in a pattern of predation because each of the charges involved at least one child under the age of 18, the pattern of allegations of behavior that led to the harassment and sexual assault/sexual interference charges involved numerous and repeated instances of unwanted touching over a lengthy period, the Applicant had continued to kiss and hug the children after having been repeatedly told to stop, and the charges were withdrawn prior to trial at least in part because S.M. did not want to subject her children to criminal proceedings.

[29] On June 2, 2022, the Applicant brought this application for judicial review of the reconsideration decision of May 4, 2022.

Jurisdiction

[30] Pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act (JRPA), this Court has jurisdiction to hear this application for judicial review.

Standard of Review

[31] Both parties agree that the general standard of review to be applied to the Reconsideration Decision is one of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).

[32] However, the Applicant submits that the interpretation of “alleged victim” as contained in the PRCRA is a question of law and that a standard of correctness applies to that issue. The PRP takes the position that this question of interpretation is one to which a standard of reasonableness applies in the context of a judicial review.

Law and Discussion

A. Interpretation of “Alleged Victim” and Issue Estoppel

[33] As a preliminary argument, the PRP submits that the doctrine of issue estoppel prevents the Applicant from re-litigating the interpretation of “alleged victim” as this issue has been finally decided by a panel of the Divisional Court as referred to above. The PRP argues that for this panel to consider the same issue in these proceedings that involve the same dispute and same parties would risk reaching a different conclusion and would undermine the credibility of the judicial review process.

[34] In the alternative, should this panel find that the Applicant is not estopped from raising the issue, the PRP submits that the interpretation of alleged victim was reasonable for the same reasons outlined by the panel in the previous judicial review application.

[35] The Applicant submits that the previous panel made its decision on a less comprehensive record and therefor it is not binding on this panel. He also argues that the interpretation of “alleged victim” is incorrect. In his submission the term should be interpreted narrowly and does not apply to those charges that he maintains involve only an adult victim.

[36] On the issue estoppel argument, I agree with the PRP that this panel should not re-visit the same issue of reasonableness of this aspect of a decision involving the same parties and the same facts on judicial review based on a record that, for the purposes of this issue, was essentially the same. That issue therefore has already been decided by a panel of the Divisional Court and should not be revisited (see: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] S.C.J. No. 19 and Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248).

[37] Even if I am wrong in this determination, a consideration of the issue would result in agreement with the opinion expressed by the previous panel of the Divisional Court. Both the interpretation of “alleged victim” and the application of it by the PRP to the facts alleged in this case are reasonable, which I consider to be the applicable standard of review, as the previous panel found.

[38] Further, even if this interpretation determination were to be subject to review on a standard of correctness, I nevertheless would view the interpretation as being correct when viewed in the context of the overall purpose and scheme of the legislation.

[39] The Applicant submits that the decision-maker’s finding that the alleged victims in the charges of criminal harassment and harassing communications included a child or a vulnerable person was incorrect and contrary to that requirement of the PRCRA. In support of his position, the Applicant argues that permitting decision-makers to determine that there are alleged victims outside the purview of the charging documents, based on untested information, is contrary to the purpose and scheme of the PRCRA.

[40] Alternatively, the Applicant argues that it was unreasonable for the decision-maker to determine that the charges involved children as alleged victims. The 2016 charge was specifically framed as one of criminal harassment of an adult, to which a guilty plea was accepted to the lesser included offence of harassing communications relating to text messages sent to the adult, and not the children. The Applicant submits that there can be no alleged child victims in relation to this incident because the occurrence reports describe the adult as the victim and the core of the allegations related to unwanted calls and texts from the Applicant to the adult, not the children. I do not agree.

[41] The term “victim” is not defined in the PRCRA. In my opinion, the use of the word “alleged” before “child or vulnerable person” in s. 10 (2) need not be confined narrowly to the specific allegations as worded in a charging document.

[42] Although the legislation has an objective of protecting the privacy and liberty of an accused person, it also has the purpose of ensuring the safety of communities and of protecting children and other vulnerable persons. Also, the rights of the accused person are observed by ensuring that the information provided pursuant to the legislation clearly acknowledges that the charges did not result in any convictions.

[43] The conduct alleged that gave rise to the charges against the Applicant involved features of inappropriate interest in engaging with and/or actual inappropriate behaviour toward young children. To restrict “alleged victim” so narrowly to the adult mother, as the Appellant suggests is required, would be neither reasonable nor correct. Further, to do so would not be consistent with the objectives of the legislation.

[44] I therefore would not give effect to the Applicant’s request to interfere with the decision under review on this basis.

B. Test for Exceptional Disclosure

[45] The Applicant submits that the test for exceptional disclosure cannot be met on the facts of this case. He argues that when considering the factors set out in the third requirement of the test, there is no basis for reasonable grounds to believe that he engaged in a pattern of predation. The Applicant submits that the term “predation” connotes something more sinister than what is captured by the Applicant’s behavior. He further argues that there is no reliable sample of traits or tendencies for predation in the record of this case.

[46] The PRP submits that the decision-maker’s findings and application of the test for exceptional disclosure to them, including the requirement for a pattern of predation, are reasonable. I agree.

[47] The information included in the VSC satisfied all of the requirements for exceptional disclosure as set out in the legislation, and the disclosure was justifiable for the reasons outlined in the reconsideration decision. The Applicant continually targeted children in each allegation, the behaviour was repeated and directed toward these children, the respective alleged incidents were relatively recent, and took place over a fairly extended time.

[48] The Applicant’s alleged behaviour became a cause for serious concern to the parents of the children involved. Despite having been told repeatedly to stop, the Applicant’s unwanted behaviour continued. As mentioned, the fact that the charges did not result in a conviction was at least partly due to S.M.’s reluctance to subject the children to court proceeding after the offending conduct had ceased following police involvement and intervention.

[49] The interpretation of a “pattern of predation” invites the same examination of the purposes of the legislation as applies to the interpretation of “alleged victim”. I consider that in this case a pattern of predation is demonstrated by the conduct alleged and that the conclusion applied by the PRP that this requirement for exceptional disclosure had been satisfied was reasonable.

[50] I also agree with the submission of the PRP that both the reasons provided for the decision and the conclusion reached in the decision were inherently reasonable. The conclusion flowed logically from those reasons. There was a clear and coherent articulation of the decision-maker’s findings on all of the legislated criteria under the PRCRA. The Reconsideration Decision of the PRP to the Applicant’s request under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility…”, and demonstrates that the decision was “justified in relation to the relevant factual and legal constraints that bear on the decision” to the extend required ( see: Vavilov, supra).

[51] Further the reasons underlying the decision were communicated to the Applicant with a degree of detail commensurate with fairness requirements, and in compliance with the applicable legislation. To the extent that the PRP has argued the point, there is no basis for any conclusion that there was any procedural unfairness demonstrated in the process of the second reconsideration.

[52] I therefore see no basis upon which interference with the Reconsideration Decision under review would be justified.

Conclusion

[53] For these reasons, the application is dismissed.

Costs

[54] In accordance with the agreement of the parties, the Applicant shall pay to the PRP costs of this application fixed in the all-inclusive amount of $10,550.00.

Stewart J.

I agree _______________________________

Heeney J.

I agree _______________________________

Sutherland J.

Released: September 8, 2023

CITATION: A. S. v. Peel Regional Police, 2023 ONSC 4882

DIVISIONAL COURT FILE NO.: DC-22-0041-000

DATE: 20230908

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Stewart and Sutherland JJ.

BETWEEN:

A. S.

Applicant

– and –

PEEL REGIONAL POLICE

Respondent

REASONS FOR DECISION

Stewart J.

Released: September 8, 2023

A. S. v. Peel Regional Police, 2023 ONSC 4882

Case Summary

REASONS FOR DECISION

Nature of the Proceeding

Background

Jurisdiction

Standard of Review

Law and Discussion

A. Interpretation of “Alleged Victim” and Issue Estoppel

B. Test for Exceptional Disclosure

Conclusion

Costs

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1