CITATION: Potter v. Office of the Independent Police Review Director, 2023 ONSC 5827
DIVISIONAL COURT FILE NO.: DC-22-2730
DATE: 2023/10/26
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, GORDON AND GIBSON JJ.
BETWEEN:
STEVEN G. POTTER Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Respondent
Steven G. Potter, Self-Represented
Maeve Mungovan, Counsel for the Respondents
HEARD: At Ottawa on June 2, 2023, via videoconference
REASONS FOR DECISION
GIBSON J.
OVERVIEW
[1] The Applicant, Steven G. Potter, seeks judicial review of a decision of the Office of the Independent Police Review Director (“OIPRD”) dated July 12, 2022, that confirmed the outcome of the Ottawa Police Service (“OPS”) investigation which concluded that the Applicant’s allegations against the OPS were unsubstantiated.
[2] The Applicant asserts that the OPS arrested him for animal cruelty without reasonable or probable grounds and committed several Criminal Code offences against him on June 6th, 2021.
[3] The Respondent OIPRD asks that the application be dismissed.
[4] For the following reasons, the application is dismissed, as the decision was reasonable.
BACKGROUND
The Complaint
[5] The Applicant is a 52-year-old self-described political pundit, documentary film producer, handyman and a former electronic security expert. He states that he has filed complaints with various law enforcement agencies since 2013, alleging that he has been the victim of a sustained criminal harassment campaign.
[6] In particular, he claims he has been a victim of criminal harassment by the OPS. Specifically, he states that the OPS assaulted and kidnapped him, stole his property, conducted an illegal search of his vehicle and forcibly confined him and his dog on June 6, 2021. He describes these incidents as “extremely serious State sanctioned crimes” and “politically motivated attacks” due to his political engagement and film production on the Trudeau family.
[7] In his factum, the Applicant asserts that “the June 6th 2021 incident is the result of collusion between the Executive Branch of the Canadian Government and Canada’s Security and Intelligence apparatus, and that, incidents on June 6th 2021 form part of a broader criminal effort to entangle the Applicant in the legal system and circumvent Canada’s Legal system, Police accountability mechanisms, the Charter of Rights and, to unlawfully imprison the applicant and deny him his basic human rights.”
[8] The Applicant states that on June 6, 2021, police arrested him and told him he was charged with animal cruelty. He says that the officers used tight handcuffs on him and that the temperature in the back of the police car was very hot (50 degrees Celsius). He was released after a short interval. The Applicant says that he then made a comment to the OPS saying the incident “constituted an extension of a sophisticated, years long, state crime against the Applicant and was a serious breach of the Applicant’s Constitutional and Human Rights” and the OPS then put the Applicant back in the car and took him to a jail downtown. The police searched his vehicle and admitted his dog to the Animal Emergency and Specialty Clinic. After a few hours, the Applicant was released with no charges.
[9] The Applicant made a complaint to the OIPRD.
[10] On November 30, 2021, the Director used his discretion to refer the Applicant’s complaint to the OPS for investigation.
[11] On April 25, 2022, the OPS issued an investigative report concluding there was insufficient evidence to establish grounds that the officers committed the alleged misconduct.
[12] The Applicant requested a review of the OPS investigation, pursuant to the statutory right of review in s. 71 of the Police Services Act (“PSA”). The review was completed on July 12, 2022. The Director confirmed the result of the OPS investigation.
[13] On August 12, 2022, the Applicant sought judicial review of the Director’s decision by way of notice of application, on the basis that the decision was unreasonable and incorrect. The Applicant alleges jurisdictional errors by failing to comply with the PSA and that the Director omitted material evidence. He also alleges continued commission of Charter and Criminal Code violations.
The Director’s Powers
[14] The Director of the OIPRD (“the Director’) is responsible for dealing with the public’s complaints regarding police officers’ conduct in Ontario. The OIPRD obtains its powers from Parts II.1 and V of the PSA, which create a statutory right of review for complainants to challenge the outcomes of the investigations. Section 71 of the PSA requires the Director to review the police service’s investigation where a chief of police has determined the misconduct was unsubstantiated or the misconduct was not of a serious nature.
[15] This review process is not a de novo investigation but rather considers two issues: (i) whether the investigation conducted by the police gathered relevant evidence and adequately addressed the allegations raised in the complaint; and (ii) whether the conclusions of the chief of police were supported by the evidence.
[16] The Director has statutory options, per s. 71 of the PSA, available at the conclusion of a review. He or she can:
- (a) confirm the chief of police’s decision in relation to the complaint;
- (b) direct the chief of police to deal with the complaint as he specifies;
- (c) assign the investigation of the complaint or the conduct of a hearing to a force other than the police force to which the complaint relates;
- (d) take over the investigation of the complaint; or
- (e) take or require to be taken any other action with respect to the complaint that he considers necessary in the circumstances.
Details of the Complaint to the OIPRD
[17] On November 13, 2021, the OIPRD received a complaint from the Applicant against the responding police officers. In his complaint, the Applicant alleged that on June 6, 2021, he was unlawfully arrested for animal cruelty when five OPS officers attended his client’s residence where he was working. The officers informed him that the reason for his arrest was that his dog was left unattended in his van notwithstanding temperatures of at least 35⁰C.
[18] The Applicant complained that the officers unlawfully searched his vehicle, overtightened his handcuffs, and detained him in a cruiser without air conditioning or open windows for at least 15 minutes. The temperature in the cruiser purportedly reached 50⁰C. Respondent Officers Constable Abdulraheem Masoud (‘RO Masoud’) and Constable Ersin O’Cal (‘RO O’Cal’) opened the back door to the cruiser at some point and replaced his handcuffs with two sets.
[19] The Applicant alleged that RO O’Cal suggested to RO Masoud that the Applicant additionally be charged with mischief, due to the transference of paint from his pants to the seat of the police car. The Applicant protested the heat of the vehicle, to which RO Masoud allegedly responded, “Now you know how it feels!”
[20] According to the Applicant, two independent witnesses provided statements to the ROs corroborating his evidence that his dog was not in his van for more than 20 minutes and that he checked on his dog at 15 – 20 minute intervals. The Applicant stated in his complaint that he kept sight of his dog most of the time while working in his client’s residence, and that the windows of the van were wide open. Further, the Applicant left a full cup of water for his dog, who he said was not showing any signs of distress at the time of the officers’ arrival. The ROs apparently communicated to the Applicant that they had decided to release him, but when he responded that he was tired of being harassed by the OPS, RO Masoud and RO O’Cal arrested him and transported him to the police division. The Applicant alleged that this decision was retaliatory in nature and a continuation of a protracted campaign by the OPS to harass him.
[21] The OIPRD’s Case Management Unit reviewed the complaint and recommended that it be screened in and referred to the same service for investigation. Accordingly, on November 13, 2021, the Director notified the Applicant and the Chief of the OPS that the complaint had been screened in and referred to the OPS for investigation.
The OPS Investigation
[22] The OPS investigation determined that on June 6, 2021, a civilian witness (‘CW1’) called police to report a concern about a dog left unattended for approximately 30 minutes in a hot van that was not running. RO Katherine Weaver-Rutten (‘RO Weaver-Rutten’) was assigned to the call. Upon arrival, she observed the dog with his head out of the window and drooling and panting heavily. She noticed CW1 and a second civilian witness (‘CW2’) providing water in a cup to the dog through the open window. She touched the dog and found him to be unusually warm. She let the dog out and he immediately found a place to urinate. RO Weaver-Rutten also noted that the van had no space for the dog to lie down and there were indicia that the dog had urinated inside the van. She placed her head inside the van and found it to be warmer than the outside temperature, which she ascertained (by checking a website) was 32⁰C and 46% humidity.
[23] RO Weaver-Rutten then spoke to the two civilian witnesses. CW1 indicated that she had observed that the dog’s head was out of the window; he was panting and drooling; and he was hot to the touch. She noticed a cup of water in the vehicle and she and CW2 brought the dog additional cold water, which he drank. CW2 corroborated CW1’s evidence, adding that she had asked CW1 to report the matter to police. Both witnesses estimated that the dog had been left in the vehicle for at least 30 minutes.
[24] Meanwhile, RO O’Cal and Constable Avedis Wazirian (‘RO Wazirian’) spoke to the Applicant’s client (‘Civilian Witness 3’ or ‘CW3’), who lived in the house outside of which the van was parked. CW3 indicated that the Applicant walked the dog approximately every half hour.
[25] RO Weaver-Rutten consulted with her supervising officer (Witness Officer 1’ or ‘WO1’) with respect to the statutory authorities relevant to potential criminal and/or provincial charges and police search powers. WO1 informed her that she had the authority to break the van’s window and rescue the animal if she had reasonable grounds to believe the dog was in critical distress due to the extreme heat. WO1 further advised that if the dog was suffering, s. 445.1(1)(a) of the Criminal Code of Canada may be applicable.
[26] RO Weaver-Rutten reviewed the relevant sections of the Criminal Code of Canada and the Ontario Animal Welfare Services Act.
[27] RO Weaver-Rutten also consulted by phone with an officer with experience in animal abuse investigations (‘Witness Officer 2’ or ‘WO2’). WO2 provided guidance about what was required to prove the offence of animal cruelty and what evidence should be gathered from the scene, including witness statements and physical evidence to support the allegation the dog was in pain, suffering, or injured. WO2 advised RO Weaver-Rutten that if the Applicant was charged with animal cruelty, and there was any concern about further harm to the dog if the Applicant was released, then police would have to hold the Applicant for a bail hearing as only a court can fashion an undertaking or recognizance that restricts an owner’s access to their animal.
[28] RO Weaver-Rutten determined that she had reasonable and probable grounds to arrest the Applicant for causing unnecessary suffering contrary to s. 445.1(1)(a) of the Criminal Code of Canada and informed the other Respondent Officers of this. RO Masoud and RO O’Cal handcuffed the Applicant to the rear, double locking the handcuffs to prevent them from over-tightening and ensuring there was a finger-width space between the handcuffs and the wrist. When the Applicant complained about the handcuffs, RO Masoud and RO O’Cal added a second set because they otherwise could not loosen the first set any further without compromising their function.
[29] RO Masoud initially believed, and therefore advised the Applicant, that he would be released from the scene; but after she consulted with WO2, RO Weaver-Hutten instructed RO Masoud and RO O’Cal to transport the Applicant to the division for a bail hearing to prevent the continuation of the offence. RO Masoud and RO O’Cal placed the Applicant in the backseat of their cruiser, which both officers stated was parked under a tree with the air conditioning set to a maximum and the partition dividing the front and back seats left open to allow for air flow between the compartments. RO Masoud did not recall responding to the Applicant’s complaints about the heat in the cruiser with, “Now you know how it feels”; however, RO O’Cal recalled his partner using words to that effect.
[30] RO O’Cal noticed the Applicant had wet paint on his hands and appeared to be intentionally smearing it on the cruiser seat. RO O’Cal therefore cautioned the Applicant that if he did not stop, he would be charged with Mischief Under $5,000, contrary to s. 430(1) of the Criminal Code of Canada.
[31] RO Weaver-Rutten requested that by-law services attend to take custody of the dog for its protection and to bring it to a veterinarian for assessment. She also contacted an animal welfare inspector (‘Civilian Witness 4’ or ‘CW4’) with the Provincial Animal Welfare Services (‘PAWS’) to ascertain whether PAWS should be involved with the investigation of offences under the AWSA.
[32] All of the officers were unanimous that the Applicant’s van was never searched. Witness Officer 3 (‘WO3’) took carriage of the case after the Applicant’s arrest. He reviewed the report from the veterinarian, which indicated that the dog was in stable condition; his temperature, heart, and lungs were normal; and he was not dehydrated. The veterinary hospital was comfortable releasing the dog to the Applicant. As a result of this additional information, WO3 concluded that there was insufficient evidence to lay criminal charges and he referred the matter to PAWS to investigate any provincial offences. The Applicant was released unconditionally.
[33] At the conclusion of the OPS investigation, the Chief of the service concluded, based on the evidence gathered, that there were no grounds to support the allegation that the ROs unlawfully or unnecessarily exercised their authority in effecting the Applicant’s arrest and handcuffing him or in continuing his detention in the cruiser and then at the station, where he was held while the investigation continued. The decision to hold the Applicant for a bail hearing was consistent with Ottawa Police Service Policy 6.08: ‘Bail and Violent Crimes’, which indicates that police officers may detain a person to be taken before a Justice where it is necessary to “prevent a repetition of the offence or the commission of another offence”. The Chief also found that although RO Masoud’s comment, “Now you know how it feels”, was unnecessary and indelicate, it was not so egregious that it would be likely to damage the reputation of the police service. The report concluded that the allegations of misconduct were unsubstantiated.
The Applicant’s Request for Review
[34] As was his statutory right, the Applicant requested that the Director conduct a review of the OPS’s decision. He filed submissions detailing his many concerns with the police service’s investigation and its conclusions.
[35] The Director confirmed the results of the OPD investigation. The Applicant now seeks judicial review of the OIPRD decision.
COURT’S JURISDICTION:
[36] This Court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
STANDARD OF REVIEW:
[37] The Director’s decision to screen “out” the Applicant’s complaint is reviewable on a reasonableness standard. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”), the Supreme Court of Canada confirmed that the presumption is that the reasonableness standard applies in assessing the merits of an administrative decision. The application of the reasonableness standard to the Director’s request for review decisions has been confirmed in a series of recent decisions of this Court: Potter v. Office of the Independent Police Review Director, 2021 ONSC 1602; Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074.
[38] The Supreme Court of Canada in Vavilov did recognize, however, that correctness would be the appropriate standard where the decision in question engages the rule of law, namely where the decision raises a constitutional question; a question of law of central importance to the legal system; or a question regarding the jurisdictional boundaries of two or more administrative bodies arises.
[39] The Applicant indirectly submits that the rule of law is engaged because the decision engages a constitutional question, namely: did the Director’s decision perpetuate the OPS’s alleged violations of the Applicant’s rights protected by s. 2(b), s. 7, and s. 15(1) of the Charter?
[40] The Applicant did not tender any evidence on this issue. The Applicant did not file a notice of constitutional question. The Respondent submits, and I concur, that the Applicant has not raised a true constitutional challenge in that he is not seeking to strike down a section of the PSA; rather, he suggests that the Director’s role in perpetuating the OPS’s purported Charter breaches is grounds for this Court to grant an order of certiorari quashing the decision and an order of mandamus, compelling the Director to criminally investigate and sanction the Respondent Officers or to take over the investigation.
[41] The Director’s decision to confirm the Chief’s findings did not in any way breach the Applicant’s freedom of expression, right to life, liberty or security of the person, or right to equal protection and equal benefit of the law without discrimination. The only “right” that the Applicant has at the request for review stage is to have the investigation reviewed on a reasonableness standard. The Director does not have the statutory authority to criminally investigate or sanction a Respondent Officer.
[42] Thus, there is no merit to the Applicant’s position that the Charter issues he raised rebut the presumption that the reasonableness standard is the applicable standard for this court to apply.
[43] In Vavilov, at paragraph 15, the Supreme Court of Canada made it clear that, in conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible, and justified. A reasoned decision is one that is “transparent, intelligible and justified” and is “justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at paragraph 87.
POSITIONS OF THE PARTIES
The Applicant’s Position
[44] The Applicant submits that the Director failed to consider his request for review submissions and challenges the adequacy of the Director’s reasons, arguing that the decision is simply a regurgitation of the investigative report. Further, although the Applicant seems to acknowledge that the Director cannot consider extraneous evidence in assessing the reasonableness of an investigation, he asserts that the Director “failed to investigate”, including by searching the ROs’ license plate search history to ascertain whether they were targeting, and thus harassing, him. The Applicant also claims that the Director failed to consider the following two pieces of evidence, which he characterizes as relevant: first, the veterinary report, which the Applicant claims demonstrated the officers’ decision to arrest him was not supported by the requisite reasonable and probable grounds; and second, the Applicant’s “rebuttal” evidence in a printed receipt from a hardware store.
[45] The Applicant additionally argues that the Director failed to consider the OPS’s consistent refusal to disclose information in response to his requests under the Freedom of Information and Protection of Privacy Act (FIPPA), which he says points to the service’s bias toward him.
[46] Lastly, the Applicant submits that the Director’s decision facilitated the OPS’s “ongoing Charter violations and Criminal Code offences against the Applicant”. He particularizes the alleged constitutional violations as breaches of s. 2(b), s. 7, and s. 15(1) of the Charter. The Applicant additionally levies various grievances against the OPS throughout his factum, including that the service “breached section 46 of the Police Services Act”, “committed the indictable offence of Obstruction of Justice”, and is “in breach of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.
[47] The Applicant seeks an order of mandamus, directing the OIPRD to investigate the incident and an order of certiorari quashing the decision and remitting it to the Director, or, to “sanction” the officers. More specifically, the Applicant outlines in his factum that he seeks the following:
- An order to criminally investigate OPS members who participated in the incidents described above;
- An order for the OIPRD to investigate the OPS members who failed to properly investigate the incident;
- An order to overturn the OIPRD decision and sanction OPS members involved in the incident dated June 6, 2021;
- An order for costs; and
- Other relief as the court deems just.
The Respondent’s Position
[48] The Respondent states that the Director’s decision to screen out the Applicant’s complaint is reviewable on a reasonableness standard, based on the presumption that reasonableness is the applicable standard of review in assessing the merits of an administrative decision.
[49] The Respondent submits that the OIPRD decision was reasonable and fell within the range of possible outcomes, and that the reasoning was transparent, intelligible and justified. It submits that this application should be dismissed.
[50] In the alternative, the Respondent submits that if the decision is quashed, the matter should be remitted back to the OIPRD for further investigation. It notes that this court cannot order the Director to conduct a criminal investigation or require him to discipline the police officers as these powers are not conferred on the Director by statute.
[51] The Respondent seeks no costs, and requests that no costs orders are made against it.
ISSUE
[52] On this application for judicial review, the issue for the court to determine is whether the OIPRD decision confirming the result of the OPS investigation was reasonable.
ANALYSIS
[53] For the reasons discussed below, there is no merit in the Applicant’s contention that the issues he advances are the appropriate issues for the court to consider. I accept the Respondent’s position that the proper role of the court in this application for judicial review is to conduct a review of the reasonableness of the Director’s decision.
[54] While the Applicant makes arguments seeking relief under the Charter and for a finding that he is a victim of crime, this court, on this judicial review application, can only determine whether the OIPRD made an unreasonable decision.
[55] While we realize that the Applicant feels that he is the victim of a conspiracy, there is nothing to substantiate this. The OIPRD decision is logical and transparent, and the reasons are sufficient to explain the outcome. For the reasons that follow, there is no basis for judicial intervention in this case.
The Director’s Request for Review Decision Was Reasonable
[56] The Applicant asserts that the Director failed to provide adequate reasons that demonstrated a consideration of his request for review submissions; the OIPRD failed to conduct its own investigation; ignored the OPS’s approach to his past freedom of information requests; and failed to account for the following two factors he claims were relevant to the review process: first, the veterinary report; and second, the Applicant’s “rebuttal” evidence in the form of receipt from a hardware store which has a time stamp.
[57] As outlined in Vavilov, 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 that were open to the decision maker; or conduct a de novo analysis. Instead, the reviewing court must consider only whether the decision – which encompasses both its rationale and its outcome - was unreasonable: Vavilov, at paragraph 83.
[58] Further, the Applicant bears the burden of satisfying the reviewing court that there are sufficiently serious and significant shortcomings in the Director's decision that render it unreasonable; “minor missteps” or merely superficial flaws or shortcomings that are “peripheral to the merits” do not warrant the court’s intervention: Vavilov, at paragraphs 91, 100, and 102.
[59] In assessing the reasonableness of a decision, a reviewing court must consider the factual and legal constraints that bear on the decision. While not a checklist, those factual and legal constraints include the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision maker, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies: Vavilov, at paragraphs 108, 110-112, 115-116, 125-127, and 130.
[60] A reasonable decision is one that is based on an internally coherent and rational chain of analysis. The Court in Vavilov cautioned that the extent of reasons provided in each case will depend on the context. The standard is not perfection and reasons for a decision do not necessarily need to include “all the arguments, statutory provisions, jurisprudence or other details a reviewing judge may have liked”: Vavilov, at paragraphs 81,85,93 and 94.
[61] The impugned decision in this case demonstrates an understanding of the essence of the Applicant's concerns with the investigation and provides an explanation as to why the Director found the investigation to be reasonable and the conclusions to be supported by the evidence. The decision explained that the investigation had revealed that RO Weaver-Rutten, and thus the officers who acted under her direction, had ample reasonable and probable grounds to arrest the Applicant. It listed those grounds. It accounted for the reality that RO Weaver-Rutten properly recognized her lack of expertise in animal cruelty investigations and sought assistance from an investigator with the requisite knowledge and expertise. It also accounted for RO Weaver-Rutten’s consultation with her supervisor.
[62] Moreover, the decision found that there was no basis to conclude that the Respondent Officers exercised their discretion unreasonably or, as the Applicant contended, with the retaliatory intent to harass him. Similarly, the Director confirmed that there was insufficient evidence that the handcuffs were over-tightened or that the cruiser in which he was detained was excessively hot to substantiate misconduct against RO Masoud and RO O’Cal. His decision was based on the only available evidence aside from the Applicant’s complaint: the accounts of RO Masoud, RO Wazirian, and RO O’Cal, all of whom denied the allegation.
[63] Finally, the Director explained why it was reasonable for the OPS investigator to have concluded that RO’s comment, “Now you know how it feels”, while “unnecessary and indelicate” was not likely to damage the reputation of the OPS, as is required to substantiate an allegation of discreditable conduct.
[64] Having satisfied himself that RO Weaver-Rutten had reasonable and probable grounds to arrest and detain the Applicant; that she exercised her discretion based on all relevant and available evidence at the time; and that her decision was not based on improper considerations or an intent to “harass” the Applicant, the Director reasonably upheld the Chief of the OPS’s conclusion that the arrest and detention were lawful.
Police Discretion
[65] The Director’s decision was consistent with the jurisprudence treating the exercise of police discretion. In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at paragraph 73, the Supreme Court of Canada recognized the discretion inherent in a police investigation and the decision to lay a charge and found that officers are not held to a standard of perfection:
This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigations. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating an alleged crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information.
[66] The Court of Appeal for Ontario’s decision in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, is also apposite. At paragraphs 51-52, the court clarified that the function of the police is to “make a conscientious and informed decision as to whether charges should be laid”, which does not require an officer to “evaluate the evidence to a legal standard”; “exhaust all possible routes of investigation or inquiry”; or even to “obtain the suspect’s version of events”, before assessing reasonable and probable grounds. These passages recognize that the reasonableness of an officer's conduct must be examined in light of the circumstances as they existed at a particular time. An officer is expected to use discretion and judgment in the course of their duties on many occasions. The officer's discretion or judgment ought not to be examined scrupulously with the benefit of hindsight; rather, an examination of the circumstances under which the officer exercises discretion or independent judgment is required: Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074, at paragraph 44.
[67] Central to the Applicant’s submissions is the issue of the veterinary report. That report obviously was not available to the Responding Officers at the time that they originally investigated and arrested the Applicant. Assuming RO Weaver-Rutten had the requisite reasonable and probable grounds to arrest the Applicant, and it was reasonable for the Director to find that she did, the question then became: should she have awaited the results of the veterinary examination prior to arresting the Applicant? Although not made explicit, the decision demonstrates that the Director implicitly recognized that once RO Weaver-Rutten formed reasonable and probable grounds, whether she arrested the Applicant became a matter of police discretion; and explained why the Director agreed with the investigator’s conclusion that she exercised her discretion reasonably. That WO3 later determined that reasonable grounds did not exist to charge the Applicant does not automatically suggest that the PSU investigator determined that the original arrest was unlawful. The officer had subjective grounds to effect the arrest and those grounds were objectively reasonable. As noted in the Investigative Report, the information provided by the Humane Society and the Ministry of the Solicitor General confirms that leaving an animal in a vehicle during the summer, notwithstanding an open window, may harm the animal and can result in provincial and criminal charges against the owner.
The Code of Conduct
[68] A breach of the Code of Conduct is a serious finding against an officer which may result in significant penalties. It therefore has been recognized that not every misstep or failure to follow policy would extend into the realm of misconduct. In this case, it is evident that there was no evidence of a misstep beyond RO Masoud’s regrettable comment. Moreover, the Respondent Officers adhered to OPS policy regarding ‘Bail and Violent Crimes’ when they held the Applicant for a bail hearing. The Director’s decision to confirm the Chief’s decision not to substantiate the allegation of discreditable conduct contrary to s. 2(1)(a)(x) was firmly rooted in how this term is defined in the Code of Conduct. The Director explained: the officer’s comment was unnecessary and indelicate; however, to establish discreditable conduct, it must be proved that the officer’s comment or conduct was such that it would be likely to damage the reputation of the police service. Given the circumstances outlined in the report, the Director reasonably concluded that RO Masoud’s comment in this matter did not reach that threshold.
The Director’s Governing Statutory Scheme
[69] The Applicant asserts that the Director’s decision ought not to stand because he failed to investigate during the review process. There is no merit to this submission. To require the Director to conduct his own investigation during the review process would be inconsistent with the OIPRD’s statutory scheme. As noted earlier, s. 71(1) of the PSA creates the right of review and s. 71(2) defines its parameters. Subsection 71(2) specifies that the Director’s role at this stage is to “review the decision” and specifically limits the material he is to take into account to what is “provided by the complainant or the chief of police”. The subsection further specifies that a review is not a hearing. The term “investigation” is used elsewhere in Part V of the Act, including in s. 66 (investigations by the chief of the police service of which the respondent officer is a member); s. 67 (investigations by another police service); and s. 68 (investigations by the Director). Section 66 applies to the Applicant’s complaint as it was investigated by the OPS.
[70] It is clear from the use of the term “investigate” in these subsections and its use of “review” in s. 71 that the Legislature did not intend for these terms to be conflated or interchangeable. It is also clear from the subsection’s direction that the Director focus squarely on the materials provided to him by the parties that he is precluded from conducting his own investigation.
[71] The Applicant also argues that the Director’s decision breached ss. 59(1) and 60(3)(c) of the PSA. Neither of these subsections apply at the review stage. Section 59(1) of the PSA simply provides for the Director’s screening function. Section 60(3)(c) of the PSA indicates that the Director may screen out a complaint where he determines it is not in the “public interest” for it to be investigated. In this case, however, the Director considered that it was in the public interest for the Applicant’s complaint to be investigated. He therefore performed the very duty the Applicant alleges that he breached when he referred the matter for investigation. The alternative would have been to screen out the Applicant’s complaint pursuant to s. 60 of the PSA.
The Material and Submissions Before the Director
[72] The Court in Vavilov noted that a reasonable decision is one which “meaningfully grapple[s] with key issues or central arguments raised”. While an administrative decisionmaker is not expected to “respond to every argument or line of possible analysis,” the reasons must “demonstrate that [he] actually listened to the parties:” Vavilov, at paragraphs 127. The extent to which the reasons should account for the party’s submissions vary depending on the circumstances of a decision.
[73] The Applicant argues that the Director did not consider his submissions, which came in the form of his Request for Review form. The decision demonstrates the converse to be true. Indeed, the decision summarized the Applicant’s submissions at the outset and made reference throughout the ‘Analysis’ section to those most salient to the task before him: assessing the reasonableness of the Chief’s decision.
[74] The following paragraph at page 11 of the OIPRD decision evinces an appreciation of one of the Applicant’s chief submissions:
The Complainant believes he should not have been arrested. He asserts that the officers used the dog in the vehicle as an excuse to harass him. He insists that his dog was not in distress, and there were no grounds to arrest him.
[75] The Director went on to address the Applicant’s submission that the ROs’ actions were retaliatory in nature and a continuation of the service’s ongoing harassment campaign against him. The Director explained that there was no evidence to support the Applicant’s contention the officers had an ulterior motive in investigating the animal cruelty allegation. “To the contrary”, the Director stated at page 11 of the decision, “the PSU investigation found that the Respondent Officers acted as required in the interest of ensuring the animal’s wellbeing and dealt with the Complainant in accordance with the lawful execution of their duties.” He expanded on that position in the next paragraph of the decision, wherein he outlined the evidence supporting the conclusion that RO Weaver-Rutten had reasonable and probable grounds to arrest the Applicant. The Director also addressed the Applicant’s submission that the veterinary report and the ultimate decision to release the Applicant unconditionally undermined the reasonableness of the decision to arrest him.
[76] Further, and contrary to the Applicant’s assertion, the Director referenced the Receipt in his decision when he summarized the Applicant’s submissions. Although he did not directly address its irrelevance, his analysis of the reasonableness of RO Weaver-Rutten’s grounds for arrest was a sufficient response to this submission.
[77] The Director explained at page 12 of the decision, by reference to the Investigative Report, that “the information provided by the Humane Society and Ministry of the Solicitor General confirms that leaving an animal in a vehicle during the summer, notwithstanding an open window, may harm the animal and can result in provincial and criminal charges against the owner.” As explained earlier, the reasonableness of an officer’s grounds must be assessed based on the circumstances apparent to the officer at the time those grounds crystalized in an arrest. There is no evidence to suggest that the Applicant provided RO Weaver-Rutten or any other Respondent Officer with the receipt he claims would demonstrate his dog was only left alone as long as was alleged by CW1 and CW2. It therefore would be inappropriate to use that evidence to undermine the reasonableness of the grounds for arrest.
[78] Finally, the ‘R4R Case Summary’ completed by the OIPRD’s Investigations Unit shows that the Director carefully reviewed the Applicant’s submissions. In it, the Director set out – in bullet form – the Applicant’s various submissions.
[79] The decision, read as a whole, shows that the Director meaningfully grappled with the Applicant’s arguments.
The impact of the decision on the Applicant
[80] In Vavilov, the Court held that where a decision involves the potential for significant personal impact or harm, there is a heightened responsibility on the part of decision-makers to ensure that the reasons demonstrate that they considered the consequences of the decision and that those consequences are justified. Responsive justification requires “that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention”: Vavilov, at paragraph 133. Examples of such “harsh consequences” include anything that would threaten an individual’s life, liberty, dignity or livelihood: Vavilov, at paragraph 135. Where the chief of police finds the misconduct allegations to be unsubstantiated, the Director’s decision to confirm the chief’s findings only precludes the possibility of employment consequences for the respondent officer. There is no direct impact on the complainant.
[81] As the Respondent points out, the PSA does not provide a complainant with substantive benefits or remedies. The complainant does not receive monetary awards or compensation and there are no personal or financial remedies a complainant can pursue. Rather, the outcome of the process is directed at remediating police conduct, improving police accountability, and increasing public confidence in police oversight. Where a complaint proceeds to an investigation, the PSA entitles a complainant to no more than a copy of the investigative report and, where misconduct is substantiated, the right to participate in an informal resolution or party status if the matter proceeds to a hearing. Complainants have a right to make a complaint, but they are not entitled to a particular investigative outcome or resolution: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at paragraph 23. The Director’s decision to confirm the Chief’s findings does not threaten the complainant’s life, liberty, dignity, or livelihood in any way. Consequently, there was no heightened responsibility for the Director to consider the consequences of his decision on the Applicant.
CONCLUSION
[82] The Applicant has not substantiated his position. The Director’s findings fell within the range of acceptable outcomes given the factual and legal context in which they were made. The reasoning was transparent, intelligible and justifiable, and is sufficient to explain the outcome. Further, the outcome is reasonable, given the facts, the broad allegations made, and the governing legislation. There is therefore no basis for judicial intervention.
[83] The application for judicial review is dismissed.
COSTS
[84] Consistent with the submission of the Respondent, no costs will be ordered.
Gibson J.
I agree _______________________________
Sachs J.
I agree _______________________________
Gordon J.
Released: October 26, 2023
CITATION: Potter v. Office of the Independent Police Review Director, 2023 ONSC 5827
DIVISIONAL COURT FILE NO.: DC-22-2730
DATE: 2023/10/26
ONTARIO
SUPERIOR COURT OF JUSTICE
STEVEN G. POTTER
Applicant
– and –
OFFICE OF THE INDEPENDENT POLICE
REVIEW DIRECTOR
REASONS FOR DECISION
Gibson J.
Released: October 26, 2023