CITATION: A. Z. v. Office of the Independent Police Review Director, 2023 ONSC 6365

DIVISIONAL COURT FILE NO.: 650/22

DATE: 20231114

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT MEW, NISHIKAWA, O’BRIEN JJ.

BETWEEN:

A. Z.

Applicant

– and –

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR

Respondent

Daniel Ambrosini, for the Applicant

Heather Mackay, for the Respondent

HEARD at Toronto: 24 May 2023 (by videoconference)

BY THE COURT

REASONS FOR DECISION

[1] This application for judicial review arises from allegations of misconduct made by the applicant to the Office of the Independent Police Review Director (“OIPRD”) regarding five officers from the Niagara Regional Police Service (“NRPS”).

[2] Most, if not all, of the concerns raised by the applicant relate to the fact that the investigation of the applicant’s complaint against the NRPS officers was undertaken by the NRPS itself, rather than by the OIPRD or another police service.

Background

[3] At the time of the incidents giving rise to her complaints, the applicant was studying to be designated as a chartered professional accountant, and working at an adult entertainment nightclub in Niagara Falls as an exotic dancer.

[4] On August 22, 2020, the applicant alleges that she was sexually assaulted by a patron of the nightclub when the patron attempted to persuade her to leave with him and have sex elsewhere, offering her a large sum of money in exchange. She refused. She indicated that as she continued performing, the patron reached out with his hand and briefly inserted a finger into her vagina. A physical altercation between the applicant and the patron ensued. A member of the establishment’s security team then intervened, physically taking hold of the applicant and moving her outside of the establishment. A different security guard called the police on the applicant’s behalf and then the applicant spoke on the phone requesting police assistance. As a result, two NRPS officers, Police Constables Celetti and Haley were dispatched and arrived shortly thereafter. However, by the time they got to the establishment, the alleged perpetrator of the sexual assault had departed.

[5] Had they followed the applicable general orders of the NRPS, the officers would have:

1. Asked the applicant if she wished to speak with a Victim Services of Niagara worker.

2. Informed the applicant of the time-sensitive importance of her attending the Sexual Assault Treatment Centre for a Sexual Assault Evidence Kit (“SAEK”) and encouraged her to attend.

3. Alerted a uniform sergeant to the occurrence and requested that one attend the scene.

Instead, the applicant says that PC Celetti told her to go home, without providing her with any guidance.

[6] The sexual assault investigation was then assigned to Detective Constable Catherwood of the NRPS Sexual Assault Unit. He contacted the applicant two days after the incident and encouraged her to attend the Sexual Assault Treatment Centre located within the Niagara Health Systems – St. Catherines site, to have a SAEK completed.

[7] On February 3, 2021, DC Catherwood informed the applicant that the SAEK examination had not produced any viable DNA, and that he did not have reasonable or probable grounds to lay any charges against the patron. He added that he could request that the patron provide a voluntary statement if the applicant supported that additional step. However, when DC Catherwood subsequently contacted the patron, he exercised his right not to provide a statement, following which DC Catherwood informed the applicant that the investigation would be suspended.

[8] On May 6, 2021, the applicant contacted NRPS and initiated an assault investigation concerning the security guard who had physically taken hold of her after her altercation with the patron who she alleges sexually assaulted her. Detective Sergeant Gauthier was assigned to the investigation. He concluded that the security guard’s actions did not constitute a criminal offence. He explained to the applicant after she had slapped a patron, the security guard had authority to use “necessary force” under the Trespass to Property Act, R.S.O. 1990, c. T.21.

[9] On June 9, 2021, the applicant submitted a complaint to the OIPRD regarding five officers involved in her case (in addition to officers Haley, Celetti, Catherwood and Gauthier, the applicant complained about Detective Sargeant Matthew Hodges, who was the supervising officer of the NRPS Sexual Assault Unit at the time the applicant’s matter was being investigated). The applicant asserted that the officers had mishandled the investigations of the assault and sexual assault, which she said was the result of negative stereotypes of exotic dancers, as well as a desire to protect the business interests of a well-connected club owner.

Screening of the Complaint

[10] Upon receipt of a complaint made by a member of the public, the OIPRD’s case management unit reviews the complaint, obtains any additional information necessary, seeks legal advice if required and completes a “Case Analysis Form”. If the case management unit recommends that a complaint ought to be screened in for investigation, the complaint and accompanying Case Analysis Form are transferred to the OIPRD investigations unit.

[11] The case management unit of the respondent reviewed the applicant’s complaint. It was noted that “[the applicant] appears to be adamant that Detective Catherwood believed that [her] sexual assault complaint was "a deal gone bad" suggesting that [the applicant] had agreed to allow the offender to insert his finger in her private part in exchange for money and that she was only complaining because the male didn't pay her”.

[12] The initial screening concluded that the allegations involved a neglect of duty by failing to conduct a thorough and accurate investigation into the sexual assault and assault, contrary to s. 2(1)(c)(i) of the Code of Conduct, which is a schedule to O. Reg. 268/10 under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”) and that, “given the nature of the allegation, I would like to refer this complaint to be investigated by the same service for investigation”.

[13] The investigations unit reviews the materials and determines whether the complaint will proceed through the “standard process” or the “alternative process”. The standard process applies to those complaints where the investigations monitor recommends that the same service conduct the investigation. The alternative process is for complaints where the recommendation is either to retain the investigation or send it to another service. If the alternative process is engaged, the complaint is then forwarded to the senior manager of investigations, who has the delegated authority pursuant to s. 61(5) of the PSA to make the final decision as to who should conduct the investigation.

[14] At the investigations unit stage, the investigator, Robert Zufelt, recommended that, given the seriousness of the allegations and the nature of the complaint, the OIPRD should retain the investigation of the complaint or refer it to a different police service.

[15] As a result of this recommendation, an “alternative process form” was completed and forwarded to the senior manager of investigations, Curtis Smith. Having reviewed the complaint, as well as the recommendation of the investigator, Mr. Smith concluded on July 13, 2021:

I am not convinced that this complaint necessitates us either retaining it or referring it to another service. While there appears to have been a number of deficiencies in the investigation of this matter, NRPS PSB should be able to conduct a thorough review of this matter, taking into account their own Sex Assault investigation policies.

[16] On July 14, 2021, the applicant and the chief of the NRPS were notified that the complaint had been “screened in” and referred to the NRPS for investigation.

The Investigation

[17] On July 28, 2021, the applicant emailed the OIPRD, providing photographs of her injuries from the assault as well as a screenshot of text messages between her and the club owner. She concluded her email by referring to the fact that she was studying in Hamilton and adding: “I would like the Hamilton police to oversee the internal OIPRD investigation being conducted by MRP”. The OIPRD investigator responded by directing the applicant to provide this information directly to the NRPS. He did not address the applicant’s request to have the Hamilton Police Service oversee the investigation.

[18] Detective Sergeant Drew Wallace of the professional standards unit of the NRPS was assigned to investigate the applicant’s complaint. DS Wallace interviewed the officers and some of the civilian witnesses to the alleged incidents. On September 24, 2021 he spoke with the applicant by telephone, who he described as “very hurt” by DC Catherwood’s suggestion that the events of August 22, 2020 were possibly the result of “a deal gone bad” which, she felt, implied that she was engaged in activities more akin to prostitution or sex work.

[19] DS Wallace concluded that the complaints of misconduct against PCs Celetti and Haley were substantiated, in that they had failed to conduct a thorough and accurate investigation. Specifically, when they attended following the initial call for service, they did not ask the applicant whether she was interested in speaking with representatives from Victim Services of Niagara (as required), not did they make her aware of, or encourage her to attend, the local Sexual Assault Treatment Centre to have a sexual assault evidence kit completed (also as required). Further, they failed to comply with a general order requirement that they ensure that the Uniform Sergeant on duty attends the scene and is made aware of all of the details of the occurrence: none of the three Uniform Sergeants on duty at the time were notified by the officers that a sexual assault investigation had been initiated, nor were any of them requested to attend the scene.

[20] DS Wallace recorded, in respect of the transaction that had preceded the alleged assault, DC Catherwood’s note that the appellant:

… stated there was no prearranged agreement for extra money to be paid and that the going rate for two songs was $40 but that he owed her $80 or $100. This

brings forward the concern that there could have been a prearranged price for more to occur while in the private dance room and that this was a deal gone bad.

[21] Nevertheless, in respect of both DC Catherwood and the remaining officers, the investigative report concluded that the allegations of misconduct were unsubstantiated.

[22] Following the receipt of the investigative report, on November 8, 2021, the chief of the NRPS concluded that there were reasonable grounds to believe that PCs Celetti and Haley had committed misconduct, which he deemed to be of a “less serious” nature, as that term is used in the PSA. The chief accepted the findings of the investigative report that there were no reasonable grounds to believe that the other three officers had committed misconduct.

[23] Given his opinion that the officers’ misconduct was of a “less serious” nature, Inspector Dave Masotti, who authored the decision letter on behalf of the chief of police, advised that he would be taking further action against the two officers, pursuant to s. 66(4) of the PSA, to attempt to resolve the matter informally, “with your consent and that of the involved officer’s [sic]”.

Review of the Chief of Police’s Decision

[24] As was her statutory right, on December 9, 2021, the applicant requested a review of the NRPS’s decision. She challenged the conclusion that her complaint “is not of a serious nature”. She explained, in some detail, why she believed that the NRPS had failed to conduct a thorough and proper investigation, either in respect of the sexual assault and assault incidents, or in respect of the investigation of her complaint.

[25] In written submissions to the Director, Inspector Masotti, on behalf of NRPS, advised that by stating that he would be taking action to attempt to resolve the consequences of the two misconduct findings informally, he was not trying to suggest that the officers’ breaches were frivolous or not worthy of appropriate action. He said that he had offered to speak to the applicant to explain the process and obtain her thoughts and input as to the appropriate action for the officers. Her response had been that she would be seeking a review by the OIPRD and that she wanted “a full disciplinary hearing where the officers who neglected to perform their duties will be punished to the full extent pursuant to the Police Services Act”. Inspector Masotti’s submission notes that the breaches of the two officers came nowhere near the threshold of seriousness that would engage the “maximum penalty”, namely termination. Both of the officers concerned had no disciplinary record and it was the inspector’s belief that, in the circumstances, the matter should be resolved by way of remedial training for the officers as it pertains to sexual assault investigation and through “appropriate” disciplinary sanctions.

[26] In his decision, released on March 18, 2022, the Director wrote that he had considered the applicant’s extensive submissions. He understood the crux of the applicant’s submissions to be that:

1. The criminal investigations into the assault and sexual assault should be reopened; and that,

2. The misconduct findings against Constables Celetti and Haley should be reclassified as “serious” and set down for a disciplinary hearing.

[27] The Director noted that the jurisdiction provided to him pursuant to s. 71 of the PSA

required him to ask and answer two questions, namely:

1. Did the professional standards investigator adequately address the issues raised in the complaint? and

2. Are the findings of the chief supported by the available evidence?

[28] The Director first reviewed the reasonableness of the investigation. He concluded that DS Wallace had conducted a reasonable professional standards investigation, identifying all relevant evidence, and that each of the applicant’s complaints had been addressed in his report.

[29] We pause to observe that in her request for review, the applicant stated that she had audio recordings of all of her communications with PC Catherwood, DS Hodges and DS Gauthier that contradicted each of these officers’ version of events as set out in DS Wallace’s report. However, the Director found that these recordings had not been provided to DS Wallace prior to the delivery of his investigative report. The applicant states that she sent the recording to the Director on December 20, 2021 as an attachment to an email. There is no record of the Director having received this email and, hence, the recording was not considered by the Director.

[30] The Director addressed the applicant’s complaint that an email which she had sent to the OIPRD’s investigator on July 28, 2021, attaching photographs and messages between herself and the nightclub owner, and in which she also requested the involvement of the Hamilton Police to oversee the NRPS investigation, had not been forwarded on to DS Wallace. The Director noted that the OIPRD investigator had responded promptly, advising the applicant to provide this material to the assigned NRPS investigator, but that this had not been done until the day after the investigative report had been finalised and signed.

[31] The Director did not construe s. 71(3) of the PSA as conferring on him any power to direct that the underlying criminal investigation should be reopened. However, he acknowledged that he had the discretion to recommend further actions, including the reopening or reassignment of a criminal investigation. He declined to make such a recommendation in respect of either the assault investigation or the sexual assault investigation. In respect of the former, he was satisfied that DS Gauthier’s exercise of his discretion not to charge the security guard who had allegedly assaulted the applicant was reasonable in the circumstances. With respect to the latter, he was satisfied that the evidence overwhelmingly demonstrated that PC Catherwood exercised his discretion reasonably and in good faith by deciding not to charge the individual who had allegedly sexually assaulted the applicant.

[32] The Director also declared himself satisfied with the additional steps taken by NRPS to confirm the sufficiency of the sexual assault investigation, despite the “irreversible errors of PCs Celetti and Haley”.

[33] Finally, the Director found that the chief’s findings that the misconduct of PCs Celetti and Haley was “less serious” was supported by the available evidence and, therefore, reasonable.

[34] In short, the Director concluded that the chief’s decision had been reasonable.

[35] The Director concluded by stating that if informal resolution of the misconduct of the two officers could not be reached, the matter could be resolved by way of discipline without a hearing.

Issues

[36] This application raises the following issues:

1. Should the court admit fresh evidence tendered by the applicant?

2. Was there a breach of procedural fairness?

3. Has the applicant shown actual bias or the reasonable apprehension of bias with respect to the police investigation and investigation of her complaint?

4. Was the decision to refer the investigation back to the NRPS unreasonable?

5. Was the Director’s finding that there were no reasonable or probable grounds for the NRPS to lay charges unreasonable?

6. Was the determination that the misconduct was not of a serious nature unreasonable?

7. Did the review decision violate the applicant’s equality rights under s. 15 of the

Canadian Charter of Rights and Freedoms?

Should the Court Admit Fresh Evidence Tendered by the Applicant?

[37] The applicant brought a motion to introduce fresh evidence on this application. The motion was heard by the panel immediately before the hearing of the substantive application. Our decision was reserved, with an indication that our decision on the application would exclude from consideration any of the fresh evidence tendered that we decided was inadmissible.

[38] The proposed fresh evidence consists of two affidavits, one from the applicant and another from her previous lawyer.

[39] The respondent consented to the admission of certain exhibits annexed to these affidavits, including the audio recording which the applicant says was sent by email to the Director, but objected to the introduction of the narrative contained in the affidavits as well as a clinical report dated April 27, 2022 from a psychiatrist consulted by the applicant which concluded that the history presented by the applicant was consistent with post-traumatic stress disorder.

[40] On a judicial review, the court will normally consider only the material that was before the administrative decision-maker. In certain limited circumstances, additional evidence may be considered on judicial review – for example, to demonstrate a denial of procedural fairness that is not apparent from the record or to show an absence of evidence on an essential point: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para. 27; Queensway Excavating & Landscaping Ltd. v. Toronto (City), 2019 ONSC 5860, 93

M.P.L.R. (5th) 84 (Div. Ct.), at para. 46.

[41] The applicant’s affidavit narrates her experience throughout the investigation of the assault and sexual assault allegations and her subsequent dealings with the respondent and the NRPS during the course of the investigation of her complaint. It essentially tells the same story that is already well documented by the record (albeit in greater detail). The contents of the affidavit are either already before the court or otherwise do not fall within one of the limited exceptions for admitting additional evidence on judicial review. We would not therefore admit the affidavit (as distinct from its exhibits) as new evidence on the application.

[42] We also would not admit the psychiatrist’s report. The report was created after the Director’s decision and concludes that the history reported by the applicant is consistent with post- traumatic stress disorder. While the report evidences the serious impact of both the August 22, 2020 events and the complaint process on the applicant, it does not fall into an exception that would justify its admission on judicial review.

[43] The affidavit of the applicant’s former lawyer contains a mixture of a case narrative, the lawyer’s own experience and opinions, and advocacy of the applicant’s position. It similarly does not fall within one of the exceptions for additional evidence and we decline to admit it.

Was There a Breach of Procedural Fairness?

[44] The applicant argues that she was denied procedural fairness because she was not provided with reasons for her complaint being sent to the NRPS for investigation, nor was she given the opportunity to make submissions on that issue, despite her legitimate and reasonable expectations that her complaint would be investigated either by the OIPRD or by a different police service.

[45] At the screening stage of the process, the OIPRD is given a broad discretion. In Endicott

v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28, the Court of Appeal stated:

It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage.

[46] As Endicott makes clear, the threshold for procedural fairness at the screening phase is low. The OIRPD was under no obligation to provide a reasoned decision. Nevertheless, it is clear that the process did engage consideration of whether or not the NRPS should be responsible for investigating the applicant’s complaints. Indeed, the OIPRD’s own investigator, Robert Zufelt, expressed the view that investigation of the complaint should be retained by the OIPRD or referred to another police service. Ultimately, however, the senior manager concluded that the complaint did not necessitate the OIRPD either retaining it or referring it to another service. His view was that despite the deficiencies in the investigation, the professional standards unit of the NRPS should be able to conduct a thorough review of the matter, taking into account their own sex assault investigation policies.

[47] We understand why the applicant disagrees with that decision. But we see nothing in the procedure employed by the OIPRD which would breach the low level of procedural fairness owed to complainants at the screening phase.

[48] The applicant also alleges that the investigative phase was blighted by a lack of fairness because:

1. The NRPS investigation did not contact her lawyer as she had requested; and

2. She was not given the opportunity to make submissions on the issue of whether the misconduct was “serious” or “not of a serious nature”.

She argues that these were serious flaws in the investigative process which the Director’s review failed to remediate.

[49] We cannot accede to that submission. The Director did address these concerns in his decision. He acknowledged that when the applicant spoke to the NRPS investigator, she requested that he go through her lawyer if any additional information about her complaint was required. The applicant subsequently contacted the NRPS investigator a second time to provide further information. After that, the investigator did not contact the applicant or her lawyer, because he did not require additional information. There was thus no unfairness in not contacting the applicant’s lawyer.

[50] Similarly, we disagree with the applicant’s submission that she ought to have been given an opportunity to make submissions on the issue of whether the misconduct was “serious” or “less serious.” As further detailed in these reasons, the characterization of the seriousness of the misconduct is for a limited disciplinary purpose: Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.). Under the PSA, the chief of police determines whether the misconduct is serious or not and is not required to consider submissions or provide reasons. Pursuant to s. 71(1) of the PSA, the opportunity for a complainant to make submissions is at the review stage, which the applicant did in this case.

Has the Applicant Shown Actual Bias or the Reasonable Apprehension of Bias with Respect to the Police Investigation or Investigation of Her Complaint?

Actual Bias

[51] The Director’s review decision did not directly address what are now framed on the application for judicial review as issues of bias. However, the respondent has not objected to the issue being raised on the application.

[52] The applicant makes an allegation of explicit bias on the part of DC Catherwood, who, it will be recalled, had speculated about whether the sexual assault incident was a “deal gone bad”, with the implication that the applicant was selling sexual services. We can understand why the applicant would find the comment, and what it implied to her, offensive. However, there is no indication that DC Calderwood’s speculation about what might have happened coloured the OIRPD’s screening process.

[53] We do not, therefore, find the innuendo flowing from DC Catherwood’s comment about a “deal gone wrong” as having resulted in the screening process being impaired by actual bias.

Reasonable Apprehension of Bias

[54] The applicant further alleges a reasonable apprehension of bias arising from the OIPRD’s referral of the complaint to the same police service for investigation.

[55] A reasonable apprehension of bias is to be determined not from the standpoint of the decision-making organisation, or from that of the complainant. Rather, the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 111.

[56] It is not an answer to an allegation of reasonable apprehension of bias to say that there is no evidence that actual bias was displayed by the NRPS investigation into the applicant’s complaints. It is sufficient that if a reasonable and informed person would have reasonable concerns about the ability of the NRPS to conduct an impartial and unbiased investigation into five of its own, a reasonable apprehension of bias would be established.

[57] While public expectations in relation to the police complaints system in Ontario have evolved over the last two decades, it remains open to a police service to investigate a complaint into its own officers.

[58] In his Report on the Police Complaints System in Ontario (Toronto: Ministry of the Attorney General of Ontario, 2005), the Honourable Patrick J. LeSage, Q.C., expressly rejected the proposition that police services could not investigate themselves.

[59] By contrast, the Honourable Michael H. Tulloch (now Chief Justice of Ontario), in his 2017 Report of the Independent Police Oversight Review (Toronto: Queen’s Printer for Ontario, 2017) (“Tulloch Report”), noted, at p. 167:

Many of the people with whom I spoke expressed a strong desire to have an independent, civilian body investigating police misconduct, rather than police services themselves. Irrespective of issues of actual bias, they noted the potential for a perception of bias when police officers investigate other police officers in their same force.

Such views led Tulloch J.A. (as he then was) to recommend that within five years, the OIPRD should be the sole body to investigate police misconduct complaints.

[60] However, this recommendation from the Tulloch Report was not adopted by the government when it enacted the Community Safety and Policing Act, 2019, S.O. 2019, c. 1., Sched.

1. To the contrary, the new legislation, once proclaimed, would create a presumption in favour of having the same police service conduct investigations.

[61] Further, currently, s. 61(5) of the PSA explicitly permits the investigation of a complaint to be referred to the same police service for investigation. The statutory scheme does not require that complaints be sent to a different service, or that they be retained by the OIPRD. In exercising the

discretion to retain the complaint or to refer it to the same or different police service, s. 61(6) of the PSA requires the Director to consider the nature of the complaint and the public interest. Further, Rule 7 of the OIPRD’s Rules of Procedure sets out a list of non-exhaustive factors to be considered in making the decision to refer or retain the investigation of a complaint. The OIPRD’s Operational Directive provides further guidance in making this determination.

[62] The applicant relies on the portion of the Operational Directive that provides, as an example of a complaint the Director may retain or refer, “[a]llegations of substandard police investigation of sexual assaults…where effective oversight cannot be achieved by referring the complaint to a different police service other than the one that undertook the original investigation.” However, the Operational Directive provides guidance, not mandatory instruction. It also states that the decision to retain or refer is made on a case-by-case basis. It does not contain a presumption that allegations of substandard police investigation of sexual assaults be retained by the OIPRD or be referred to a different police service than the one that undertook the original investigation.

[63] In the present case, the record clearly demonstrates that at the screening stage, the OIPRD was alert to the question of whether or not investigation of the applicant’s complaints should be undertaken by the NRPS, or by an external force, or by the OIPRD itself. This is evidenced by the fact that one of the four OIPRD personnel involved at the screening stage did support referring the matter out to another police service. The other personnel, however, found that the factors that would support a referral to a different police service were not engaged. It is evident from the record that due consideration was given to the issue.

[64] Contrary to the applicant’s belief, the investigation was not conducted by the same unit as the one to which the complaint pertained. The complaint was investigated by the Professional Standards Unit, as opposed to the Sexual Assault Unit. In the end, two officers were found to have violated certain policies relating to sexual assault investigations and were found to be in neglect of duty.

[65] In addition, the NRPS has a review body, the Sexual Violence Advocate Case Review Team, which examines all sexual assault allegations where charges are not laid. This review body is composed of civilians who represent various advocacy groups in the Niagara region. None of the members of the review body are employees of the NRPS. The review body can make recommendations to the Sexual Assault Unit if its members have a concern about an investigation. The review body did not make any recommendations in this case.

[66] Overall, the OIPRD reviewed the specific circumstances of this case and exercised its discretion to refer the complaint to a different unit of the same police service, where there would also be oversight by a civilian review body. A reasonable person would not find these circumstances raised a reasonable apprehension of bias.

[67] Based on the foregoing, we are not satisfied that there was actual or a reasonable apprehension of bias.

Was the Decision to Refer the Investigation Back to the NRPS Unreasonable?

[68] The applicant similarly contends that it was unreasonable for the OIPRD to refer the complaint back to the NRPS. For essentially the same reasons, this ground of review is dismissed.

While we agree that it was open to the OIPRD to retain the complaint or refer it to a different police service, its decision to refer the complaint to the same police service was reasonable.

[69] The record clearly shows that during the course of the screening process the applicant’s allegations were recorded and considered, and that, ultimately, a determination was made to refer the matter to the NRPS for investigation in accordance with the PSA. That decision bore the hallmarks of reasonableness – justification, transparency and intelligibility. It was based on the information available to the OIPRD and was a reasonable decision for it to make having regard to the constellation of law and facts that were relevant to the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at para. 105.

Was the Director’s Finding that there Were No Reasonable or Probable Grounds for the NRPS to Lay Charges Unreasonable?

[70] The applicant maintains that, based solely on her statement to the police, there were reasonable and probable grounds to lay charges against the alleged perpetrator of the sexual assault and the security guard who allegedly assaulted her. Accordingly, she argues that the Director’s review of whether or not there were reasonable grounds to believe that an offence was committed and, thus, whether or not charges should have been laid, is a question of law, attracting a correctness standard of review.

[71] We disagree.

[72] The decision to lay a charge involves the exercise of discretion. NRPS, unlike some other police services, does not have a “mandatory charge” policy for sexual assaults of this nature. The NRPS’s assessments of the applicant’s complaints about the conduct of the officers, including the manner in which they exercise their discretion to lay charges, does not engage a question of law. Accordingly, the standard of review afforded to the Director’s decision making is a reasonableness standard. That standard requires the reviewing court to ask whether the decision as a whole bears the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov, at para. 81.

[73] The application of the reasonableness standard in this case does not, therefore, require us to decide whether we would have made the same decision as the Director. Nor are we required to determine the range of other possible conclusions that would have been open to the Director, or to conduct our own analysis of the evidentiary record.

[74] The Director declined to recommend that the assault investigation be reopened because he was satisfied that it was comprehensive and that the evidentiary record supported the Chief’s conclusion that DS Gauthier’s exercise of his discretion not to charge the security guard was reasonable in the circumstances. He offered this explanation for having come to that conclusion:

Police officers have broad discretion with respect to both how they investigate and whether to lay a charge. That discretion is critical to the effective administration of justice. It is certainly not unbridled and must be exercised reasonably and in good faith footnote: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [2007 SCC 41](https://www.minicounsel.ca/scc/2007/41), at paras [52 and 73]. I find DS Gauthier’s

explanation of the application of the Trespass to Property Act particularly compelling. [Italics in original.]

[75] In our view, it was open to the Director to conclude that the decision not to lay charges against the security guard was reasonable.

[76] With respect to the sexual assault investigation, the Director concluded that the evidentiary record overwhelmingly demonstrated that DC Catherwood had exercised his discretion reasonably and in good faith in deciding not to charge the patron who the complainant alleges assaulted her. The evidentiary record included a statement from DC Catherwood in which he set out in some detail his reasoning, which the Director found to be fair and logical, and supported the chief’s conclusion that there was insufficient evidence to substantiate misconduct against either DC Catherwood or DS Hodges.

[77] The Director was also satisfied that NRPS had taken additional steps to confirm the sufficiency of the sexual assault investigation, notwithstanding the irreversible errors that had been made by PCs Celetti and Haley. Those steps included having DS Hodges review the work of DC Catherwood (he concurred with DC Catherwood’s finding that there was insufficient evidence to ground a charge) and having the investigation reviewed de novo by the officer in charge of the NRPS sexual assault unit (he also came to the same conclusion).

[78] Furthermore, the Sexual Assault Advocate Case Review Team could have, but did not raise concerns or make any recommendations in relation to the decision not to lay charges.

[79] The Director’s decision satisfies the requirements of justification, transparency and intelligibility. We see no basis for interfering with it.

Was the Determination that the Misconduct Was Not of a Serious Nature Unreasonable?

[80] The scheme of the PSA is that if, following an investigation, a police chief believes on reasonable grounds that an officer’s conduct constitutes misconduct, the matter will proceed to a disciplinary hearing unless the misconduct is deemed “not to be of a serious nature”.

[81] As the Divisional Court explained in Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.), s. 80(1) of the PSA, which provides that a police officer is guilty of misconduct if they engage in any of eleven categories of proscribed activity, does not characterise any of these categories as “serious” or “not serious”. However, s. 66(4) of the PSA provides that if the chief of police is of the opinion that the misconduct was “not of a serious nature”, the chief of police may resolve the matter informally without holding a hearing if the police officer and the complainant consent to the proposed resolution. Even if the complainant does not consent, the chief may still resolve the matter without a hearing, but subject to certain limitations imposed by s. 66(10) of the Act. The penalties available in that circumstance are set out in s. 85(1)(d),(e), and (f). As Dambrot

J. explained in Green, at para. 23:

In short, if a chief of police is of the opinion that misconduct is not of a serious nature, at the most the decision takes dismissal and demotion off the table as potential punishment. The limited significance of the characterization of misconduct as not serious informs the interpretation of the term.

[82] The letter from the office of the police chief dated November 8, 2021, notifying the applicant of the outcome of the investigation into her complaints, expresses the opinion that the misconduct of PCs Celetti and Haley is of a “less serious” nature. It is not necessary for a police chief to provide a further explanation of why his discretion is being exercised in this manner if, upon a fair reading of the report as a whole, the explanation is apparent: Green, at para. 33. In any event, the remedy for a complainant who disagrees with a determination that the misconduct is not of a serious nature, is to request that the Director review the matter. The issue, therefore, is not one of “fairness” but, rather, one of whether the Director’s decision upon review was reasonable. Having regard to the range of penalties available to address conduct that is “not of a serious nature,” we find that it was.

Did the Review Decision Violate the Applicant’s Equality Rights under s. 15 of the Charter?

[83] The applicant submits that the investigation relied on stereotypes and failed to consider her vulnerability as a female exotic dancer, and that this perpetuated her disadvantaged position in a manner contrary to the equality rights conferred by s. 15 of the Charter. She argues that if the OIPRD had retained responsibility for the investigation of her complaints, or referred her complaints to another service, or recommended the reopening of the sexual assault and assault investigations, it would have reduced the infringement on her protected rights.

[84] The applicant’s Charter arguments are grounded on the assertion that the Director’s decision relied on improper stereotypes, which stigmatised the applicant and violated her equality rights.

[85] Having found that the Director’s decision was justified, transparent and intelligible, we find that it is not based on stereotypical assumptions or reasoning. The applicant’s s. 15 argument is without foundation.

Conclusion

[86] For the foregoing reasons, we would dismiss the application.

[87] The respondent does not seek costs and says that costs should not be awarded against it.

[88] Given the respondent’s success on all issues, we make no order as to costs.

Mew J.

Released: November 14, 2023

Nishikawa J.

O’Brien J.

CITATION: A. Z. v. Office of the Independent Police Review Director, 2023 ONSC 6365

DIVISIONAL COURT FILE NO.: 650/22

DATE: 20231114

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEW, NISHIKAWA and O’BRIEN JJ.

BETWEEN:

A. Z.

Applicant

– and –

OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR

Respondent

REASONS FOR DECISION

Released: 14 November 2023