Court File and Parties

CITATION: Rossi v. OIPRD, 2024 ONSC 1310

DIVISIONAL COURT FILE NO.: 334/23 DATE: 20240322

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: GIOVANNI ROSSI, Applicant AND: ONTARIO INDEPENDENT POLICE REVIEW DIRECTOR, Respondent

BEFORE: Sachs, D.L. Corbett and Matheson JJ.

COUNSEL: Mr Rossi, self-represented Applicant Colin Bourrier, for the Respondent

HEARD at Toronto: February 8, 2024

ENDORSEMENT

D.L. Corbett J.

[1] The Applicant challenges the Respondent’s decision upholding the decision of the York Region Chief of Police dismissing the Applicant’s complaints against seven police officers. The complaints concerned police involvement in conflicts arising in a high-conflict family law dispute.

Overview

[2] The Applicant, one of the protagonists in the family law conflicts, alleges police misconduct in failing to investigate laying criminal charges for obstruction of justice (in respect to one conflict incident) and failure to observe COVID-19 protocols (in a separate incident), and in respect to disclosure issues connected with charges of harassment laid against him (in a third incident).

[3] As found below, the subject officers were required to exercise their discretion multiple times while trying to keep the peace and promote more reasonable behaviour among the protagonists. Police have discretion about the manner in which they respond to a given situation; there is no single correct way in which police must respond: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41.

[4] The OIPRD thoroughly reviewed the history of these matters and concluded (at p. 17) that the subject officers conducted well-reasoned and complete investigations: “[t]hey acted in good faith while exercising their discretionary prerogatives.” The record supports this finding; it is reasonable. For the reasons that follow, the application is dismissed.

This Application

[5] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, RSO 1990, c. J-1. The standard of review of the Respondent’s Decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 23. See also Poyton v. OIPRD, 2023 ONSC 428 (Div. Ct.); A.Z. v. OIPRD; 2023 ONSC 6365 (Div. Ct.); Korchinski v. OIPRD, 2022 ONSC 6074 (Div. Ct.).

[6] Although the Applicant indicated during oral argument that he understood the nature of this court’s review of the Decision, his submissions – both written and oral – were a minute examination of his version of events, and his argument was that we should find, on this review, and on his view of events, that the subject officers’ conduct was wanting. An application for judicial review is not a re-hearing of the underlying complaint. It is a review of the decision below, through the lens of reasonableness, on the basis of the record below.

Complaint 1 – Incorrect Witness Name

[7] On June 9, 2020, police attended in the aftermath of an altercation between the Applicant and others that took place during exchange of children. It was alleged that the Applicant and another protagonist pushed each other, thereby committing assault. After questioning various people, including the Applicant, police determined that no one wished to press charges and none were laid.

[8] Police made notes of this incident and an Incident Report was prepared subsequently. The name of one of the witnesses (identified in some of the documents as “CW-1” (civilian witness #1) was recorded incorrectly – a name wholly different than CW-1’s actual name was recorded in all officer notes and in the Investigation Report.

[9] This inaccuracy in the officers’ notes came to the Applicant’s attention many months after the fact, and he reported it to police fourteen months after the incident. The Applicant asked police to investigate the incorrect name and suggested that CW-1 or some other person might have committed the crime of obstruction of justice by providing a false name to police.

[10] Police declined to investigate the incorrect name. When pressed by the Applicant and shown evidence to establish the correct name, police did correct the Incident Report.

[11] The Applicant complained that officers had committed misconduct by obtaining and recording the incorrect name, and then by failing to pursue the issue diligently when he raised it with police fourteen months later.

[12] After investigation, the Respondent found as follows:

The PSB Investigator found that the Respondent Officers carried out their assigned tasks in a lawful, professional, and courteous manner. Based on the available evidence, there was insufficient evidence to establish reasonable grounds that any form of misconduct had occurred. Therefore, the specific allegations against them were unsubstantiated.

Without reiterating its content, the PSB report was comprehensive and sufficiently detailed. The allegations of misconduct were correctly identified and investigated. The PSB investigator’s findings were consistent with the available evidence, and he clearly laid out the reasoning path in support of his conclusions.

Based on my review of the investigative report, the Chief’s finding, and the Complainant’s submissions, I confirm the Chief’s decision. (Decision, p. 12)

[13] Before us, the Applicant argues as follows:

(a) police failed to investigate competently in the first place because they failed to obtain documentary evidence of CW-1’s identity at the scene;

(b) the claim by the subject officers that they did not recall who, among them, obtained the name of CW-1, or from whom the information was obtained, was not credible, and should have been investigated further;

(c) the failure to follow up on this issue when it was first raised by the complainant, 14 months after-the-fact, was, itself, police misconduct;

(d) the possibility that CW-1, or some other protagonist, lied to police about CW-1’s identity, was relevant to credibility, which in turn was relevant to (then outstanding) harassment charges against the Applicant arising from a separate incident, and could also be relevant to police and Crown assessment of future conflicts that might arise.

[14] In my view, none of these arguments has merit and the Respondent’s findings to this effect are reasonable.

(a) Confirming the Identity of a Witness

[15] Police are expected to keep notes of their investigations: see, for example, R. v. B.(M.), 2006 ONCJ 526, relied on by the Applicant. However, unlike B.(M.), this is not a case where officers failed to keep notes when they should have done so. This is about the extent of a police investigation, and one incorrect detail in officers’ notes.

[16] The Applicant’s position in oral argument seemed to be that investigations would be more thorough if documentary confirmation was always obtained. That may be so, but that is not the standard against which policing is measured: police do not have infinite time or infinite resources to investigate and document every aspect of every incident to which they are called. Police must use their discretion, based on the circumstances of a particular case.

[17] In the decision under review, the Respondent found that despite the wrong name being referenced, the officers acted in good faith in their reporting and there was no evidence found to show that misconduct was committed, calling it an honest mistake (Decision, p. 11). The Applicant has not shown this as unreasonable.

[18] As found below, police confirmed the identities of the two persons against whom they were contemplating criminal charges (one of whom was the Applicant). CW-1 was not one of those persons. The witnesses were known to each other. The circumstances arose in a situation of ongoing familial strife. The incident took place outside CW-1’s home. In these circumstances, police would have had no reason to doubt the accuracy of information provided to them about the identity of the witnesses to whom they were speaking, and in particular, no reason to doubt the accuracy of CW-1’s identity, circumstances that support the finding below that the incorrect name did not affect the police investigation.

(b) The Officers’ Recollection

[19] The Applicant’s argument respecting the officers’ memory of events is no more than ungenerous speculation. Officers were asked for their recollection of events 14 months distant, where there was no ongoing investigation, no outstanding charges, and no particular reason why events would have stayed fresh in the officers’ minds.

[20] The Applicant is correct that officers could have been called upon to testify to events based upon their notes, and in that event could have been required to testify about the incorrect name in their notes and how it came to be there, had this been relevant to a prosecution that went to trial. However, this does not mean that testimony of officers would have varied from the information they provided to the Investigator. The Respondent found that however the incorrect name came about, it had no bearing whatsoever on the police investigation and there were no reasonable grounds to charge the witness in that regard (Decision, p. 11). This has not been shown to be unreasonable.

(c) No Follow-up Investigation

[21] The subsequent decision by police not to pursue investigation of the incorrect name – 14 months after the incident – where no charges had been laid in respect to the underlying incident – and the incorrect name had not, in fact, obstructed a police investigation – was found below to be within the range of discretion accorded police. At p. 16 of the Decision, the Respondent accurately states as follows:

“The law is settled that police officers are entitled to use their discretion in the course of their duties. This exercise of discretion extends to their investigations and their decisions reflecting the laying of charges. Providing they act in good faith and within the bounds of reasonableness, an officer’s legitimate exercise of discretion cannot be considered misconduct.”

[22] The Respondent found that police acted well within their discretion in not pursuing investigation of the incorrect name in all the circumstances.

[23] The Applicant does not consider this a reasonable conclusion. Apparently, he considers that police should devote their resources to the investigation of any potential transgression, no matter the temporal remoteness and inconsequentiality in effect. No purpose would have been served by going back to investigate the incorrect name, in all the circumstances, other than to contemplate laying obstruction charges against anyone who knowingly provided a false name to police during their investigation. Thus I conclude that the Respondent’s conclusion is reasonable that obtaining prosecution of a family law antagonist “is a fair distillation of the Applicant’s concerns” (Respondent’s Factum, para. 81).

[24] Police are not required to “exhaust all possible routes of investigation or inquiry” (495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, para. 52. Police resources are limited, and there is nothing unreasonable in the overall circumstances in the police decision not to investigate the incorrect name further when it was brought to their attention 14 months after the fact. The Respondent’s decision to this effect is reasonable.

(d) Issue Not Material to an Ongoing Prosecution

[25] I accept that a finding that if CW-1 – or some other witness – knowingly lied to police about CW-1’s identity, that could – if prosecuted to conviction – be used to impeach the witness’ testimony in other court proceedings. That is not a good reason, in and of itself, to require police to investigate the incorrect name 14 months after the fact.

[26] Police are not the Applicant’s private investigative team and are not generally required to investigate collateral matters that he thinks could be useful to him in the defence of his prosecution for criminal harassment. Further, if the Applicant wished to pursue this issue, it was a point for him to address with the prosecuting Crown Attorney and/or with the trial judge in the criminal proceeding against him.

(e) The Respondent’s Investigation of the Incorrect Name

[27] The Respondent did investigate the incorrect name and found that (a) officers did not recall how the name was obtained; and (b) CW-1 denied providing an incorrect name. Thus, the Respondent found that the incorrect name remains a “mystery” (Decision, p. 11).

[28] Police records were amended to reflect the correct name once police were satisfied with information provided to them by the Applicant: the correct name of CW-1 was known to the Applicant throughout, and he was able to provide police with registered mortgage documents for the home showing CW-1’s correct name – both facts providing context for CW-1’s statement that she did not provide a false name to police (doing so would hardly have shielded her identity from police had it become an issue in an ongoing investigation or prosecution).

(f) Conclusion on Issue 1

[29] Police may have made a mistake, or there may have been some miscommunication over CW-1’s name. Perhaps someone did give police an incorrect name for CW-1. Perhaps someone did that intentionally. However, the incorrect name did not, in fact, obstruct the police investigation. 14 months after the fact, it was well within police discretion to conclude that the issue was not worth revisiting in the overall context of the case. The Respondent’s conclusion to this effect is reasonable.

Complaint #2: Police Disclosure Obligations

[30] The Applicant was charged with criminal harassment in connection with a separate incident. That charge was ultimately withdrawn by the Crown.

[31] The Applicant complains that police failed to meet their disclosure obligations to him, as an accused person in a criminal case. Disclosure was, he says, too slow, incomplete, and failed to meet the standards expected of police officers.

[32] The Respondent found that the obligation to make disclosure in a criminal case belongs to the Crown. Supervision of the performance of that obligation is in the jurisdiction of the criminal court in which the prosecution is taking place. Failures in the process of disclosure (substantive, temporal, or procedural) are generally matters for the criminal courts to address and would ordinarily not be a proper subject for disciplinary proceedings unless pursued on the basis of concerns raised by the Crown or findings in the criminal proceedings: absent those circumstances, the disclosure responsibility rests on the Crown and failures to meet that responsibility are addressed by the criminal courts. The Respondent’s conclusion on this issue is reasonable.

Complaint #3: Investigation of Alleged Non-compliance with COVID-19 Requirements

[33] The Applicant complained that other antagonists in the family law conflict failed to respect COVID-19 regulations, placing children at risk.

[34] Police investigated these allegations and concluded that there were no reasonable and probable grounds to lay charges.

[35] The Applicant argues that the police investigation was incompetent, relied on the wrong regulations, and got important details of events wrong.

[36] It would have been within police discretion to decline to investigate the Applicant’s allegations on the basis that the issue could and should have been dealt with more appropriately in the family law courts. Further, “enforcement” (that is, laying charges) was a “last resort” when addressing non-compliance with COVID-19 protocols and regulations, and the circumstances of the Applicant’s allegations, on their face, were matters where police would be expected to do no more than issue a warning and discuss the requirements with someone who had failed to comply. The Respondent was reasonable in concluding that the police officer carried out the investigation in a lawful and professional manner and there was insufficient evidence to establish reasonable grounds that any misconduct occurred.

Overstatement in the Impugned Decision

[37] The Applicant argued that the impugned decision is based on an unreasonable finding that police interviewed “all available witnesses” and pursued “all available evidence” in respect to the matters raised by the Applicant (Decision, p. 12). The Applicant is correct that these statements are not literally accurate. Neither are they consistent with the thrust of the decision below, which finds that police conducted thorough investigations and reasonably exercised their discretion.

[38] Judicial review is not a treasure hunt for error. The Respondent’s overstatement about the extent of police investigations should be seen as no more than a rhetorical mis-step rather than an unreasonable finding of fact. It is clear from the decision that the Respondent found that police did not interview “all available witnesses” and did not collect “all available evidence”. Rather, as also found by the Respondent, police conducted complete investigations, given the nature of the issues and the context in which they arose. This general finding was available on the record below and is reasonable and is not undercut by the rhetorical overstatement found in the reasons.

Conclusion

[39] As noted in the decision below, “the standard in reviewing an officer’s decision is that of a reasonable officer, judged in the circumstances at the time the decision was made” (Decision, p. 11). The Respondent found that the officers’ decisions fell well within this standard, and on the record below that conclusion is reasonable. The application is dismissed.

[40] The parties agreed that there should be no costs in any event, and so no costs are awarded.

“D.L. Corbett J.”

I agree: “Sachs J.”

I agree: “Matheson J.”

Date of Release: March 22, 2024