CITATION: Mappin v. Office of the Independent Police Review Director, 2024 ONSC 3009
DIVISIONAL COURT FILE NO.: DC-23-2773
DATE: 20240528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. MacLeod R.S.J., Myers and Leiper JJ.
B E T W E E N:
DOREEN MAPPIN
Applicant
- and -
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondent
David Anber, for the Applicant
Maeve Mungovan, for the Respondent
HEARD via videoconference at Ottawa: May 22, 2024
LEIPER J.
REASONS FOR DECISION
Introduction
[1] The applicant, Ms. Mappin, seeks to quash a decision of the Office of the Independent Police Review Director confirming the findings of the Chief of Police for the Ottawa Police Service into her complaint against three members of the Police Service.
[2] Ms. Mappin complained that during the assembly of the “Freedom Convoy” in Ottawa in February of 2022, she was approached by the officers who without lawful authority:
a. directed her to leave the downtown area in Ottawa,
b. cautioned her that she could be arrested, and
c. unlawfully took her phone as she was filming her interaction with the officers.
[3] The Director confirmed the finding of the Chief of Police that the officers had the authority to direct Ms. Mappin to leave the area, and to caution her that she could be arrested. The Director also confirmed the Chief’s finding that the officers did not have lawful authority to seize Ms. Mappin’s cell phone for a brief period and that this was misconduct that was “less serious in nature”.
[4] At the conclusion of the hearing, the panel advised the parties that the application for judicial review was dismissed for reasons to follow. These are those reasons.
The Issue on Review and Standard of Review
[5] The sole issue on this application for judicial review is whether the Director’s decision is reasonable.
[6] The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 10, 17.
Analysis: Was the Director’s Decision Reasonable?
[7] On February 6, 2022, the Mayor of Ottawa declared a state of emergency in response to the impact on the city of the assembly. On February 14, 2022, the Governor in Council proclaimed that a public order emergency existed in Ottawa, pursuant to s. 17(1) of the Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.). The proclamation specified the nature of the public order emergency and provided for temporary measures intended to regulate or prohibit any public assembly that may reasonably be expected to lead to a breach of the peace, or the travel to, from or within any specified area: February 14, 2022, Declaration of Public Order Emergency.
[8] Section 6 of the Emergency Measures Regulations, SOR/2022-21 (EMRs), enacted pursuant to the Act, granted authority to the police to secure “protected” places, including:
(a) critical infrastructures;
(b) Parliament Hill and the parliamentary precinct as they are defined in section 79.51 of the Parliament of Canada Act;
(c) official residences;
(d) government buildings and defence buildings
(e) any property that is a building, structure or part thereof that primarily serves as a monument to honour persons who were killed or died as a consequence of a war, including a war memorial or cenotaph, or an object associated with honouring or remembering those persons that is located in or on the grounds of such a building or structure, or a cemetery;
(f) any other place as designated by the Minister of Public Safety and Emergency Preparedness.
[9] Section 4 of the EMRs was considered in the investigation, and by the Director, as discussed below. This section provides:
4 (1) A person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place.
(2) A person must not cause a person under the age of eighteen years to travel to or within 500 metres of an area where an assembly referred to in subsection 2(1) is taking place.
(3) A person is not in contravention of subsections (1) and (2) if they are
(a) a person who, within of the assembly area, resides, works or is moving through that area for reasons other than to participate in or facilitate the assembly;
(b) a person who, within the assembly area, is acting with the permission of a peace officer or the Minister of Public Safety and Emergency Preparedness[.]
[10] The encounter with Ms. Mappin began when the three officers saw Ms. Mappin outside the Arc Hotel in downtown Ottawa, holding a phone in the air and recording a video of police as they were about to enter a vehicle in a parking lot that had become an area used by protest vehicles. Two of the officers had encountered Ms. Mappin as an active participant in the assembly earlier that week at an assembly at the Chateau Laurier. They recognized her because of her unique Carhartt style snowsuit and tall stature.
[11] The officers approached Ms. Mappin and told her that a police operation was in progress, and she could not walk east toward Metcalfe Street. The ongoing protest that was the subject of the EMRs was east of the Arc Hotel where the officers were speaking to Ms. Mappin.
[12] Ms. Mappin did not respond to this direction. She continued filming and said that she was “just getting a coffee.” One of the officers told her that she was in a secured area and only residents or employees were permitted there. The officer pointed out cafes outside the secured area and cautioned her that she could be arrested for obstructing a peace officer if she stayed in the area.
[13] Ms. Mappin put down her phone and walked westbound on Slater Street as directed by the officers. A short time later, she turned back, facing eastbound and began filming one of the officers. One of the officers approached her again and asked her what she did not understand about his earlier direction to leave the area. Ms. Mappin again stated that she was “just trying to get a coffee”. She continued filming. At this stage, the first officer raised his voice and demanded that she leave the area. Ms. Mappin kept filming, putting it close to the officer’s face. The officer then took a step toward Ms. Mappin and took her phone from her. Ms. Mappin agreed to leave, and the officer returned her phone to her. A video clip of the incident showed that the officer had possession of Ms. Mappin’s phone for approximately 22 seconds.
[14] The officer explained that he took these steps because he did not believe that Ms. Mappin was in the area simply for the purpose of buying a coffee, based on the following:
a. There were other cafes outside the secured area, and he directed Ms. Mappin there but she did not go to any of those places;
b. Ms. Mappin was filming a police operation across the street;
c. Within minutes of their first interaction about her intention to purchase a coffee, Ms. Mappin returned to the same place, and continued to film police officers;
d. The officers had observed Ms. Mappin engaging in the unlawful assembly a day or two before this incident.
[15] A second officer pointed out that he believed on reasonable grounds that Ms. Mappin was not subject to any exemptions found in s. 4(3) of the EMRs because:
a. She was proximate to a motorhome that was being intercepted by the police under the EMRs;
b. Ms. Mappin was initially filming that police operation;
c. Ms. Mappin was adversarial in her attitude toward the first officer, repeatedly refusing to comply with his directions;
d. Ms. Mappin’s focus on the police officers and interest in filming them were inconsistent with her claim that she was going about her “own business”;
e. Ms. Mappin was dressed in a “heavy-duty one-piece coverall”, suggesting she was prepared for the prolonged exposure to cold weather that participation in the ongoing unlawful assembly would involve.
[16] The third officer on scene reported that Ms. Mappin was in the area for 15-20 minutes after her first contact with the first officer. During that period, she was not seen to purchase a coffee.
[17] Ms. Mappin submits that she was treated as if she was in the secure zone created by s. 6 of the EMRs, when this was not the case. In her request for review of the investigation by the Chief of Police to the Director, she alleged that the Chief’s report was based on the erroneous conclusion that she was inside the secure zone, when she was not. Although the Ottawa Police had issued a press release which expanded the secure zone, she complained that “a press release is not lawful authority.” Ms. Mappin complained that she was not committing any offence and was “lawfully permitted to remain and obtain a coffee, observe police conduct, or otherwise be present in the so-called ‘secure zone’”.
[18] In the briefing, slides 12 and 13 are titled: “Script for Secure Zone/Entry to Secured Zone”. Slide 12 provided a brief script for officers to use as follows:
▪ This is a secured area.
▪ Please provide proof of residence or employment.
▪ If they provide – they’re allowed in. [Emphasis in original.]
[19] Slide 13 provided this information:
Reasons allowed in
(a) reside, work or are moving through that area for reasons other than to participate in or facilitate the assembly;
(b) are acting with the permission of a peace officer or the Minister of Public Safety and Emergency Preparedness;
(c) are a peace officer; or
(d) are an employee or agent of the government of Canada or a province who is acting in the execution of their duties.
▪ If you are traveling within the Secured Area – from Bronson Avenue to the Canal, the Queensway to Parliament Hill – without an exemption/unlawful purpose, you may be arrested/Charged.
[20] In the decision, the Director wrote:
At the time of the incident, the Governor in Council had designated several such “protected places” (Secured Areas or Red Zones), including the area bordered by Bronson Avenue, the Canal, the Queensway, and Parliament Hill. According to both Ms. Mappin and respondent officers, their interaction took place in front of Arc Hotel at 140 Slater Street. That hotel and a wide radius around it fell well within a Secured Area.
[21] The Director acknowledged that his decision could have been clearer had he not used the word “protected” to describe the Downtown Core area, when this term is used in s. 6 of the EMRs. In fairness to the Director, the designation of the “Downtown Core” as part of a “protected” or “secured area” can be seen in the police briefing slides which discuss officer powers at checkpoints to the “secure area” and which formed part of the record.
[22] Although the applicant seeks to characterize the actions of the police in establishing a “red zone” and treating the applicant as subject to possible arrest as illegal, it is not necessary for this court to directly engage with that question on the limited record available to us. The question before the court is not whether the Ottawa Police Service misinterpreted the Emergencies Act or whether a citizen has the right to record police operations when advised to refrain from doing so. The issue is the narrow question of whether the decision of the Director not to overrule the decision of the Chief of Police in respect of misconduct or discipline is a reasonable decision based on administrative law principles. The Chief found that seizing the applicant’s phone even briefly was unjustified and he found that it was misconduct of a relatively minor nature. This is the finding that was upheld by the Director, and which is the subject of the application for judicial review.
[23] The Director found that the Chief reasonably found that the officers had authority under s. 4(1) of the EMRs which prohibited travel to an unlawful assembly and reasonably applied that authority to their interactions with Ms. Mappin. His reasons are clear on this point. He wrote:
Sergeant Menard found that RO1 [the first officer] had reasonable grounds to believe that Ms. Mappin did not qualify for any of the exemptions prescribed by s. 4(3) of the Emergencies Act Regulations. The video captures her telling the officers she is from Alberta. She also confirmed that she was not an employee of an establishment in the Secured Area. Finally, the officers were entitled not to accept Ms. Mappin’s purported intent to buy a coffee. RO1 and RO2 cited many reasons in support of their belief that Ms. Mappin was, instead, travelling toward the unlawful assembly or otherwise facilitating it.
Consequently, Sergeant Menard reasonably concluded that RO1 had the lawful authority to arrest Ms. Mappin for violating s. 4(1) of the Emergencies Act Regulations. [Emphasis in original.]
[24] Latterly, the Director also confirmed the Chief’s decision that in all of the circumstances Ms. Mappin became subject to arrest for obstructing a peace officer contrary to s. 129 of the Criminal Code, R.S.C. 1985, c. C-46, when she refused to comply with the first officer’s direction to leave the area in which another tactical operation was taking place.
[25] These were reasonable findings by the Director. Section 6 authorized the police to secure certain defined “protected” places. The police gave notice to the public that they viewed the wider “Downtown Area” as secured in containing the unlawful assembly using their combined authority from ss. 4 and 6 of the EMRs. While the use of the defined term “Secured Area” may have caused confusion, it is clear from the slides and the investigative processes created and deployed by the officers that they were acting under s. 4 when they investigated whether Ms. Mappin had the right to be in the area because she was travelling to an unlawful assembly. Ms. Mappin was telling the officers she was “getting a coffee” but her actions were inconsistent with her stated intentions.
[26] In Vavilov, at para. 300, per Abella and Karakatsanis JJ. (concurring), the Supreme Court discussed the approach to alleged errors in a decision-maker’s reasons, pointing out that:
When resolving challenges to an administrative decision, courts must also consider the materiality of any alleged errors in the decision-maker’s reasoning. Under reasonableness review, an error is not necessarily sufficient to justify quashing a decision. Inevitably, the weight of an error will depend on the extent to which it affects the decision. An error that is peripheral to the administrative decision-maker’s reasoning process, or overcome by more compelling points advanced in support of the result, does not provide fertile ground for judicial review. [Emphasis in original.]
[27] I conclude that any confusion arising from the Director’s decision about the “protected” area is not material to the reasoning provided by the Director in upholding the decision of the Chief of Police in the investigation into Ms. Mappin’s complaint. The facts, context, and provisions within s. 4 of the EMRs provided ample authority for the officers to direct Ms. Mappin as they did. The Director’s decision is reasonable.
Conclusion
[28] The application for judicial review is dismissed.
Costs
[29] The parties have agreed that there shall be no costs awarded on the application for judicial review. As a result, I do not order any costs.
Leiper J.
I agree _______________________________
C. MacLeod R.S.J.
I agree _______________________________
Myers J.
Released: May 28, 2024
CITATION: Mappin v. Office of the Independent Police Review Director, 2024 ONSC 3009
DIVISIONAL COURT FILE NO.: DC-23-2773
DATE: 20240528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DOREEN MAPPIN
Applicant
- and -
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondent
REASONS FOR DECISION
Leiper J.
Released: May 28, 2024