CITATION: Mohamud v. Law Enforcement Complaints Agency, 2024 ONSC 7222
COURT FILE NO.: 010/24
DATE: 2024-12-24
ONTARIO
SUPERIOR COURT OF JUSTICE
Lococo, Davies and Jensen JJ.
BETWEEN:
Rahma Mohamud
Applicant
– and –
Law Enforcement Complaints Agency
Respondent
Self-Represented
Maeve Mungovan, for the Respondent
HEARD at Toronto: December 4, 2024
Jensen J.
Introduction
[1] On December 24, 2022, the Applicant was riding on the Toronto Transit Commission (TTC) subway when an incident (the Incident) occurred involving two individuals. The Toronto Police Service (TPS) was called. When three officers from the TPS arrived, the Applicant told them that she had been assaulted by the two individuals on the subway car. The TPS officers (the Witnessing Officers) interviewed the Applicant and the two individuals, but charges were not laid at the time. However, one of the two individuals was subsequently charged with assault against the Applicant after video surveillance of the Incident was produced.
[2] On March 20, 2023, the Applicant filed a complaint with the Office of the Independent Police Review Director (OIPRD), which is now the Law Enforcement Complaints Agency (LECA). She complained that the officers who were assigned to conduct a further investigation of the Incident (the Respondent Officers) failed to request and obtain, on a timely basis, a copy of all relevant video surveillance footage of the Incident. She also complained that the Witnessing Officers failed to lay charges on December 24, 2022, when the Incident occurred.
[3] The Applicant argued that the failure to obtain and review the TTC video footage on a timely basis constituted “neglect of duty”, as that term is defined in the Code of Conduct in the regulations under the Police Services Act.[^1] She also stated that the Witnessing Officers neglected their duty by failing to charge the alleged assailants on December 24, 2022.[^2]
[4] On August 11, 2023, the Professional Standards Unit of the TPS issued an investigative report which found that the Respondent Officers had conducted a thorough investigation in compliance with TPS procedures, including a timely request to the TTC for a copy of all relevant surveillance footage of the Incident.
[5] The misconduct investigation also found that the Respondent Officers were inadvertently misled by the TTC into believing the TTC had deleted the footage of the interior of the car in which the Incident occurred. Finally, the investigation report found that the Witnessing Officers lacked reasonable and probable grounds to lay charges on December 24, 2022, and did not neglect their duty.
[6] Based on the findings in the misconduct investigation report, the TPS Chief concluded that the Respondent Officers’ reliance on the TTC's communication was reasonable and that the Witnessing Officers did not neglect their duty in refusing to lay charges on December 24, 2022. The Chief therefore found that the alleged misconduct was not substantiated.
[7] The Applicant applied for a review of the TPS’s misconduct investigation and the Chief’s determination with respect to the Officers. On November 17, 2023, the Independent Police Review Director (the “Director”) completed his review and issued a decision in which he determined that the TPS conducted a reasonable investigation of the conduct of the Officers, and the Chief's findings were supported by the evidence (the Decision).
[8] The Applicant applied for judicial review of the Decision. For the reasons that follow, the Application for Judicial Review of the Decision is dismissed.
Preliminary Issue
[9] The Applicant filed her complaint with the OIPRD. The OIPRD was headed by the Director, who derived their powers and authority from the PSA.
[10] On April 1, 2024, the Community Safety and Policing Act, 2019[^3] came into force. As a result, the OIPRD transitioned to become the Law Enforcement Complaints Agency (LECA), which is headed by the Complaints Director.[^4] The Complaints Director exercises the powers and duties of the Director in respect of complaints, such as that of the Applicant, made under the PSA.[^5]
[11] Although the PSA is no longer in force, because the Applicant’s complaint was made prior to the coming into force of the CSPA, the PSA applies to her complaint.[^6]
[12] At the hearing of this matter, the Respondent requested to amend the title of proceedings from “Office of the Independent Police Review Director” to “Law Enforcement Complaints Agency” in accordance with s. 130 of the CPSA. That request was granted.
[13] Given that the Applicant brought her complaint to the OIPRD, I will refer to the OIPRD and the Director throughout these reasons. Nevertheless, it is understood that the Respondent is now named the LECA.
Factual Context
The Incident
[14] The Decision is based on a series of factual determinations that were made during the investigations into the Incident and the decisions that flowed from those findings. They are discussed in this section. The Applicant’s objections to those findings are also noted.
[15] The Incident occurred on December 24, 2022. The Witnessing Officers who were called to the Keele Subway station interviewed the Applicant and the two individuals involved in the incident.
[16] The TTC dispatched two of their employees to speak with the Witnessing Officers. One of the TTC employees identified the car in which the Incident occurred as Car 5318.
[17] In the Occurrence Report prepared by one of the Witnessing Officers, it is stated that the Incident took place in Car 5318. This turned out to have been an error. The investigation conducted by TPS after the Applicant filed her complaint revealed that the Incident occurred in Car 5152.
[18] The TPS subsequently assigned new officers to investigate the Incident. They are referred to as the Respondent Officers.
[19] In early February 2023, one of the Respondent Officers submitted a request to TTC Video Services for any relevant TTC surveillance footage associated with the Incident number and Occurrence Report, which referenced the wrong subway car.
[20] On February 11, 2023, the TTC sent the Respondent Officer footage of the Keele subway station platform and Car 5318. The Respondent Officer reviewed the footage and determined that it did not capture the assault. One of the Respondent Officers contacted the Applicant to relay the information that the video did not reveal an assault. The Applicant was understandably upset by this information.
[21] The Respondent Officer followed up with TTC Video Services, who stated that the video surveillance of the alleged altercation did not exist because the emergency alarm had not been activated in that subway car on December 24, 2022. Therefore, according to the TTC, the TTC special constables did not mark that video for retention beyond the default 72-hours and it had been deleted. It was later revealed that the TTC’s statement about deleting the video footage of the car where the Incident occurred was not correct.
[22] In fact, there was video surveillance footage from Car 5138 and Car 5152 because on December 24, 2022, the emergency alarm was activated in both cars. When an alarm is activated, video surveillance evidence from that car is automatically saved for 72 hours unless a request has been put in and then it will be saved for five years. A request was put in by the TTC employee who attended at the scene on December 24 to retain the video footage from Car 5152. That car number (5152) was not referenced in the TPS’s Occurrence Report.
[23] The Supervisor of the Respondent Officers contacted TTC Video Services after the Applicant expressed her concern to the Respondent Officer that there was no video evidence of the Incident. The Investigating Supervisor was also told there was video footage of the Incident other than what had been provided.
[24] Unbeknownst to the TPS, the Applicant filed a Freedom of Information (FOI) request on February 21, 2023, seeking disclosure of all video footage on a certain date, time and location. She later received, among other things, a redacted version of the video footage from subway Car 5152.
[25] In the Investigation Report, the Investigating Supervisor stated that the Applicant was likely able to obtain the video evidence from Car 5152 because she did not reference an incident number, but instead made a more general request for video evidence from the date and time and location of the Incident. As a result, TTC retrieved all videos taken during that time and location.
[26] In contrast, when the TPS requested the video surveillance footage, they referred to the Occurrence Number and the information provided to them by the TTC about Car 5138 on December 24, 2022. Thus, the two searches revealed different results, based on the information that was provided to the TTC.
The Applicant’s Complaint
[27] The Applicant filed a complaint with the OIPRD on March 20, 2023, alleging that the Witnessing Officers and the Respondent Officers were negligent in the conduct of their investigatory duties.
[28] On March 28, 2023, the OIPRD investigator concluded, based on the evidence from the Keele Street subway station and Car 5138, that there was no video evidence of an offence being committed against the Applicant. The OIPRD investigator determined that the Respondent Officers could not be found to have committed misconduct since they requested the relevant TTC surveillance footage and were told it did not exist. Furthermore, the Witnessing Officers did not have reasonable and probable grounds to lay charges. Consequently, there was no basis upon which to find Neglect of Duty as defined by the Code of Conduct.
[29] On March 31, 2023, the Director notified the Applicant that her complaint would be screened out as it was not in the public interest to investigate a complaint that did not, on its face, disclose a breach of the Code of Conduct.
[30] Upon receiving this letter, the Applicant disclosed for the first time that she was in possession of TTC surveillance footage corroborating her version of events (Car 5152 Video), though she refused to share the video footage. However, the Applicant did provide TPS with the correct car number.
[31] The Applicant filed a complaint with the OIPRD on March 20, 2023, alleging that the Witnessing Officers and the Respondent Officers were negligent in the conduct of their investigatory duties. Her complaint was initially screened in for investigation by the LECA.
[32] On March 28, 2023, the OIPRD investigator concluded, based on the evidence from the Keele Street subway station and Car 5138, that there was no video evidence of the Incident.
[33] The OIPRD investigator determined the Respondent Officers could not be found to have committed misconduct since they requested the relevant TTC surveillance footage and were told it did not exist. Furthermore, the Witnessing Officers did not have reasonable and probable grounds to lay charges. Consequently, there was no basis upon which to find Neglect of Duty as defined by the Code of Conduct.
[34] Therefore, on March 31, 2023, the Director notified the Applicant that her complaint would be screened out as it is not in the public interest to investigate a complaint that did not, on its face, disclose a breach of the Code of Conduct.
[35] Upon receiving this letter, the Applicant disclosed for the first time that she was in possession of TTC surveillance footage corroborating her version of events (Car 5152 Video), though she refused to share the video footage. However, the Applicant did provide TPS with the correct car number.
The Decision
[36] The Applicant requested that the Director conduct a review of the Chief's decision. The Director concluded that it was reasonable for the Chief to find that there was insufficient evidence to believe the Officers committed misconduct. There was no evidence that the Officers deliberately overlooked important information to justify their decision to not lay charges. In all these circumstances, the Director concluded that the Officers’ conduct did not rise to the level of neglect of duty, confirming the Chief's finding.
The Issues
[37] The Applicant argued that the Decision is unreasonable because the Respondent Officers’ failure to obtain the correct video evidence demonstrates that they neglected their duty to conduct a thorough investigation. She further argued that it should not be incumbent upon the victim of an alleged assault to investigate the matter herself, which is what she did when she requested and paid for the video footage from Car 5152.
[38] The Applicant also argued that the Director: (1) was biased against her; (2) failed to conduct his own investigation of the matter and engaged in arbitrary screening of the matter; (3) ignored the Applicant’s allegation that the Respondent Officers failed to investigate the attempted robbery of her cell phone; and (4) unreasonably overlooked evidence that the Witnessing Officers turned off their body-worn cameras and asked inappropriate questions.
[39] The last two points were not raised in the Applicant’s complaint and therefore, cannot be the subject of an application for judicial review; there is no decision on these issues for the court to review.
[40] During the hearing, the Applicant stated that she did in fact request that the Director consider the Officers’ failure to investigate the attempted robbery of her cell phone. However, this issue is not raised in the Applicant’s Request for Review and Additional Submissions dated September 8, 2023, and September 25, 2023. Therefore, that issue is not properly part of the Application.
The Standard of Review
[41] This Court has jurisdiction to review the Decision pursuant to section 71 of the PSA, and pursuant to sections 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[42] The standard of review for the Decision is that of reasonableness.[^7] That standard requires the reviewing court to ask whether the decision as a whole bears the hallmarks of reasonableness. In that regard, the court must consider whether the Decision is justifiable, transparent and intelligible.[^8]
[43] There is no standard of review on the issue of bias. The question is whether there is a reasonable apprehension of bias.[^9] Allegations of bias must be considered in their specific context and in view of the well-established presumption of impartiality. The applicant must show strong grounds to rebut that presumption.[^10]
The Director’s Decision that the Respondent Officers Did Not Neglect their Duty was Reasonable.
[44] The Applicant argues the Decision is unreasonable because the Respondent Officers' failure to obtain the Car 5152 Video when she was able to do so proves that they neglected their duty to conduct a thorough investigation. I disagree.
[45] The Director considered the correct legal test for assessing the offence of Neglect of Duty, as set out in Korchinski v. Office of the Independent Police Review Director, 2022 ONSC 6074 (Div. Ct.), at para 42. To establish Neglect of Duty the evidence must demonstrate the existence of three elements: (i) a duty existed; (ii) the officer failed to promptly and diligently discharge the relevant duty; and (iii) there is no lawful excuse, good or sufficient cause or adequate reason to excuse the failure to discharge the duty.
[46] The Director properly applied the test and determined that the Respondent Officers had a duty to investigate the Incident, which included a duty to collect and/or preserve relevant evidence. However, the Director found that the Officers discharged this duty by promptly requesting TTC surveillance footage capturing the Incident. Unfortunately, the Respondent Officers were misled by the TTC’s incorrect assertions that video evidence from Car 5152 did not exist. They were also told by the TTC that the Incident occurred in Car 5318 and therefore, the TPS Incident number and Occurrence report were linked to the wrong car number.
[47] In the Decision, the Director noted that the evidence showed that the Respondent Officers did what was required to ensure any such videos were saved beyond the default 72-hour retention period, which was to ask the TTC to mark any relevant TTC videos for extended retention. The TTC employee who was dispatched to the scene submitted a request to extend the retention period with respect to the videos of Car 5318 and Car 5152 on December 24 and 25, 2022 as requested.
[48] The Director’s decision was thorough and well-reasoned. He addressed each of the Applicant’s concerns and reasonably concluded that there was no evidence that the Respondent Officers deliberately overlooked important pieces of information with the intention of not laying charges.
[49] Furthermore, it was reasonable to conclude that the Witnessing Officers properly exercised their discretion in deciding not to lay a charge on December 24, 2022, because the evidence available to them at the time was insufficient to support reasonable and probable grounds to believe any of the parties committed assault. The Director’s Decision is consistent with court decisions that deal with the exercise of police discretion in laying charges.[^11]
The Director was not Biased.
[50] The Applicant argues that the Director simply echoed the findings of the TPS investigator, characterizing the Applicant as unreasonable and argumentative. I disagree. While the Director did note that the Applicant was not willing to provide the video footage from the correct subway car, the Director also noted that the Applicant provided the Investigative Supervisor with the correct subway car number so that TPS could make their own efforts to obtain the video evidence. Rather than showing evidence of bias, I find that the Decision demonstrates an even-handed and balanced approach.
[51] There is mention in some of the reports that the Applicant was aggressive and hostile. However, the conduct of the investigation which resulted in the final Decision demonstrates an impartial approach to the issues raised by the Applicant. The investigation was hampered by the incorrect information provided by the TTC, not by any bias against the Applicant.
The Director Performed His Functions as Required Under the PSA.
[52] The Applicant asserts that the Director's decision ought not to stand because he failed to conduct his own investigation. The Director is not required to conduct their own investigation. In fact, the Director’s role is limited to reviewing the Chief’s decision on the basis of material provided by the complainant and the Chief.[^12]
[53] The Director performed his functions as required under the PSA. He was not required to undertake a fresh investigation. However, the Director did, in fact, order that a fresh investigation be undertaken. After receiving the video footage from Car 5152, the Director assigned the case to TPS to conduct a fresh investigation, which ultimately resulted in the laying of charges.
[54] Once the Chief decided (based on the fresh investigation) that there was no Neglect of Duty, the Applicant requested that the Chief’s decision be reviewed. The Director conducted a second review of the Chief’s decision on the basis of the material provided by the Applicant and the Chief.
[55] The Director reviewed the Respondent Officers' statements, the general occurrence report, and email correspondence between the TPS and the TTC, all of which indicated the Respondent Officer made a timely request for the relevant TTC surveillance footage upon being assigned to the investigation.
[56] Finally, the Director reviewed the investigator’s email exchanges with the Applicant and with the TTC. This review revealed that the investigator’s first request for TTC surveillance footage, which related to the TPS Incident number, yielded the exact same results as the Respondent Officer’s request, and that the investigator received the Car 5152 Video only after obtaining the video file name from the Applicant. This confirmed that the Officers were not at fault for missing the evidence from Car 5152.
Conclusion
[57] One of the Applicant’s principal criticisms of the process is that it took too long for the TPS to lay a charge against one of the individuals involved in the Incident. However, the Decision provides a rational and principled explanation for the delay and for the conclusion that the Officers did not neglect their duty. There is no evidence of bias or failure to follow proper procedure in the Decision.
[58] Unfortunately, misinformation was inadvertently provided by the TTC which resulted in a delay in the TPS investigative process. The Applicant may find it difficult to accept this explanation, but it is nevertheless a reasonable one.
[59] The Application is dismissed without costs.
Jensen J.
I agree
Lococo J.
I agree
Davies J.
Date: December 24, 2024
CITATION: Mohamud v. Law Enforcement Complaints Agency, 2024 ONSC 7222
COURT FILE NO.: 010/24
DATE: 2024-12-24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Davies and Jensen JJ.
BETWEEN
Rahma Mohamud
Applicant
- and -
Law Enforcement Complaints Agency
Respondent
REASONS FOR JUDGMENT
JENSON J.
Released: December 24, 2024
[^1]: Police Services Act, R.S.O. 1990, c. P-8 (PSA). [^2]: The Respondent Officers and the Witnessing Officers are collectively referred to in these Reasons as “the Officers”. [^3]: Community Safety and Policing Act, 2019, S.O. 2019, c. 1, Sched. 1 (CSPA). [^4]: CPSA, ss. 130, 131(1). [^5]: CPSA, s. 216(3). [^6]: Section 216(1) of the CPSA provides that complaints made under the PSA shall continue to be dealt with in accordance the provisions of the PSA as they read immediate before the PSA’s repeal. [^7]: A. Z. v. Office of the Independent Police Review Director, 2023 ONSC 6365 (Div. Ct.), at para. 72. [^8]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 81. [^9]: Shodunke v. Human Rights Tribunal of Ontario, 2024 ONSC 2708 (Div. Ct.), at para. 21. [^10]: Shodunke, at para. 23. [^11]: See for example: 495793 Ontario Ltd. (c.o.b. Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras 47-52. [^12]: Section 71 of the PSA.