A.W. et al. v. London Police Services Board et al.

[Indexed as: W. (A.) v. London Police Services Board]

Ontario Reports Ontario Superior Court of Justice B.G. Thomas R.S.J. January 9, 2019 144 O.R. (3d) 109 | 2019 ONSC 227

Case Summary

Civil procedure — Parties — Standing — Plaintiffs bringing action for remedies for alleged discrimination by police service and individual police officers in investigating and dismissing complaints of sexual assault — Clinic which advocated for women who had experienced violence having public interest standing to commence and continue action along with individual plaintiffs.

Civil procedure — Pleadings — Statement of claim — Striking out — Plaintiffs seeking declarations that manner in which defendants investigated and dismissed sexual assault complaints violated s. 15 of Charter — Plaintiffs also seeking order for court-appointed external review of sexual assault cases which defendant police service had closed as unfounded — Claim not plainly and obviously bound to fail — Several paragraphs of statement of claim struck as pleading evidence or as being vexatious and inflammatory.

The individual plaintiffs alleged that the defendant police officers had improperly closed their sexual assault files as unfounded. Along with the plaintiff clinic, which advocated for women who had experienced violence, they sought a declaration that the manner in which the defendants investigated their sexual assault complaints infringed their rights under s. 15 of the Canadian Charter of Rights and Freedoms, a declaration that the manner in which the defendants had investigated and dismissed sexual assault allegations between 2010 and 2017 reflected a pattern of systemic sex discrimination and infringed s. 15 of the Charter, and an order for a court-supervised review of sexual assault cases that the defendants had closed as unfounded. The defendants brought a motion to strike out the statement of claim as disclosing no reasonable cause of action, to dismiss the action on the grounds that the clinic was without legal capacity to be a co-plaintiff and that the action was frivolous, vexatious and an abuse of the court's process, and to strike out certain paragraphs of the statement of claim on the basis that they were prolix, immaterial, irrelevant or pleaded evidence.

Held, the motion should be allowed in part.

It was not plain and obvious that the claim could not succeed. The clinic had public interest standing to commence and continue the action. The fact that a court-supervised review of closed sexual assault cases was being sought did not [page110] constitute a basis for striking the claim. Ultimately, if a breach was found, the trial judge might determine the proposed review panel with judicial oversight to be neither appropriate nor just, but there was no reason to strike out the claim for that remedy at this point. Certain paragraphs of the statement of claim should be struck because they pleaded evidence or were vexatious and inflammatory.

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45; Drabinsky v. KPMG (1999), 43 O.R. (3d) 153, apld

Tanudjaja v. Canada (Attorney General) (2014), 123 O.R. (3d) 161, 2014 ONCA 852, consd

Other cases referred to

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; British Columbia/Yukon Assn. of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142; Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Carter v. Canada (Attorney General), 2012 BCSC 886; Corporation of the Canadian Civil Liberties Assn. v. The Queen (2017), 140 O.R. (3d) 342, 2017 ONSC 7491; Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62; Fédération Franco-Ténoise v. Canada (Attorney General), 2008 NWTCA 6; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Jane Doe v. Canada (Attorney General) (2005), 75 O.R. (3d) 725; Jodhan v. Canada (Attorney General), 2012 FCA 161; Quizno's Canada Restaurant Corp. v. Kileel Developments Ltd. (2008), 92 O.R. (3d) 347, 2008 ONCA 644; R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6; R. v. Mills (1986), [1986] 1 S.C.R. 863; R. v. Power, [1994] 1 S.C.R. 601 [page111]

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 15, 24, (1), 52 Limitations Act, 2002, S.O. 2002, c. 24, Sch. B Police Services Act, R.S.O. 1990, c. P.15

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.04, 21, 21.01, (1) (a), 25.06, (1), (7), (9) (a), 25.11

Authorities referred to

Hogg, Peter W., Constitutional Law of Canada, Vol. 2, 5th ed. (Toronto: Carswell)

MOTION to strike a statement of claim, to dismiss action or to strike out certain paragraphs of a statement of claim.

Counsel: Joanna Birenbaum, Joseph J. Arvay, Q.C., and Luciana P. Brasil, for plaintiffs. Paul C. Strickland, Jim D. Virtue and Amanda N. Shaw, for defendants.

B.G. Thomas R.S.J.: --

The Motion

[1] The defendants bring this motion pursuant to rules 21.01, 20.04, 25.06 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] They seek an order (a) striking out the statement of claim as it discloses no reasonable cause of action; (b) dismissing the action on the ground that the Barbra Schlifer Clinic (the "Clinic"), is without legal capacity to be a co-plaintiff in this action and further that the action is frivolous, vexatious and an abuse of the court's process; (c) striking out 59 paragraphs of the statement of claim as those paragraphs are prolix, immaterial, irrelevant or plead evidence.

Background

[3] The plaintiff A.W. commenced this action by statement of claim issued March 30, 2017. Counsel for this plaintiff were Arvay Finlay LLP and Branch MacMaster LLP of Victoria and Vancouver, respectively.

[4] The statement of claim was amended to add the plaintiffs, Jane Doe and the Clinic, by fresh as amended statement of claim issued November 16, 2017. Counsel for the plaintiffs now being [page112] Birenbaum Law Office of Toronto as well as the previously noted British Columbia law firms.

[5] The plaintiff A.W. alleges in the statement of claim that she was sexually assaulted at a London, Ontario party on October 16, 2010. She alleges that the defendant Detective Paul Gambriel was the detective with London Police Service ("LPS"), who closed her file as "unfounded" despite clear and unequivocal evidence to the contrary and that he did so based on sexual stereotypes and myths about sexual assault and sexual assault complainants.

[6] The plaintiff Jane Doe alleges in the statement of claim that she was sexually assaulted on February 19, 2016 by her employer. She alleges that the defendant Detective Bruce Charteris of the LPS closed her file as "consensual" despite clear and unequivocal evidence to the contrary and that he suggested she was dishonest with police as she was embarrassed by the sexual act.

[7] The Clinic is described in the affidavit of Amanda Dale ("Dale") its executive director as:

5. The Schlifer Clinic is, first and foremost, a multi-disciplinary, front-line service provider to women who have experienced violence, including sexual violence. It provides legal representation, professional counselling, and language interpretation services to women from a broad cross-section of racial, ethno-cultural, and socio-economic backgrounds . . .

6. The Clinic's objective is to support women who have experienced violence by, amongst other things, offering avenues for redressing the harms they have suffered. These avenues include participating as complainants in criminal sexual assault proceedings and as plaintiffs in civil sexual assault proceedings . . .

7. The Clinic also advances and protects the rights of women who have experienced violence through systematic legal advocacy[.]

[8] It is clear that the Clinic has been an active participant in other litigation as a public interest intervenor and applicant.

[9] The defendants John Doe Police Officers are alleged to be the other officers involved in the investigations of the sexual assaults upon these two plaintiffs.

[10] The defendant London Police Services Board ("LPSB") is the statutorily mandated body responsible for overseeing LPS.

[11] The plaintiffs seek a declaration that the manner in which the defendants investigated the sexual assault allegations of A.W. and Jane Doe infringed their rights as protected by s. 15 of the Canadian Charter of Rights and Freedoms (the "Charter").

[12] The statement of claim states that in the period 2010 to 2017, the LPS concluded that 690 out of 2,278 complaints of sexual assault were unfounded. A rate which, it is suggested, is [page113] significantly higher than the national average and reflects a pattern of systemic sex discrimination by the LPS.

[13] The plaintiffs further seek a declaration that between 2010 and 2017, the manner in which the defendants investigated sexual assault allegations and the resulting dismissal of those allegations as "unfounded" infringes s. 15 of the Charter.

[14] In addition, the plaintiffs seek remedies under ss. 24 and 52 of the Charter and an order compelling the LPS to allow a court-appointed external review panel to review all LPS sexual assault cases that have been closed as "unfounded" in that year. Essentially, this is a request to compel the defendant LPSB to implement a structural oversight for unfounded sexual assault cases known as the "Philadelphia Model" and a requirement that the proposed panel report back to the court.

[15] In January 2018, the LPSB implemented a Community Case Review Program ("CCRP") for reviewing sexual assault investigations by the LPS. The review program was informed by the Philadelphia Model. As a result, the defendants state that the plaintiffs' claim for structural oversight relief is moot.

[16] The affidavit of London's chief of police, John Pare ("Pare"), discloses that the members of the CCRP are the following groups:

ANOVA (formerly Sexual Assault Centre London/Women Community House) -AND- London Abused Women's Centre -AND- Carrefour des Femmes du Sud-Ouest de l'Ontario -AND- Muslim Resource Centre for Social Support and Integration -AND- Atlohsa Native Family Healing Services Inc. -AND- Bellehumeur Law COLLECTIVELY REFERRED TO AS THE "LONDON'S VIOLENCE AGAINST WOMEN (VAW) COMMUNITY ADVOCACY GROUP" -AND- London Police Service [page114]

[17] Further, the committee has met three times in the first quarter of 2018 and has been given access to unredacted police files of all "unfounded" cases and a random sample of "founded cases cleared otherwise". The committee chair reports to Pare with the committee's recommendations.

Issues

[18] The issues are set out below. (a) Does the claim disclose a cause of action? (b) Does the Clinic have standing to commence or continue this action? (c) Do the impugned paragraphs offend the rules of pleading?

[19] The first two issues are intertwined and focus directly on the participation of the Clinic as a co-plaintiff in this litigation. As expressed by LeDain J. in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at para. 38 ("Finlay"): "The issues of standing and reasonable cause of action are obviously closely related, and as acknowledged by counsel for the appellants, tend in a case such as this to merge. Indeed, I question whether there is a true issue of reasonable cause of action distinguishable, as an alternative issue, from that of standing."

Analysis

Preliminary matters

[20] The specific relief claimed in the plaintiffs' fresh as amended statement of claim is important to this analysis and as such is duplicated below:

(a) a declaration that the manner in which the defendants investigated sexual assault allegations and the resulting dismissal of such allegations as "unfounded" between 2010 and 2017 (the "Impugned Action) unjustifiably infringes s. 15 of the Canadian Charter of Rights and Freedoms (the "Charter"), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; (b) a declaration that the manner in which the defendants investigated the sexual assault allegations of the plaintiffs [A.W.] and Jane Doe and the resulting dismissal of their allegations as "unfounded" unjustifiably infringed s. 15 of the Charter; (c) damages pursuant to s. 24(1) of the Charter for the plaintiffs [A.W.] and Jane Doe; [page115] (d) an order requiring the London Police Service on a yearly basis to allow an external review by a court-appointed review panel composed of independent experts in sexual assault, including frontline service providers and women's legal advocates, to review all London Police Services sexual assault cases closed in that year as "unfounded" and a random sample of those closed under other codes; (e) an order directing the said panel to assess whether the London Police Service are investigating the crime of sexual assault in accordance with the law and the judgment of this court and to report its findings to the court; (f) an order allowing the court to retain jurisdiction to make such further and continuing orders as it deems just and appropriate.

[21] The defendants concede that the claims for relief sought by the individual plaintiffs in items (b) and (c) should survive this motion.

[22] Although argued as an issue in their factum, the defendants concede that it is premature to determine if the claims of the plaintiff A.W. are extinguished by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.

[23] Rule 21.01(1)(a) of the Rules of Civil Procedure (the "Rules") direct the following:

21.01(1) A party may move before a judge, (a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion, (a) under clause (1)(a), except with leave of a judge or on consent of the parties[.]

[24] Both parties have filed affidavit evidence on this motion. To the extent that leave is necessary, I am granting leave and admitting such affidavit evidence as may be necessary to resolve an issue of law raised in the pleading (rule 21.01(1)(a)). It is the most efficient use of this motion to resolve as many issues as I find legally and factually appropriate.

Motion to strike

[25] The defendants' motion suggests that the allegations in the statement of claim are scandalous, frivolous, vexatious and do not support a cause of action. As a result, the defendants ask that I strike the statement of claim. [page116]

[26] The leading case on the test to strike as disclosing no reasonable cause of action is Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[27] The judgment authored by Justice Wilson stated, at p. 980 S.C.R.:

[A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff's statement of claim be struck out[.]

[28] The issue of striking out a potential public interest claim was considered by the Court of Appeal in Tanudjaja v. Canada (Attorney General) (2014), 123 O.R. (3d) 161, 2014 ONCA 852 ("Tanudjaja"). In Tanudjaja, the plaintiffs, including the Centre for Equality Rights in Accommodation, brought an application arguing that government action or inaction had resulted in homelessness and inadequate housing. They claimed a violation of their ss. 7 and 15 Charter rights.

[29] The application judge struck out their claim as disclosing no reasonable cause of action. The majority of the Court of Appeal agreed. They found that the issues raised by the plaintiffs were not justiciable in that the relief sought was a declaration of government policy which would cross institutional boundaries and enter an area reserved for the legislature. They also found that judicial supervision of such issues was beyond the court's institutional capacity.

[30] In a dissent, Feldman J.A. saw things differently as she pointed out, in paras. 43 and 49:

In my view, it was an error of law to strike this application at the pleadings stage. The application raises significant issues of public importance. The appellants' approach to Charter claims is admittedly novel. But given the jurisprudential journey of the Charter's development to date, it is neither plain nor obvious that the appellants' claims are doomed to fail.

To summarize, a claim should not be struck out at the pleadings stage unless it has no reasonable prospect of success, taking the facts pleaded to be true. The novelty of the claim alone is not a reason to strike the claim. Rather, there must be a radical defect in the claim that will be fatal to its success. The purpose of a motion to strike is to weed out, at an early stage, claims that have no reasonable chance of success, either because the legal issue raised has been conclusively decided against the claim or because the [page117] facts, taken at their highest, cannot support the claim. The motion to strike should not be used, however, as a tool to frustrate potential developments in the law.

[31] Justice Feldman found it premature to strike out the claim at the pleadings stage without a full evidentiary record. She expressed her view on the majority approach in paras. 82-85, set out below:

My colleague points to a number of concerns with the format of this application: in particular, unlike in many other Charter cases, the appellants have attacked no particular law. Therefore, there is no direct way to apply the s. 1 analysis from R. v. Oakes, [1986] 1 S.C.R. 103.

I agree that the broad approach taken in this application is novel and a number of procedural as well as conceptual difficulties could arise when the court addresses whether the Charter has been infringed, and if appropriate, determines and applies a reasonable and workable remedy.

However, there are two answers to these concerns. First, as Wilson J. observed in Hunt, at p. 980, and McLachlin C.J. observed in Imperial Tobacco, at para. 21, the novelty of a claim is not a bar to allowing it to proceed. Although the development of Charter jurisprudence has to date followed a fairly consistent procedural path, and has involved challenges to particular laws, we are still in the early stages of that development. There is no reason to believe that that procedural approach is fixed in stone. This application asks the court to view Charter claims through a different procedural lens. That novelty is not a reason to strike it out.

Second, this court had cogent and helpful submissions from the intervener, the David Asper Center for Constitutional Rights, on the ability and authority of the court to grant one or more of the remedies requested in the application. Although the amended notice of application seeks, as one remedy, an order requiring the governments to implement strategies to reduce homelessness and inadequate housing and to consult with affected groups, under court supervision, the court need not make such a wide-ranging order if it finds a breach of the Charter. It may limit itself to granting declaratory relief only, as was done in Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44, 2010 SCC 3. Four such declarations are requested in the amended notice of application.

[32] In the matter before me, the claim does not seek to direct government policy in the sense that troubled the majority in Tanudjaja. This claim does not ask the court to determine provincial or federal budget priorities. It seeks to declare a particular investigatory practice discriminatory and provide an appropriate and just remedy. As a result, I find the approach of Feldman J.A. instructive.

[33] In Drabinsky v. KPMG (1999), 43 O.R. (3d) 153, at para. 3, the court applied the four principles below to assess whether a claim should be struck, dismissed or stayed under Rule 21: [page118]

(i) the allegations of fact in the statement of claim, unless patently ridiculous or incapable of proof, must be accepted as proven; (ii) the moving party, in order to succeed, must show that it is plain, obvious and beyond doubt the plaintiff could not succeed; (iii) the novelty of the cause of action will not militate against the plaintiff; and (iv) the statement of claim must be read generously with allowance for inadequacies due to drafting deficiencies.

[34] Applying those principles and accepting the allegations of fact in the statement of claim as proven, it is clear to me that the claim here must survive this motion to strike. It is far from plain and obvious that the plaintiffs' claim cannot succeed.

Does the Clinic have standing?

[35] The Clinic claims public interest standing. To attain that standing it bears the onus of satisfying the three factors determined in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 ("Downtown Eastside"). Ultimately, the three factors are to be considered in a "purposive, flexible and generous manner" (Downtown Eastside, at para. 53).

[36] The factors are described as (a) whether the case raises a serious justiciable issue; (b) whether the party bringing the case has a real stake in the proceedings or is engaged with the issue that it raises; and (c) whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

[37] Much of the argument of the defendants considers the first consideration that is whether a serious justiciable issue has been raised.

[38] As mentioned above in furthering their argument against public interest standing, the defendants claim that a portion of the relief claimed is moot. They argue that the voluntary development of CCRP put in place by the defendant board satisfies the relief requested in paras. (d) and (e) and so there is no reason for the Clinic to be further involved in the litigation. They suggest there is no longer any justiciable "live controversy" [page119] between the Clinic and the defendants (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, para. 16) and that the court should decline to address any constitutional issues regarding moot claims (Jane Doe v. Canada (Attorney General) (2005), 75 O.R. (3d) 725, paras. 26 and 27).

[39] I accept the position of the plaintiffs on this issue. The CCRP, while bearing many similarities to the review panel sought by the plaintiffs, and the Philadelphia Model, is not court appointed nor is it court supervised. The memorandum of understanding which supports the CCRP, allows for the withdrawal of any party on six months' notice and contains no penalty for early termination. It carries no enforcement process should police practices be found to be inappropriate. It requires reporting to the chief of police but does not speak to what will be done with the report.

[40] Whether the relief sought by the plaintiffs in paras. (d) and (e) of the relief claimed is an attainable remedy is something to be determined on a full record. The claim for that relief is, however, not moot. It is essential to distinguish between standing or the right to seek particular relief and the entitlement to such relief. Whether a plaintiff should be granted the particular relief is a matter for the trial court (Finlay, at para. 37).

[41] In any event, the declarations sought are also part of the relief claimed and supported by the Clinic.

[42] That leads me to consider the defendants next issue which is their argument that only an individual can be granted a s. 24(1) Charter remedy and since all the relief claimed by the Clinic requires the operation of s. 24(1), it cannot be granted the relief it seeks.

[43] Section 24(1) of the Charter provides the following:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[44] The defendants rely upon R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6, paras. 58-61 ("Ferguson"); Borowski, at para. 53; and Corporation of the Canadian Civil Liberties Assn. v. The Queen (2017), 140 O.R. (3d) 342, 2017 ONSC 7491. Ferguson considered the lawfulness of a constitutional exemption to override a mandatory minimum sentence for manslaughter with a firearm. At para. 61, the Supreme Court said: [page120]

Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights. It provides a personal remedy against unconstitutional government action and so, unlike s. 52(1), can be invoked only by a party alleging a violation of that party's own constitutional rights: Big M; R. v. Edwards, [1996] 1 S.C.R. 128.

[45] The above statement of the court's position in Ferguson is obviously compelling, however, a contrary approach has been suggested by the Court of Appeal of British Columbia in British Columbia/Yukon Assn. of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142 ("Abbotsford").

[46] In Abbotsford, the plaintiffs challenged the constitutionality of the city by-laws which sought to force the homeless from local parks.

[47] Harris J.A., writing for the court, which included the chief justice, consideredthis argument, at paras. 17-19 of Abbotsford:

I am not persuaded that the case law clearly establishes a court cannot grant a s. 24(1) remedy in favour of persons who are not themselves parties to the action. The case law does not firmly decide that s. 24(1) remedies may only be claimed and enforced by individuals.

Although not definitively decided, it appears to me to be possible to read of Canada (Attorney General) v. PHS Community Services Society (2010), 2010 BCSC 15 (the Insite case), and Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309, for example, as opening the door to granting a s. 24(1) remedy to an entity or a person in effect on behalf of others affected by the unconstitutional state conduct. In PHS, the Portland Hotel Society, the operator of the Insite facility and the two individual plaintiffs both advanced a s. 24(1) claim and received a remedy on behalf of those users of the facility and its employees whose constitutional rights had been infringed. In Inglis, individual plaintiffs who were mothers in prison with children sought and received s. 24(1) relief in relation to the cancellation of a prison programme affecting all mothers with children at that facility. I do not think these cases can be distinguished away by observing that the remedy was granted because it stood to benefit only other similarly situated persons.

I also read the decision of this Court in Fédération des parents francophones de Colombie-Britannique v. British Columbia (Attorney General), 2012 BCCA 422, as not foreclosing standing, indeed arguably supporting it. In that case the result was that an association was granted standing to seek a s. 24(1) remedy arising from alleged breaches of s. 23 of the Charter. It is not obvious to me that it was critical to that decision that the Fédération was seeking a remedy for a breach of a constitutional right with a uniquely collective aspect to it. The right may have a collective dimension, but, nevertheless, it inhered in individuals. It is far from clear to me that the application of that case should be limited to the extent contended for by the City.

[48] Here, the protection sought has a collective dimension; that is the protection of those who have been sexually assaulted from investigative procedures of the LPS that discriminate on the [page121] basis of gender. It necessarily inures to not only the two named plaintiffs, but those others who may have been victims of the offensive practice.

[49] I would say at this point as well that I reject the defendants' argument that the broad declaration sought in subpara. (a) of the relief claimed requires a detailed examination of each individual "unfounded" classification from 2010--2017. Such is not the nature of public interest litigation examining systematic misconduct. It seems to me that representative evidence coupled with expert evidence could potentially make a case for a broad declaration fashioned appropriately by the trial judge.

[50] Returning to the s. 24(1) argument, I am not prepared at this stage of the litigation on this record to strike the claims of the Clinic in the face of what could be seen as the evolving state of the law. It is not apparent, in short, that the claims are bound to fail.

[51] Finally, on the issue of the Clinic's participation, the defendants argue that the review panel remedy sought in subparas. (d) and (e) of the statement of claim encroaches on an area occupied by legislation. It is argued that the Police Services Act, R.S.O. 1990, c. P.15 creates a statutory mechanism to acquire and resolve public complaints regarding police conduct with the use of the Ontario Independent Police Review Director. As such, it is beyond the jurisdiction of the court and s. 24(1) of the Charter does not grant the court discretion to usurp the role of government (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62, para. 34).

[52] As part of this argument it is suggested the supervisory role sought to be imposed on the court is inappropriate as it intrudes on the executive jurisdiction, and that the structure of the court is ill-suited to take on this role.

[53] In Jodhan v. Canada (Attorney General), 2012 FCA 161, the Federal Court of Appeal declined to supervise the government making the internet accessible to the visually impaired.

[54] Professor Hogg, at p. 45 of Constitutional Law of Canada, Vol. 2, 5th ed. Suppl. 2007 comments that ". . . a supervisory order should be a remedy of last resort to be employed only against governments who have refused to carry out their constitutional responsibilities".

[55] Supervisory orders were granted in both Doucet-Boudreau and Fédération Franco-Ténoise v. Canada (Attorney General), 2008 NWTCA 6 in instances where there were long-term failures by the respective governments to institute corrective constitutionally compliant remedies. [page122]

[56] I recognize the separation of powers argument that can be made when it is suggested that the court supervise the police on the laying of criminal charges and thereby effectively determine which complaints are to be prosecuted. Courts cannot become a "supervising prosecutor". Courts must remain an independent and impartial tribunal (R. v. Power, [1994] 1 S.C.R. 601).

[57] It is important to remember that at this point I am only considering the availability of a remedy to be granted under s. 24(1), should a breach be found; a remedy that the court considers appropriate and just. As the Supreme Court said in R. v. Mills (1986), [1986] 1 S.C.R. 863 [at para. 278]: "It is difficult to imagine language which could give the court a wider and less fettered discretion."

[58] Ultimately, the trial judge, if a breach is found, may determine the proposed review panel with judicial oversight to be neither appropriate nor just. But I see no reason to strike out a claim for a proposed remedy at this point and I am uncertain what effect that decision might have in any event considering the broad powers left to the trial judge to craft a suitable remedy.

[59] Counsel for the plaintiffs has pointed me to Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 as a reminder that s. 15 gender discrimination in police investigation was considered 25 years ago. It is suggested that at this point an innovative approach is demanded. As recommended by Feldman J.A. in Tanudjaja, it is not for me to strike these claims at this stage of the litigation.

[60] There is no argument by the defendants that the second consideration in Downtown Eastside is satisfied. The parties bringing the case have a real stake in the proceeding and are as well engaged in that issue that it raises.

[61] On the third consideration, the defendants suggest that the Clinic's presence in the action will detract from the effectiveness and efficiency of a claim only involving the two individual plaintiffs.

[62] The defendants maintain that the Clinic's public interest standing is not required as the cause can be effectively attacked by the private litigants (Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, at para. 36). Further, that a plaintiff with standing of right should be preferred over a litigant seeking public interest standing unless something can be gained which would justify expending additional scarce judicial resources (Downtown Eastside, at para. 51). [page123]

[63] The Dale affidavit suggests that the individual plaintiffs need an "institutional anchor" to support their claims. Dale asks me to recognize that the claims in this case implicate the sexual integrity of the individual plaintiffs. Dale suggests that it is the experience of the Clinic that often individual plaintiffs grow weary of carrying the burden of the lengthy litigation and withdraw.

[64] Finally, Dale's affidavit provides a strong statement regarding the Clinic's institutional experience in supporting complainants like these and the Clinic's ability to draw on a network of people to support this systematic litigation (affidavit of Amanda Dale, para. 34).

[65] It is important to recognize that the Clinic is a co-plaintiff in this action in support of the individual plaintiffs A.W. and Jane Doe. It is not attempting to press forward with its own action (Carter v. Canada (Attorney General), 2012 BCSC 886, at para. 98).

[66] I do not see that the presentation of this claim without an institutional public interest litigant will be markedly different than with the Clinic present as a plaintiff. In fact, having the Clinic involved as a plaintiff, represented by the same counsel as the individual plaintiffs, is more likely to promote efficiency than would be removing it as a plaintiff and requiring it to apply for intervenor status.

[67] The factor of "reasonable and effective means" of bringing the issue before the court no longer receives the strict approach taken in Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575. It is to be applied flexibly and generously. The requirement now is that what is proposed be a reasonable and effective means of bringing the issue before the court, not that it be the only reasonable and effective means. This third factor is to be weighed cumulatively with the first two factors to ultimately determine the issue of public interest standing.

[68] Ultimately, public interest standing is a matter of judicial discretion. Having weighed the three factors directed by Downtown Eastside, I see no reason why the Clinic should not be granted public interest standing in this action. The relief requested by the plaintiffs should likewise survive this motion to strike.

The pleading

[69] The defendants seek to strike 59 paragraphs that they contend offend the rules of proper pleading. They suggest the pleading is repetitious, prolix and provides evidence and conclusions of law. [page124]

[70] The plaintiffs suggest the details provided are necessary to support their cause of action which is already under assault. They believe they are necessary to establish the standing of the personal plaintiffs and the liability of LPS and the individual officers.

[71] While I do find that significant portions of the statement of claim arguably offend the rules of pleading contained in rule 25.06, I have chosen to strike only those that are clearly offensive without parsing sentences from otherwise appropriate paragraphs for what I see as no constructive purpose.

[72] First, on an issue that was not argued, the statement of claim seeks unspecified damages for breach of s. 24(1) of the Charter. Rule 25.06(9)(a) requires the amount of the damages to be specified as part of the relief sought. I leave this to be resolved between the parties simply noting that the defendants are entitled to know their economic jeopardy before they plead back.

[73] My other concerns rest on the requirements of rule 25.06(1) and (7) produced below:

25.06(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(7) The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

[74] Paragraph 28 purports to recount the conversation between the defendant Gambriel and the plaintiff A.W. It is a far too detailed piece of evidence that offends both rule 25.06(1) and (7). The balance of para. 28 commencing with, "For example, Det. Gambriel said during the interview . . ." is struck, which includes all of para. 28(a) to (n).

[75] Paragraph 42 is struck commencing with the sentence "Among other questions, Det. Charteris asked . . . ." The balance of the paragraph is evidence.

[76] Paragraphs 53 to 55 purport to lay out the treatment of Jane Doe's complaint to OIPRO including submissions made in the complaint process.

[77] I find the content of these paragraphs to be of limited relevance to the claim while the marginal probative value is outweighed by the prejudicial effect (Quizno's Canada Restaurant Corp. v. Kileel Developments Ltd. (2008), 92 O.R. (3d) 347, 2008 ONCA 644). Those paragraphs are struck.

[78] Finally, paras. 68 to 77 inclusive and para. 79 are clearly legal arguments drawing upon what is suggested as relevant case authorities and often coupling evidence to the comments of the [page125] court. These paragraphs, while appropriate for a factum, are inappropriate for a statement of claim. The paragraphs are struck.

[79] Considering the terms of rule 25.11, I find that the paragraphs that I have chosen to strike for the reasons articulated above may prejudice the fair trial of this action and at least in part could be seen as vexatious and unnecessarily inflammatory. The plaintiffs are granted leave to amend within 30 days of the release of these reasons should they decide to do so. The defendants will have 30 days from the service of any amended statement of claim to deliver a statement of defence, or such longer period as may be agreed upon by the parties.

Costs

[80] If unresolved by the parties, I will consider written cost submissions, no longer than five typed pages, within 30 days of the release of these reasons. If cost submissions are not received within 30 days, there will be no order as to costs.

Motion granted in part.

End of Document