M.D. v. Special Investigations Unit, 2025 ONSC 3799

Reasons for Decision

Court File No.: CR 25-14
Date: 2025/06/25
Ontario Superior Court of Justice
Between:
M.D., Applicant
and
Special Investigations Unit, His Majesty the King in Right of Ontario, Respondents

Applicant: M.D., acting in person
Respondent Counsel: Brandon Fragomeni
Heard: May 1, 2025
Judge: Brian Holowka

Overview

1On August 8, 2021, the Applicant, M.D., was arrested by police in Cornwall, Ontario, for causing a disturbance and obstructing police. A police officer deployed a Taser during the arrest. As a result, M.D. was transported to the hospital by Constables Lafleur and Degray. While at the hospital, he was searched by Cst. Degray, who had observed something inside the front of M.D.’s pants. M.D. alleged that Cst. Degray sexually assaulted him during the search.

2The Special Investigations Unit (SIU) investigated the conduct of Cst. Degray. Cst. Lafleur’s conduct was not investigated since he was not the subject of the sexual assault allegation.

3At the conclusion of the investigation, the Director of the SIU determined that he did not have reasonable and probable grounds to believe that Cst. Degray had committed a sexual assault.

4The Applicant seeks mandamus to compel the SIU Director to lay numerous criminal charges against the two police officers. He disagrees with the Director’s conclusion not to charge the subject official, Cst. Degray. He challenges the reasonableness, correctness, and procedural fairness of the Director’s conduct. He argues that the Director’s interpretation of the facts was unreasonable and biased, motivated by an intention to conceal corruption and preserve the credibility of the police.

5To determine whether a writ of mandamus should be issued, the following questions require consideration:

a. Does the SIU Director bear a duty to lay criminal charges?
b. Is there an available alternative remedy?
c. Does a review of the merits compel the court to order mandamus?

6For the reasons that follow, the application for mandamus is dismissed.

Facts

The Incident

7On August 8, 2021, the Applicant, M.D., encountered the aftermath of a motor vehicle collision involving a pedestrian in Cornwall, Ontario. Members of the public were helping the pedestrian. M.D.’s interactions with these individuals quickly escalated into an acrimonious dispute. These individuals described him as angry and disruptive. When the initial police officer, Cst. Lafleur, arrived, M.D. was in his car nearby. The police described him as yelling and screaming upon their arrival.

8Given that the Applicant was not involved in the accident, Cst. Lafleur, after briefly assisting the injured pedestrian, asked M.D. to leave the area as he was causing a disturbance. Cst. Lafleur learned that M.D. had parked his car up the road and was continuing to scream and yell. The officer arrested him for causing a disturbance and obstructing police. M.D. reportedly was non-compliant with the arrest. Ultimately, Cst. Lafleur deployed his conducted energy weapon (CEW), or Taser. As a result of the CEW deployment, M.D. was transported to the Cornwall Community Hospital by Constables Lafleur and Degray for medical assessment. The officers state in their interviews with the SIU that M.D. continued to yell and scream while at the hospital.

9While in the family room of the hospital, Cst. Lafleur observed what he believed to be an object inside the front of M.D.’s pants. M.D. initially denied concealing anything, but later claimed it was an MP3 player. Cst. Lafleur was concerned that M.D. might be hiding drugs or weapons. Cst. Degray searched M.D., who was uncooperative. He managed to retrieve the MP3 player. According to police, M.D. began to scream that he was being sexually assaulted.

10Shortly thereafter, M.D. underwent a medical examination and was cleared. He was then transported to the Cornwall Police Service headquarters, where he was charged with causing a disturbance, resisting arrest, and obstructing a police officer.

11On August 10, 2021, the Cornwall Police Service notified the SIU of a sexual assault that was alleged to have occurred against the Applicant on August 8, 2021.

12In his interview with the SIU investigators, M.D. stated that Cst. Degray seized the waistband of his shorts and forcibly pulled them, causing the shorts to rip around the crotch area. The officer then placed his hands inside M.D.’s underwear and removed the recording device. He alleged that after the device was removed from the inside of the underwear, Cst. Degray again inserted his hand inside M.D.’s underwear and roughly rubbed the underside of M.D.’s testicles and the shaft of his penis.

13M.D. described that Cst. Degray was smiling at him throughout the search, leading him to conclude that the second search was sexual in nature and intended solely to provoke a fight-or-flight response. He expressed feeling violated by the unjustified and inappropriate touching of his genitals.

14M.D. believed that the room at the hospital where the alleged sexual assault occurred had a security camera that should have captured the interaction with Constables Lafleur and Degray. He also thought that the security guard was at the entrance to the room and would have heard the entire interaction.

15Constables Lafleur and Degray were among those interviewed during the SIU investigation into Cst. Degray’s conduct at the Cornwall Community Hospital. The officers denied that any sexual assault occurred.

16Mr. Nathaniel Dempster, a member of the security personnel employed at the hospital, was interviewed. He was stationed near the room where the alleged sexual assault was said to have taken place. He did not witness the search of the Applicant or the alleged sexual assault.

17Ms. Sandra Ware, a supervisor at Garda World Security, informed the SIU investigators during the inquiry that although a security camera was present in the room where the events at the hospital took place, it had not been functioning for several months prior to the incident due to ongoing construction in the emergency ward.

Purpose and Framework of the SIU

18The SIU was established under the Police Services Act, R.S.O. 1990, c. P.15. The Special Investigations Unit Act, 2019, S.O. 2019, c.1, Sched. 5 (“SIU Act”), came into effect in 2020, clarifying the SIU’s independence and its capacity to investigate.

19The SIU Act, s. 4(2) provides that the SIU is headed by the SIU Director. The Director, a peace officer, is charged with most of the investigative, administrative and management functions, including:

a. oversight of all investigations;
b. ensuring training of employees; and
c. appointment of investigators.

20Significantly, the SIU Director is responsible for deciding whether to initiate an investigation. Pursuant to s. 15(1) of the Act, the Director “may cause an investigation to be conducted into any incident” resulting from possible criminal conduct by police that leads to:

a. Death,
b. Serious Injury,
c. Discharge of a Firearm, or
d. Sexual Assault.

21Section 32 of the Act provides the following process regarding the laying of charges under the Criminal Code, RSC 1985, c C-46:

If, as a result of an investigation under this Act, the SIU Director determines that there are reasonable grounds to believe that an official has committed an offence under the Criminal Code (Canada), the SIU Director shall cause charges to be laid against the official.

22Simply stated, the SIU Director must consider the evidence gathered during an investigation within their mandate to determine whether reasonable grounds exist to believe that a criminal offence has been committed. If reasonable grounds are established, the Director is required to lay the appropriate criminal charge against the police officer. Conversely, if the Director determines that no reasonable grounds exist, the Director cannot lay charges. When no charges are laid, the SIU prepares a report on the investigation. This report is made public, except in cases where the investigation pertains to allegations of sexual assault. In such instances, the Director may consult with the affected individual and exercise discretion not to release the report publicly, while taking into account that person’s privacy interests.

The Investigation

23On August 10, 2021, the Cornwall Police Service informed the SIU about M.D.’s allegation of sexual assault by a Cornwall police officer, prompting the commencement of an investigation.

24Cst. Lafleur was designated as a witness official (WO). Cst. Degray, who searched M.D., was designated as the subject official (SO).

25The Applicant, M.D., Cst. Lafleur and Cst. Rodney Degray were among the individuals interviewed during the SIU investigation into Cst. Degray’s conduct at the Cornwall Community Hospital. Mr. Nathaniel Dempster and Ms. Sandra Ware, security personnel employed at the hospital, were also interviewed.

26Two civilian witnesses at the scene of the arrest were also interviewed.

27The SIU obtained and reviewed the recording that the Applicant made surreptitiously during the event. The Applicant arranged for the recording to be transcribed.

Director’s Report

28The SIU Director issued his report on December 8, 2021. The section relating to his analysis and decision stated, in part:

The SIU initiated an investigation and identified the SO as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the allegation.

A sexual assault consists of an assault within any of its definitions in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R. v. Chase, [1987] 2 SCR 293.

I am not satisfied that the evidence of the alleged sexual assault is sufficiently cogent to warrant being put to the test by a trier-of-fact. The SO denies that he touched the Complainant inappropriately. That is, while the SO acknowledges that he searched the Complainant in the interview room and retrieved a recording device from inside the front of his shorts, the officer did not grope or fondle the Complainant’s penis or scrotum. I find it implausible that an officer would molest the Complainant in the fashion he describes given the presence of a camera in the room, which the SO would have had every reason to believe was operational, and a hospital security guard just outside the open door, who could have easily observed or walked in on any misconduct of the sort. For these and other reasons, it would be unwise and unsafe to rest charges on the strength of the allegation alone.

The Request to Reopen the Investigation

29The Applicant was dissatisfied with the decision made by the SIU Director. He wrote to him in a letter dated December 8, 2021 (received December 21, 2021). In the letter, he disputes the Director’s conclusion and alleges that the security personnel lied. The letter included materials such as excerpts from transcripts of surreptitious recordings capturing some events at the car accident scene, as well as segments from the Cornwall Police Service’s Arrest Report and a Freedom of Information request to the SIU.

30On January 11, 2022, the SIU responded to the Applicant on behalf of the Director. The correspondence indicated that the Director had carefully considered the materials and his letter and decided not to reopen the investigation at that time.

31In February and April 2024, the Applicant sent further material to the SIU. It included information relating to the Applicant’s criminal trial and transcripts of witness testimony from it. The SIU responded to the Applicant on April 8, 2024, stating that the SIU Director declined to open the investigation. The letter stated:

The SIU Director has considered your submissions, and we will not be re-opening our investigation at this time.

Pursuant to SIU Operations Policy 002: The Investigative Process, an SIU investigation will not ordinarily be reopened unless material new information comes to light. We have considered the materials you submitted on February 10, 2024, and April 21, 2024. While some of the materials you have submitted are new, such as information about your criminal charges’ disposition and the transcripts of witness testimony, this information is not material because it has no bearing on our charging decision.

The materials provided largely pertain to the conduct of the arresting officer. The SIU’s investigation, per its mandate, was focused on the conduct of the officer who searched you. The SIU Director remains unable to form reasonable grounds to believe that he committed a sexual assault for the reasons in the Director’s Report.

Analysis

Jurisdiction of this Court

32A single judge of the Superior Court of Justice has the jurisdiction to adjudicate an application for mandamus when the Applicant seeks to compel the SIU Director to initiate criminal charges against a police officer. This conclusion arises from the fact that the issues presented in such applications pertain to a criminal matter: Ontario v. Zreik, 2019 ONCA 89, paras. 17-19.

The Law Relevant to the Discretionary Remedy of Mandamus

33Mandamus is a discretionary remedy available to superior courts to command another to perform an act that is legally required as part of their official duties, or to refrain from performing an act that the law forbids them from doing. For example, mandamus may compel a hearing, but may not dictate the result of a hearing: Erhirhie et al. v. Martino (SIU), 2025 ONSC 88.

34Generally, mandamus is an extraordinary remedy available to challenge the jurisdiction of lower courts or decisions rendered by those courts that constitute a jurisdictional error, including a denial of natural justice or procedural fairness. It does not function as an appeal. See Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Aurora: Canada Law Book, 2009) at § 26:1.

35Robertson J.A. of the Federal Court of Appeal restated the requirements that must be satisfied before mandamus will issue in Apotex Inc. v. Canada (Attorney General), para. 55, aff’d:

a. There must be a public legal duty to act.
b. The duty must be owed to the applicant.
c. There is a clear right to the performance of that duty, in particular:
i. The applicant has satisfied all conditions precedent giving rise to the duty;
ii. There was (1) prior demand for performance of the duty; (2) a reasonable time to comply with the demand unless refused outright; and (3) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
d. Where the duty sought to be enforced is discretionary, the following rules apply:
i. In exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;
ii. Mandamus is unavailable if the decision-maker’s discretion is characterized as “unqualified”, “absolute”, “permissive,” or “unfettered”.
iii. In the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;
iv. Mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way;
v. Mandamus is only available when the decision-maker's discretion is "spent", i.e., the applicant has a vested right to the performance of the duty.
e. No other adequate remedy available to the applicant.
f. The order sought will be of some practical value or effect.
g. The Court, in the exercise of its discretion, finds no equitable bar to the relief sought.
h. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue.

Is There a Duty Owed to the Applicant to Form Reasonable and Probable Grounds?

36The Applicant seeks mandamus to compel the SIU Director to lay numerous criminal charges against Cst. Degray and Cst. Lafleur, due to the events of August 8, 2021. Many of the charges the Applicant wants the SIU Director to lay extend beyond the sexual assault allegations arising from the search at the hospital. They also involve Cst. Lafleur, who was designated as a witness official and not a subject official, as no sexual allegations were made against him. These extraneous charges sought by the Applicant fall outside the mandate of the SIU. The following analysis regarding whether mandamus should issue will pertain to the sexual assault allegations made against the subject official, Cst. Degray, at the hospital.

37As noted above, a requirement for mandamus to issue is the existence of a duty to be performed that is owed to the Applicant. This may arise when, “an inferior court refused or failed to perform some public duty which they were required to perform, or a person or corporation refused or failed to perform some public duty which they were required to perform”: R.E. Salhany, Canadian Criminal Procedure, 6th Ed. (Toronto: Carswell, 2024) at § 10:1.

38In my view, s. 32 of the SIU Act does not establish a duty to form reasonable and probable grounds, nor is such a duty owed to the Applicant. There is a duty to lay charges if the SIU Director forms reasonable grounds to believe that an official has committed a criminal offence. Once reasonable grounds are formed, the SIU Director has no discretion; the Director must cause charges to be laid.

39The requirements for forming reasonable grounds are fundamental elements of criminal law. They require the SIU Director to subjectively have reasonable and probable grounds for believing that the subject official under investigation committed the offence. Those grounds must be justifiable from an objective viewpoint. Concerning the subjective element, the question is whether the Director subjectively believed that the subject official committed the offence: R. v. Beaver, 2022 SCC 54, paras. 71-72.

40Section 32 of the SIU Act cannot be interpreted as imposing a duty on the SIU Director to form a subjective belief. The Supreme Court of Canada, in R. v. MacDonald, 2014 SCC 3, para. 85, cautioned against lowering the reasonable grounds to believe standard by eliminating the subjective requirement, citing R. v. Storrey. It added, “The law is clear that an officer must subjectively believe he has reasonable and probable grounds; it is not enough that he objectively did.”

41In my view, not only does a duty to form RPG (Reasonable and Probable Grounds) not exist, but such a duty is also not owed to the Applicant.

42In Holmes v. White, 2014 ONSC 5809, Myers J. addressed whether mandamus could compel the police to conduct criminal investigations and whether a duty was owed to the Applicant. He rejected, at para. 20, the notion that every alleged crime victim is entitled to have the court force the police to either investigate their allegations or to demonstrate that they have both objectively and subjectively reasonable grounds to refrain from investigating. He determined that there was no jurisprudential support for this position and that the cases cited by the Applicant did not address the requirements outlined in Apotex.

43The reasoning in Holmes is relevant to the current situation. While an investigation was conducted in this case, the Holmes analysis remains significant in considering whether a duty to form reasonable grounds to believe an offence has been committed is owed to an individual alleging a crime. There is no support in the case law for the notion that a duty to establish reasonable grounds is owed to the Applicant by the SIU Director under the current circumstances. I am confident in concluding that no such duty is owed to the Applicant.

44The application for mandamus is dismissed on this basis.

The Availability of an Alternative Remedy

45In my view, mandamus is also unavailable in light of an adequate alternative remedy.

46The Supreme Court, in Strickland v. Canada (Attorney General), 2015 SCC 37, para. 42, outlined the factors to be considered when determining whether an alternative remedy is adequate to justify a refusal to hear a judicial review application. Cromwell C.J. stated at para. 42:

The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. Powell Ltd. v. Canada (Border Services Agency), 2010 FCA 61, para. 31; Mullan, at pp. 430-31; Brown and Evans, at topics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy needs to be identical to those available on judicial review. As Brown and Evans put it"in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant's grievance?": at topic 3:2100 (emphasis added).

47Section 504 of the Criminal Code allows “any one” who, on reasonable grounds, believes that a person has committed an indictable offence to lay an information in writing and under oath before a justice. The term “any one” found in the section is expansive and includes private citizens, as well as peace and public officers, the Attorney General, and the Attorney General’s agents. See R. v. McHale, 2010 ONCA 361, paras. 5-11.

48The court in McHale describes a three-step process culminating in a pre-enquête hearing as outlined in s. 507.1 of the Criminal Code. At a pre-enquête hearing, the presiding justice or provincial court judge will hear and consider the allegations and evidence and determine whether there is a case for issuing a summons or warrant to compel the accused to answer to the charge.

49I agree with the Respondent's submission that s. 504 and the availability of the process to commence a private prosecution is a robust statutory remedy available to a person who disagrees with the decision of the SIU Director to decline to lay charges. The availability of this remedy is broader than that which could possibly be achieved by mandamus if it were available. The Applicant seeks several criminal charges to be laid beyond the sexual assault allegations, which were the focus of the SIU investigation. It is an avenue that the Applicant stated in submissions that he was pursuing.

50I concur with Christie J.’s analysis in Erhirhie, at paras. 97-109. The existence of a sufficient alternative remedy through a private prosecution under s. 504 of the Criminal Code eliminates the possibility of issuing an order for mandamus. I have also considered the analysis of Nixon J. in McLeod v. Chief of Police, 2018 ABQB 386.

51Having regard to the considerations outlined in Strickland, I conclude that the availability of the private prosecution process serves as an adequate and effective remedy. Therefore, I would also dismiss the application for mandamus on this basis.

Review of the Director’s Decision on the Merits

52The scope of review for mandamus is narrow. As previously noted, mandamus does not function as an appeal or to question the correctness of the decision made. Mandamus may be granted to compel a court or official to exercise a jurisdiction or discharge a duty, but not to compel the jurisdiction or discharge the duty in a particular way: R. v. Vasarhelyi, 2011 ONCA 397, paras. 50-55.

53In Albatal v. Canada (Royal Mounted Police), 2016 FC 371, para. 20, Gleeson J. considered an application for mandamus to compel the police to investigate the applicant’s complaint alleging corruption at the Canadian Embassy in Germany. Applying Apotex and Holmes, the court dismissed the application for mandamus. Gleeson J. stated at para. 20:

Mr. Albatal argues that the RCMP misunderstood their jurisdiction, I disagree. The RCMP reviewed the information provided with Mr. Albatal’s complaint and concluded that the information did not disclose a basis to believe an offence had been committed. The RCMP owes no duty to Mr. Albatal to investigate. The RCMP has considered Mr. Albatal’s complaint and exercised their discretion to not investigate. This Court cannot dictate the outcome of that discretionary decision. Mr. Albatal’s application for mandamus must fail.

54I agree with the reasoning and conclusion in Albatal; they apply to the circumstances before this court.

55There does, however, remain a narrow scope for review. In Ochapowace First Nation v. Canada (Attorney General), 2009 FCA 124, paras. 26-31, the Federal Court of Appeal dealt with an appeal from a decision that dismissed an application for judicial review concerning the RCMP’s decision not to lay charges following the flooding that occurred. The review was not characterized as a request for mandamus; instead, it was claimed to be a breach of treaty rights. The court addressed the question of police discretion at paras. 26-31:

[26] The rationale for that discretion was set out recently in the Supreme Court’s decision in R. v. Beaudry, 2007 SCC 5, para. 37, where the following appears:

[37] Nevertheless, it should not be concluded automatically, or without distinction, that this duty is applicable in every situation. Applying the letter of the law to the practical, real-life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the "course of justice". The ability - indeed the duty - to use one's judgment to adapt the process of law enforcement to individual circumstances and to the real-life demands of justice is in fact the basis of police discretion. What La Forest J. said in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, is directly on point here:

Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid.

Thus, a police officer who has reasonable grounds to believe that an offence has been committed, or that a more thorough investigation might produce evidence that could form the basis of a criminal charge, may exercise his or her discretion to decide not to engage the judicial process. But this discretion is not absolute. Far from having carte blanche, police officers must justify their decisions rationally.

[27] In Beaudry, the Supreme Court went on to say that the exercise of police discretion, when challenged, must be justified both subjectively and objectively. Subjectively, the discretion must have been exercised honestly, transparently and on the basis of valid and reasonable grounds. Objectively, the exercise of the discretion must be assessed in light of the material circumstances: see paras. 38-39.

[28] The application judge considered Beaudry, but concluded that it did not materially affect the test to be applied. In his view, there was little difference between reviewing the exercise of discretion on the basis of rational justification or on the basis of flagrant impropriety, which is the language used to describe the basis on which the exercise of prosecutorial discretion is to be reviewed.

[29] I agree with the application judge that courts should not embark upon a review of either police or prosecutorial discretion except in the clearest cases of abuse. But I am not persuaded that the same test applies in both cases, largely because of the different roles that the police and the prosecution play in the administration of justice. This is not a question that I need to answer because the exercise of police discretion passes muster in this case regardless of which test is applied.

[30] The facts, as set out earlier in these reasons, amply justify the conclusion that both the subjective and objective elements of the test were satisfied in this case. The RCMP’s decision was made honestly and transparently and for a legitimate reason, namely the evidence did not support the charges. In light of all the material circumstances, including the state of the negotiations for compensation and the legal advice received, the RCMP’s decision was objectively justifiable.

[31] I agree with the application judge that the appellants have not established “flagrant impropriety” in the RCMP’s exercise of discretion not to lay charges.

56In my view, two elements of the analysis from Ochapowace First Nation are directly applicable to the present circumstances. First, the exercise of the SIU Director’s discretion, when challenged, must be justified both subjectively and objectively. Subjectively, the discretion must have been exercised honestly, transparently, and based on valid and reasonable grounds. Second, the courts should not engage in a review of the Director’s discretion except in the clearest cases of abuse.

57The Applicant submits that the SIU Director improperly assessed the evidence in the following ways:

a. In deciding to decline to lay criminal charges, the SIU Director refers to the implausibility of the SO committing a sexual assault “given the presence of a camera in the room, which the SO would have had every reason to believe was operational, and a hospital security guard just outside the open door, who could have easily observed or walked in on any misconduct of the sort.” The Applicant contends that both the SO and WO were aware that the cameras in the room where the search occurred were not operational. The evidence does not support this contention.

b. The Applicant alleges that a security officer, Mr. Dempster, at the hospital lied about him “looping his cuffs.” The evidence contained in the Record of Decision is unclear on this issue. The statement of the Applicant to the SIU states that he moved his cuffs to the front of his body to put his MP3 player in his pocket. How the Applicant accomplishes this is not clarified. The SO, in his statement to the police, was uncertain but believed that the Applicant slipped or looped his cuffs.

c. The Applicant highlights various inconsistencies among the witnesses. For instance, he notes discrepancies regarding whether the door to the room where the search took place was open or closed, and whether the security officer Dempster could see the search or not.

d. The Applicant argues that the SIU colluded with the Cornwall Police Service and the Cornwall Community Hospital.

58The Applicant, in his supplementary factum, submits the following in support of the issuance of mandamus:

a. The SIU and the Director failed by engaging in an unreasonable, biased, dishonest interpretation of the evidence in excess of their authority and statutory duties and obligations by the dishonest, bias, distorted and dishonest interpretation of evidence speculation and assumption, the conscious disregard of the facts at the time, as well as basing their decision on unreasonable inference, bias speculation, and assumption for improper purposes.

b. The SIU made the decision not to lay charges against Cst. Lafleur and Cst. Degray, for the improper purposes of concealing corruption and maintaining improperly the credibility of the police, and to maintain the undue statutory immunity of the police.

c. The SIU Director engaged in an unreasonable, biased, speculative, and dishonest interpretation of the evidence in excess of his authority and statutory duties and obligations.

d. That SIU and the Director were aware that the failure to acknowledge the criminal and bad-faith dishonest conduct elements of the Cornwall Police's actions against the Applicant would cause further harm to him.

59The presence of inconsistencies in the evidence collected from an investigation is not uncommon. However, the absence of a thorough analysis of these potential inconsistencies does not significantly undermine the SIU Director’s analysis regarding his decision to decline laying charges and his conclusion that he lacked subjective grounds to believe that an offence had been committed.

60There is no evidence that the SIU or the Director colluded with the Cornwall Police Service, or any other agency, nor that they failed or refused to engage in a reasonable, unbiased, and honest review of the evidence. Despite the Applicant’s submission to the contrary, it cannot be inferred from the Director’s conclusion that his conduct and that of the SIU were unreasonable, biased, or dishonest.

61Similarly, I find that there is no evidence before the court to support the conclusion that the SIU Director’s decision not to lay charges was made for the ulterior purpose of concealing corruption and maintaining police credibility. Nor could it have been to preserve the statutory immunity of the police, as such immunity does not exist.

62Part of the remedy sought by the Applicant is unavailable: Cst. Lafleur was designated as a witness officer. Therefore, laying criminal charges against him for an alleged sexual offence under investigation at the hospital was not a possibility.

63Finally, the SIU’s refusal to reopen the investigation at the Applicant's request was not unreasonable. Only some of the material provided was new, and it related to events that occurred roadside before the hospital visit—it was not directly relevant to the sexual assault allegation at the hospital. Furthermore, the SIU Director is not under a duty to reopen an investigation.

64Applying the Apotex and Ochapowace First Nation decisions to the present circumstances, I conclude that the SIU Director’s discretion was exercised honestly, transparently, and based on valid and reasonable grounds. Therefore, the decision not to lay charges against Cst. Degray does not constitute a jurisdictional error or an abuse. Upon consideration of the merits, I would also dismiss the application for mandamus on this basis.

Conclusion

65The SIU Director decided to investigate this matter. In deciding to investigate, the Director considered the evidence available to him. He concluded, in the totality of the circumstances, that there were no reasonable grounds to believe that the SO committed an offence. This is a conclusion that the Director was entitled to reach. There is no evidence that the Director reached this conclusion based on bias, dishonesty or a corrupt motive.

66The request for mandamus is dismissed on the three bases discussed in these reasons for decision.

Brian Holowka