Erhirhie et al. v. Martino (SIU), 2025 ONSC 88

CITATION

Erhirhie, et al. v. Martino (SIU), 2025 ONSC 88

COURT FILE NO.: CR-23-003-MO

DATE: 20250106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ABBY ERHIRHIE, DEBBIE ERHIRHIE, EDITH ERHIRHIE and DELORES LANGER

Applicants

– and –

JOSEPH MARTINO, DIRECTOR, SPECIAL INVESTIGATIONS UNIT

Respondent

Paul Slansky, Counsel for the Applicants

Emtiaz Bala and Shima Heidari (Ministry of the Attorney General – Crown Law Office - Civil, for the Respondent

HEARD: December 4, 2024

CHRISTIE J.

Overview

1The Applicants are the family of the deceased, Moses Erhirhie, a black male, who was shot and killed on January 21, 2022, by a York Regional Police officer, whose identity is not known to the Applicants, but rather is referred to only as the Subject Officer ("SO") by the Special Investigations Unit ("SIU").

2The SIU investigated and, in a report dated December 30, 2022, declined to lay charges against the SO.

3The Applicants argue that the Director concluded that the SO shot and killed Mr. Erhirhie, which amounted to reasonable grounds to believe an offence had been committed, but refused to lay charges only because he believed that the officer acted in self defence. According to the Applicants, when assessing reasonable grounds to believe, defences are not to be considered. Accordingly, the SIU Director, having concluded that the SO shot and killed Mr. Erhirhie, had reasonable grounds to believe that the SO committed an offence under the Criminal Code and was required to charge the SO pursuant to s. 32 of the Special Investigations Unit Act 2019, S.O. 2019, c. 1, Sched. 5 (“SIU Act”), as the language of the section is mandatory. The Applicants seek mandamus to compel the Director to charge the police officer with murder.

4Further, the Applicants argue that anti-black racism was a factor in the actions of the SO and the decision of the Director not to charge. According to the Applicants, with respect to the SO, anti-black racism in policing is a known fact, and there is strong circumstantial evidence that race was a factor in this case. With respect to the Director, the Applicants argue that anti-black racism is evident by the fact that he considered self defence and in his conclusions about self-defence. The Applicants argue that, having established that race was a factor, the burden shifts to the Respondent to prove that these decisions were not tainted by race. The Applicants seek a declaration that the decision to not charge was tainted by racism, as such a declaration from this court would be useful to deter the staying of a charge by the Crown.

5The Respondent argues that the Applicants are asking the Court to force the SIU to charge a person with murder and that the Applicants have not provided one case where a Superior Court has used a prerogative writ to force an investigator to charge anyone with anything – not even a speeding ticket. The Respondent submits that this court would be the first court to take such an action. The Respondent argues that while section 32 of the SIU Act contains a mandatory component – “shall cause charges to be laid”, it is qualified by a discretionary condition precedent – “if….the SIU director determines that there are reasonable grounds to believe”. According to the Respondent, there is no duty to form reasonable grounds to believe. The Director’s decision is reviewable only for jurisdictional error or abuse, neither of which exist; rather, the conclusion, that he could not form reasonable grounds to believe, is rationally based on the factual record, including video evidence. According to the Respondent, the Director can and sometimes should consider self-defence and reasonably did so in this case. There is no basis to assert that race was a factor in the SO’s actions or in the Director’s decision.

6Further, the Respondent argues that section 504 of the Criminal Code establishes an alternate process to achieve the same result – a private prosecution.

Facts

7There are many facts that are not in dispute and will provide some context, including:

a. On January 21, 2022, at about 9:15 p.m., Mr. Erhirhie drove a white Hyundai Elantra and stopped at the far end of a parking lot in a Markham strip mall.

b. Mr. Erhirhie exited the vehicle, which was kept running, closed the driver's door, and walked to the rear of the Hyundai towards the snowbank, which witnesses described as a “hill”. It appeared as if he was preparing to urinate (both arms seemingly down by his crotch area). He paused momentarily before taking up a position beside the passenger side of the Hyundai where it appeared as if he was relieving himself into the snowbank. There he stood for approximately 25 seconds until a marked police SUV pulled up and came to a stop just east and north of the Hyundai, facing west.

c. The SO had been patrolling other parking lots in the area. At 9:17 p.m., the SO pulled into this parking lot and located Mr. Erhirhie outside the vehicle urinating. Mr. Erhirhie walked over to the driver's door of the cruiser and remained there for several seconds, presumably engaged in some form of conversation with the SO, after which he walked to the front of the police vehicle. The SO then requested that another unit attend. [There is no explanation why the SO requested another officer, however, toxicology results show that Mr. Erhirhie’s femoral blood-alcohol level was 54 mg per 100 ml, his urine blood-alcohol was 75 mg per 100 ml, and his heart blood was positive for THC, which has led to some speculation.]

d. About a minute later, the SO exited the cruiser and walked a short distance towards the driver's door of the Hyundai. Mr. Erhirhie followed him to the driver’s side of the Hyundai, standing by the rear tire.

e. In that position, Mr. Erhirhie and the SO stood speaking to one another. This continued for about two minutes until Mr. Erhirhie suddenly reached for the driver's door handle and attempted to open the door.

f. At 9:20:21 p.m., the SO grabbed hold of Mr. Erhirhie and the two grappled with one another for several seconds. Mr. Erhirhie broke free from the SO's grasp and ran east through the parking lot towards the plaza. The SO chased him for approximately 10 seconds, around a parked vehicle and back to the Hyundai.

g. At 9:20:40 p.m., Mr. Erhirhie entered the driver’s side of the Hyundai. It appeared that Mr. Erhirhie was unable to close the driver’s door before the SO arrived and attempted to remove him from the vehicle.

h. The Hyundai began to reverse slowly, all while the SO attempted to pull Mr. Erhirhie out of the vehicle. The SO was being pulled along by the open driver’s side door. The Hyundai then reversed rapidly turning in a northwesterly direction and travelling up a snow embankment while the horn sounded and with the passenger and driver side doors open. The SO remained with the Hyundai in the area of the open driver’s side door as it reversed up the embankment. The SO was dragged along by the open driver’s side door.

i. Three to four seconds elapsed from the moment the Hyundai picked up speed until it came to a stop on an incline on the snowbank - its back end facing west and raised above the front end, which was oriented east toward the pavement.

j. The front passenger door opened and a person wearing a fur-hooded jacket emerged, falling onto the snowbank. As she laid on her right side on the snowbank, two persons – Mr. Erhirhie and the SO - were entangled in the driver's seat.

k. At 9:20:51 p.m., the SO extricated himself from the driver compartment and discharged his firearm, three times, while standing outside the open driver’s side door.

l. The SO then walked around the front of the Hyundai to the passenger side and stood in front of his police vehicle.

m. Mr. Erhirhie was found with his head resting on the front passenger seat and his feet on the driver's seat. The Hyundai was later found to be in drive gear.

n. While walking around the front of the Hyundai towards the passenger side, the SO transitioned an item [believed to be his firearm] from his right hand to his left, employing his right hand to use a radio on his right shoulder.

o. The SO was heard saying to WO#2: “He's in the car.” WO#2 said, “What?” The SO replied, “Guys the shooter.” WO#2 replied, “Okay.” WO#2 approached the Hyundai from the passenger side with his firearm drawn. WO#2 said, “Have you located anything?” The SO said, “No, I haven’t searched the car yet. He almost ran me over, guy almost killed me.”

p. A Glock 22 Gen 4 pistol was collected from the SO. The Firearm and Toolmark Section of the CFS concluded that, within the limits of practical certainty, this was the firearm that fired the three cartridge cases found at the scene.

q. A firearm was later recovered from Mr. Erhirhie’s person, however, there is no evidence that the SO knew of the gun.

8The SO declined interview and declined to provide his notes, as is his right, however, this leaves some unknowns.

Director’s Report

9On December 30, 2022, the Director released a report summarizing his key findings and conclusions. In a section entitled “Analysis and Director’s Decision”, the report states as follows:

… On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant's death.

Section 34 of the Criminal Code provides that conduct that would otherwise constitute an offence is legally justified if it was intended to deter a reasonably apprehended assault, actual or threatened, and was itself reasonable. The reasonableness of the conduct is to be assessed in light of all the relevant circumstances, including with respect to such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force.

There is much about this incident that remains unknown. The SO, as was his legal right, has not explained why he initially engaged the Complainant in the parking lot. It may be that the officer, who appears to have been patrolling parking lots in the area, was doing just that when he pulled into the parking lot at the southeast corner of Fairburn Drive and Highway 7, observed the Complainant attempting to relieve himself, and decided to investigate a possible by-law infraction.

One also wonders why the SO tried to detain or arrest the Complainant, as one must conclude occurred when the officer first prevented him from entering his vehicle, subsequently chased after him, and then attempted to forcibly remove him from the driver's seat. Had the Complainant refused to identify himself so that a ticket could be issued, thereby leaving himself open to lawful arrest?

The answers to these questions are important. If the SO had no lawful reason to arrest or detain the Complainant, then the Complainant was entitled to resist that process. In the absence of any evidence to this effect, however, and in circumstances suggesting a plausible scenario in which the officer was in the legitimate discharge of his duties, the investigation does not give rise to a reasonably grounded belief that the SO was acting outside the scope of his lawful authority.

While the SIU is without first-hand knowledge of the officer's mindset when he fired his weapon, it seems likely that the SO shot the Complainant attempting to defend himself from a reasonably apprehended attack. That is the import of the utterances the SO made to certain officers arriving after the shooting, namely, that he fired his weapon believing he was about to be killed by the Hyundai in the Complainant's control, and there is nothing in the evidence to contradict it. On the contrary, the circumstantial evidence lends credence to the assertion. It is apparent on the video footage that captured much of the incident that the Complainant was desperate to get away. One can understand why. Unknown to the SO at the time, the Complainant was in possession of a loaded firearm - a Glock Model 23 located in a satchel removed from his person after the shooting. The Complainant was looking at very serious criminal charges had the weapon been discovered by the officer, which it certainly would have following an arrest. Though perhaps not his intention to hurt or assault the SO, the Complainant's frenzied efforts to escape apprehension in his vehicle gave the officer reason to believe that his life was in imminent danger. With the SO hanging on through the open driver's door, partly within and without the driver's compartment of the Hyundai, the Complainant accelerated backwards at speed, slamming into and climbing onto a snowbank of some height. Within seconds of the impact with the snowbank, having removed himself from the Hyundai and still in the area of the open driver's door of the vehicle, the SO remained in a position of peril. The Complainant was still active in the Hyundai and it would have been reasonable for the officer to fear that he might try to put the vehicle in motion again; indeed, the officer who turned the Hyundai's ignition off noted it was in drive gear. On this record, it would appear that the SO had cause to want to stop the Hyundai from moving and, once stopped, to keep it from moving again, by discharging his weapon to incapacitate the Complainant.

I am further satisfied that the SO's gunfire constituted reasonable force in self-defence. If the officer reasonably feared that his life was at imminent risk with the continued operation of the Hyundai, and I accept that he did, then it makes sense that he would want to stop the Hyundai as quickly as possible. One of the ways this could be accomplished is by resort to his firearm. Conceivably, the SO might have opted for lesser force- perhaps the use of a CEW or physical strikes to the Complainant's person - but nothing stood to immediately immobilize the Complainant as the use of a firearm, especially in light of the officer's precarious position at the time. This was certainly true of the SO's predicament as the Hyundai was in motion, and also true with respect to the shot or shots fired by the officer after the vehicle had come to a stop on the snowbank. Video footage of this part of the transaction seems to show the SO disengaging from the Complainant and taking a step or two back from the open driver's door before firing his weapon. At the time, the officer was still in close proximity to the Hyundai and in a position of danger in the event the Complainant, who was still active in the vehicle, managed to put it in motion again. That contingency, I am persuaded, and the need to take swift action to prevent the Complainant moving the Hyundai again, would have been top of mind for the SO given what had just occurred. In the final analysis, given the speed with which events unfolded and the volatility of the situation, I am unable to reasonably conclude that the SO acted without justification for deciding in the heat of the moment to meet a threat of grievous bodily harm or death with a resort to lethal force of his own.

In the result, while it is a tragedy that the Complainant lost his life in the interaction with the SO, there are no reasonable grounds to believe that the officer comported himself other than within the limits of the criminal law….

SIU

10The power to commence investigations of this nature rests with the SIU Director, who "may cause an investigation to be conducted into any incident" resulting from possible criminal conduct by police that leads to death, serious injury, discharge of a firearm, or sexual assault (s. 15(1)). The SIU investigates police and no one else. The SIU does not investigate police for professional standards. The SIU does not even investigate all criminal offences, rather only a subset. When the Director chooses to investigate under s. 15, of the Act, the Director has a duty to assign investigators to conduct an investigation (s. 19). The Director is the lead investigator, which means the SIU has priority over any police force that is conducting a parallel investigation (s. 18(a)). The Director may compel cooperation (e.g. ss. 21, 23, 25, 31), but may not compel the SO to provide notes or make a statement to the SIU (s. 24(1)).

11The Director must cause charges to be laid when there are reasonable grounds to believe that an officer has committed an offence. Section 32 of the Act reads:

32 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.

12In other words, there is a two-step process for charging decisions. The Respondent suggests that the first step is discretionary and subjective – “if….the SIU Director determines”, whereas the second step is mandatory – “shall cause charges to be laid”. While this court agrees that the first step has some discretion, it cannot possibly be entirely subjective. Reasonable and probable grounds or reasonable grounds to believe has always been understood to have both a subjective and objective component. Therefore, the Director must subjectively have an honest belief that an offence has been committed, and the reasonable grounds must also exist objectively, using the reasonable person test. The reality is, of course, that this typically arises in the context of charges having been laid, not where they have not been laid. Certainly, as for the second step – “shall cause charges to be laid” – this is mandatory. There is no residual discretion not to charge.

13The Respondent states that the Applicants are claiming that there is a duty to find that there are reasonable and probable grounds. The Applicants claim that this is an improper characterization of their argument. The Applicants correctly accept that there is no duty to come to any particular determination – it is a question of “if” there are reasonable grounds to believe an offence has been committed. Flowing from that determination, there is a duty to act in one of two ways. The action is one of two mandatory actions determined by whether there are or are not reasonable grounds to believe. If there are reasonable grounds to believe, the Director has a duty to charge under s. 32. If there are not reasonable grounds to believe, the Director has a duty to report and explain the reasoning under s. 34.

Jurisdiction of this Court

14In Ontario v. Zreik, 2019 ONCA 89, the Court made it clear that applications such as this, where Applicants seek to compel the Director of the Special Investigations Unit to lay criminal charges against a police officer, are properly heard by a single judge of the Superior Court of Justice, as the issues raised are clearly relating to a criminal matter. (para 17 and 19) It should be noted, however, that the Court of Appeal made it very clear that they were only dealing with the “narrow issue of jurisdiction” and that “nothing in these reasons should be taken as any commentary on the availability of the relief sought or the merits of the application.” (para 25)

Mandamus

15Mandamus is a discretionary remedy which is available to command another to perform an act it is legally required to perform as part of its official duties, or to refrain from performing an act the law forbids it from doing. For example, mandamus may compel a hearing, but may not dictate the result of a hearing.

16In Italy (Republic) v. Boilard, 1982 CanLII 166 (SCC), [1982] 1 S.C.R. 320, an extradition proceeding, the extradition judge refused to admit some documents in evidence. Italy’s application for mandamus to compel the extradition judge to admit the documents was dismissed by the Federal Court Trial Division and Federal Court of Appeal. The Supreme Court also dismissed Italy’s appeal. The Court stated:

17A line of cases in this Court, among them Rourke v. The Queen, [1978] S.C.R. 1021, at p. 1026 and Dressler v. Tallman Gravel & Sand Supply Ltd., 1962 CanLII 66 (SCC), [1962] S.C.R. 564, at p. 569 have affirmed that mandamus does not lie unless jurisdiction is in issue respecting the performance of a statutory duty as where there is a denial or excess of jurisdiction. Moreover, the cases, for example R. v. N., 1979 CanLII 751 (BC CA), [1980] 1 W.W.R. 68 (B.C.C.A.), at pp. 72-73, point to a denial of mandamus where the question to which mandamus is addressed is admissibility of evidence. Nor is the appellant assisted in claiming mandamus by the judgment of this Court in Kipp v. Attorney-General for Ontario, 1964 CanLII 20 (SCC), [1965] S.C.R. 57. This Court affirmed the issue of mandamus in that case where the trial judge had wrongly quashed an indictment before plea on the ground of duplicity when he should have tried the charge before him.

19Whatever disposition there may be to take a wide view of jurisdiction in order to support mandamus, I can find no basis upon which that remedy can be available here. First, the Marsham case does not help. Although mandamus was held to lie to a magistrate where he rejected evidence, the English Court of Appeal held that what happened amounted to a declining of jurisdiction as to the whole inquiry before him. This was because, unlike the case where evidence is wrongly rejected on the view that it would not prove the matter into which the magistrate was bound to inquire, there the evidence was rejected (when it was integral to the inquiry) whether or not it would prove the matter in issue. The distinction is between rejection of evidence going to the entire inquiry because of its character and rejecting evidence because of its quality as proof. In the present case, the rejection of the evidence was not because its character was such that no evidence of that kind could be adduced but because it lacked quality as admissible evidence on the issues before the Extradition Judge. Even if he was wrong in rejecting it, his ruling could not be reviewed by way of mandamus, no question of jurisdiction being involved.

17In Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), 1985 CanLII 50 (SCC), [1985] S.C.J. No. 49, the court held, at para 14, that, as a matter of judicial review, “the general rule regarding interference with the discretionary decisions made by administrative bodies acting under statutory authority has been one of deference”; as long as the thing to be done was within the discretion of the administrative body, no Court should interfere with the manner in which it was done. However, the Court, relying on City of Vancouver v. Simpson, 1976 CanLII 148 (SCC), [1977] 1 S.C.R. 71, confirmed that jurisdictional error will arise where it is shown that the decision is made in bad faith, or with the intention of discriminating, or on a “specious or totally inadequate factual basis”. In Oakwood, the court specifically considered whether the Council was entitled to consider the potential flooding problem and make it a ground of its decision to refuse approval of the subdivision. The Court stated:

15There are no allegations of bad faith or discrimination in this case. The question before the Court, in essence, is whether the Council exercised its discretion "according to law" and in accordance with proper principles reflected in the "policy and objects of the [governing] Act": per Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997 at pp. 1030, 1034. More specifically, was it entitled to consider the potential flooding problem and make it the ground of its decision to refuse approval of the subdivision? As Rand J. said in Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140, any discretionary administrative decision must "be based upon a weighing of considerations pertinent to the object of the administration". For the reasons already given I am of the view that the Council was entitled to take the flooding problem into consideration. The issue does not, however, end there. As Lord Denning pointed out in Baldwin & Francis Ltd. v. Patents Appeal Tribunal, [1959] A.C. 663, at p. 693, the failure of an administrative decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration. In R. v. Paddington Valuation Officer, Ex parte Peachey Property Corp. Ltd., [1966] 1 Q.B. 380 (C.A.), where a property owner applied for a quashing of what was alleged to have been an erroneous municipal tax assessment, Danckwerts L.J. noted at p. 414:

In order to succeed in their application for an order of mandamus and certiorari, the appellants have to show that the valuation officer of the borough council has gone wrong in law in such a way as to render the valuation list invalid, because he has taken into consideration matters which were not proper to be regarded, or has omitted to consider matters which were of direct importance in ascertaining the values to be put upon the hereditaments.

The respondent municipality, therefore, must be seen not only to have restricted its gaze to factors within its statutory mandate but must also be seen to have turned its mind to all the factors relevant to the proper fulfilment of its statutory decision-making function.

18What is or is not a relevant consideration will depend on the case presented. In Oakwood, the court found that flooding was a “crucial factor”, and therefore, Council was required to evaluate it. In that way, Council “failed to take proper account of factors relevant to its statutory mandate….and failed to exercise its discretion in accordance with proper principles.” (para 17) The Court held that it was not at liberty to “address the merits of the appellant’s application…or…substitute its own decision” but rather “in its review capacity, it is the Court's function merely to ensure that the decision is properly made within the statutory framework and on the basis of considerations relevant to the decision-making function with which the administrative body is charged.” (para 18). The matter was remitted back to Council with direction to consider the flooding problem. See also: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, para 172.

19In R v Vasarhelyi, 2011 ONCA 397, there was an appeal from the dismissal of an application for an order in lieu of mandamus requiring a justice of the peace to issue process on an information Mr. Vasarhelyi laid against his former wife. Watt J.A., for the Court, stated:

50The appellant seeks “mandamus/certiorari compelling the issuance of process”. Both mandamus and certiorari are extraordinary remedies that issue out of a superior court for jurisdictional default or excess. Each is discretionary. Neither issues as of right.

51An order in lieu of mandamus may be granted to compel a court of limited jurisdiction to exercise a jurisdiction or discharge a duty, but not to compel the court, tribunal or official to exercise the jurisdiction or discharge the duty in a particular way.

52Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made ... On subjects within its jurisdiction, if a court of limited jurisdiction misconstrues a statute or otherwise misdecides the law, the remedy to correct the legal error is an appeal from the final disposition, not an application for an order in lieu of the extraordinary remedies of mandamus or certiorari…

53As a general rule, errors in the admission or exclusion of evidence are not jurisdictional errors ... Further, errors in the application of the rules of evidence are not jurisdictional errors ... The same may be said about errors in interpreting statutory provisions that are not jurisdictional in nature.

20Obviously, mandamus can be sought in a variety of contexts. However, generally speaking, the courts have restricted the circumstances in which mandamus will issue.

Quash Indictment

21In Kipp v. Attorney-General for the Province of Ontario, 1964 CanLII 20 (SCC), [1965] S.C.R. 57, the accused, after the indictment was read at the trial, but before a plea had been entered, made a motion to quash on the ground that the indictment applied to more than one case. The judge allowed the motion. On a motion by the Crown, Grant J. of the High Court of Ontario reversed the decision of the county court judge and, by mandamus, ordered him to proceed. The Court of Appeal for Ontario and the Supreme Court of Canada affirmed the judgment of the High Court. Judson J., speaking for the majority, commenting on the cases cited by the accused, in particular R. v. Justices of Middlesex (1877), 2 Q.B.D. 516, wrote at pp. 60-61:

…The cases merely hold that such decisions are not reviewable by way of mandamus. They do not touch the problem in the present case where an indictment is quashed before plea and no trial is held. All that the Crown is seeking is an order directing the County Court Judge to proceed with the trial. If he proceeds with the trial and gives a decision, that decision is open to appeal and is not reviewable on mandamus. But he can be compelled to give a decision on the merits and it is no answer to such an application to say that he has exercised his jurisdiction in quashing the indictment and that such a decision cannot be reviewed.

The use of the word “jurisdiction” in this context does not help one towards a solution. There is no dispute that the judge had the power to deal with the form of the indictment and that he was acting within his jurisdiction when he quashed the indictment. But he made an error in quashing this indictment. He was there to try the charge. As the matter stands now, unless the order of mandamus issues, the case as framed cannot be tried and it should be so tried. It is proper, in the circumstances, to issue the writ of mandamus…

22In Bolduc v. Attorney General of Quebec et al., 1982 CanLII 224 (SCC), [1982] 1 SCR 573, the appellant was charged with conspiring to cause persons to enter the United States unlawfully. At the preliminary inquiry, he moved to quash the indictment on the grounds that the information did not allege an offence known to Canadian law. The motion was allowed, but the Superior Court reversed the decision and ordered that a writ of mandamus be issued directing the judge to go forward with the preliminary inquiry. The appeal to the Court of Appeal was dismissed, as was the appeal to the Supreme Court of Canada. The court relied on Kipp and stated at p. 587-9:

The only distinction suggested by appellant between Kipp and the case at bar is that in the first case the proceeding was at the trial stage, whereas here it was only at the stage of a preliminary inquiry.

I do not see how this changes the position. Under s. 463 Cr.C. the justice before whom an accused is charged must inquire into the charge. When, as in the case at bar, he quashes the information by making a fundamental error of law, this amounts to refusing to exercise his jurisdiction and will be a basis for mandamus.

23In both of these cases, the judge had jurisdiction to hear the motion, but ended the cases as a result of an error of law - that was declining of jurisdiction, in the nature of jurisdictional default or excess. In such cases, there was an error in respect of jurisdiction such that mandamus was available. Alternatively, see R. v. Whitmore, 1989 CanLII 7229 (ON CA), in which the Court of Appeal upheld Ewaschuk J.’s refusal to quash with the Court stating, “Short of some clear departure from or excess of jurisdiction, we can see no ground for prerogative relief so early in the proceedings”. The Court noted no basis upon which to say that the informant could be found to lack reasonable and probable grounds.

Authority to Prosecute.

24In R. v. Wetmore, 1983 CanLII 29 (SCC), [1983] 2 S.C.R 284, the question was whether the Attorney General of Canada had the authority to prosecute cases under the Food and Drugs Act. The case had been terminated because the judge at first instance said there was no such authority. Ultimately, the Supreme Court held this was legal error as they did have the authority. They upheld the order of mandamus, compelling the case to proceed, as it amounted to an error in respect of jurisdiction that led to the termination of the case.

Jurisdiction of Provincial Court Judge

25In R. v. W.(D.A.), 1990 CanLII 21 (SCC), [1991] 1 S.C.R 291, the court was considering whether a provincially appointed judge could preside over a youth court matter or whether the jurisdiction was reserved for the Superior Court. The provincial court judge sitting as a youth court declined jurisdiction to hear the matter. The Nova Scotia Supreme Court found that that provincial court judge had jurisdiction and issued the mandamus sought by the Crown. The Court of Appeal upheld the decision, as did the Supreme Court of Canada. The Supreme Court found that this issue had been clarified by a reference case and that the provincial court had jurisdiction.

Directing Judge to Complete Trial

26In R. v. Morton, 1992 CanLII 12800 (Ont. Ct. Gen. Div.), the Crown sought an order of mandamus with certiorari in aid directing the provincial court judge to complete the trial of an accused charged with impaired and over 80. After all of the evidence was taken, the judge acceded to the argument of the accused that the court was without jurisdiction to complete the trial on the merits as the information was not laid as soon as practicable and there was no hearing before a justice of the peace before the issuance of process. The Crown argued that the trial judge erred in law in declining jurisdiction with respect to both grounds. Justice Then discusses the principles of mandamus and says at p. 251:

Thus, it is clear the failure to comply with s. 505 of the Code will obviate any charge of failure to appear under s. 145(5) of the Code nor will the court be empowered to issue a warrant under s. 512(2). However, the validity of the information will remain unaffected and there will be no loss of jurisdiction over the offence nor will there be a loss of jurisdiction over the person if the accused appears for his trial…

…In the case at bar, the respondent attorned to the jurisdiction of the court and accordingly, in declining jurisdiction based on the breach of the time-limit in s. 505, the trial judge erred in law.

p. 258:

… he nevertheless erred in law first by holding that the onus was on the Crown to show that the requisite hearing was held by the justice of the peace rather than on the accused to show on a balance of probabilities that the requisite hearing was not held. Secondly, the Provincial Court judge erred in law in concluding that the evidence adduced by the respondent to rebut the presumption was capable of doing so on a balance of probabilities.

p. 259

…Even if it is accepted that it is incumbent upon the justice of the peace to ask questions as to the factual background of the offence within the test for an adequate hearing under s. 508(1) as enunciated by Ewaschuk J. in Whitmore, supra, the evidence of Sergeant Neeson is at its highest ambiguous. I fail to see how this ambiguous evidence can support the conclusion that the requisite hearing was not held on a balance of probabilities. Such a conclusion is, with respect, both illogical and unwarranted. Accordingly, I must conclude that the trial judge erred in law in concluding that the requisite hearing under s. 508(1) was not held and in declining jurisdiction to complete the trial of this matter on that basis.

27Justice Then concluded that the trial judge erred in law in declining jurisdiction on each of the grounds advanced by him, and accordingly, an order in lieu of a writ of mandamus with certiorari in aid was directed to the Provincial Court judge to complete the trial of the respondent on the merits. Then J. was upheld on appeal: 1993 CanLII 8575 (ON CA).

Review of Decision to Dispose of Professional Standards Complaint

28In McLeod v. Calgary (City) Police Service, 2018 ABQB 386, the Applicant sought judicial review of the decision of the Chief of Police in disposing of a Professional Standards complaint, involving an alleged assault, filed by the Applicant against police officers. The Chief concluded that the officers’ actions did not amount to assault and that their contravention of duty was not serious. The Professional Standards complaint was disposed of without conducting a hearing. The Court found that the Chief’s decision was reasonable, and Mr. McLeod was not entitled to the order sought. In considering whether Mr. McLeod was entitled to an order compelling the Chief to remit the complaint to a different police service, the Court stated:

54Mandamus is a common law remedy that compels a tribunal to exercise jurisdiction that it has declined to exercise or wrongly exercised. It is granted only if an applicant establishes certain requirements. Mr. McLeod relies on the oft-cited decision Karavos v Toronto & Gillies, 1947 CanLII 326 (ON CA), [1948] 3 DLR 294 (Ont CA) at p 297, to assert that there are four prerequisites for mandamus:

a. "a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced''.

b. The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform.

c. The duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers".

d. There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy.

55The Karavos case acknowledges that mandamus is an extraordinary remedy, since it creates a legal avenue of recourse when there has been inaction or omission by a person charged with the performance of a duty of a public nature: at p 297.

56More recently, the Federal Court of Appeal restated the requirement for mandamus in Apotex v Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 (Fed CA), affirmed by the Supreme Court of Canada at 1994 CanLII 47 (SCC), [1994] 3 SCR 1100. Robertson JA wrote at para 55:

(1) There must be a public legal duty to act.

(2) The duty must be owed to the applicant.

(3) There is a clear right to performance of that duty, in particular:

(a) the applicant has satisfied all conditions precedent giving rise to the duty;

(b) There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.

(4) Where the duty sought to be enforced is discretionary, the following rules apply:

(a) 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";

(b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered";

(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations;

(d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and

(e) 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.

(5) No other adequate remedy is available to the applicant.

(6) The order sought will be of some practical value or effect.

(7) The Court in the exercise of its discretion finds no equitable bar to the relief sought.

(8) On a "balance of convenience" an order in the nature of mandamus should (or should not) issue. [Citations omitted]

29The Court found that the Chief was not obligated to request another service to investigate, rather he had the discretion whether to do this or not. Further, the court found that Mr. McLeod had an alternative remedy, in that he could bring a private prosecution against the officer.

Crown’s Authority to Stay or Withdraw prior to pre-enquete

30In R. v. Dowson, 1983 CanLII 59 (SCC), [1983] 2 S.C.R. 144, Mr. Dowson had laid an information before a Justice of the Peace alleging the commission of several offences. Prior to the commencement of the pre-enquete hearing before the Justice of the Peace, the Attorney General stayed the proceedings. An application for mandamus to direct the Justice of the Peace to proceed was denied. The Court of Appeal upheld that decision. The Supreme Court then considered the matter; specifically whether the Attorney General was empowered to direct a stay of proceedings after an information had been received but before the Justice of the Peace had completed an inquiry. The Supreme Court concluded that the Attorney General did not have such power and the Justice of the Peace was directed to proceed with a hearing.

31Similar to Dowson, in R. v. McHale, 2010 ONCA 361, the court was dealing with the same circumstances – the Crown withdrew the charges before any inquiry into the issuance of process began. Similar to Dowson, Watt J. found this to be inappropriate and ordered the matter to return to the Justice of the Peace to conduct the pre-enquete.

32The Applicants rely on these cases to suggest that mandamus is the appropriate route when a Justice of the Peace has refused to have a pre-enquete hearing to determine whether criminal process ought to issue in respect of a privately laid charge. This is not at all what Dowson and McHale stand for. Both of these cases deal with the timing of the Attorney General’s intervention to stay or withdraw charges. Neither of these cases deal with a Justice of the Peace refusing to have a hearing and neither of these cases purport to dictate what decision the Justice of the Peace should reach. These cases are about the process, not the result.

Seeking to Compel Police to Investigate

33In Holmes v. White, 2014 ONSC 5809, Mr. Holmes sought to compel three police forces to undertake criminal investigations through the use of mandamus. The court stated:

14Mandamus is a particular form of judicial relief. While courts regularly quash decisions made by government officials that are found to violate their statutory or regulatory powers, requiring a government official to do a specified positive act is a more nuanced venture. A court requiring a government official to act can raise questions of judicial authority, legitimacy, and the balance of powers as between the executive and the judiciary. Accordingly, tests have been developed to ensure that the court exercises its undoubted power of compulsion only in appropriate cases. Ramsay J. set out the correct test as accepted by the Supreme Court of Canada in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742 (Fed. C.A.) at para. 45, aff’d 1994 CanLII 47 (SCC), [1994] SCJ No. 113.

15Among the many elements of the multi-pronged Apotex test for mandamus are requirements that: (a) the respondents must have a legal duty to act; (b) the duty must be owed to the applicant; and (c) mandamus will not be available to compel the exercise of an unfettered discretion or to compel the exercise of a fettered discretion in a particular way. The applicant’s proceeding runs afoul of each of these elements of the test. Ramsay J. made no error of law or palpable and overriding error of fact in concluding that it is plain and obvious that the applicant cannot succeed. This is not a novel case or a close call. It is a case in which binding authority and all of the relevant persuasive authorities on point stand directly opposed to the applicant’s request.

16It has been held many times that the police do not owe either a public law or a private law duty to any individual to investigate crime. (See, for example, Burgiss v. Canada, 2013 ONCA 16 and Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 40). In Clemens v. Canada, [1995] O.J. No. 1094 (Ont. Ct. Gen. Div.) O’Driscoll J. cited the decision of the Court of Appeal of England and Wales in Commissioner of Police of the Metropolis, Ex. p. Blackburn, [1968] 2 W.L.R. 893 in which Lord Denning M.R. wrote:

It must be for the [chief constable] to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter…

17The applicant relies heavily on Blackburn and cases which have followed it in England to try to argue that mandamus can lie to compel police to investigate particular crimes. Yet, Lord Edmund-Davies in Blackburn (at page 912, post F) and Lord Denning himself in R. v. Chief Constable of Devon and Cornwall, Ex p. Central Electricity Generating Board, [1982] 1 Q.B. 458 (CA) (at page 472) both said expressly the opposite. In both of those cases, the court required police to ignore a policy that purported to prevent them from even considering whether to investigate certain crimes regardless of how the police thought they should act. Once the policies, which the courts found to be unlawful, were swept aside, the courts then required the police to make the discretionary decision of whether or not to investigate the allegations.

18The English cases concluded that while the court can require the police to exercise their discretion to decide whether to investigate, the court should not dictate to the police the outcome of that discretionary decision. Yet in this case, the applicant seeks to have this Court do precisely that. All three police departments represented by the respondents have already exercised their discretion and decided not to investigate the allegations being made by the applicant. The applicant asks the Court to compel the police to investigate his allegations against the CN Police Service. This is the very thing that the English courts, on which the applicant relies, have said that they cannot and must not do.

19The same result is reached under the third prong of the test in Apotex as recited above. The Court cannot issue mandamus to require a particular result. If the discretion of the police is unfettered, then it is not amenable to mandamus at all. But even if the police have only a fettered or limited discretion, the Court may be entitled to require a recalcitrant office holder to make a decision, but the Court cannot dictate the outcome of the discretionary decision. The applicant asks the Court to do that which the Supreme Court of Canada has said it cannot do.

20The applicant falls back on statements made by the Supreme Court of Canada and the Federal Court of Appeal to the effect that in certain flagrant and extraordinary cases, the courts can review abusive exercises of prosecutorial discretion. (See: R. v. Beaudry, 2007 SCC 5, Ochapowace Indian Band v. Canada (Attorney General), 2009 FCA 124 and Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC), 1999 SCJ No. 39). He submits that, taken together, these cases provide that every alleged victim of a crime has a right to have the court compel the police to either investigate his or her allegations or to require the police to establish in court that they have objectively and subjectively reasonable grounds to decline to investigate. Just stating the proposition is to reject it. None of the cases relied upon by the applicant deal with Apotex or suggest that a court can order mandamus to compel a police force to investigate a particular criminal offence at the behest of an alleged victim of crime.

Conclusion on Availability of Mandamus

34The Applicants refer to some cases which discuss the concept of acting judicially. See: R. v. Allen (1974), 1974 CanLII 1451 (ON CA), 20 C.C.C. (2d) 447 (Ont. C.A.), where the court indicated that the judge must apply the law to the facts, and if the judge comes to a conclusion where there is no evidentiary foundation in the record, that is jurisdictional error and would not be acting judicially. See also: United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33, [2006] S.C.J. No. 33, where the court discusses the concept of a meaningful judicial process.

35It is the view of this court that acting judicially is context specific and will depend on the circumstances in which it is being applied. The SIU Director is not a judicial official, therefore, it is not clear why the concept of acting judicially would even apply. Having said that, this court is willing to accept that the process undertaken by the Director must be meaningful and carried out in good faith.

36Having considered the entirety of the circumstances, including case law and arguments presented, this court is satisfied that mandamus could be available to the Applicants if either of two circumstances exist:

a. The Director relied on an improper and extraneous consideration in reaching his conclusion – the question being whether self defence was an improper and extraneous consideration; or

b. The Director’s decision was motivated by anti-black racism.

Therefore, this court must determine:

c. whether self defence was an improper and extraneous consideration in the circumstances; and

d. whether there is evidence of anti-black racism.

Murder / self defence

37The Applicants argue that the Director, having concluded that the SO shot and killed Mr. Erhirhie, had established that there were reasonable grounds to believe that the SO committed an offence under the Criminal Code, specifically murder, and that the only reason for not having reasonable grounds to believe was the consideration of self defence. The Applicants argue that self defence is a separate and distinct consideration that only comes into play after all of the other essential elements have been met. This is simply not the case.

38Murder has several elements that must be proven, which include the following as set out in Watt's Manual of Criminal Jury Instructions (2024):

a. That (NOA) caused (NOC)’s death;

b. That (NOA) caused (NOC)’s death unlawfully; and

c. That (NOA) had the state of mind required for murder.

39When explaining to the jury the second element, whether the death was caused unlawfully, Watt J. recommends at footnote 542:

Where a defence negates the unlawful character of D’s act, such as accident, self-defence, or defence of property the appropriate Final should be inserted here.

40The Applicant argued that self defence only becomes a consideration once all of the essential elements are met and that juries are instructed accordingly. This is simply not the case. Self defence relates to the unlawfulness element and, considering the air of reality has been met, juries are instructed to consider self defence at this point. It is not a separate and distinct consideration from the elements of the offence as the Applicants suggest.

Reasonable Grounds to Believe / Reasonable and Probable Grounds

41A large point of disagreement on this application involves whether the Director was permitted to consider self defence when determining if he had reasonable grounds to believe an offence had been committed under s. 32 of the SIU Act. The parties are completely at odds on this issue. The Applicants argue that the Director was most certainly not permitted to consider self defence and that, as the case law they rely on establishes, such amounted to a legal error permitting the proper use of mandamus in these circumstances. The Respondent argues that the Director is allowed to consider defences and should consider defences in some circumstances, arguing that none of the cases relied upon by the Applicants state that defences cannot be considered in the context of reasonable grounds, rather each of the cases arise from completely different contexts and different statutory language. According to the Respondent, cases relating to reasonable grounds establish that defences are a proper consideration.

42In Hunter and Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, the court explained that reasonable and probable grounds, is “the point where credibly based probability replaces suspicion”. (para 114-115)

43In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, this standard was compared to “reasonable probability” rather than “proof beyond a reasonable doubt” or a “prima facie case” or “reasonable belief”.

44The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds for arrest and those grounds must be justifiable from an objective point of view. As Justice Cory stated in the Court's decision of R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, para 17

17In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

19It should be noted, as well, that there is nothing to indicate that there was anything in the circumstances of the arrest which would make it suspect on any other ground. That is to say, there is no indication that the arrest was made because a police officer was biased towards a person of a different race, nationality or colour, or that there was a personal enmity between a police officer directed towards the person arrested. These factors, if established, might have the effect of rendering invalid an otherwise lawful arrest. However, the arrest of the appellant was in every respect lawful and proper.

45In R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (C.A.), the accused had been arrested for several offences in relation to possession of a firearm after there were unconfirmed reports from an unproven source that he had a gun and was distraught. The police seized the rifle from the accused's home in the course of a warrantless search conducted immediately after his arrest just outside of his home. At trial, the accused successfully moved to exclude the rifle from evidence arguing that it was seized in violation of his s. 8 rights and that s. 24(2) of the Charter mandated its exclusion. He was acquitted on the charges involving possession of that rifle. He then pleaded guilty to the remaining charge (threatening to cause death or bodily harm). The Crown appealed the acquittals. On appeal, Doherty J.A. for the Court stated:

21In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 CanLII 17 (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 CanLII 647 (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 1993 CanLII 3677 (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).

46In R. v. Beaver, 2022 SCC 54, the court summarized the principles as follows in the context of what is required for a warrantless arrest:

72The essential legal principles governing a warrantless arrest are settled:

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).

2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).

3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).

4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).

5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).

6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).

7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).

8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).

73The existence of reasonable and probable grounds for a warrantless arrest is based on the trial judge’s factual findings reviewable only for palpable and overriding error. Whether the facts as found by the trial judge amount to reasonable and probable grounds is a question of law reviewable for correctness (Shepherd, at para. 20; Tim, at para. 25).

47In the civil context, the courts have made it clear that the police must consider all available information in order to avoid being found negligent.

48In Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] S.C.J. No. 56, relied upon by Doherty J.A. in Golub, Mr. Chartier was wrongly identified. He was arrested, detained for many hours, and charged with manslaughter. The charge was withdrawn a few days later when someone else confessed. He sought damages for false arrest and for wrongfully being charged. The Court considered the actions of police “scandalous” in considering the similarities but not considering all of the weaknesses in the identification. The Court stated:

79Under s. 435 of the Criminal Code in force in 1965, a peace officer could arrest a person without a warrant if he had reasonable and probable grounds for believing that he had committed an indictable offence. Did the officers have such grounds when they placed Chartier under arrest as a suspect? I do not think so. They seem to have felt that they could pay attention only to what might serve to incriminate appellant and disregard, as being grounds of defence for him to raise at his trial, anything that might exonerate him. This approach was accepted by the trial judge, but in my opinion it is erroneous.

80For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable. Since the suspect was denying that he had been involved in the incident, and there was no reason to fear that he would run off, all the descriptions provided by the eyewitnesses should have been checked before he was incarcerated. If this had been done the only conclusion that could have been reached is the one René Forget arrived at during the line-up: this suspect could not be the true culprit...

49The Applicants state that Chartier is an identification case which is different than consideration of defences, where the offence is made out, but there is a justification or excuse. The Applicants agree that the police / investigators should consider the former but not the latter. The Applicants argue that if the legislature had meant for defences to be considered before a charge was laid it would have to use express language saying so, not terms that exclude it.

50This court does not agree. First, as set out above, self defence is not such a separate and distinct consideration from the elements of the offence as the Applicants suggest. Second, the Courts have made it perfectly clear that reasonable grounds to believe or reasonable and probable grounds requires that the police consider all reliable information to which they have access – a broadly inclusive concept. There is no suggestion in any of the case law that a consideration of all reliable information must exclude that which relates to self defence or any other defence for that matter. This would seemingly be directly inconsistent with the broadly inclusive concept.

51In Charlton v. St. Thomas Police Services Board, [2009] O.J. No. 2132 (Sup. Ct.), the Defendant police board moved for summary judgment dismissing the Plaintiff's claim against them for negligence, false arrest, and breach of his Charter rights. The court stated:

38In establishing reasonable and probable grounds, investigating officers must take into account all information available to them and are only allowed to disregard information which they have good reason to believe is unreliable. Further, reasonable and probable grounds can still exist, even where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The requirement is that the information be reliable at the time the decision was made to arrest the accused: R. v. Golub, 1997 CanLII 6316 (ON CA), [1997] O.J. No. 3097 (C.A.).

39An arresting officer does not have to establish a prima facie case for conviction before having reasonable and probable grounds. See, for example, R. v. Storrey, supra; and Collis v. Toronto Police Services Board, [2007] O.J. No. 3301 (Div. Ct.)

40An arresting officer does not need to establish that the accused has no valid defence to the charge before making an arrest. Moreover, an arresting officer is not required to obtain the accused's version of events before being able to form reasonable and probable grounds. Similarly, an arresting officer is not required to assess the validity of competing versions of events before being able to form reasonable and probable grounds: Wyles v. Ontario (Police Complaints Commissioner), [1997] O.J. No. 6274 (Div. Ct.).

41An arresting officer does not have to complete an investigation before being able to lawfully arrest a suspect, nor does the intention to conduct further investigation after an arrest undermine the formation of reasonable and probable grounds: R. v. Storrey, supra. Police officers are not required to evaluate information that they receive according to legal standards, nor are they required to make legal judgments. Police are required to weigh evidence to some extent in the course of an investigation. But they are not required to evaluate evidence according to legal standards to make legal judgments. That is the task of prosecutors, defence attorneys and judges: Hill v. Hamilton-Wentworth Regional Police Services Board, supra. Furthermore, the withdrawal of charges at a later time, or the absence of a criminal conviction, does not lead to an automatic conclusion reasonable and probable grounds did not exist for an accused's arrest: Collis v. Toronto Police Services Board, supra.

42Finally, arresting officers have significant discretion in how they conduct investigations, and for good reason. Officers are not to be judged with the acuity of hindsight, nor are they held to a standard of perfection. Investigations are frequently carried out in dynamic and changing circumstances. The fact that a different investigation, or a more detailed investigation, may have led to a different or a more optimal result is not determinative of whether reasonable and probable grounds existed. In MacPhee v. Ottawa Police Services Board, [2003] O.J. No. 3786 (S.C.J.) the court made the following observation:

It is also important to remember that the arresting police officers were not seized with the responsibility of deciding guilty or innocence, but rather whether the information received by them required action by them and what action ... A further and more detailed investigation may have elicited more information and may have caused the police officers to act differently. However, the conduct of the defendants cannot be examined in minute detail on an after-the-fact basis. As aforesaid, the question is whether their conduct was reasonable in the circumstances.

43On the same point, the court in Hill v. Hamilton-Wentworth Regional Police Services Board, supra, commented as follows:

Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight.

52Charlton and Beaver confirm that the police are not required to undertake further investigation to seek exculpatory facts to establish that the accused has no valid defence to the charge, or to rule out possible innocent explanations for the events before making an arrest. However, these cases do not say that available information can be ignored. The law has been clear for many years that, when assessing reasonable and probable grounds, police officers cannot pay attention only to the information they have that may incriminate, while ignoring anything that could exonerate. All reliable information to which the police have access must be taken into account in assessing reasonable and probable grounds. This must include available information that could relate to a potential obvious defence.

53In Licop v. Marin, [2001] O.J. No. 4097 (Sup. Ct.), the Defendants brought a motion for summary judgment seeking dismissal of a police constable’s action for malicious prosecution. By way of background, a police constable shot a person said to be threatening with a stick. The Director of the SIU investigated and the constable was charged with assault causing bodily harm, as the Director did not believe the defence of self-defence was available to the officer, either under s. 25 or 34 of the Criminal Code. The charges were withdrawn by the Crown for no reasonable prospect of conviction. The constable commenced an action against the Director for malicious prosecution. The Defendants sought to dismiss the action. The motion was dismissed as the Court found that there were necessary assessments of credibility that needed to be determined by the trier of fact at trial. However, as to the assessment of reasonable and probable grounds, the Court stated:

16In order to determine whether there were reasonable and probable grounds for the laying of the charges, one must look at the information available to Mr. Marin at the time when he decided to charge Constable Licop. Clearly, in deciding whether reasonable grounds exist to lay an information charging an accused, all the circumstances of the offense should be taken into account, including obvious defences. This was conceded by counsel for the moving parties in argument, although a reading of their factum may be taken as saying that there is no obligation to consider any defences. In any event, Mr. Marin's affidavit indicates that he did consider whether self-defence was available in the circumstances.

24Mr. Marin concluded that Constable Licop could have avoided the situation, and thus his use of force was not reasonable. In particular, he made mention in his affidavit that the officer need not have left his car when he arrived at the scene. If this was his belief, then a trier of fact may find that he misdirected himself when considering whether self-defence was available. Whether or not it was wise to leave the car, the officer had done so, in responding to the call. The question which had to be determined, in deciding whether to lay charges, was whether he was in a position of imminent danger of death or grievous bodily harm at the moment he shot, not whether he had unwisely placed himself in a position of danger.

54Therefore, the courts have suggested that if investigators do not consider obvious possible defences or exculpatory evidence, they may find themselves in a circumstance of negligence. In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, the Court held that police officers owe a duty of care in negligence to suspects under investigation. Licop suggests that this requires a consideration of obvious defences. This court agrees.

55The Applicants rely heavily on R. v. Church of Scientology of Toronto, 1987 CanLII 122 (ON CA), [1987] O.J. No. 64 (C.A.) to support their argument that, in this case, self defence was an improper consideration in the context of reasonable and probable grounds. This court has considered this case very carefully, including, but not limited to, paras 31, 32, 34, 35, 36, 41, 42, 43, 44, 56, 60. In Scientology, the Court was considering an appeal from an order dismissing an application to quash certain search warrants. The Court discussed the fact that it would be inappropriate to consider defences in relation to the various offences of tax fraud, defrauding the public, and conspiracy. According to the Applicants, the Court made it clear that defences were not relevant to a consideration of whether there were reasonable grounds to believe that an offence had been committed, rather, this was a matter for trial.

56In this court’s view, this case does not dictate what is or is not to be considered in relation to reasonable grounds to believe or reasonable and probable grounds in the context of the police laying a charge. The case concerns whether a search warrant can be quashed for lack of justiciability, in that the offences put forward were not suitable for a court to hear and decide on the merits. It must be remembered that no charges need to be laid for a search warrant to be issued or executed. The Court held that it was not appropriate to rule that the proposed counts were non-justiciable in order to quash an investigative tool. The Court held that the fact that there might be defences to the proposed counts was irrelevant at this stage. This does not assist in determining what the SIU Director can and cannot consider.

57The Applicants also rely on CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 S.C.R. 743, as reinforcing the principles from Scientology. Again, this was a very different issue from the case at bar. In Canadian Oxy, the question was whether search warrants issued under s. 487(1)(b) of the Criminal Code authorize investigators to search for and seize evidence of negligence in the investigation of strict liability offences – a question that was answered in the affirmative. The Court went on to state:

22The purpose of s. 487(1) is to allow the investigators to unearth and preserve as much relevant evidence as possible. To ensure that the authorities are able to perform their appointed functions properly they should be able to locate, examine and preserve all the evidence relevant to events which may have given rise to criminal liability. It is not the role of the police to investigate and decide whether the essential elements of an offence are made out – that decision is the role of the courts. The function of the police, and other peace officers, is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulterated facts to the prosecutorial authorities. To that end an unnecessary and restrictive interpretation of s. 487(1) defeats its purpose. See Re Church of Scientology and the Queen (No. 6) (1987), 31 C.C.C. (3d) 449, p. 475:

Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process. . . . There may be serious questions of law as to whether what is asserted amounts to a criminal offence. . . . However, these issues can hardly be determined before the Crown has marshalled its evidence and is in a position to proceed with the prosecution.

23Moreover, extrinsic factors such as the accused’s motive or the failure to exercise due diligence are often relevant to determining whether the event which triggered the investigation in the first place is criminally culpable. Everyone, including accused persons, who lacks the means of obtaining and preserving evidence prior to trial has an interest in seeing that these facts are brought to light. It would be undesirable if a narrow reading of s. 487(1) resulted in either inculpatory or exculpatory evidence being lost because of the investigators’ inability to secure it. See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, per Cory J., at p. 254:

The essential role of the police is to investigate crimes. That role and function can and should continue after they have made a lawful arrest. The continued investigation will benefit society as a whole and not infrequently the arrested person. It is in the interest of the innocent arrested person that the investigation continue so that he or she may be cleared of the charges as quickly as possible.

24It is important that an investigation unearth as much evidence as possible. It is antithetical to our system of justice to proceed on the basis that the police, and other authorities, should only search for evidence which incriminates their chosen suspect. Such prosecutorial “tunnel vision” would not be appropriate: see The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 1 (1998), per the Honourable F. Kaufman at pp. 479-82.

58These paragraphs from CanadianOxy would seem to suggest the opposite of that which the Applicants argue. These paragraphs suggest that investigators should look for exculpatory evidence or evidence of defences. The more information available and considered, the better. This case certainly does not state or suggest that investigators are required to ignore self defence or any defence when assessing reasonable grounds to believe an offence has been committed.

59The Applicants also refer to Lahaie v. Canada (Attorney General), 2010 ONCA 516 (para 25) and R. v. Vice Media Canada Inc., 2018 SCC 53 (para 47) to support their argument that it is not the function of the police or the screening justice of the peace to finally determine the question of whether the essential elements of the offence are made out when issuing a search warrant. Rather that is the task of the trial judge. While this is of course true, again, it does not mean that investigators are required to ignore evidence of self defence or any defence when assessing reasonable grounds.

60The Applicants also heavily rely on the preliminary inquiry cases to support their argument that defences should be ignored at the reasonable grounds stage. The Applicants point to a number of cases in the preliminary inquiry context that make the distinction between a consideration of the elements of the offence as opposed to affirmative defences, suggesting that a consideration of the latter is a jurisdictional error.

61In United States v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, the United States requested a warrant be issued under the Extradition Act for the apprehension of Mr. Shephard. The only evidence produced was the affidavit of an alleged co-conspirator. The extradition judge refused the extradition, finding that the evidence was “manifestly unreliable”. The Federal Court of Appeal dismissed a review of the decision. At the Supreme Court, the appeal was allowed. Ritchie J. for the majority stated:

27I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

44With the greatest respect I cannot accept the proposition that a trial judge is ever entitled to take a case from the jury and direct an acquittal on the ground that, in his opinion, the evidence is "manifestly unreliable". If this were the law it would deprive the members of the jury of their function to act as the sole judges of the truth or falsity of the evidence and would thus, in my opinion, be contrary to the accepted role of the jury in our legal system.

[46]… Such a finding overlooks the well-settled rule that the weighing of evidence is always a matter for the jury under proper instructions from the judge, and it forms no part of the function of a "justice" acting under s. 475 of the Criminal Code or that of an extradition judge in exercising his powers under The Extradition Act.

62In R. v. Hynes, 2001 SCC 82, the majority held that a preliminary inquiry justice is not a court of competent jurisdiction to exclude evidence, specifically having the power to exclude statements arguably obtained in violation of the Charter. The Applicants quoted from the dissent written by Major J. at para 52:

52Although a defence can be made, the presiding justice cannot weigh its merits. If, at the conclusion of the preliminary inquiry, there is admissible evidence which if believed would result in a conviction, the accused is committed for trial.

63In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the court considered whether a preliminary hearing judge may “weigh the evidence” in assessing whether it is sufficient to warrant committal for trial. The Court concluded that it may do so “in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw.” (para 1) The Court explained that the judge’s task varies depending on whether the evidence is direct or circumstantial. “[I]f the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.” (para 22) Where the evidence is circumstantial, the judge must engage in a limited weighing of the evidence to assess whether “it is reasonably capable of supporting the inferences that the Crown asks the jury to draw”; “…whether the evidence, if believed, could reasonably support an inference of guilt.” (para 23) The Court stated:

32... the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence. It remains true that in certain cases (such as, for example, where the Crown adduces direct evidence as to every element of the offence) the case will necessarily go to the jury regardless of the exculpatory evidence proffered by the defence.

64In R v. Nash, [2005] O.J. No. 3783 (C.A.), the court was considering the jurisdiction of the preliminary inquiry justice to discharge the accused based on a determination of a question of law relating to a Charter remedy and availability of a defence. Mr. Nash was charged with failing to comply with a condition of the order requiring him to attend for psychological counselling and the suggestion was that he had a reasonable excuse for his conduct – a defence which is built into the offence itself. The Court stated:

1As Dambrot J. correctly held, if the question of a "reasonable excuse" falls outside the essential elements of the offence - as Doherty J.A. held in R. v. Moser (1992), Z C.C.C. (3d) 1 65 is the case - there can be no obligation on the Crown to negate it at a preliminary hearing. Further, the preliminary enquiry judge acts outside his or her jurisdiction by weighing the defence: R. v. Hynes, /20011 2001 SCC 82, 3 S.C.R. 623, 159 C.C.C. (3d) 359 (S.C.C.). We agree with Dambrot J. that in this case the preliminary enquiry judge effectively weighed the defence, concluded it would inevitably prevail, and therefore, discharged the accused. This he had no jurisdiction to do.

65It is the view of this court that the preliminary inquiry cases are not helpful to a consideration of the issue this court needs to decide – whether the SIU investigator may properly consider self defence in fulfilling that which is required under s. 32 of the SIU Act. Reasonable grounds to believe by an investigator cannot be equated with sufficiency of the evidence in the preliminary inquiry context. Investigators determining reasonable grounds to believe are certainly not constrained by the statutory limits of a preliminary inquiry justice. Rather they are expected to consider the entirety of the circumstances and reach a reasonable conclusion based on all of the available information. The statutory language is different. The decision makers are different. The purpose of the statutory scheme is different. None of these cases deal with reasonable grounds to believe.

66In Ochapowace First Nation v. Canada (Attorney General), 2009 FCA 124, the court was dealing with an appeal from a decision dismissing an application for judicial review of the decision of the RCMP not to lay charges as a result of flooding that had occurred. It must be noted that this was not characterized as a request for mandamus, rather it was alleged to be a breach of treaty rights. However, the Court discussed police and prosecutorial discretion, the distinction between the two, and the importance of maintaining that distinction, citing R. v. Regan, 2002 SCC 12, at para 62 and 67. The court then stated:

26The rationale for that discretion was set out recently in the Supreme Court’s decision in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190 (Beaudry), where the following appears:

37Nevertheless, 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 CanLII 126 (SCC), [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.

27In 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.

28The 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.

29I 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.

30The 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.

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

67Contrary to the Applicants’ suggestion, this is a very similar and analogous context to the case at bar and the comments are apposite.

68This court agrees with the Applicant that the police are not meant to be judge and jury. However, the courts have repeatedly said that the police must not pay attention only to that information they have that may tend to incriminate, while ignoring anything that could exonerate. This is contrary to law and would be very dangerous indeed.

69The Applicants agree that there is no basis for mandamus to compel the Director to find reasonable and probable grounds – to compel a particular result. However, they argue that, in this case, reasonable grounds were found, which were only negated by the improper consideration of self defence, and that the duty for which there was a failure was the duty to charge. Section 32 of the SIU Act makes it clear that, if the Director finds reasonable grounds, the Director shall charge, which is the relevant duty. It is the view of this court that it is a mischaracterization of the Director’s reasons to suggest that he found reasonable grounds that were then negated by self defence. The Director never stated that he had reasonable grounds. When considering the totality of the circumstances, including considerations of self defence, which are relevant to the lawfulness of the act, the Director determined that he did not have reasonable grounds to believe that an offence had been committed. Contrary to the Applicants’ position, self defence is a proper and relevant consideration for the Director. This was in no way an extraneous matter, rather it was an obvious defence that arose on the uncontroverted facts.

70The Director committed no error in considering self defence.

Anti-black Racism

71A decision of the Director based on or motivated by race would be a jurisdictional error allowing for correction through mandamus. A decision based on anti-black racism cannot and will not be tolerated by this court and such would amount to an abuse or flagrant impropriety. On this point, the Respondent is in agreement. However, this court would go further.

72If there was evidence that the SO was motivated in his action by anti-black racism, and such was ignored by the Director, in the view of this court, this would also warrant intervention by this court. The Respondent seems to suggest that such a circumstance would be outside the restrictions of mandamus as such would not amount to jurisdictional default or excess. This cannot possibly be the case. Given that this court has found no evidence of racism in this case, either on the part of the SO or the Director, perhaps this does not need to be determined in this case. However, it is inconceivable that this Court would be powerless to intervene if the Director chose to ignore obvious anti-black racism on the part of an SO. In this court’s view, this would amount to a failure of a decision-maker to take into account a highly relevant consideration, which is just as erroneous as the improper importation of an extraneous consideration.

73It is also the view of this court that a party is not required to establish the s. 15 discrimination test in order to be successful on such an argument.

74In R. v. Sitladeen, 2021 ONCA 303, the primary issue for trial was whether the stop, the arrest, and/ or the search were tainted by racial profiling. The Court stated:

20The trial judge quoted paras. 7 and 44-45 from the leading Ontario Court of Appeal case on racial profiling, R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251 (C.A.), for the definition, and the test for making a finding of racial profiling:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.

. . . [W]here the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling.

21The defence sought to file and rely on a recent article, "Applying the Racial Profiling Correspondence Test" (2017), 64 Crim. L.Q. 359, by Professor David M. Tanovich, whom the trial judge acknowledged to be a respected academic and author who had been cited by the Supreme Court of Canada and all levels of court in Ontario. The Crown, however, objected to the court receiving the article, on the basis that it contained hearsay and opinion, and because it is an advocacy piece on the interpretation of the law of racial profiling that could usurp the role of the trial judge.

22In considering whether to receive the article, the trial judge referred to this court's decision in Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457, 43 C.R. (6th) 175 (C.A.), at para. 95, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 10, where Doherty J.A. explained that "studies, academic writings and expert evidence" have been used by the courts to recognize a variety of factual indicators that can support, but will not dictate, the drawing of an inference of racially motivated conduct by police. The trial judge concluded [at para. 27] that he would receive the article, but rely on it only for the limited purpose of "shed[ding] light on a number of factors and stereotypes at play in the social context in which this case and others have arisen", including police reaction to a young Black man driving an expensive car, or police overreaction to a minor transgression by a Black person.

52In Brown, this court stated, at para. 11, that to prove a s. 9 breach, the applicant must show that there was no articulable cause for the stop and it was based on colour. Justice Paciocco for this court in Dudhi explained, at paras. 62-63, that the statement does not mean that in such cases, the racial profiling component is irrelevant to the analysis. To the contrary, where an officer has objective grounds to detain an individual, those grounds cannot justify that decision if they are tainted by any degree of racial profiling:

In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.

Put simply, passages such as para. 11 of R. v. Brown, and para. 33 in Bombardier, are entirely consistent with the proposition accepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling. (Emphasis added)

53He concluded, at para. 64:

This outcome is sensible, even leaving aside questions about what reasonableness entails. If objective considerations could negate improper subjective reliance on race or racial stereotypes, the subjective component of these legal standards would be ignored. That should not be. As was recently explained in R. v. Lai, 2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess: see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 27. A body of law that permits officers to exercise their power when subjectively, their decisions are influenced by race or racial stereotypes, has little to commend it.

[54] To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.

75In the sentencing context, but around the same time as Sitladeen, the Court of Appeal released the decision of R. v. Morris, 2021 ONCA 680. The Court of Appeal made some very strong and clear comments about anti-black racism. In its opening paragraph, the court stated as follows:

1It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.

The Court found that, while evidence of anti-black racism does not diminish the seriousness of the offence, it can be taken into account in considering the offender’s degree of responsibility in the context of sentencing.

76The Applicants claim that race was a factor with respect to: (a) the SO, given the circumstances of the incident as a whole, including the shooting; and (b) the Director, as race was a factor in the failure to find reasonable grounds to believe and the assessment of self defence. As for the shooting itself, the Applicants point to several factors including, the fact that Mr. Erhirhie is a black male, the detention and chasing of Mr. Erhirhie for public urination, the eye witness evidence that the SO drew his gun when chasing Mr. Erhirhie, the suggestion that the SO was not in danger at the time he shot Mr. Erhirhie, and the fact that there were lesser violent options available to the SO.

77Even if this court were to accept that the actions of the SO were excessive, this court cannot conclude that the actions were racially motivated in any way.

78Initially the Applicants pointed out that Mr. Erhirhie is a black male and the SO is a white male. It should be noted that the Respondents have corrected the Applicants’ assertion that the SO was a white male. They state only that the SO is not white. This correction certainly does not neutralize the possibility of racism. While this is a fair correction, this does not assist with whether racism was active in these events.

79The actions of the officer do appear to be consistent with his training. The YRP’s Use of Force policy states that “officers may discharge their firearm to stop or prevent a motor vehicle from being used as a weapon ...” and force “must be applied at a level sufficient to control the subject”.

80Chartier v. Greaves, [2001] O.J. NO. 634 (Sup. Ct.) involved a civil claim against police officers for excessive force and negligence. In the course of an encounter with police, Jacques Chartier was shot in the shoulder and seriously wounded. Frank Chartier received a fatal wound. The Court noted s. 25 of the Criminal Code which provides that a police officer is justified in using necessary force, as long as the officer acts on reasonable grounds. The Court explained:

55The protection, therefore, is not an absolute one. Put another way, the police officer must act on reasonable grounds and must not use unnecessary force. Subsection (3) sets out circumstances where the protection will not be forthcoming - where a police officer uses force that is intended or is likely to cause death or grievous bodily harm, unless the officer believes, on reasonable grounds, that it is necessary for the self-preservation of himself, herself or the preservation of anyone under that officer's protection from death or grievous bodily harm. In other words, force that is intended or is likely to cause death or grievous bodily harm is protected only when there is a need of self-preservation or the preservation of a third party from death or grievous bodily harm.

56Subsection (4) sets out the instances regarding where and when the protection is afforded. Police officers are justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested if five conditions are met. The conditions are cumulative…

57This Section, therefore, authorizes the use of force to prevent the commission of certain offenses. "Every one" would include a police officer. The force must not be more than that which is reasonably necessary. Therefore, an objective test is called for. The Ontario Court of Appeal, in R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481 held that the use of deadly force can be justified only in either cases of self-defence or in preventing the commission of a crime likely to cause immediate and serious injury.

81The Court also referred to the Police Services Act and the common law. In assessing the actions of police, the court stated:

64The following additional principles can be gleaned from the legal precedents cited to and reviewed by me:

(i)"Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain a prisoner". The same applies to the use of force in making an arrest or preventing an escape. Like the driver of a vehicle facing a sudden emergency, the policeman "cannot be held to a standard of conduct which one sitting in the calmness of a court room later might determine was the best course." (Foster v. Pawsey) Put another way: It is one thing to have the time in a trial over several days to reconstruct and examine the events which took place on the evening of August 14th. It is another to be a policeman in the middle of an emergency charged with a duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver).

(j)Police officers perform an essential function in sometimes difficult and frequently dangerous circumstances. The police must not be unduly hampered in the performance of that duty. They must frequently act hurriedly and react to sudden emergencies. Their actions must therefore be considered in the light of the circumstances.

(k)"It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves" (Levesque v. Zanibbi et al.).

82The reasons for the detention and chasing of Mr. Erhirhie remain unknown, other than some speculation related to Mr. Erhirhie having alcohol and THC in his system. What is clear is that Mr. Erhirhie was trying to get away and the officer was attempting to prevent that from happening.

83As for the officer having his firearm out during the chase, there is only one witness that claims to see this, and this witness is contradicted by the video. The civilian witness claims that the SO had two hands on the gun, with it facing downward, while chasing Mr. Erhirhie. The video shows that the SO was swinging his arms while running, and at one point, assumed a guard stance with both hands out. Certainly, the video is clear that the SO’s hands were not together or down during the chase. The statement of this witness was specifically discussed at a meeting with the Director and investigative team on June 16, 2022 as referenced in the notes of that meeting.

84As for the suggestion that the SO was not in danger at the time he shot Mr. Erhirhie, it is the view of this court that there is no question that the SO’s life had been put in danger and the video evidence and the SO’s comments speak for themselves. He was partly inside and partly outside the vehicle that Mr. Erhirhie quickly reversed, dragging him along by the car door. After the vehicle came to a stop in the middle of the snowbank, the SO backed away slowly, on sloped ground. Mr. Erhirhie put the vehicle into drive, again placing the SO’s life in danger. Even if the vehicle was stuck in the snow as the Applicants suggest, there would be good reason to be concerned that it would come unstuck. There was no way of knowing how or in what direction it would next move given the erratic behaviour which had just occurred and the precarious nature of the vehicle and the officer on this snowbank. There was certainly a basis for subjective fear given what had occurred and not knowing what would happen next.

85As for the SO being in a position to see that the vehicle was stuck in the snow and that Mr. Erhirhie posed no further danger, the timing and circumstances must be considered. The officer was seemingly working alone as these events were unfolding. It was dark. The events all happened very quickly – there being approximately 12 seconds from the time that Mr. Erhirhie reversed the vehicle to the point at which the shooting occurred. It must also be noted that the vehicle was found with the shifter in drive.

86As for the three shots in the torso being excessive, several things must be remembered:

a. The officer was focused on Mr. Erhirhie, the driver of the vehicle, as the source of the threat;

b. The speed at which these events were occurring;

c. The fact that there was a passenger in the car;

d. This was a public parking lot, making shooting at a tire dangerous to the general public.

87The Applicants stated that the comment, “guy’s the shooter”, is a lie which should cause this court to question the actions and intentions of the SO. Admittedly, this is difficult to understand and, frankly, does not make any sense in the circumstances. However, it seems highly unlikely that this is part of some kind of cover up. The only person shot at the scene was Mr. Erhirhie. The officer would know that it would ultimately be established that his firearm fired the rounds that killed Mr. Erhirhie. There was never any question about this. The Applicant suggests that this comment was not mentioned by the Director which is simply not the case. It is referenced on page 16 of the decision.

88Contrary to the Applicants assertions, there is no evidence that Mr. Erhirhie was moved by the SO. The video demonstrates that the SO did not touch Mr. Erhirhie at all after the shooting.

89As for the actions of the Director, the consideration of self defence is not a demonstration of race being a factor, rather it is a proper consideration. This court accepts that if race was a factor in the decision not to charge this court could and should intervene under mandamus. This court accepts that if race was a factor for the SO, and this was plainly ignored by the Director, this court could and should intervene under mandamus. A decision based on bias or discrimination would be unjust and require the intervention of this court. However, there is no evidence, circumstantial or otherwise, that this is the case. The Applicants suggest that the Director’s approach to self defence being unduly favourable to the SO is evidence of racism. It is not clear why this would be the case. If the decision is unduly favourable to the SO, this could simply be because there is an unjustified bias in favour of the police, rather than a racially motivated bias. However, in this case, there is no evidence of unjustified bias at all. The Director was entitled to consider the facts presented and come to his own conclusion. He did so. It is not for this court to simply reconsider the facts and determine whether there is an agreement or disagreement with the result.

90There is no dispute that systemic racism exists in policing and elsewhere. However, this does not establish that the SO or Director were motivated by racism in this case. Having considered the entirety of the circumstances, this court does not agree that race or racial stereotypes were used to any degree by either the SO or the Director in assessing the actions of the SO.

Conclusion on Mandamus

91In conclusion, the Applicants do not agree with the Director’s decision and seek a different result. It is clear that the Director must cause charges to be laid if the Director determines that there are reasonable grounds to believe that an officer has committed an offence. There is no duty to form reasonable grounds to believe. The Director’s determination of whether reasonable grounds exists is discretionary, as long as the grounds can be justified both subjectively and objectively, and are not based on bias, discrimination, or personal enmity.

92It is the view of this court that there was nothing prohibiting the Director from considering the entirety of the circumstances, including any considerations of self defence. In fact, the Director was required to consider all of the available information. The Director’s conclusion that he could not form reasonable grounds to believe is rationally based on the evidence presented to him.

93In the circumstances of this case, the Director, having undertaken to investigate, performed the duty required. Having concluded that there were no reasonable grounds to believe, the Director was not required to charge. The Director was entitled to come to this conclusion. The Director subjectively had an honest belief which existed objectively, using the reasonable person test.

94It must be made very clear that, if there was an indication of bias, discrimination, or personal enmity on the part of the Director, this would create a circumstance where the Director had acted outside of his jurisdiction. Further, if there was evidence that the SO’s actions demonstrated bias or discrimination, such as anti-black racism, and this was ignored by the Director, this, in this court’s view, would amount to the Director acting outside his jurisdiction, as this would be a circumstance of failing to consider a relevant factor. There would be no requirement for the Applicants to demonstrate a s. 15 violation using the Sharma test in such circumstances. However, there is no suggestion that this is the case.

95In this case, the Director made the decision that he did not have reasonable grounds to believe an offence had been committed when considering all of the circumstances. This decision was based in large part upon video evidence. On video, Mr. Erhirhie reversed upwards into a snowbank, dragging the SO along by an open car door, which put his life at risk. The SO backed away, however, he was still near the car and on a snowbank when the car appears to have been put in drive, as this is how it was found. Self defence was an obvious consideration on these facts.

96In this court’s view, the use of mandamus does not permit this court to consider the facts and come to its own conclusion in disagreement with the Director. Mandamus cannot be used to dictate a result.

Alternative Remedy

97While this court has determined to dismiss this request for mandamus for other reasons as fully addressed above, it must also be noted that mandamus would also have been denied in this case due to the availability of an alternative remedy. It should be noted that at this point there is no indication that the Applicants have attempted to pursue this option.

98There is no appeal under the SIU Act from this decision of the Director.

99However, section 504 of the Criminal Code allows the Applicants to pursue a private prosecution. Mandamus has been denied where a private prosecution was available under the Criminal Code. See McLeod v. Calgary (City) Police Service, above.

100In R. v. McHale, 2010 ONCA 361, the court was examining the scope of the Attorney General’s authority to intercede in proceedings initiated by a private informant, specifically whether a withdrawal of the charges were timely or premature. The court stated:

74Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime. The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution. To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information.

101If successful, pursuing a private prosecution would achieve the same remedy sought by the Applicants on this mandamus. In R. v. Faulkner, 2013 ONSC 1824, para 6, Code J. stated, “well-established basis for declining prerogative relief, as an exercise of discretion, is the availability of an adequate alternative remedy". In Cheyenne Realty y Thompson, 1974 CanLII 4 (SCC) at p 90, the court stated that mandamus “will not ordinarily issue when there is another remedy available”.

102In Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 42, 49-50, the court listed several considerations that should factor into deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application, including:

a. Convenience of the alternative remedy;

b. The nature of the error alleged;

c. The nature of the other forum which would deal with the issue, including its remedial capacity;

d. The existence of adequate and effective recourse in the forum in which litigation is already taking place;

e. Expeditiousness;

f. The relative expertise of the alternative decision-maker;

g. Economical use of judicial resources;

h. Cost

103The Applicant raises two main concerns about this alternate remedy not being appropriate:

a. The alternate remedy is discretionary and therefore less advantageous. It requires a pre-enquete hearing before a justice of the peace where it would be determined if process should issue.

b. The alternate remedy is not feasible unless the court makes an order compelling disclosure of the SO’s name and contact information.

104The concerns raised by the Applicants are without merit.

105Despite how the Applicants attempt to characterize the Director’s role, the determination of whether there are reasonable grounds to believe remains discretionary. Therefore, the private prosecution route is not less advantageous due to its discretionary nature.

106The Respondent accepts that the current anonymity of the SO would be a problem, however, agrees that this court has the ability to order that the SO’s name be produced, subject to a further hearing. Section 9 of the SIU Act permits the SIU director to disclose information where there is consent (a) or it is required by law (b). See also section 12(e).

107The private prosecution remedy was created by parliament to address this situation. Any citizen who is dissatisfied with a decision by the state not laying charges is entitled to utilize this remedy.

108In this case, this is an alternative remedy available to the Applicants. If the Applicants wish to pursue this remedy, it will require them to know the identity of the SO. If the SO does not consent to the release of his name, this will require a further hearing to determine if disclosure is appropriate and under what, if any, restrictions that disclosure should be made.

Declaration of Discrimination

109This Court has found absolutely no evidence of racial discrimination in this case, either on the part of the SO or the Director. Having said that, this court will still make some brief comments on this issue.

110As for a declaration of discrimination, the Applicants argue that they only need to establish a prima facie case that race was a factor and then the onus shifts to the Respondents. It is the view of this court that the Applicants have confused this issue.

111This Court agrees, as stated above, that the Applicants do not need to satisfy all of the requirements for a section 15 Charter claim in order to advance the mandamus argument as outlined above. Anti-black racism may be raised as a factual consideration in many contexts, such as reasonable grounds or arbitrary detention, without the need to meet the Sharma test.

112However, where a party seeks a declaration of discrimination from this court, as is advanced in this case, the party must meet the proper test.

113The purpose of section 15 has been succinctly stated and reaffirmed: “the promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” (R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at paragraph 15 citing Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at 171, per McIntyre J.). In Quebec (A.G.) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at paragraph 417, McLachlin C.J., concurring with the majority on section 15, noted that discrimination perpetuates or promotes “the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.”

114The guarantee of equality is substantive. The concept of equality does not necessarily mean identical treatment; in fact, this may produce inequality. Kapp at para 15; Withler v. Canada, 2011 SCC 12, [2011] 1 S.C.R. 396 at paragraph 39.

115The two-step test for assessing a s. 15(1) Charter claim is well-established. The claimant must demonstrate that the impugned law or action: 1) on its face or in its impact, creates or contributes to a disproportionate impact on the claimant group based on a protected ground; and 2) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. See: R. v. C.P., 2021 SCC 19; R. v. Sharma, 2022 SCC 39, at paras. 28, 31.

116Both steps must be established to be successful. The section 15 analysis is said to be fact-driven, as well as purposive and substantive.

117Clearly, the burden of proof lies with the person claiming the section 15 violation. The Applicant must establish that either the purpose or the effect of the law or action is discriminatory. While, generally, evidence is required, the Applicant does not have to adduce sophisticated social science evidence. While no specific form of evidence is required, the Applicant must present sufficient evidence to establish that the law or action, in its impact, creates or contributes to a disproportionate impact on the claimant group, relative to others. Evidence of the broad historic and systemic disadvantage of the claimant group is not, on its own, sufficient to satisfy the causation burden under step one. (Sharma, paragraphs 42-48, and 71).

118The first inquiry under s. 15, whether the law or action creates a distinction based on a protected ground, is a threshold requirement. The claim will fail if this cannot be demonstrated. The prohibited ground in this case is race, which is an enumerated ground, however, that of course does not get the Applicant over the threshold hurdle. The question is whether the action of the SO or the Director created or contributed to a disproportionate impact on Mr. Erhirhie, as a black male.

119In Sharma, the Supreme Court of Canada fairly recently clarified the s. 15(1) analysis, highlighting two salient points in relation to the first step of the test. First, the Court emphasized the difference between impact and disproportionate impact:

40…All laws are expected to impact individuals; merely showing that a law impacts a protected group is therefore insufficient. At step one of the s. 15(1) test, claimants must demonstrate a disproportionate impact on a protected group, as compared to non-group members. Said differently, leaving a gap between a protected group and non-group members unaffected does not infringe s. 15(1).

120Second, the Court stressed that, in adverse impact cases, where the law is facially neutral, such as the present one, causation is a central issue. The Court stated:

42…At step one, the claimant must present sufficient evidence to prove the impugned law, in its impact, creates or contributes to a disproportionate impact on the basis of a protected ground….Causation is thus a central issue….

121In Sharma, the s. 15 challenge failed. Even though the over incarceration of indigenous persons is obvious, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on indigenous offenders, relative to non-indigenous offenders, as she must show at the first step of the s. 15(1) analysis. The Court cautioned against using broad evidence of historic or systemic disadvantage to satisfy the causation burden carried by the Applicant. See also R. v. Nur, 2011 ONSC 4874, at paras 74-82.

122The Applicants correctly point out that proving racism as a factor is usually a matter of circumstantial inference as people will rarely admit to racism as a factor. Social science evidence and statistics are useful as social context evidence that can assist in making out such a circumstantial case. Racism may manifest itself in different ways.

123Unquestionably anti-black racism exists in our society, and more specifically, in policing. However, racism cannot and must not be assumed simply because Mr. Erhirhie is a black male. Such an assumption may itself amount to racism.

124In this case, there is simply no nexus between what happened and racism. There are serious allegations of racism without a nexus or link.

125According to the Applicants, the actions of the SO and the refusal to charge by the Director are both a product of anti-black racism. According to the Applicants, the actions of the Director amount to an “inappropriate covering ….for the SO’s racist acts in shooting” Mr. Erhirhie and are, therefore, themselves tainted by racism. According to the Applicants, whether this was systemic favouring of the police or systemic racism, by deciding not to charge the SO, the effect was to provide disadvantageous and differential treatment with race as a factor.

126The Applicants have not established a distinction based on race under step one of the s. 15 test. The Applicants allege that the SO’s actions in shooting Mr. Erhirhie were motivated by anti-black racism. There is absolutely no evidence of this and no reason to believe that race was a factor at all, as set out in more detail earlier in this decision. Even if this was an overreaction on the part of the officer, there is no reason to believe that race was a factor. The Applicants allege that the Director did not charge the SO because of anti-black racism. There is absolutely no evidence to support this allegation in this case.

127This court accepts the fact of systemic prejudice in policing in Toronto and more broadly in Ontario as demonstrated by various reports filed by the Applicants and as has been noted in other cases. However, this does not establish differential treatment based on race. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc, 2015 SCC 39 at para 88, the Supreme Court noted:

It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter. In practice, this would amount to reversing the burden of proof in discrimination matters. Evidence of discrimination, even if it is circumstantial, must nonetheless be tangibly related to the impugned decision or conduct.

128It should be noted that the Applicants have clarified in their reply that the Ontario Human Rights Code is not advanced as a legal basis for the alleged s. 15 Charter violation. Rather, the Applicants claim that the Director, as a government actor, has a positive duty under the Human Rights Code to not discriminate, in addition to s. 15. It must be made clear that this court has no jurisdiction to apply the Human Rights Code. If the Applicants believe that their rights under the Code have been infringed, they may seek their remedies from the Human Rights Tribunal of Ontario.

129The Applicants argue that discrimination can be advanced as a s. 15 issue or a s. 7 Charter issue. There is no purpose for this court to engage in this analysis given this court’s conclusion that neither the SO nor the Director engaged in any racism.

130For all of the foregoing reasons, there is no basis upon which this court could or should declare that the decision to not charge was tainted by racism. The request for a declaration is denied.

Conclusion

131The Director decided to investigate this matter. In deciding to investigate, the Director considered all of the evidence available to him and came to a conclusion, 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 absolutely no evidence that the Director reached this conclusion based on bias, discrimination or personal enmity.

132Certainly, the Director found that the actions of the SO led to the death of Mr. Erhirhie, but he did not find reasonable grounds to believe an offence had been committed at that point which was then negated by self defence, as the Applicants argue. It cannot be parsed out in such a two-step manner. It is a consideration of all of the circumstances that led to the Director’s conclusion.

133Understandably, the Applicants are not satisfied with this result. The Applicants are at liberty to pursue a private prosecution. This will of course require that the name of the SO be provided. If the SO is willing to disclose his name, this can be easily obtained. If not, this court is willing to hear further submissions relating to the disclosure of the name and, if disclosed, any restrictions to be placed on the disclosure.

134This request for mandamus is dismissed, however, this court is willing to hear further submissions relating to the possibility of disclosing the name of the SO to the Applicants, if necessary, to be arranged through the trial coordinator.