[REDACTED] v. [REDACTED]
[REDACTED], Applicant, and
 O.J. No. [REDACTED]
2016 ONSC [REDACTED]
Divisional Court File No.: [REDACTED]
Ontario Superior Court of Justice
Divisional Court - Toronto, Ontario
[REDACTED], [REDACTED] and [REDACTED]
Heard: January 25, 2016.
Oral judgment: January 25, 2016.
Released: January 27, 2016.
[REDACTED] and [REDACTED], for the Applicant.
[REDACTED], for the Respondent.
The judgment of the Court was delivered by
1 This is an application to judicially review the August 20, 2014 decision of [REDACTED] affirming the decision of the Toronto Chief of Police in which he concluded that the applicant's assault claim against an officer was unsubstantiated.
2 There are two issues on this application:
(i) Did the [REDACTED] breach its duty of procedural fairness by refusing to provide the applicant with the subject officer's statement before requesting that he or his wife provide their statements?
(ii) Was the [REDACTED]'s decision affirming the decision of the Toronto Chief of Police reasonable?
Breach of Procedural Fairness
3 According to the applicant, the goals of transparency, fairness and accountability require that the complainant's rights to disclosure at the investigative stage be the same as the subject officer's. In support of this proposition, the applicant relies on the decisions of this Court in Figueiras v. York (Regional Municipality) Police Services Board,  O.J. No. 5911 and Endicott v. Ontario (Independent Police Review Director),  O.J. No. 2479.
4 In this case the applicant made his complaint and at the investigative stage a redacted copy of his complaint was provided to the subject officer before the subject officer was required to give his statement to the investigator. After the investigator received statements from the subject officer and the three other officers who were present that night, he went back to the applicant and asked him for statements from him and his wife (who was also present). During that conversation the investigator provided the applicant with an oral synopsis of the subject officer's position with respect to the complaint about the use of force. The applicant refused to provide the investigator with either his or his wife's statements until he had had an opportunity to review the subject officer's statement and the statement of the other officers who were there that night. The investigator refused the applicant's request and the applicant made an MFIPPA application seeking the statements. Before that application was heard, the investigator completed his report, submitted it to the Chief of Police and the Chief concurred with the findings in that report that the complaint was unsubstantiated.
5 According to the applicant, given that the investigator had provided a redacted copy of his complaint to the subject officer, he was entitled to receive a copy of the subject officer's statement before providing his statement.
6 We disagree. Section 62 of the Police Services Act, R.S.O. 1990, c. P.15, specifically requires the Chief of Police to give prompt notice of the substance of the complaint to the subject officer subject to exceptions that do not apply here. There is no reciprocal statutory requirement to produce the officer's response to the complaint to the complainant. In this regard, it is important to note that the investigation is not a hearing and the right to disclosure that would accrue at the hearing stage of the process do not accrue at the investigative stage, which is not an adjudication. Providing all witnesses with access to the statements of other witnesses raises the spectre of tainting and collusion (both advertent and inadvertent) and could delay what is meant to be an efficient process. Because of the potential jeopardy faced by the subject officer the legislature has mandated disclosure to that officer. The fact that the officer in this case may arguably have been given notice of more than just the substance of the complaint does not change the reality that the legislature has not imposed a reciprocal obligation of disclosure.
7 In the clear absence of such an obligation there was no need for the Chief to wait for the results of the MFIPPA application before making his decision. Finally, we disagree with the applicant's interpretation of Rule 7.5 of [REDACTED]'s rules. That rule entitles the witness who gave the statement to a copy of it.
The Reasonableness of the [REDACTED]'s Decision
8 The applicant argues that the [REDACTED]'s decision was unreasonable for the following reasons:
(i) It misstates Officer [REDACTED]â€™s evidence.
(ii) It "glosses over" the contradictions and "evolutions" in the evidence of the four officers.
(iii) It places no weight on the applicant's statement as reflected in the complaint.
9 It is very clear from reading the [REDACTED] decision that the [REDACTED] reviewed the complaint and the evidence of the officers in coming to its conclusion.
10 With respect to Officer [REDACTED], the significant part of her evidence is that she saw the applicant raise his hand or hands to the subject officer (confirming the threat to that officer) and she did not see or hear the applicant hitting his head against the wall.
11 With respect to the other alleged contradictions and inconsistencies, we agree with the respondent that these were not significant or surprising given that the incident took place over only a minute or two and was not the focus of the officers' attention at the time. In terms of the alleged evolution in the officer's statements, again, it is not surprising that as the officers were asked to give more details regarding what had occurred, they did so.
12 The [REDACTED] decision fell within the range of possible acceptable outcomes given the factual and legal context in which it was decided. Further, the reasoning used was transparent, intelligible and justifiable.
13 For these reasons, the application is dismissed.
14 I have endorsed the back of the Application Record, "This application is dismissed for reasons given orally by [REDACTED]. Since the [REDACTED] seeks no costs, none are ordered."