A motion was brought by the Respondents for an order striking out an application for judicial review of the decision of the Ontario Civilian Commission on Police Services (the “Commission”) directing the Applicant Chief of Police (the “Chief”) to initiate a disciplinary hearing against a police constable on the ground that the constable may have committed misconduct in his capacity as an investigator in a homicide investigation. The Respondent’s application to stay the Chief’s application for judicial review was granted on the ground that the Chief’s application was premature.

Administrative law – Police – Investigations – Disciplinary proceedings – Public interest – Public hearings – Effect of – Judicial review application – Procedural requirements and fairness – Stay of proceedings – Decisions of administrative tribunals – Police Commission

York (Regional Municipality) Police v. Ontario (Civilian Commission on Police Services), [2005] O.J. No. 222, Ontario Superior Court of Justice, January 24, 2005, R.W.M. Pitt J.

On March 1, 2000, Ms. A.B., who was reported being suicidal and on antidepressants, was found deceased, lying face down in a river. The official cause of death was drowning. The issue under investigation was whether she had committed suicide or was the victim of homicide. Her children, the Complainants, alleged that she was murdered by her husband. However, the police were unable to determine the reason why she drowned. The Complainants then requested that the investigation be reopened, but the Deputy Chief of the York Regional Police refused. The Complainants complained to the Commission. The Commission referred the matter to the Hamilton Police Services who concluded that the York Regional Police Service conducted a thorough investigation and that appropriate investigative steps, proper procedures and best practices were used. The Complainants appealed that decision to the Commission. The Commission held that there was sufficient evidence to allege that Constable K. may have committed misconduct of a serious nature in the course of the investigation. The Commission directed a disciplinary hearing with respect to Constable K.’s conduct.

The court noted the anxiety and notoriety that might befall Constable K. as a result of a public hearing into allegations of misconduct. However, the court also noted the legislative purpose of the Police Services Act, R.S.O. 1990, c.P.15, which was to increase public confidence in the provision of police services, including the processing of public complaints. The court held that the order made by the Commission in this case was not indicative of a finding of responsibility; it merely required a hearing to make such determination. The decision to require the Chief to hold a hearing was therefore not a final determination of the Constable’s rights. The Constable’s concern regarding anxiety and notoriety did not demand the immediate intervention of the court. Furthermore, the court was being asked to make a determination on the appropriateness of the Commissioner’s decision to require the Chief to initiate a hearing without awaiting the result of that hearing. The court held that it would be preferable to allow such matters to run their full course before the Tribunal and to then consider all legal issues arising from the procedures at their conclusion.

The court held that the application by the Chief for a judicial review was premature. The motion of the Commission to stay the Chief’s application was granted.

To stay current with the new case law and emerging legal issues in this area, subscribe here.