Ontario court finds proper forum is judicial review, dismisses application for order mandating the Special Investigations Unit to conduct a proper investigation and lay charges against officers

Administrative law – Judicial review – Jurisdiction – Remedies – Mandamus – Criminal matters

Zreik v. Ontario (Attorney General), [2017] O.J. No. 3865, 2017 ONSC 4516, Ontario Superior Court of Justice, July 25, 2017, T.A. Bielby J.

The Applicant sought an order mandating the Director of the SIU to conduct a proper investigation and lay charges against the officers. She brought her application pursuant to the Criminal Code of Canada (“Code”) and the Criminal Procedure Rules (“Rules”).

The question for the Court was whether it had jurisdiction to hear the application or whether the proper jurisdiction was with the Divisional Court via judicial review.

The SIU and its Director are created under the Police Services Act, R.S.O. 1990, C. P15 (“Act”).

The Court reviewed an Ontario Court of Appeal decision in Avon v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.J. No. 1797 in which a man was convicted of a sexual offence and imprisoned. Although he served his term of imprisonment, ending in 2000, part of his sentence included a life-long prohibition against contact with persons under age 14.

In 2001, Christopher’s Law was enacted. Avon was instructed to register with the Ontario Sex Offender Registry.  He applied, pursuant to the Code, to compel the Ministry to remove him from the registry.

The Court of Appeal ultimately heard the case and decided that even though Christopher’s Law related to offenders convicted under the Code, the remedy sought was removal of a person’s name from a provincial sex offender registry, maintained by a provincial ministry, and created under a provincial law. The matter was not transformed into a criminal one simply because the person had been previously convicted.

The Court decided that since the Applicant was seeking mandamus against the SIU, which is a creature of a provincial statute, the procedure must be via judicial review. If the enabling statute had been the Code, the procedure there would have been appropriate. Here, the proper forum was judicial review, because the SIU and its mandate flows from a provincial statute.

The application was dismissed without prejudice to the applicant commencing a judicial review under s. 6(1) of the Judicial Review Procedure Act.

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