Saturday, 6 July 2013

Reasons -- Parroting the Statute as a Breach of Procedural Fairness, or Leading to Unreasonableness

The vexed question of the adequacy of reasons got another outing in Wall v. Independent Police Review Director, 2013 ONSC 3312.

Here, an individual arrested during an allegedly heavy-handed police operation at the 2010 G20 summit in Toronto made a complaint about his treatment. Having spent 28 hours in custody, he was released without charge.

His complaint was treated seriously and charges are pending against the officers involved. But Mr. Wall wanted to go further up the decision-making chain. Based on the information already received, he made a further complaint against the Chief of Police. He received a laconic response:
The Office of the Independent Police Review Director (OIPRD) has carefully reviewed your complaint about the conduct of Chief William Blair of the Toronto Police Service.
The OIPRD is aware of your concerns. S. 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred.  Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred.
To find out more about OIPRD screening process and the Police Services Act, please visit our website at www.oiprd.on.ca.
One problem with this response was that it treated the second complaint as a fresh one, not arising from the same incident. Hence the reference to the six-month period. Molloy J. held that this involved an impermissible error of law: s. 60(2) does not lay down a rigid limitations period and it was wrong to treat it as doing so (at para. 37). An administrative classification of Mr. Wall's complaint could not be allowed to alter his substantive rights (at para. 31).

Another problem was that it essentially restated the statutory criteria for refusing to deal with a complaint. In Molloy J.'s view, this was a breach of procedural fairness as well as of a statutory requirement to give reasons:
[50]           The failure to provide reasons is not only a breach of the requirements of the legislation; it also violates principles of procedural fairness and natural justice.  The complainant is entitled to know why the Director decided to exercise his discretion against dealing with the complaint.  Likewise, this Court is entitled to know why the Director decided as he did. There are specific factors that the Director is required to consider before making such a decision. The complainant cannot have any confidence that the Director took these factors into account at all, much less that he considered and applied them reasonably in reaching his decision. Again, the absence of any reasons makes it impossible for this Court to conduct a meaningful review.
The argument here must be that these were not really "reasons" because they did nothing more than parrot the statutory language. With respect, I am not sure that this is quite right. Reviewing courts should not inquire into the adequacy of reasons. The very existence of reasons -- however flawed -- should be enough to satisfy the very low threshold set out by the Supreme Court of Canada (though see here for a recent example of failure to satisfy it). A metaphysical analysis of "reasons" is misplaced. And the finding that the reasons given breached the statutory requirement might have been too quick, because the respondent was arguably owed deference in its interpretation of the scope of the requirement, which is found in its home statute.

But that does not end the judicial role. If reasons are plainly inadequate (as here), the decision will be unreasonable. Molloy J. quite properly quashed the decision on this basis:
[64]           I do not know why the Director made the decision that he did. I cannot say whether the decision falls within a range of acceptable outcomes, because I have no idea what prompted the decision. I do not know if the public interest was considered. I do not know if the principle of discoverability was taken into account. I do not know if the responsibility of senior officers other than Chief Blair was even averted to. I therefore find that the Dunsmuir criteria are not met. This decision cannot be said to be reasonable.
On this point, Molloy J.'s conclusion is unimpeachable. Once again, the role of reasons is crucially important, and its place as a matter of substantive review rather than of procedural review does not diminish its vitality.

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