



COURT OF APPEAL FOR ONTARIO

CITATION: J.N. v.
    Durham Regional Police Service, 2012 ONCA 428

DATE: 20120621

DOCKET: C53887

Weiler, Blair and Rouleau JJ.A.

BETWEEN

J.N.

Applicant
    (Respondent)

and

The Durham Regional Police Service and The
    Durham Regional Police Services Board

Respondents (Appellants)

David Migicovsky, for the appellants

Jonathan Shime and Megan Schwartzentruber, for the
    respondent

Charlotte Kanya-Forstner, Janet E. Minor and Sara
    Weinrib, for the intervener Attorney General of Ontario

David Rose and Stacey Nichols, for the intervener
    Canadian Civil Liberties Association

Heard: May 15, 2012

On appeal from the judgment of Justice J.P.L. McDermot of
    the Superior Court of Justice dated May 10, 2011, with reasons reported at 2011
    ONSC 2892, 106 O.R. (3d) 346.

BY THE COURT:

Facts


Background

[1]

The respondent J.N. was required to obtain a
    police records check as part of an application for a media relations position
    with the Durham Catholic District School Board. J.N. submitted a Criminal
    Information Request (CIR), which included a Vulnerable Persons Search, to the
    Durham Regional Police Service (the DRPS).

[2]

The CIR form made it clear that the results of
    the search would include all charges dealt with in court, including those
    where no convictions have been registered.  J.N. was surprised to learn when
    the results were received, however, that the CIR included a reference to a
    withdrawn assault charge that she had faced several years earlier.  The charge had
    arisen in the context of a family dispute involving J.N. and her siblings respecting
    the care of their father, with whom J.N. had been living and for whom she had
    been providing care-giving services.  The siblings alleged that she had
    assaulted their father by striking him on the leg.  J.N. denied the allegation,
    and on September 25, 2008, the charge was withdrawn at the request of the
    Crown, presumably for lack of evidence to support it.

Procedural Steps Taken by J.N.

[3]

When J.N. received the CIR she took a number of
    steps to attempt to have the reference to the withdrawn charge removed from
    it.

[4]

First, both she and her counsel wrote to the DRPS,
    requesting that reference to the withdrawn charge be removed.  Unlike a number
    of other police services in Ontario,
[1]
the DRPS had an informal process in place by which this type of request would
    be received and considered by an
ad hoc
Committee.  The process was governed by a Directive that permitted
    individuals to appeal the contents of their CIR and to make written submissions
    to the Committee, which would then make a decision in writing.  The Directive
    provided that there was no further appeal from a decision of the Committee.

[5]

J.N.s request was denied.

[6]

J.N. was unaware of the existence of the
    Directive when she made her original submissions.  The DRPS letter refusing the
    request for review referred to the Directive but did not include a copy of it. 
    Her counsel therefore wrote to the DRPS on May 19, 2009, asking for a copy of
    the Directive and requesting a reconsideration of the decision not to remove
    the reference to the withdrawn charge from J.N.s CIR.  In these submissions,
    counsel relied heavily on the decision at first instance in
Tadros v. Peel Regional Police Service
(2007), 87 O.R. (3d) 563 (S.C.).  In that decision, the Superior Court had granted
    an injunction prohibiting the Peel Regional Police Service from disclosing
    information regarding withdrawn charges relating to Mr. Tadros.

[7]

Although the Directive did not provide for an
    appeal, the DRPS treated J.N.s request for a reconsideration as a complaint to
    the Chief of Police under the former s. 61 of the
Police
    Services Act,
R.S.O. 1990, c. P.15, relating to
    the policies of or services provided by the DRPS.  On July 8, 2009, the Chief
    responded through his delegate, rejecting the appeal and providing written
    reasons for doing so.  In those reasons the delegate noted that this Court had
    reversed the judge of first instance in the
Tadros
case: see
Tadros v. Peel Regional
    Police
, 2009 ONCA 442, 97 O.R. (3d) 212.

[8]

On August 14, 2009, J.N. requested that the
    Chiefs decision be reviewed by the Durham Regional Police Services Board,
    pursuant to the appeal procedures provided in the
Police
    Services Act
.  The Board issued a decision on
    September 15, 2009, taking the position that its power to review was of a
    broader policy and service nature, and that it could not interfere with the
    results of the DRPS decision because the inclusion of the information on J.N.s
    CIR raised issues of an operational rather than a policy nature.  The Board indicated
    as well that it had reviewed the process for handling CIR requests and was
    satisfied that it struck a reasonable balance between protecting the vulnerable
    and respecting the privacy of applicants.

J.N.s Response

[9]

J.N. did not seek judicial review of any of
    these decisions.  Instead, she brought an application before a judge of the
    Superior Court on February 24, 2010, seeking an order in the form of an
    equitable remedy requiring that the reference to the withdrawn charge be
    removed from her CIR.  She argued that the DRPS and the Board had violated a
    common law duty of fairness owed to her as well as her rights under s. 7 of the
Canadian Charter of Rights and Freedoms
by failing to provide an adequate process and effective remedy to
    remove the withdrawn charge from her CIR.

The Application Below

[10]

The application judge quashed the decision of
    the DRPS refusing to remove the reference to the withdrawn assault charge.  In
    addition, he ordered that J.N.s CIR, and all of her future CIRs, be issued
    without reference to the withdrawn charge.

[11]

The DRPS has since complied with that order.

Analysis

[12]

The appellants submit that the appeal must be
    allowed because the application judge did not have jurisdiction to quash the
    decision of the
ad hoc
Committee, the Chief of Police, or the Board.  They also argue that
    the application judge made errors in his analysis of the statutory scheme and
    duty of procedural fairness, as well as his determination that the respondents
    right to security of the person under s. 7 of the
Charter
was infringed.  We agree that the appeal must be
    allowed on the jurisdictional ground, and will not deal, therefore, with the
    appellants additional arguments, except to the extent necessary to understand
    the context for the jurisdictional decision.

[13]

In the court below, J.N. raised a number of
    complaints about the process that evolved before the DRPS.  Among them are the
    following: she did not have a copy of the Directive when she made her first
    request because no copy was available on the police service website and she did
    not know it existed; when she did obtain a copy it did not contain any
    guidelines as to the criteria to be considered by the
ad hoc
Committee upon receipt of a
    request to remove an entry in a CIR; there was nothing in the Directive to affirm
    that the Committee had taken into account the various factors that the DRPS
    affidavit indicated were to be taken into account by the Committee; she had a
    legitimate expectation that there would be a fair process in existence whereby
    discretion could be exercised to remove the reference of a non-conviction
    registration and no such process affording her procedural fairness and
    protection existed; she was never given the option of a public hearing under
    the
Police Services Act
; the Chief of Police did not follow the proper procedure under the
    Act, did not give proper reasons, and misconstrued the decision of this Court
    in
Tadros
which, while
    it dealt with the right of the police to retain non-conviction information and
    to distribute it with the consent of the applicant, did not deal with whether
    there must be a process for seeking removal of a non-conviction registration.

[14]

In addition, J.N. contended that her rights
    under both ss.7 and 11(d) of the
Charter
 the rights to liberty and security of the person, and the right
    to be presumed innocent until proven guilty, respectively  were violated.

[15]

Whether the legal effect of the
Tadros
decision, and the principles
    underlying it, mean that the law requires police services to put in place a
    process whereby an applicant may seek to have a non-conviction entry removed
    from his or her CIR and, if so, what the nature of the process is to be, are
    important questions that a court may well have to determine at some point. 
    Respectfully, however, the application judge did not have the jurisdiction to
    address them in the forum in which they were presented to him.

[16]

In Ontario, the procedure for attacking
    decisions of public administrative bodies is by way of judicial review under
    the
Judicial Review Procedure Act
, R.S.O. 1990, c. J.1.  Under ss. 6 and 7 of that Act, in the
    absence of urgency (not a factor here), an application for judicial review is
    to be made to the Divisional Court.  The application judge here was not sitting
    as a judge of the Divisional Court; he was hearing an application purporting to
    be brought under rule 14.05(3)(g.1) of the
Rules of
    Civil Procedure
 a proceeding by application
    where the relief claimed is for a remedy under the
Canadian
    Charter of Rights and Freedoms
.  In our view, the rule
    14.05 application procedure was not open to J.N. in these circumstances because
    the substance of her claim is for judicial review of the administrative
    decision of a public statutory body: see
Bard v.
    Longevity Acrylics Inc
., [2004] O.J. No. 3597 (C.A.);
Canada Post Corp. v. C.U.P.W.
(1989), 70 O.R. (2d) 394 (H.C.J.), at pp. 397-398;
Koumoudouros v. Municipality of Metropolitan Toronto
(1982), 37 O.R. (2d) (H.C.J.), at p. 659. A court must have
    jurisdiction independent of rule 14.05 before it can consider the appropriate
    vehicle for bringing the matter forward, whether it be by action or application:
    see
Canada Post Corp
.,
    at p. 397;
Halpern v. Toronto (City) Clerk
, [2000] O.J. No. 3213 (S.C.), at para. 10.

[17]

Counsel for J.N. candidly concedes that if he
    were seeking to attack the decision of the Chief of Police or of the Board
    under the
Police Services Act
, he would have been required to do so by way of application for
    judicial review before the Divisional Court.  He argues that he was not
    launching such an attack, however; instead, he was seeking to set aside the
    decision of the
ad hoc
Committee, a decision of a non-statutory body.

[18]

There are several problems with this
    submission.  First, we do not accept that the
ad
    hoc
Committee is a non-statutory body.  It may not
    be a body created by statute or regulation itself; but it is an informal
    decision-making body created by the DRPS, which is a statutory body, and its
    decisions are those of that statutory body.  The decision affects J.N.s legal
    rights and privileges with respect to the retention of her non-conviction
    information by the police services and in that sense involves the exercise of a
    statutory power of decision by the
ad hoc
Committee:
Judicial Review Procedure
    Act
, at s. 1.  Secondly, even if the
ad hoc
Committee is not a statutory
    body, its decisions are those of a public administrative authority affecting
    J.N.s rights, privileges and interests, and they are therefore subject to the
    common law principles of procedural fairness: see
Cardinal
    v. Director of Kent Institution
, [1985] 2 S.C.R.
    643, at p. 653;
Knight v. Indian Head School
    Divisions No.19
, [1990] 1 S.C.R. 653, at p. 668-69.

[19]

In either of these scenarios, the decision is in
    essence an administrative decision of the type that is subject to judicial review.

[20]

In addition, however  those scenarios aside  it
    seems to us that the decision of the
ad hoc
Committee has become moot.  It has been overtaken by, and subsumed
    in, the process under the
Police Services Act
and the decisions of the Chief of Police and the Board in that
    regard.  As noted, it is conceded that these decisions must be the subject of
    judicial review.

[21]

That J.N. sought to raise
Charter
issues in support of her
    arguments that the decisions should be quashed does not alter these factors.  Many
    administrative decisions invoke
Charter
considerations, which are dealt with in the context of the judicial
    review process.  In Ontario, there is a legislative scheme for the review of
    administrative decisions, and it is not permissible to circumvent that process
    by dressing up what is, in substance, a review of a decision of an
    administrative tribunal as a rule 14.05 application. In essence, that is what
    occurred here.

[22]

In fairness to J.N., and to the application
    judge, the jurisdictional question that we have determined is dispositive of
    the appeal was not raised by the appellants before the application judge.  J.N.
    sought to found the courts jurisdiction in s. 96(3) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 and the inherent jurisdiction of the court.  Section 96(3) states:

Only the Court of Appeal and the Superior Court of Justice,
    exclusive of the Small Claims Court, may grant equitable relief, unless
    otherwise provided.

[23]

Neither s. 96(3) nor inherent jurisdiction can
    trump the clear statutory scheme set out for judicial review in the
Judicial Review Procedure Act
, however.
    An application for judicial review must be heard by the Divisional Court.

[24]

J.N. argues that the appellants ought not to be
    able to raise the argument for the first time on appeal, relying on a
    well-accepted line of jurisprudence to the effect that issues ought not to be
    asserted for the first time at this level.  That line of jurisprudence cannot
    assist J.N., however, because the problem that must be addressed is whether the
    court below had jurisdiction to determine the issues in the first place.

[25]

Some may view this approach as technical and as
    a failure by this Court to address what are admittedly important issues.  The
    law has long been clear, however, that jurisdiction is fundamental to a court
    or tribunals authority to deal with a matter.  Jurisdiction is not optional,
    cannot be conferred by consent, cured by attornment, or assumed voluntarily
    just because there is an interesting and significant issue to be considered:
    see
McArthur v. Canada (A.G.)
, 2008 ONCA 892, 94 O.R. (3d) 19, at para. 3, affd 2010 SCC 63,
    [2010] 3 S.C.R. 626;
Rothgiesser v. Rothgiesser
(2000), 46 O.R. (3d) 577 (C.A.), at paras. 18-19 and 33-39.

Disposition

[26]

We would accordingly allow the appeal and set aside
    the order of the application judge.

[27]

In our view, this is a case where the parties
    should bear their own costs. Accordingly, there will be no order as to costs.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.

Released: June 21, 2012





[1]

Susan Cardwell, the
    Manager of the Records Department for the DRPS, indicated in her affidavit that
    neither the Ottawa nor the Waterloo Police Service have an appeal process in
    place. She further indicated that the Toronto and the Peel Police Service have
    appeal processes in place, but that no specific criteria for review are listed.



