



COURT OF APPEAL FOR ONTARIO

CITATION:

Peel (Police) v. Ontario
    (Special Investigations Unit),
2012 ONCA 292

DATE: 20120507

DOCKET: C53753

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

H.M.
    Metcalf in his capacity as Chief of
    the Peel Regional Police

Applicant (Appellant)

and

Ian
    Scott, Director of the Special Investigations Unit and Her
    Majesty the Queen in Right of Ontario (Ministry
    of Community Safety and Correctional Services)

Respondents (Respondents in Appeal)

David Migicovsky, for the appellant

Peter C. Wardle and Danielle Gallo, for the respondent
    Ian Scott

Harry G. Black, Q.C., for the intervener, the Peel
    Regional Police Association

David Butt, for the intervener, the Police Association
    of Ontario

Sean
    Dewart and Tim Gleason, for the interveners, the Canadian Civil Liberties
    Association
et al

Heard: December 13, 2011

On appeal from the judgment of Justice A. Donald
    MacKenzie of the Superior Court of Justice, dated May 3, 2011, with reasons
    reported at 2011 ONSC 1292.

Cronk
    J.A.:

[1]

In the late 1980s, several fatal police shootings in Ontario gave rise
    to considerable public concern regarding the impartiality and transparency of
    police investigations into the use of deadly force by police officers.  The
    ensuing government response led to the creation in 1990 of the Special
    Investigations Unit (the SIU), a civilian agency whose director is empowered
    under Part VII of the
Police Services Act
, R.S.O. 1990, c. P.15 (the
    Act) to conduct independent investigations into serious injuries and deaths
    that may have resulted from criminal offences committed by police officers.

[2]

From the outset, the role of the SIU has been controversial, resulting
    in uneasy, and often hostile, relations between some police agencies and the
    SIU.  The dispute in this case, which arises from allegations of serious
    historical wrongdoing by a former police officer, is an example of persisting
    tensions between these groups.

[3]

As I will explain, the dispute between the parties concerns the scope of
    the SIUs investigative mandate under s. 113(5) of the Act.  That provision
    reads:

The director [of the SIU] may, on his or her own initiative,
    and shall, at the request of the Solicitor General or Attorney General, cause
    investigations to be conducted into the circumstances of serious injuries and
    death that may have resulted from criminal offences committed by police
    officers.

I.   Facts

(1)

Jurisdictional Question

[4]

On June 26, 2010, the Peel Regional Police (the PRP), received a
    complaint from a member of the public who alleged that she had been sexually
    assaulted by a member of the PRP.  The complainant also claimed that a second PRP
    officer witnessed or knew of the assaults, some of which were said to have
    taken place while the complainant, then a minor, was being transported into
    custody by the police.  It later emerged that the alleged assaults took place
    in 1981 or 1982 and that both the alleged perpetrator and the alleged police witness
    had retired from the PRP by the time of the complaint.

[5]

On receipt of the complaint, the PRP notified the SIU, as required under
    s. 3 of the Ontario
Conduct and Duties of Police Officers Respecting
    Investigations by the Special Investigations Unit
, Reg. 267/10, as amended
    by O. Reg. 283/11, enacted pursuant to the Act (the SIU Regulation).

[6]

When the SIU commenced an investigation into the complainants
    allegations, the PRP challenged the SIUs jurisdiction over the complaint.  It
    asserted that the SIU had no authority to investigate alleged criminal offences
    committed by police officers: (1) who had resigned or retired by the time of
    the complaint; and (2) prior to the creation of the SIU in 1990.  As a result,
    the PRP maintained that it was the appropriate agency to investigate the
    complaint.

[7]

The respondent Ian Scott, the Director of the SIU, disagreed.
[1]
He asserted his investigative jurisdiction over the complaint by reason of s.
    113(5) of the Act and directed the PRP to cease its investigation.  The PRP
    declined to do so.

[8]

When the parties failed to resolve their competing jurisdictional
    claims, the Chief of the PRP, the appellant H.M. Metcalf, applied to the
    Superior Court of Justice for declaratory and related injunctive relief
    regarding the SIUs authority concerning the complaint.  In his notice of
    application, he sought declarations that the director of the SIU has no
    jurisdiction: (1) pursuant to s. 113(5) of the [Act], [to conduct an
    investigation] into the circumstances surrounding an injury to a third party
    from an alleged criminal offence committed by a former police officer; and (2)
    to conduct an investigation into the circumstances surrounding an injury to a
    third party from a criminal offence alleged to have occurred prior to 1990.

[9]

The Peel Regional Police Association and the Police Association of
    Ontario intervened in support of the PRPs jurisdictional claim.
[2]
Various legal clinics and the Canadian Civil Liberties Association also
    intervened; however, they supported the SIUs position that it has jurisdiction
    over the complaint.

(2)

Application Judges Decision

[10]

The
    application judge held that the SIU has jurisdiction under s. 113(5) of
    the Act to investigate alleged criminal offences committed by persons who were
    serving police officers at the time of the alleged offences.  He also held that
    the Act applies retrospectively to afford the SIU jurisdiction to investigate alleged
    criminal offences committed by police officers prior to the creation of the SIU
    in 1990.

[11]

With
    respect to the SIUs jurisdiction over complaints involving former police
    officers, the application judge held, at para. 84:

In sum, the words of s. 113(5) give the SIU jurisdiction over
    the investigation of alleged criminal misconduct causing serious injury or
    death by serving police officers who have since retired or resigned prior to
    the time of the complaint or the investigation into such complaint.

[12]

The
    application judge recognized that the issue whether the SIU has jurisdiction to
    investigate alleged pre-1990 criminal offences committed by police officers engages
    the question of the retrospective application of s. 113(5) of the Act.  He
    expressly adverted to the well-established presumption against the
    retrospective application of legislation.  He held, however, that two
    exceptions to the presumption  the procedural rights exception and the
    public protection exception  apply in this case to afford the SIU
    jurisdiction over the complaint.

[13]

More
    specifically, the application judge held that s. 113(5) of the Act affects only
    procedural, rather than substantive, rights of police officers whose alleged conduct
    is the subject of a proposed investigation by the SIU.  He additionally held
    that the Act is designed to provide a public benefit  independent oversight of
    police conduct  without any corresponding detriment for police officers whose
    conduct is the subject of an investigation under s. 113(5).  As a result, in
    his view, both the procedural rights and the public protection exceptions to
    the presumption against the retrospectivity of legislation apply to furnish the
    SIU with authority to investigate the complaint.

[14]

The
    application judge expressed his overall conclusion, at para. 110, in this
    fashion:

I am persuaded that the words police officers in s. 113(5)
    must be interpreted as referring to police officers at the time of the alleged
    misconduct and that the presumption against the retrospectivity of the
Act
is unrebutted [
sic
] or displaced by the procedural rights and public
    protection exceptions to the presumption.

[15]

Accordingly,
    by judgment dated May 3, 2011, the application judge dismissed the application and
    awarded costs to the SIU in the amount of $25,000.

[16]

The
    PRP appeals both aspects of the application judges ruling.

II.       Legislative Framework

[17]

Section
    113 of the Act and the SIU Regulation provide the legislative framework governing
    SIU investigations and the conduct and duties of police officers in respect of
    SIU investigations.  The full text of s. 113 is set out in Appendix A.  In
    addition, s. 2(1) of the Act contains the following pertinent definitions:

member of a police force means an employee of the police
    force or a person who is appointed as a police officer under the
Interprovincial
    Policing Act, 2009
;

....

police officer means a chief of police or any other police
    officer, including a person who is appointed as a police officer under the
Interprovincial
    Policing Act, 2009
, but does not include a special constable, a First
    Nations Constable, a municipal law enforcement officer or an auxiliary member
    of a police force;

[18]

Sections
    113(1) to (4) of the Act establish the SIU and provide for its administrative
    framework.  Section 113(5) confers investigative powers on the director of the
    SIU and his or her delegates.  Section 113(6) restricts the class of SIU
    investigators who may participate in an SIU investigation.  Finally, ss. 113(7)
    to (10) impose certain duties on the director and his or her delegates 
    including the duty to cause informations to be laid against police officers in
    certain circumstances (s.113(7))  and corresponding duties on members of
    police forces and appointed officials concerning the conduct of SIU
    investigations.

[19]

Recently,
    in
Schaeffer v. Ontario (Provincial Police)
, 2011 ONCA 716, 107 O.R.
    (3d) 721, at para. 6, leave to appeal sought, [2012] S.C.C.A. No. 6, Sharpe
    J.A. of this court provided this succinct overview of the statutory scheme
    regarding the SIU:

The SIU consists of a director, who cannot be a police officer
    or a former police officer, and investigators, who cannot be current police
    officers [ss. 113(2) to (3.1)].  Under s. 113(5) of the [Act], the director is
    empowered to cause investigations to be conducted into the circumstances of
    serious injuries and deaths that may have resulted from criminal offences committed
    by police officers.  The director has, under s. 113(8), the duty to report the
    results of investigations to the Attorney General and to lay informations
    against police officers if there are reasonable grounds to do so, and to refer
    them to the Crown Attorney for prosecution under s. 113(7).  Police officers
    are also directed by s. 113(9) to co-operate fully with the members of the
    [SIU] in the conduct of investigations.

[20]

As
    Sharpe J.A. also noted in
Schaeffer
, at para. 7, the SIU Regulation
    provides further guidance in the application of s. 113 of the [Act].  Under
    s. 1(1) of the SIU Regulation, a subject officer is defined as a police
    officer whose conduct appears, in the opinion of the SIU director, to have
    caused the death or serious injury under investigation.  A witness officer
    is defined, in turn, as a police officer who, in the opinion of the SIU
    director, is involved in the incident under investigation but is not a subject
    officer.

[21]

I
    will refer to other relevant provisions of the SIU Regulation in the context of
    the issues to which they relate.  At this point, however, I note that s. 3 of
    the SIU Regulation requires a chief of police to notify the SIU immediately
    of an incident involving his police officers that may reasonably be considered
    to fall within the investigative mandate of the SIU.  Under s. 5, the SIU is
    the lead investigator in the investigation of an incident and has priority
    over any police force in the investigation.  Nonetheless, a chief of police is
    required to also cause an investigation to be conducted forthwith into any
    incident of which the SIU is notified, subject to the SIUs lead role in
    investigating the incident, for the purpose of reviewing the policies of or
    services provided by the police force and the conduct of its police officers
    (ss. 11(1) and (2)).

III.      Issues

[22]

Two
    issues are raised in this appeal:

(1)

Does the
    SIU have jurisdiction under s. 113(5) of the Act to investigate an alleged
    criminal offence committed by a police officer where the officer was a serving
    police officer at the time of the alleged offence, but had resigned or retired
    by the time of the complaint of wrongdoing?

(2)

Does the
    SIU have jurisdiction under s. 113(5) of the Act to investigate an alleged
    criminal offence committed by a police officer where the alleged offence
    occurred prior to the creation of the SIU in 1990?

IV.     Analysis

(A)SIUs Jurisdiction to Investigate
    Alleged Criminal

Offences
    Committed by Former Police Officers

[23]

The
    PRP argues that the SIUs investigative jurisdiction under s. 113 of the Act is
    confined to investigations of alleged criminal offences causing serious injuries
    and death committed by persons who were serving police officers
at the time
    of the investigation
.  The PRP contends that s. 113(5) contemplates SIU
    investigations of the actions of police officers in certain circumstances and
    that a former police officer is not a police officer for the purpose of Part
    VII of the Act.

[24]

The
    application judge rejected this argument, holding that the language of s. 113(5),
    when read in its grammatical and ordinary sense, in the context of the entire
    legislative regime governing the SIU and the purpose of the Act, grants the SIU
    jurisdiction to investigate alleged criminal offences causing serious injuries
    and death committed by persons who were serving police officers
at the time
    of the conduct at issue
.  He stated, at para. 83:

I am persuaded that the words of s. 113(5), when read in their
    grammatical and ordinary meanings and examined in the context of the section,
    the
Act
and the Regulations and interpreted harmoniously with the
    purpose of the
Act
, grant the SIU jurisdiction to investigate alleged
    criminal offences causing serious injury or death committed by serving police
    officers who have, since the time of the alleged criminal offences, resigned or
    retired.  This reading of the
Act
is consistent with the legislative
    text and promotes or advances the Legislatures intention of vesting
    independent and transparent oversight of police officers conduct in the public
    interest.

[25]

For
    the following reasons, I agree with the application judges interpretation of
    the ambit of s. 113(5) of the Act.

(1)

Principles of Statutory Interpretation

[26]

The
    modern Canadian approach to statutory interpretation requires that the words of
    legislation are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament: E.A. Driedger,
Construction of
    Statutes
(2nd ed. 1983), at p. 87, as cited in
Rizzo & Rizzo Shoes
    Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited
    Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.  Under
    this approach, textual considerations must be read in concert with legislative
    intent and established legal norms.  In addition, context plays a critical role
    in the interpretive process:
Application under s. 83.28 of the Criminal
    Code (Re)
, 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 34 (
Re s. 83.28
);
Bell ExpressVu
, at para. 27.  Under the requisite contextual analysis,
    the law presumes that constituent elements of a legislative scheme are meant to
    work together logically and teleologically, each contributing to the
    achievement of the legislatures goal.  This presumption of coherence,
    sometimes called the presumption against internal conflict, seeks to avoid
    contradictions or inconsistencies among parts of the same body of legislation:
    Ruth Sullivan,
Sullivan on the Construction of Statutes
, 5th ed.,
    (LexisNexis Canada Inc: 2008), at p. 223.

[27]

In
    Ontario, the legislature has provided additional guidance regarding the
    construction of legislation.  Section 10 of the former
Interpretation Act
,
    R.S.O. 1990, c. I. 11 directed that every statute is deemed to be remedial and is
    to receive such fair, large and liberal construction and interpretation as
    will best ensure the attainment of the object of the Act, according to its true
    intent, meaning and spirit.  Section 64 of the
Legislation Act, 2006
,
    S.O. 2006, c. 21, Schedule F, directs a similar interpretive approach to
    legislation, as best ensures the attainment of [the legislations] objects.

(2)

Interpretation of Section 113(5)

[28]

The
    PRP attacks the application judges interpretation of s. 113(5) of the Act on
    several grounds.  It argues, principally, that his construction of s. 113(5) is
    contrary to the plain language of that provision and, further, to the scheme
    and purpose of the legislative regime governing the SIU.  I will address these
    arguments in turn.

Language of
    Section 113(5)

[29]

The
    application judge reviewed in detail the events leading to the creation of the
    SIU, the history of Part VII of the Act and the SIU Regulation, and the
    parties positions concerning the SIUs statutory mandate.  He was also alert
    to the applicable principles of statutory interpretation, described above. 
    Against this backdrop, he commenced his analysis by considering the plain
    meaning of the words of s. 113(5).  In approaching this task, he was mindful
    that the words used in s. 113(5) must be read in context and in accordance with
    their grammatical and ordinary sense.

[30]

The
    application judge concluded that there is a clear temporal connection between
    the alleged criminal offences that the SIU is authorized to investigate by
    reason of s. 113(5), and the status of the alleged perpetrator of the offence. 
    He reasoned, at para. 86:

The syntactical structure of subsection (5) of s. 113 indicates
    that the words police officers are referable to the words criminal
    offences: that is, the subsection describes criminal offences committed
by
police officers.  It is not syntactically sound to
    read the words police officers as relating to investigations.  In other
    words, subsection (5) does not describe investigations
into
police officers but rather investigations
into
criminal
offences
committed
by
police officers.  [Emphasis in original.]

[31]

I
    agree.  The grammatical and ordinary sense of the words used in s. 113(5)
    indicates that the SIUs investigative authority relates to the conduct of
    persons who were police officers at the time an alleged criminal offence was
    committed.  For convenience, I again set out the operative words of s. 113(5):

The director may  cause investigations to be conducted into
    the circumstances of serious injuries and deaths that may have resulted
from
    criminal offences committed by police officers
.  [Emphasis added.]

[32]

This
    language strongly suggests that the SIUs investigative jurisdiction is
    triggered if an alleged criminal offence that may have caused serious injuries
    and death is committed by a person who, at the time of the commission of the
    offence, was a serving police officer.  The operative phrase in s. 113(5) is
    committed by police officers.  I agree with the SIU and supporting
    interveners submission that the noun police officers in this phrase is the
    direct object of the verb committed.  The object does not modify the verb
    temporally.  Rather, the verb is modified by reference to the suspects status
    at the time of the offence.  Thus, the temporal focus of s. 113(5) is the time
    of the conduct said to constitute a criminal offence.  It follows that the
    person whose alleged criminal conduct may be investigated is a person who, at
    the time of the alleged conduct, was a serving police officer.  Nothing in the
    language of s. 113(5) suggests that the SIUs investigative jurisdiction
    depends on the employment status of the involved police officer at the time of
    the investigation.

Purpose of Part VII of the Act and the SIU Regulation

[33]

The
    application judge concluded, at para. 91:

[R]eading the
Act
as conferring on the SIU authority
    and jurisdiction to investigate serious police misconduct leads to a result
    that is fair and in furtherance of the purpose of the
Act
.  Such a
    reading of the
Act
provides complainants with a mechanism for an
    impartial and independent review of complaints and thereby enhances public
    confidence and trust in the administration of justice.

Again, I agree.

[34]

This
    approach to the interpretation of the legislation governing SIU investigations was
    cited with approval by Sharpe J.A., writing for a unanimous court, in
Schaeffer
,
    at para. 58.  In addition, Sharpe J.A. stated, at para. 58, that the purpose of
    the legislative regime relating to SIU investigations is to ensure the
    independent and accountable investigation of the use of police force causing
    death or serious injury and, as well, to foster confidence in such investigations
    and in the integrity of the police.  He subsequently reiterated, at para. 76:

[T]he overarching purpose of the legislation [is] the preservation
    and promotion of independence, account-ability, and public confidence in the
    investigation of police use of deadly force.

[35]

Justice
    Sharpe, at para. 58, also accepted the following description of the purpose
    underlying Part VII the Act and the SIU Regulation, set out by the SIU in its factum
    in
Schaeffer
:

The legislative purpose underlying [Part VII of the Act and the
    SIU Regulation] is clear and unequivocal: to maintain and foster public
    confidence in the rule of law and the administration of justice by ensuring
    that when police actions result in the death of or serious injury to civilians,
    they are subject to an independent, impartial and effective investigation the
    conclusions of which are accessible and transparent.

[36]

I
    also endorse and adopt this description of the legislative aim of Part VII of
    the Act and the SIU Regulation.  It fully accords with the overall purpose of
    the Act as described by this court in
Ontario (Civilian Commission on
    Police Services) v. Browne
(2001), 56 O.R. (3d) 673.  As noted in
Browne
,
    at para. 66, the purpose of the Act is declared in a series of principles set
    out in s. 1.  These include:

Police services shall be provided throughout Ontario in
    accordance with the following principles:

1.       The need to ensure the safety and security of all
    persons and property in Ontario.

2.       The importance of safeguarding the fundamental
    rights guaranteed by the
Canadian Charter of Rights and Freedoms
and
    the
Human Rights Code
.

...

4.       The importance of respect for victims of crime and
    understanding of their needs.

5.       The need for sensitivity to the pluralistic,
    multiracial and multicultural character of Ontario society.

[37]

In
    this context,
Browne
holds, at para. 67: The legislative purpose [of
    the Act] is demonstrably to increase public confidence in the provision of
    police services, including the processing of public complaints.

[38]

This
    interpretation of the purpose of Part VII of the Act and the SIU Regulation is
    also consistent with the history of the legislative scheme governing the SIU, as
    revealed in the numerous task force reports, studies and reviews that
    precipitated the creation of the SIU or thereafter examined its mandate and
    relationship with police agencies in Ontario.

[39]

I
    note, especially, that Part VII of the Act was the legislated response to
    recommendations made by Clare Lewis in the Ontario
Report of the

Race
    Relations and Policing Task Force, 1989
, established in the aftermath of
    two fatal police shootings in 1988.  That report, at pp. 146 to 147, documented
    public concern that police investigations into fatal police shootings lacked
    objectivity since they amounted to the police investigating the police.  I
    think it self-evident, as the SIU submits, that the Task Forces use of the
    phrase the police investigating the police refers to police investigating
    police conduct.

[40]

The
    Task Force concluded, at pp. 147 to 148, that internal police investigations of
    such incidents no longer satisfied public demand for impartiality and the
    maintenance of public confidence in police investigations.  It therefore
    recommended, and the Ontario government subsequently accepted, that the process
    for investigating police shootings must involve independent civilian oversight. 
    The creation of the SIU soon followed.

Absence of Express Reference to Former Officers

[41]

The PRP argues, in effect, that the SIUs investigative mandate can only
    extend to the conduct of former police officers by express language.  In
    support of this argument, the PRP points out that neither the definition of
    police officer under s. 2, set out above, nor s. 113(5) of the Act expressly
    refer to former police officers, while other provisions of the Act do
    differentiate between serving police officers and former police officers.  The PRP
    submits that as several provisions of the Act draw this distinction, and s.
    113(5) does not, the legislature did not intend that s. 113(5) authorize SIU
    investigations of alleged crimes involving police officers who resign or retire
    before any complaint of wrongdoing.  This interpretive conclusion, the PRP says,
    is buttressed by the provisions of the SIU Regulation which, it maintains, apply
    only if a subject officer refers to a person who is a serving police officer
    at the time of the initiation of an SIU investigation.

[42]

In
    my opinion, there are several critical flaws in this argument.

[43]

It
    is true that some provisions of the Act specifically refer to police officers
    in contrast to former police officers: see ss. 26.1(2) and 94(1) of the Act. 
    In fact, this distinction is drawn in some parts of s. 113 itself.  Section 113(3)
    states:

A person
who is

a police officer or former police
    officer
shall not be appointed as director, and persons who are police
    officers shall not be appointed as investigators.  [Emphasis added.]

See also ss. 113(3.1).

[44]

However,
    the references to former police officers relied on by the PRP are necessary
    given the particular temporal focus of the legislative provisions at issue and
    the mischief at which they are directed.  As I will explain, the same cannot be
    said of s. 113(5).

[45]

Section
    113(3) illustrates this point.  This provision is phrased in the present tense. 
    It provides that a person who
is
a police officer or former police
    officer cannot be appointed as director of the SIU and persons who
are
police officers cannot be appointed as SIU investigators (emphasis added). 
    Plainly, therefore, the prohibitions in s. 113(3) are concerned with the
    current status of the officer in question.

[46]

This
    is understandable since the object of s. 113(3) is to avoid the actual or
    apparent conflict of interest that would arise if the director of the SIU is
    also a serving or former police officer or if an SIU investigator is also a
    serving police officer.  That the legislature intended to protect against such
    conflicts of interest is reinforced by s. 113(6) of the Act, which prohibits an
    SIU investigator from participating in an SIU investigation relating to members
    of a police force of which he or she was previously a member.

[47]

In
    my view, the aim of these provisions, in accordance with the purpose of the Act
    generally and s. 113 in particular, is to constrain the SIUs investigative
    powers under s. 113(5) to the extent necessary to prevent actual or perceived
    conflicts of interest in the investigation of serious police wrongdoing.  To
    conclude otherwise would be to sanction, in effect, the police investigating
    the police, thereby defeating the legislative purpose of Part VII of the Act.

[48]

Section
    113 seeks to ensure that the SIUs power of investigation under s. 113(5) is
    not exercised by persons  the director and SIU investigators  who have the
    very conflict of interest that would exist here if the PRP were viewed as the
    agency vested with lead responsibility for investigating the conduct of one of
    its former members.  This is the type of conflict of interest that Part VII of
    the Act specifically seeks to avoid.  It follows that the express inclusion of
    the phrase former police officer in s. 113(3) is necessary to achieve the
    legislatures objective.

[49]

In
    contrast, s. 113(5) is cast in both the past and present tenses.  Specific
    mention of former police officers is therefore not required to achieve its
    intended legislative purpose since the temporal focus of the provision is on
    the officers status at the time of his or her alleged wrongdoing, not at the
    time of the disclosure or investigation of that wrongdoing.

[50]

I
    do not regard the provisions of the SIU Regulation as undercutting this
    conclusion.  Unlike some other regulations under the Act,
[3]
the SIU Regulation does not expressly distinguish between serving and former
    police officers.  Nonetheless, on a fair reading of the SIU Regulation, I
    accept that many of the obligations imposed by it can only have effect when applied
    to serving police officers, rather than persons who were once police officers
    but who, by reason of retirement or resignation, are civilians at the time of
    an SIU investigation.
[4]

[51]

That
    said, the provisions of the SIU Regulation must be understood in the context of
    the mischief at which they are aimed.  The SIU Regulation is concerned with the
    potential for delay, disruption, collusion and, generally, the attempted
    frustration of an SIU investigation by police officers.  To meet this potential
    mischief, the legislature designed particular regulatory measures in the form
    of specified duties and obligations attaching to serving chiefs of police and police
    officers regarding SIU investigations.

[52]

Once
    again, the relevant legislative history is instructive.  The SIU Regulation and
    its predecessor were enacted in 1999 in the aftermath of various reviews of
    police oversight in Ontario in the 1990s, including that of the SIU.
[5]
These reviews highlighted, in essence, police officers refusal to co-operate
    with the SIU.  Since the root causes of this on-going opposition to the SIUs
    role were systemic in nature and did not implicate the conduct or attitudes of
    former police officers in respect of the SIU, no need for regulatory controls
    concerning former police officers was identified.  The recommendations for
    reform made in these reviews led to the promulgation of the SIU Regulation.

[53]

Thus,
    the events that fuelled the introduction of the SIU Regulation confirm its
    focus on the SIU-related obligations of persons who, at the time of a complaint
    of serious police wrongdoing, are positioned to provide notice to the SIU of
    the incident and to produce or protect evidence potentially relevant to an SIU
    investigation of the incident  in other words, serving chiefs of police or
    police officers.

[54]

The
    enforcement provisions of O. Reg. 268/10 further support the conclusion that
    the SIU Regulation itself is not directed at former police officers.  By
    operation of s. 30(1) of O. Reg. 268/10 and s. 2(1)(c)(ii) of the
Code of
    Conduct
annexed to it, non-compliance with the SIU Regulation by any chief
    of police or other police officer constitutes misconduct and, hence, a
    disciplinary offence for the purpose of the complaints and disciplinary processes
    set out in Part V of the Act.  Continued membership in a police force is a
    necessary pre-condition to the imposition of disciplinary sanctions under Part
    V.  See for example, ss. 76(1) and 90(1) of the Act.

[55]

I
    note one additional difficulty with the PRPs suggested interpretation of the
    SIUs statutory mandate.  As the application judge aptly observed, under the
    PRPs urged interpretation of s. 113(5), an ongoing SIU criminal investigation
    could be ground to a halt by the simple act of the resignation or retirement or
    the discharge of the police officer whose alleged conduct is the subject of the
    investigation.  Bluntly put, this would mean that the SIUs investigative
    jurisdiction would be subject to the unilateral and potentially capricious
    control of the affected police force and the suspect officer.  This would
    undermine the precise purpose of Part VII and the Act as a whole including,
    especially, public confidence in the integrity of investigations into alleged
    serious police wrongdoing.  In my view, this interpretive result should not be
    countenanced absent a clear indication of such intention by the legislature.

Interplay Between Sections 113(5) and (7)

[56]

The PRP also argues that an interpretation of s. 113(5) that affords the
    SIU investigative jurisdiction over the conduct of former police officers
    creates a conflict with s. 113(7) of the Act.  The latter provision states:

If there are reasonable grounds to do so in his or her opinion,
    the director shall cause informations to be laid against police officers in
    connection with the matters investigated and shall refer them to the Crown
    Attorney for prosecution.

[57]

The
    PRP submits that, on a plain reading of s. 113(7), the person against whom an
    information may be laid must be a serving police officer at the time the
    information is laid.  Otherwise, it contends, the words against police
    officers in s. 113(7) would be superfluous.  I disagree.

[58]

The
    application judge considered, and rejected, this argument.  He reasoned in
    part, at para. 87, that the reference to police officers in s. 113(7)
    logically refers to police officers whose conduct is subject to investigation
    under s. 113(5).

[59]

This
    holding is unassailable.  Section 113(7) authorizes the SIU to lay informations
    against police officers in connection with 
the matters investigated

    (emphasis added).  The use of the phrase the matters investigated establishes
    a clear link between the investigations conducted by the SIU under s. 113(5)
    and the SIUs duty under s. 113(7) to lay informations based on the results of
    its investigations.

[60]

I
    recognize that this connection between ss. 113(7) and (5) of the Act is not
    dispositive  it does not resolve the question of the meaning of police
    officers in both provisions.  However, there is nothing that grammatically or
    textually requires the term police officers in s. 113(7) to be interpreted
    more narrowly than the same phrase as it appears in s. 113(5), so as to exclude
    the possibility of laying an information under s. 113(7) against a former
    police officer in a proper case.  Indeed, a contrary conclusion would offend
    the interpretive principle of the presumption of coherence, described above.  Under
    that presumption, Part VII of the Act must be read as a whole and in a manner
    that seeks to avoid inconsistencies or contradictions between its constituent
    provisions: see Sullivan,
supra
, at p. 223.  In
Morgentaler v. The
    Queen
, [1976] 1 S.C.R. 616, at p. 676, Dickson J. (as he then was) put the
    proposition this way:

We must give the sections a reasonable construction and try to
    make sense and not nonsense, of the words.  We should pay Parliament the
    respect of not assuming readily that it has enacted legislative inconsistencies
    or absurdities.

[61]

I
    see no operational conflict between ss. 113(5) and (7) on the interpretation of
    those provisions that I favour.  On the contrary, I regard them as complementary. 
    The inclusion of the words against police officers in s. 113(7) simply
    ensures that the SIUs duty under s. 113(7) does not apply to non-police
    officers, that is, to persons who are not and have never been police officers. 
    Properly read, s. 113(7) contemplates that, where reasonable grounds exist to
    do so, informations shall be laid by the director of the SIU, and then referred
    to the Crown Attorney for prosecution, against those persons who were serving
    police officers at the time of the commission of the alleged criminal offences
    investigated by the SIU.

[62]

This
    is the logical law enforcement outcome of a criminal investigation under s.
    113(5) that yields evidence of criminal wrongdoing.  It is also consistent with
    s. 113(8) of the Act, which requires the director of the SIU to report the
    results of SIU investigations to the Attorney General.  For criminal law
    enforcement purposes, it matters not whether the alleged crime was committed by
    a serving or a former police officer.

Professional
    Responsibility Authorities

[63]

In
    support of the construction of s. 113(5) for which it contends, the PRP also relies
    on various professional responsibility cases, in which statutory or voluntary
    disciplinary or oversight bodies have been held to have no jurisdiction to
    investigate or regulate the conduct of former members of the profession or
    group at issue, absent specific provision for such jurisdiction in their
    enabling statutes.

[64]

These
    authorities do not assist the PRP in this case.  In each of the cited cases,
    the jurisdiction of the relevant statutory body related to its membership,
    thus importing a requirement of current membership status to anchor
    investigative or regulatory jurisdiction.  In
Maurice v. Priel
, [1989]
    1 S.C.R. 1023, for example, it was held that the disciplinary jurisdiction of
    the Law Society of Saskatchewan did not extend to a judge, whose conduct while
    a practising solicitor was impugned, because: (1) the Law Societys disciplinary
    powers applied only to members of the society; (2) the membership consisted
    of barristers and solicitors (and persons admitted to the society as students);
    and, (3) by operation of law, the person in question was not a barrister and
    solicitor while serving as a judge.

[65]

Similarly,
    in
Colvin v. Canada (Royal Canadian Mounted Police  RCMP)
, [1994] 3
    F.C. 562, leave to appeal refused, [1994] S.C.C.A. No. 387, the Federal Court
    of Appeal held that the RCMP Public Complaints Commission had no jurisdiction
    to entertain a public complaint concerning the alleged conduct of a person who
    had retired from the RCMP before the initiation of the complaint.  Under the
    relevant legislation: (1) complaints could be made regarding the conduct of
    members of the RCMP; (2) the statutory definition of member expressly
excluded
persons who had been dismissed or discharged from the RCMP (that is, former
    members); and (3) the entirety of the public complaints process under the
    relevant statute contemplated that, at the time of a conduct complaint, the
    Commissioner of the RCMP was in a position of authority over the person whose
    conduct was complained of.  These provisions necessarily meant that the RCMP
    Public Complaints Commission had no investigative jurisdiction concerning the
    conduct of former members of the RCMP.  Further, the RCMP Commissioner  who
    played a vital role under the statutory public complaints scheme  had no
    authority over, and no legal or enforceable duty concerning, a person who had
    ceased to be a member of the RCMP.  Thus, the particular oversight scheme in
    question, coupled with the applicable statutory definition of membership, restricted
    the investigative jurisdiction of the RCMP Public Complaints Commission.

[66]

These
    and similar authorities cited by the PRP illustrate that the scope of statutory
    investigative or regulatory jurisdiction is legislation-specific, depending in
    each instance on the language of the jurisdiction-conferring statute, when
    construed in accordance with the applicable principles of statutory
    construction.

[67]

Examples
    abound of various professional responsibility statutes that expressly confer
    jurisdiction on disciplinary or regulatory bodies over former members of the
    profession or association at issue.
[6]
These statutes are concerned with the investigative jurisdiction of
    disciplinary or regulatory bodies, not with jurisdiction to conduct criminal
    investigations.  Consequently, unlike Part VII of the Act, they provide
    expressly for jurisdiction over former members, since such jurisdiction is
    grounded on the membership status of the person whose conduct is to be
    investigated or subject to regulation.  Further, professional responsibility
    statutes have specific and distinct objects, as well as mechanisms for
    achieving them.  In the end, they provide little interpretive guidance outside
    the investigative or regulatory domain to which they relate.

[68]

In
    this case, unlike the provisions of the applicable statute in
Colvin
,
    nothing in the definitions of police officer or member of a police force
    under s. 2 of the Act, or any provision of the Act that specifically adverts to
    former police officers, answers the question of when a police officer who is
    alleged to have committed a criminal offence must be a serving police officer
    to trigger the SIUs jurisdiction under s. 113(5).  Under the Act, it is not a
    question whether such an offence will be investigated but, rather, which
    investigative body has lead jurisdiction to do so.  All interpretive roads,
    therefore, lead back to the words and purpose of s. 113(5), the scheme of Part
    VII, and the purpose of Part VII and the Act as a whole, as I have discussed.


Absence
    of Prejudice

[69]

I
    make one final observation.  In my view, it is telling that the PRP could point
    to no public policy reason why the SIUs investigative jurisdiction should be
    narrowly interpreted so as to prevent SIU investigations of alleged serious
    wrongdoing by former police officers.  Nor has the PRP adduced any evidence of
    prejudice to a former police officer whose conduct is the subject of an SIU
    investigation.  I again emphasize that under the scheme of s. 113, it is not a
    question
whether
but, rather,
by whom
alleged serious
    wrongdoing by police officers will be investigated.

(3)

Conclusion

[70]

In
    light of all these factors, I conclude that an interpretation of s. 113(5) of
    the Act that affords the SIU jurisdiction to investigate alleged criminal acts
    committed by persons who were serving police officers at the time of the acts
    in question is consistent with the language of s. 113(5).  Further, it is an
    interpretation that is harmonious with and advances the intent of the
    legislature and the scheme and object of Part VII of the Act and the Act as a
    whole.

(B)SIUs Jurisdiction to Investigate
    Alleged Pre-1990

Criminal Offences Committed by Police
    Officers

[71]

The
    PRP argues that the procedural rights and public protection exceptions to the
    presumption against the retrospective application of legislation do not apply
    to the legislative regime applicable to the SIU.  Consequently, the PRP
    submits, the SIU has no jurisdiction to investigate an alleged pre-1990 criminal
    offence committed by a police officer.  I would not accede to this argument.

[72]

I
    begin with the procedural rights exception to the presumption against the
    retrospectivity of legislation.  At common law, procedural legislation is
    presumed to apply immediately, to both pending and future facts.  As Sullivan,
supra
,
    discusses at p. 696, this presumption of immediate application has been
    characterized, variously, in these terms: (1) there is no vested right in
    procedure; (2) the effect of a procedural change is deemed beneficial for all;
    (3) procedural provisions are an exception to the presumption against
    retrospectivity; and (4) procedural provisions are ordinarily intended to have
    an immediate effect.  Sullivan also notes, at p. 696, the following early
    formulation of the rule in
Wright v. Hale
(1860), 6 H. & N. 227,
    at p. 232:

[W]here the enactment deals with procedure only, unless the
    contrary is expressed, the enactment applies to all actions, whether commenced
    before or after the passing of the Act.

[73]

Canadian
    courts have recognized that the determination of whether a legislative
    provision is purely procedural requires examination of the substance of the
    provision and its practical impact on the parties.  In
Martin v. Perrie
,
    [1986] 1 S.C.R. 41, at p. 48, the Supreme Court of Canada cited with approval
Yew
    Bon Tew v. Kenderaan Bas Mara
, [1983] 1 A.C. 533 (P.C.), at p. 562 for the
    principle that the substance of a provision, rather than the label assigned to
    it, is controlling of whether it is procedural in nature.  The central question
    is whether the provision, if applied retrospectively, would impair existing
    rights and obligations.  If so, the provision is not purely procedural and
    cannot be given retrospective effect.

[74]

Martin
also confirms that the intention of the legislature to interfere with vested
    rights and obligations must be express.  The Supreme Court explained, at pp. 49
    to 50, citing
Spooner Oils Ltd. v. Turner Valley Gas Conservation
,
    [1933] S.C.R. 629, at p. 638:

A legislative enactment is not to be read as prejudicially
    affecting accrued rights, or an existing status ... unless the language in
    which it is expressed requires such a construction ... the underlying
    assumption being that, when Parliament intends prejudicially to affect such
    rights or such a status, it declares its intention expressly, unless, at all
    events, that intention is plainly manifested by unavoidable inference. 
    [Citations omitted.]

[75]

More
    recently, in
Re s. 83.28
,
supra
, the Supreme Court of Canada
    considered whether s. 83.28 of the
Criminal Code
(the
Code
),
    introduced as a result of the enactment of the
Anti-terrorism Act
,
    S.C. 2001, c. 41, applied retrospectively.  Section 83.28 authorized the
    obtaining, on
ex parte
application, of an order for a judicial
    investigative hearing concerning suspected terrorism offences.
[7]
The issue was whether s. 83.28 applied in circumstances where the terrorism
    offences at issue were committed before the
Anti-terrorism Act
came
    into force.

[76]

In
Re s. 83.28
, the majority cautions, at para. 56, that an assessment
    whether a provision is or is not procedural must be determined in the circumstances
    of each case.  Further, for a provision to be regarded as procedural, it must
    be exclusively so [citations omitted].  The majority concluded, at paras. 56
    and 60 to 61, that s. 83.28 of the
Code
was purely procedural in
    nature since it merely provided: a mechanism for the gathering of information
    and evidence in the ongoing investigation of past, present and future offences
    and outline[d] the process by which judicial investigative hearings are to be
    carried out.

[77]

The
    issue in this case, therefore, is whether s. 113(5) of the Act is procedural,
    rather than substantive, in nature and effect.  In holding that s. 113(5)
    affects procedural and not substantive rights of police officers whose conduct
    is the subject of a proposed SIU investigation, the application judge reasoned,
    at para. 98, that: (1) neither the police officer in question nor a complainant
    have a substantive right as to who conducts an investigation into any
    complaint; and (2) the obligations imposed by the SIU Regulation on witness
    officers and chiefs of police (there being no compulsory obligations imposed
    thereunder on subject officers) were procedural in nature.

[78]

For
    four reasons, I agree with the application judges analysis and conclusion. 
    First, I accept that, by its terms, s. 113(5) has retrospective effect.  As the
    application judge stated, at para. 95, s. 113(5) attaches consequences (investigations
    by the SIU rather than by the police) to events (the conduct giving rise to the
    alleged criminal offence) that occurred before the creation of the SIU in 1990. 
    The presumption against the retrospectivity of legislation is therefore
    engaged.  The question is whether the presumption is displaced by the
    procedural rights exception.

[79]

Second,
    both before and after the creation of the SIU, alleged criminal acts by police
    officers were subject to criminal investigation.  The effect of the SIU
    legislative regime is to transfer
lead
responsibility for those
    investigations in limited circumstances (where the alleged offences may have
    caused serious injuries and death) from one organization (the involved police
    force) to another (the SIU).

[80]

Moreover,
    Part VII of the Act does not expose police officers in Ontario, for the first
    time, to external or public review of their conduct.  As the PRP emphasizes for
    its own purposes, a multi-layered scheme of police oversight, encompassing both
    internal and external review processes, exists in Ontario.  This did not change
    with the establishment of the SIU.  Rather, to paraphrase the words of the Supreme
    Court in
Re s. 83.28
, above-quoted, s. 113(5) of the Act simply
    provides a different, alternative mechanism for the gathering of information
    and evidence in investigations of alleged criminal offences said to involve
    police officers.  No police officer has a vested right in a particular form of
    procedure for the investigation of his or her alleged criminal conduct.

[81]

Third,
    I am persuaded that neither the Act nor the SIU Regulation interferes with the
    substantive rights of police officers whose conduct is proposed to be
    investigated by the SIU.

[82]

The
    Act and the SIU Regulation do not impose any duties or obligations on subject
    officers that do not already apply to them by operation of law in police-conducted
    investigations of alleged criminal offences.  I note, in particular, that while
    s. 113(9) of the Act requires a police officer whose conduct is being
    investigated by the SIU to co-operate fully, an investigating police force is
    authorized under the police
Code of Conduct
, appended to O. Reg.
    268/10, to require co-operation and to obtain a statement from a police officer
    during an investigation.  The
Code of Conduct
also imposes obligations
    on police officers regarding note-taking and co-operation with investigators.

[83]

Accordingly,
    many of the provisions of the SIU legislative regime, said by the PRP to
    infringe a police officers rights, mirror a subject officers existing rights
    and obligations in a police-conducted criminal investigation.  Unlike witness
    officers, subject officers have no obligation under the SIU Regulation to meet
    with the SIU, to answer SIU investigators questions or to produce their notes
    on the incident under investigation at the request of the SIU: see SIU
    Regulation, ss. 8 and 9.  In fact, read as a whole, the SIU Regulation reveals a
    nuanced legislative approach that is designed to protect against any abrogation
    of a subject officers right against self-incrimination, avoiding, for example,
    the compulsory provision of inculpatory information by a subject officer.

[84]

Finally,
    the PRP relies heavily on the decision of the Federal Court of Appeal in
Royal
    Canadian Mounted Police Act (Can.) Re
, [1991] 1 F.C. 529, leave to appeal
    refused, [1991] S.C.C.A. No. 57 (
Re RCMP
), in support of its argument
    that the SIU legislative regime affects the substantive rights of involved
    police officers.

[85]

In
    my view, this reliance is misplaced.  I see no parallel between the decision in
Re RCMP
and the retrospectivity issue before this court.  As the
    application judge stated, at paras. 100 to 101, the public complaints process
    under scrutiny in
Re RCMP
was fundamentally different, and more
    onerous and comprehensive, than the SIU investigative process envisaged by the
    Act and the SIU Regulation.

[86]

Furthermore,
    unlike this case, the oversight process at issue in
Re RCMP
represented
    an inaugural scheme for public review  by civilians  of the conduct of
    members of the RCMP. As I have explained, neither the establishment nor the
    investigative mandate of the SIU occasioned such a sea change in review of
    police conduct in Ontario.  Police officers whose conduct is subject to
    investigation by the SIU continue to enjoy all the rights and protections
    previously available to them at law in a police-conducted criminal
    investigation.  In addition, the criminality of the acts in question continues
    to be determined by reference to the same laws and legal norms as apply in such
    investigations.  The only difference, as the SIU stresses, is the identity of
    the investigating body.

[87]

I
    therefore conclude that the application judge did not err in holding that the
    procedural rights exception to the presumption against the retrospectivity of
    legislation applies in this case.  In light of this conclusion, it is
    unnecessary to address his additional finding that the public protection
    exception to the presumption also applies to anchor the SIUs investigative
    jurisdiction over the complaint.

V.      Disposition

[88]

For
    the reasons given, I would dismiss the appeal.  I would award the respondent
    SIU Director his costs of the appeal, fixed as agreed by counsel in the amount
    of $11,500, inclusive of disbursements and all applicable taxes.  As also
    agreed by the parties, I would award no costs against or in favour of any
    intervener.

Released:  MAY -7 2012                   E.A. Cronk
    J.A.

DOC                                                I
    agree D. OConnor A.C.J.O.

I
    agree John Laskin J.A.




Appendix A

PART VII

SPECIAL INVESTIGATIONS

113. (1)     There shall be a special investigations unit of
    the Ministry of the Solicitor General.

(2)     The unit shall consist of a director appointed
    by the Lieutenant Governor in Council on the recommendation of the Solicitor
    General and investigators appointed under Part III of the
Public Service of
    Ontario Act, 2006
. R.S.O. 1990, c. P. 15, s. 113(2).

(3)     A person who is a police officer or former police
    officer shall not be appointed as director, and persons who are police officers
    shall not be appointed as investigators.

(3.1)   The director may designate a person, other than
    a police officer or former police officer, as acting director to exercise the
    powers and perform the duties of the director if the director is absent or
    unable to act.

(4)     The director, acting director and investigators
    are peace officers.

(5)     The director may, on his or her own initiative,
    and shall, at the request of the Solicitor General or Attorney General, cause
    investigations to be conducted into the circumstances of serious injuries and
    deaths that may have resulted from criminal offences committed by police
    officers.

(6)     An investigator shall not participate in an
    investigation that relates to members of a police force of which he or she was
    a member.

(7)     If there are reasonable grounds to do so in his
    or her opinion, the director shall cause informations to be laid against police
    officers in connection with the matters investigated and shall refer them to
    the Crown Attorney for prosecution.

(8)     The director shall report the results of
    investigations to the Attorney General.

(9)     Members of police forces shall co-operate fully
    with the members of the unit in the conduct of investigations.

(10)    Appointing officials shall co-operate fully with
    the members of the unit in the conduct of investigations.





[1]
I refer to the SIU and its director, collectively, as the SIU in these reasons.



[2]
I refer to the Chief of the PRP and the PRP and supporting interveners,
    collectively, as the PRP in these reasons.



[3]
For example, former O. Reg. 554/91, 
Political Activities of Municipal
    Police Officers
, expressly provided for former municipal police officers,
    who once held elected office, to reapply for appointment to a police force in
    certain circumstances: ss. 7(4) and (5).  Virtually identical language now
    appears in s. 17(4) of O. Reg. 268/10.



[4]
Section 6(1) of the SIU Regulation, for example, obliges a chief of police to
    segregate all the police officers involved in the incident from each other,
    while s. 6(2) prohibits a police officer involved in the incident from
    communicating with other police officers concerning their involvement in the
    incident, until the completion of SIU interviews.  These and other provisions
    of the SIU Regulation can only be enforced effectively as against serving
    police officers.



[5]
See for example,
Consultation Report of the Honourable George W. Adams,
    Q.C. to the Attorney General and Solicitor General Concerning Police
    Cooperation with the Special Investigations Unit
, (Hon. George W. Adams,
    Q.C., May 14, 1998).



[6]

For
    example, the
Veterinarians Act
, R.S.O. 1990, c.
    V.3, s. 24(1); the
Registered Insurance Brokers Act
, R.S.O. 1990, c.
    R. 19, s. 24(2); the
Chartered Accountants Act, 2010
, S.O. 2010, c. 6,
    s. 19(1); the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18,
    Sch. 2, s. 14.



[7]
Pursuant to s. 83.32 of the Code, s. 83.28 ceased to apply as of March 1, 2007.


