December 27, 2019
Canadian Broadcasting Corporation v Ferrier 2019 ONCA 1025
This appeal raises an important issue regarding the openness of police board hearings. The case involves the tragic death of an Indigenous man and allegations that the members of the Thunder Bay Police Service were guilty of misconduct in relation to their investigation of his death. Within hours of the discovery of the body, they concluded that the death was not suspicious, and they failed to conduct any further investigation.
Because it took longer than six months for the Ontario Independent Police Review Director to report that there were reasonable grounds to believe that the officers were guilty of misconduct, it was necessary to ask the TBPS Board for an extension before a disciplinary hearing could be commenced.
The Police Services Act, R.S.O. 1990, c. P.15, provides that subject to certain exceptions, police services board hearings are presumptively open to the public. The decision maker, a retired judge appointed to make the decision the TBPS Board would ordinary make, entertained submissions and ordered that hearing would be closed.
The Canadian Broadcasting Corporation and the Complainants appeal the order of the Divisional Court refusing to interfere with the decision, arguing that both the Divisional Court and the decision maker failed to pay adequate attention to the s. 2(b) Charter right to freedom of expression by failing to require an open hearing.
The Divisional Court held that neither the open court principle nor the Dagenais/Mentuck test applied because the extension hearing was not a judicial or quasi-judicial proceeding. The Dagenais/Mentuck test was also excluded as the Police Services Act, ss. 35(3) and (4) set out a specific statutory test for how to address the question of whether a hearing is to be open to the public. As the statute itself laid out the “balancing act to be undertaken and there is no ambiguity in the legislative provisions”, there was no need for the Dagenais/Mentuck test to apply (at paras. 52-53).
The Divisional Court concluded that the decision was both reasonable and correct (at para. 60). He was transparent in his decision-making process, his reasons were clear and intelligible, he adequately justified his decision, and he considered the important public interest at play.
The appellants do not suggest that these cases were wrongly decided or seriously challenge the characterization of a s. 83(17) extension hearing as being administrative and procedural in nature. However, the appellants argue that Dagenais/Mentuck applies to the meetings of all public institutions and therefore, even if the s. 83(17) extension hearing is characterized as administrative in nature, the TBPS Board cannot escape its reach.
I conclude that the decision maker did not err when he found that the Dagenais/Mentuck test did not apply to the decision he had to make under s. 35(4).
However, that does not end the matter. The Dagenais/Mentuck test does not exhaustively define the application of the s. 2(b) right to freedom of expression and freedom of the press in the context of this case. This court’s decision in Langenfeld deals directly with the issue we must decide, namely, the application of 2(b) to administrative meetings of police services boards.
Regrettably, neither the decision maker nor the Divisional Court had the benefit of the Langenfeld decision.
In Langenfeld, this court allowed an appeal from the decision of the Superior Court (2018 ONSC 3447; 414 C.R.R. (2d) 85), striking down a security protocol instituted by the Chief of Police requiring any person entering Toronto Police Headquarters to pass through a metal detector and wanding process designed to uncover dangerous items and weapons. The protocol was challenged by an individual who regularly attended police board meetings and who asserted that the protocol infringed his s. 2(b) right to freedom of expression.
While the court allowed the appeal on the ground that the security protocol was a reasonable limit on the s. 2(b) right to freedom of expression, at paras. 18-21, it agreed with and adopted Copeland J.’s conclusion the right to attend the police services board meeting was protected by s. 2(b).
In the portion of her reasons adopted by this court, Copeland J. stated, at paras. 50-52, as follows. The public meeting requirement of s. 35 of the Police Services Act “fosters the objective of public confidence in decision making through transparency and accessibility to the public”. The rationale of openness to foster public confidence “is similar to the rationale for the open courts principle (it differs only in that the open courts principle has a further basis of ensuring that litigants are treated fairly)”. Copeland J. identified the “two pillars” for the proposition that the right to attend court proceedings is protected expression. First, “public confidence in the courts, an important institution of democratic government, is fostered by transparency and accessibility”, and second, “freedom of expression protects listeners as well as speakers, particularly in the context of members of the public receiving information about the activities of public institutions.” She then applied those principles to the right to attend public meetings of police services boards:
The Police Services Act makes public meetings the default for police services boards in order to foster public confidence in the decisions of the boards, by way of transparency and accessibility. Police services boards perform an important democratic function. Thus, I find
that the right of members of the public to attend public meetings of police services boards is protected by s. 2(b) of the Charter.
…On the state of the law as it now stands, the Dagenais/Mentuck test does not apply to this administrative hearing. However, the presumption of an open hearing under s. 35(3) of the Police Services Act and the s. 2(b) Charter right recognized in Langenfeld do apply.
…My view of the matter largely turns on the Langenfeld decision that was not available and therefore not considered by the decision maker. Vavilov holds, at para. 142, that a factor to consider on this issue is “whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question”. The decision maker should be permitted to take another look at the matter with the benefit of Langenfeld. Accordingly, I would remit the matter to the decision maker for reconsideration in light of these reasons.