Executive Summary: Key Legal and Evidentiary Issues

• Applicability of the statutory six-month deadline for serving a notice of hearing after a police complaint is referred for investigation.

• Interpretation of whether the Director’s review process pauses or extends the six-month limitation period under the Police Services Act (PSA).

• Reasonableness and deference owed to administrative decision-makers’ interpretation of legislative timelines.

• Impact of procedural deadlines on the ability of complainants to have serious allegations, including those involving anti-Black racism, heard on their merits.

• Consideration of legislative objectives, including expeditious investigations and public confidence in police oversight.

• Effect of subsequent legislative amendments that address the problematic statutory deadline at issue in these cases.

Facts of the case

Kevin Kusi and Amar Sodhi, both Black men, filed public complaints against Toronto police officers. Mr. Kusi was shot multiple times by assailants and alleged that Constable Andrea Chalmers’ failure to disclose evidence led to the staying of court proceedings. Mr. Sodhi was arrested during a traffic stop and claimed that Constable Alain Arakaza arrested him without grounds, pointed a firearm at him, and used excessive force. The complaints were initially investigated by the Toronto Police Service (TPS), which found some or all conduct substantiated but not serious. Dissatisfied, the Complaints Director reviewed both matters: for Mr. Kusi, the Director ordered a hearing, and for Mr. Sodhi, after a second investigation, the Director substantiated two allegations of serious misconduct and directed a notice of hearing.

Policy terms and legislative framework

The core legal issue centered on section 83(17) of the Police Services Act (PSA), which required that a notice of hearing be served on a police officer within six months of the police force receiving the complaint for investigation. Extensions could be granted if the police services board or OPP Commissioner deemed the delay reasonable. The Director believed this six-month deadline did not apply when a notice of hearing was issued following the Director’s review, treating the review as a distinct process. However, administrative decision-makers, including hearing officers and the Ontario Civilian Police Commission, held that the statutory deadline applied regardless of the Director’s review, finding no exception in the legislation’s plain wording.

Administrative and judicial proceedings

At the disciplinary hearings, the officers moved to dismiss the charges due to non-compliance with the six-month deadline. Both hearing officers agreed they lacked jurisdiction, and the Commission upheld this interpretation, emphasizing the legislative intent for expeditious investigations and the absence of any statutory exception for the Director’s review. The Commission also noted that extensions could be sought from the police services board if delays were reasonable, but this process was not followed because the Director had instructed otherwise.

Mr. Kusi sought judicial review after the hearing officer’s decision, and the court considered whether the administrative decisions were reasonable. The court applied the standard of reasonableness, focusing on whether the decisions were justified, transparent, and intelligible in light of the statutory scheme.

Court’s analysis and outcome

The court found the administrative interpretations reasonable, as they adhered to the statute’s text, context, and purpose. The court acknowledged the unsatisfactory outcome: serious allegations, including those involving anti-Black racism, would not be heard on their merits due to procedural deadlines. The court noted that the legislative problem had since been remedied by amendments under the Community Safety and Policing Act, which eliminated the rigid six-month deadline. However, for these cases, the court concluded that the administrative decisions must stand, as they were within the range of reasonable outcomes based on the law at the relevant time.

Ruling and overall outcome

The applications for judicial review were dismissed. The court held that the administrative decision-makers reasonably interpreted the PSA to require compliance with the six-month deadline, even after a Director’s review. As a result, the complaints could not proceed to a hearing, and no findings were made on the merits of the allegations. No costs were ordered, and the court recognized that the legislative amendments should prevent similar outcomes in the future. The successful parties were the respondents, including the Ontario Civilian Police Commission and the involved officers, as the applications were dismissed and no monetary award was granted to the complainants.