No More Secret Hearings: Court of Appeal for Ontario Affirms Importance of Openness in Police Board Hearings
In a unanimous decision released on December 27, 2019, the Court of Appeal for Ontario affirmed that Police Board meetings and hearings across Ontario are presumptively open to the public. The Court found it is incorrect and unreasonable for a Board to close a meeting or hearing without considering the impact this has on the Charter-protected right to freedom of expression, including freedom of the press. Regarding the specific Board hearing in question in the appeal — a hearing to determine whether Thunder Bay Police Service (TBPS) officers involved in the death investigation of an Indigenous man, Rainy River First Nations member Stacy DeBungee, would face disciplinary hearings after the Office of the Independent Police Director (OIPRD) found there were reasonable grounds to find they had engaged in misconduct — the Court of Appeal stated the following:
“The racial tension between the Indigenous community and the TBPS, the distrust of the Indigenous community towards the TBPS and the current state of administration of criminal justice all point strongly to the need for openness and transparency” (at para 69).
This decision is an important victory for Rainy River First Nations and Stacy’s brother Brad DeBungee, who have been fighting for transparency and accountability within the TBPS since October of 2015, when Stacy was found dead in the McIntyre River in Thunder Bay. Stacy’s family and Rainy River First Nations had grave concerns about how the TBPS handled the investigation into Stacy’s death. These concerns were borne out in two reviews conducted by the OIPRD — one in which the OIPRD found there were reasonable grounds to believe that officers involved in the death investigation were guilty of misconduct under the Police Services Act, and one in which it found that anti-Indigenous systemic racism has infused the TBPS.
Because the OIPRD’s misconduct investigation took longer than six months, disciplinary proceedings could not be commenced against the relevant officers under the Police Services Act unless the TBPS Board (“the Board”) found that the delay in serving notices of disciplinary hearing was reasonable. When asked to make this determination, the Board recused itself due to a fear of perceived conflict of interest because the Board itself was under investigation at the time, also in relation to concerns about anti-Indigenous racism. A retired judge, the Honourable Lee Ferrier, was appointed to act in place of the Board to determine the reasonableness of delay.
Mr. Ferrier decided to hold the hearing about the reasonableness of delay in camera, i.e. behind closed doors. The secret hearing was stayed by Justice Pierce, and the Divisional Court subsequently upheld Mr. Ferrier’s decision to hold the hearing in camera. The Court of Appeal for Ontario has now quashed the Divisional Court’s decision and has sent the question of an open versus in camera hearing back to Mr. Ferrier for reconsideration, directing him to consider the principles outlined in the Court of Appeal’s decision.
The reasons of the Court of Appeal were penned by Justice Sharpe, with Justice Doherty and Chief Justice Strathy concurring.
Court of Appeal Decision:
https://falconers.ca/superior-court-judge-halts-secret-hearing/ (October 4, 2018)