jan. 6. 2020

Ont CA quashes decision to close police board meeting for failure to consider the Charter

Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025 (CanLII)

This is a significant decision by the Court of Appeal for Ontario about the openness of meetings conducted by the governors of public bodies.

The matter involved a decision to go in camera made by a delegate of the Thunder Bay Police Service so it could deal with a police disciplinary matter – to be precise, a decision to extend the time limit for serving a notice of disciplinary hearing on several police officers for their suspect handling of an indigenous man’s death. The delegate applied the statutory test for closing a meeting as set out in section 35(4) of the Police Services Act. He rejected an argument that the more strict Dagenais/Mentuck test applied, reasoning that he was not charged with conducting a judicial or quasi-judicial proceeding.

The Court of Appeal agreed that Dagenais/Mentuck did not apply. It nonetheless held that the delegate erred by not accounting for section 2(b) of the Charter, which it had recently held governs access to police board meetings in a case called Lagenfeld. Justice Sharpe said:

In my view, that statutory test and not the Dagenais/Mentuck test governed the exercise of his discretion. However, the s. 2(b) right recognized in Langenfeld has a direct bearing on the exercise of that discretion. Through no fault of his own, the decision maker did not consider Langenfeld. The “principle that proceedings be open to the public”, recognized by s. 35(4), is considerably fortified by the s. 2(b) Charter right recognized by Langenfeld in relation to police services board meetings.

Doré, at para. 56, explains that the administrative decision maker is “to ask how the Charter value at issue will best be protected in view of the statutory objectives” and that the core of this “proportionality exercise” will require the decision maker “to balance the severity of the interference of the Charter protection with the statutory objectives.” As Doré explains, at para. 57, this proportionality exercise “calls for integrating the spirit of [the Charter’s s. 1 reasonable limits scrutiny] into judicial review”.

The Court remitted the matter to the delegate for reconsideration, stressing various contextual factors to weigh in the balance.

The overlay of the Charter on top of statutory criteria for closing a meeting is significant. Also significantly, the Court read the Police Services Act to empower the Board to make confidentiality orders incidental to a decision about whether to close a meeting in order to achieve proportionality - a reading it said flowed from the ability to close a meeting "in part."

The Court creates a new (and ambiguous) requirement for closing meetings that likely applies to a wide number of Ontario public bodies.