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

The Ontario Court of Appeal considered two issues regarding the jurisdiction of the Special Investigations Unit (SIU), a civilian agency empowered by Part VII of the Police Services Act (the Act) to investigate alleged criminal conduct by police officers resulting in serious injury or death. The court considered whether s. 113(5) of the Act grants the SIU jurisdiction when the police officers accused have since retired or resigned, and when the alleged offence occurred prior to the enactment of the enabling legislation. The court held that the SIU does have jurisdiction and dismissed the appeal.

In 2010 the Peel Regional Police received a complaint from a member of the public who had allegedly been sexually assaulted by a Peel police officer. She also alleged that another police officer witnessed or knew of the assaults. The alleged assaults took place prior to enactment of the Act, and both officers had retired by the time of the complaint.

Justice Cronk held that the language of the section is consistent with giving the SIU jurisdiction to investigate when the police officers have since retired or resigned, and that this interpretation is in furtherance of the purpose of the legislation. An argument that the absence of express reference in the section to former officers indicated an intention not to grant jurisdiction in this case was dismissed on the basis that express reference was not required to achieve its intended legislative purpose due to the temporal focus of the section on the time of the alleged wrongdoing. Justice Cronk rejected comparisons with professional responsibility cases in which professional organizations have been held to have no jurisdiction over former members.

Justice Cronk also held that the SIU has jurisdiction when the alleged offence took place before enactment of the enabling legislation. Justice Cronk acknowledged that the presumption against retrospective application of legislation is engaged by the question, however after concluding that the section is procedural in nature and effect, rather than substantive, the Court applied the procedural rights exception. The applications judge had also applied the public protection exception, however the Ontario Court of Appeal declined to address that finding.

Link to Decision

Rebecca Crangle

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