Dagenais/Mentuck test did not apply to hearing of extension application

Law Enforcement Agencies – Police – Organization of police forces

Case involved tragic death of Indigenous man and allegations that members of police service were guilty of misconduct in relation to their investigation of his death. Complaint that they were guilty of misconduct formed part of much larger pattern of concern regarding conduct of police service in relation to Indigenous community. Because it took longer than six months for Ontario Independent Police Review Director to report that there were reasonable grounds to believe that officers were guilty of misconduct, it was necessary to ask police services board for extension before disciplinary hearing could be commenced. Decision maker determined that hearing of extension application should be held in camera. Application by Canadian Broadcasting Corporation (CBC) for judicial review was dismissed. CBC and complainants appealed. Appeal allowed. Matter remitted for reconsideration. Decision maker did not err when he found that Dagenais/Mentuck test did not apply to decision he had to make under s. 35(4) of Police Services Act. On state of law as it now stood, Dagenais/Mentuck test did not apply to this administrative hearing. However, presumption of open hearing under s. 35(3) of Act and s. 2(b) Canadian Charter of Rights and Freedoms right recognized in certain case law did apply.

Canadian Broadcasting Corporation v. Ferrier (2019), 2019 CarswellOnt 21120, 2019 ONCA 1025, G.R. Strathy C.J.O., Doherty J.A., and Robert J. Sharpe J.A. (Ont. C.A.); reversed (2019), 2019 CarswellOnt 64, 2019 ONSC 34, Warkentin R.S.J., Aitken J., and Mulligan J. (Ont. Div. Ct.).

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