To Joseph Somner and Information and Privacy Commissioner Ann Cavoukian:

20 Aug 2012

This note is further to the appeal of Mr. Udhbirprasaud Joe Bhikrams case (Appeal MA 12-170/Institution File Number : 12-0592). As you know, notes from 52 Division Toronto Police Detective Paul Ward confirm that, on 28 January 2009, he found Mr. Bhikram lying on floor in his underwear wearing a face mask & cuffs, says he trying to transfer to seat. Detective Ward ordered another officer to remove the mask and cuffs before clothing and returning Mr. Bhikram to his wheelchair. Mr. Bhikram alleges that before the officer followed this order, he urinated in the corner then shook the remaining urine onto Mr. Bhikrams face and neck. While Toronto Police have refused repeated requests, beginning in the Winter and Spring of 2009, for full video evidence, Mr. Bhikram has repeatedly requested that he be afforded his right under privacy law to the full video of his time while incarcerated in a cell at 52 Division. Over two and a half hours of video is missing from the limited disclosure Toronto Police have handed over to Mr. Bhikram on multiple occasions. Specifically, we are requesting all video from Mr. Bhikrams stay from Camera 4, which does not begin until 21:42:11e. Mr. Bhikram is seen to leave the booking area of 52 Division shortly after arriving at 18:45:02e. Recently, the IPC denied Mr. Bhikrams request that Toronto Police be ordered to provide said video. Investigator Joseph Somners decision in this matter makes at least five critical mistakes that we are requesting be addressed in the course of this appeal, grounded in the right to appeal within 21 calendar days under legislation governing the work of Ontarios Information Privacy Commissioner. 1) Mr. Somner evaluated the claim according to the wrong standard. Mr. Somner, both in his preliminary and final conclusions, evaluated whether or not the video actually exists, instead of according to the standard, as laid out by legislation, of whether the video ought to exist If an appellant is appealing a decision by an institution that the requested records do not exist, the Commissioner may dismiss the appeal if the notice of appeal submitted by the appellant does not present a reasonable basis for concluding that the record ought to exist (s.50(2.1) FIPPA / s.39(2.1) MFIPPA). from Chapter 7 Appeals and Compliance of Ontarios FOI and Privacy Manual available at http://www.mgs.gov.on.ca/en/infoaccessandprivacy/Practitioners/STDU_108815.html 2) Because Mr. Somner evaluated according to a mistaken standard, he completely ignored evidence and argumentation in our initial submission that, according to City of Toronto law, the video ought to exist because the data retention period when a complaint or legal claim has been filed is seven years rather than four months (SCHEDULE A CH. 219, ART. 1 RECORDS AND RETENTION SCHEDULE GENERAL). We provided information proving both that Mr. Bhikram had filed a complaint with Toronto Police (responded to negatively by Chief Bill Blairs office) within one month and that he had begun repeatedly requesting the full video as part of his legal proceedings shortly thereafter.

25 Charles Street East, Toronto, Ontario M4Y 1R9 Telephone 416-922-0628 Fax 416-922-4961 www.sanctuaryministries.on.ca

3) Mr. Somner, in both his initial and final findings, wrongly placed the burden of proof for establishing the actual (again, the wrong standard) existence of the video on Mr. Bhikram. In fact, according to relevant legislation, the burden of proof can be put on the relevant government agency to the extent that the [t]he Commissioner may also require that an institution prepare an affidavit describing the measures taken to search for a record if the institution claims that requested records do not exist (from The Duty to Provide Records to the Information and Privacy Commission s.52 FIPPA / s.41 MFIPPA Chapter 7 Appeals and Complianceof Ontarios FOI and Privacy Manual available at http://www.mgs.gov.on.ca/en/infoaccessandprivacy/Practitioners/STDU_108815.html) 4) Regardless, Mr. Somner ignored critical evidence which undermined his conclusion even under the wrong standard of evaluation. Mr. Somner asked Toronto Police concerning their general video retention practices and was told the hard drives capacity for recording video in this area is generally reached and then recorded over within a 4 month period. We submitted evidence, in the form of a letter from the Attorney Generals office, stating that the Attorney Generals Office had reviewed the relevant video and did not think it ought to be handed over to Mr. Bhikram. Given that this video was reviewed around the time of the letter of 14 July 2009, or nearly seven months after the incident, this evidence establishes that the video existed well beyond the normal time frame for video overwriting. Mr. Somner did not address this evidence even in passing in his final report. 5) Finally, Mr. Somner based his initial opinion that the video does not actually exists on this statement in the letter of denial from Toronto Police: you were advised that the retention period for recordings taken of the cell area is four months and therefore access to a video record of January 28, 2009 would no longer be available. This statement does not, in fact, affirm that the video no longer exists, but rather only that access would no longer be available. Mr. Somner admitted as much to me by phone, stating that it could be worded better for establishing the videos non-existence. Nevertheless, it appears that Mr. Somner never directly confirmed with Toronto Police that the video does not exist. Because of the clear evidence of lack of competence in investigating this file, perhaps even to the point of outright bias in favour of Toronto Police, Mr. Bhikram and I are requesting three specific things: 1. That this file be evaluated on this appeal by someone other than Mr. Somner. 2. That the full range of evidence be evaluated according to the correct standard of whether or not the video ought to exist. 3. That the IPC exercise its prerogative under relevant legislation and require Toronto Police to provide an affidavit affirming or denying the missing videos existence and outlining the steps taken to search for the relevant portions of the video.

25 Charles Street East, Toronto, Ontario M4Y 1R9 Telephone 416-922-0628 Fax 416-922-4961 www.sanctuaryministries.on.ca

As we have notified this office, unless this case is immediately reviewed in the proper fashion, legal proceedings will be commenced against Mr. Somners and IPC Dr. Ann Cavoukian. Your Swift Attention to This Matter Greatly Appreciated,

Doug Johnson Hatlem (for Udhbirprasaud Joe Bhikram)

25 Charles Street East, Toronto, Ontario M4Y 1R9 Telephone 416-922-0628 Fax 416-922-4961 www.sanctuaryministries.on.ca