Ontario Human Rights Commission v. Peel Regional Police Services Board, 2006 HRTO 18

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Jacqueline Nassiah

Complainant

-and-

Peel Regional Police Services Board and Richard Elkington

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: June 29, 2006

Citation: 2006 HRTO 18

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Raj Dhir and Prabhu Rajan, Counsel Jacqueline Nassiah, Complainant ) Davies Bagambiire, Counsel Peel Regional Police Services, ) Ann Dinnert, Counsel Richard Elkington, Respondents )

BACKGROUND

1Jacqueline Nassiah alleges that on February 18, 2003 Officer Richard Elkington, then employed by the Peel Regional Services Police Board, discriminated against her in the provision of a service in the way he conducted his investigation into an allegation that she had stolen an item from a Sears store.

INTERIM DECISIONS AND ORDERS

2During the first day of hearing on June 6, 2006, I made the following oral order:

1. The Respondents are ordered to produce:

• that portion of Officer Elkington’s employment record, if any, relating to complaints or incidents of racial profiling or discrimination in the provision of police services by Officer Elkington.
• the original notes of Officer Elkington relating to the investigation of Ms. Nassiah on February 18, 2003.
• the training manuals on human rights provided to Officer Elkington or available to Officer Elkington as of February 18, 2003. The Respondent is given the opportunity but not ordered to produce, current human rights training manuals.

2. The Respondents were ordered to provide will say statements for its witnesses.

Later that evening I ordered:

1. Professor Wortley is accepted as an expert witness on racial profiling in the criminal justice system and in police investigation in Canada.

2. Professor Wortley will be permitted to testify about the phenomenon of racial profiling in police investigation in Canada, based on his own empirical work and his review of the academic literature both in Canada and internationally, and to explain whether and how this evidence is analogous to a police investigation into a theft allegation.

3. Professor Wortley will be permitted to testify about the definition of racial profiling as it relates to police investigations when called in to investigate an alleged theft, as opposed to a “stop.”

4. Professor Wortley will be permitted to offer his opinion about whether the alleged facts of this complaint provide indicia of racial profiling in a police investigation and the basis for that opinion.

5. The hearing will continue on Wednesday, June 7th at 9.30 a.m.

I remain seized of this issue to clarify or restrict Mr. Wortley’s testimony in accordance with this order. Written reasons will be provided for this order.

REASONS

Orders for Production

3The Tribunal’s Rules of Practice, dated July 2004, set out the obligation to make disclosure as between the parties, in Rules 41 to 48. In particular, the Tribunal has the discretion to direct further disclosure, under Rule 47, which states:

47. At any time in a proceeding, subject to determining any claim of privilege asserted, a panel may order any party to deliver to any other party particulars, physical or documentary evidence, expert reports, lists of witnesses and witness statements for the purpose of the hearing and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding.

Timing of Requests

4The Respondents submitted that the requests for the documents were made very late in the day and long after the pleadings and other documents were filed. The Commission submitted that these documents were relevant and should have been disclosed by the Respondents initially.

5In my view, the requested documents were not so obviously relevant (other than the note book) so as to trigger an obligation on the Respondents to disclose it. I was concerned about the last minute nature of the request for disclosure. However, the nature of litigation is such that the significance of documents may only become clear during the detailed preparation which occurs immediately prior to the hearing.

6I am satisfied that the timing of the requests for the production will not cause any unfairness or prejudice to the Respondents.

a) Employment record of Officer Elkington

7The Respondents argued that the employment record of Officer Elkington was not relevant to what happened on February 13, 2003.

8The test for production is arguable relevance, which is “not a particularly high bar,” (Biederman v. Banfai (2000), 2000 CanLII 49403 (ON HRT), 38 C.H.R.R. D/395 (Ont. Bd. Inq.) at para.14) and the trend is towards more, not less disclosure (Neusch v. Ontario (Ministry of Transportation) [2002] O.H.R.B.I.D. No. 11 at para 38).

9Officer Elkington had been employed approximately one and a half years prior to the incident of February 18, 2003. I am satisfied that details of previous incidents involving Officer Elkington relating to discrimination or racial profiling are arguably relevant to the issues before me in this complaint.

10My finding that the employment record is arguably relevant for production does not necessarily mean that such evidence will be admissible at a hearing (Neusch, supra at para. 41).

11More specifically, my order is not a determination that any party will be able to introduce or rely on “similar fact” evidence.

b) Original notebook

12The Commission had received a photocopy of those pages of Officer Elkington’s note book relating to the incident of February 18, 2003. The photocopied notes were somewhat illegible due to Officer Elkington’s use of shorthand and a typewritten transcription had been provided to the Commission. Commission counsel wished to compare the transcription with the original notebook. Also, the Commission asserted that Ms. Nassiah had been asked to sign a note book in which some pages were blank and they wanted to see the original for that reason.

13It is clear that the original notebook pages are relevant in light of the illegibility of the copy and the allegation of “blank” pages.

c.) Training Manuals on Human Rights

14The training manuals are relevant to demonstrate what human rights training Officer Elkington received or had available to him. It is also relevant to the issue of remedy, should the complaint be made out.

Will Says

15The Commission objected to the adequacy of the notice they had been given about what the Respondents’ witnesses would say. The Respondents submitted that the witnesses to be called were all present at the events in the Sears store on February 18, 2003 and should have been thoroughly investigated by and called by the Commission. The Commission should have known what these witnesses had to say.

16It is not my task to advise the Commission who they should call to establish their case. They did not choose to call the other workers present in the store. The Respondents chose to summons them. Therefore, the Respondents are obliged to provide will says. Whether the Commission failed to adequately interview these witnesses during its investigation, thereby necessitating the provision of additional will says during the hearing, is not an issue before me. It was not disputed that the investigation notes did not in fact provide adequate notice about what the Respondents’ witnesses will say.

Expert evidence

17Professor Norman Scot Wortley was called by the Commission as an expert witness on racial profiling in Canada to give opinion evidence of the nature of racial profiling in police investigations in general, and in this case, in particular. The Respondent objected both to Professor Wortley’s expertise and to the necessity and relevance of his opinion evidence.

18Professor Wortley gave evidence with respect to his qualifications before I made my order.

19Professor Wortley has been an Associate Professor at the Centre for Criminology at the University of Toronto for five years; prior to that he was an Assistant Professor for five years. He holds a B.A., an M.A. and a Ph.D in Sociology. He has been personally involved in two large sociological studies into racial profiling in Canada and is currently completing work on a third. He was commissioned by the Kingston police for his current research to review information relating to race, age, etc. gathered during police stops over a period of one year.

20Professor Wortley was the research officer for the Commission on Systemic Racism in the Ontario Criminal Justice System from 1993 to 1996. He was responsible for the design, data analysis and report preparation of a number of studies. One study involved a large random sample of Black, White and Chinese persons, and their perceptions of the criminal justice system. Additionally, he was involved in telephone interviews, a survey of Crown counsel, defence lawyers and judges, the compilation of prison statistics by race over time and a tracking study that examined the treatment of black and white offenders from arrest to final disposition.

21The second major study was conducted in 2000 to 2001 and involved detailed surveys of 3,400 high school students from the Toronto area about their interactions with the police. The questionnaire inquired about police stops, leisure activities, and involvement with drugs and alcohol, among other factors, in an effort to control for a variety of factors.

22Professor Wortley has published the results of these studies in several peer reviewed sociological and criminology journals, a number of which were introduced into evidence. He has organized and participated in numerous conferences on racial profiling. He has studied and written about the literature on racial profiling from the United States and the United Kingdom. He has been qualified as an expert witness in other legal proceedings in Canada.

23I am persuaded that Professor Wortley’s credentials, detailed above, qualify him as an expert in racial profiling in the criminal justice system and in police investigation in Canada.

24The Respondents argued that the evidence proposed to be given by Professor Wortley could be highly prejudicial as it is akin to propensity evidence or similar fact evidence. That is, evidence that racial profiling exists could be highly prejudicial. They relied on the case of R. v. Handy (2000) 2000 CanLII 5707 (ON CA), 48 O.R. (3d) 257, [2000] O.J. NO. 1373.

25I am not persuaded that the case of R. v. Handy, supra which is a criminal law case dealing with the test for admission of similar fact evidence, is useful to my determination on whether to hear expert evidence.

26In the criminal context, the Courts have stated (R. v. Mohan, supra 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9) that they will only admit expert evidence that meets the following criteria:

1. relevance
2. necessity in assisting the trier of fact
3. the absence of any exclusionary rule
4. the proper qualification of the proposed witness

The Respondents argued that the expert evidence was not relevant or necessary in this case.

27Since I am not bound by the formal rules of evidence applied in the criminal law context, I have also taken note of principles developed in human rights proceedings in particular.

28The Respondents relied on Omoruyi-Odin v. Toronto District School Board [2002 O.H.R.B.I.D. No. 21], where the Tribunal declined to qualify certain witnesses as experts and refused to permit them to offer opinion evidence, in large part because the Tribunal determined that the proposed evidence was not relevant or necessary:

¶ 55 It was also proposed that Bernard proffer opinion evidence on the following topics: anti-Black racism in Canada and its manifestations in the workplace; the development and perpetuation of stereotypes and systemic barriers; and stereotypes directed against African Canadian men. None of these appear to be areas in which it is necessary that opinion evidence be adduced before the BOI, which is, after all, statutorily charged with and presumed to have the expertise to determine whether discrimination, including systemic discrimination, exists. Furthermore, it appears that this proposed evidence is all of a general or contextual nature in the sense that Bernard's views on these topics do not arise out of any examination of the circumstances obtaining in the Scarborough Board during the time covered by this Complaint.

29The Respondents noted that in Smith v. Canada Customs and Revenue Agency [2004] O.J. No. 3410 the Court did not permit Professor Wortley to testify on whether the Canada customs agent’s actions amounted to racial profiling because he was not an expert on Canada customs enforcement practices.

30The Respondents argued that this is the same situation. Professor Wortley’s evidence is not necessary. Nor is it relevant in that it is a general nature and not specific to the type of investigation at issue in this hearing.

31I note that in Smith, supra, Professor Wortley was qualified as an expert in racial profiling and permitted to testify about profiling in general.

32Professor Wortley has not conducted any studies about the Peel police or the Greater Toronto police in particular. Also, Professor Wortley’s research focuses primarily on police stops, which is not the situation in this complaint. However, Professor Wortley’s research also focuses on the investigation by police after the initial stop, which may be analogous to the complaint before me.

33The Respondents pointed out that in the case of R. v. Brown (2003) 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161, a case involving racial profiling by the police, no expert evidence was needed. However, in that case the Crown conceded the existence of racial profiling, so the only issue was whether it had occurred in that case. I did not understand the Respondents to be conceding the existence of racial profiling in police investigations in Canada. At most, they agreed to a definition of racial profiling, not its existence.

34I prefer the approach taken by the Nova Scotia Board in the case of Johnson v. Halifax (Regional Municipality) Police Service [2003] N.S.H..R.B.I.D. No. 2 at paras. 92 and 93:

…With all due respect to the board, expertise in racism and expertise in discrimination are two different things. Racism is a social phenomenon, discrimination a legally prohibited act. Boards are presumed to possess a certain expertise in the law of discrimination and human rights, but do not necessarily possess expert knowledge in the practices and impact of racism beyond a basic understanding of their dynamics (though obviously a range of knowledge on these topics exists on the part of boards of inquiry). Racism takes many guises, exists in many different environments and it is studied by a great variety of social scientists using various methodologies. A given board of inquiry is unlikely to be up to date on all this literature, and I would not wish to see Omoruyi-Odin cited as a way of cutting off recourse to expert evidence in discrimination cases. One method of providing this evidence to a board is of course simply to submit published works on the relevant matters, but works cannot be cross-examined.

…In my view, the actual context of the Mohan decision must be kept in mind in understanding where to draw the line between "helpful" and "necessary" evidence. Mohan was a criminal case where the rules of evidence are highly structured, partly because of a historic concern to ensure that unduly prejudicial evidence does not go before a jury. I note that with only one exception all the case authorities cited in Mohan are criminal cases, suggesting that the concerns relating to criminal trials were uppermost in the Court's mind. In any case, immediately after noting that the descriptor "helpful" sets too low a standard, Justice Sopinka went on to say at 429, "I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information `which is likely to be outside the experience and knowledge of a judge or jury.'" I have found that it satisfies this test for the reasons stated above. Expert evidence in discrimination cases can be statistically based, with an air of scientific validity, but often it is highly qualitative and uses the "softer" methodologies of the social sciences. This is clearly appropriate when we are dealing with the elusive but nonetheless powerful concept of human dignity that underlies human rights law. The often subtle nature of discrimination puts a high burden on complainants, and I would urge future boards not to be too quick to characterize proffered expert evidence as merely "helpful" and thus excluded.

35In Radek v. Henderson Development (Canada) Ltd. [2004] B.C.H.R.T.D. No. 364, the British Columbia Human Rights Tribunal commented on the requirement of “necessity”:

General Principles

¶ 30 The general principles underlying the admissibility of expert reports were set out by the Supreme Court in R. v. Mohan. I am guided by those principles, as well as by the ways in which this and other human rights tribunals have dealt with expert evidence in similar circumstances to the complaint before me.

¶ 31 In this regard, I refer to the decision of this Tribunal in de Leon v. Coast Mountain School Dist. No. 82 (No. 3) (1999), C.H.R.R. Doc. 99-220 (B.C.H.R.T.). In that decision, after referring to the Tribunal's broad discretion under what is now s. 27.2(1) of the Code to accept evidence which might not be admissible in a court of law, the Tribunal stated:

I agree with counsel for the DCC that the standard for admissibility is low. If it appears that an expert's report may be helpful to the Tribunal, it ought to be admitted. Any uncertainty about whether the evidence may be relevant should be resolved in favour of admitting it and allowing it to be tested through cross-examination. Admitting the evidence does not preclude the Tribunal from subsequently determining it has no relevance or assigning no weight to it. However, if it were clear that the evidence could not assist in resolving the issues before the Tribunal, admitting it would serve no purpose and may lengthen the hearing or divert it from its proper focus. (at para. 13)

¶ 32 With one exception, I agree with the approach set out in this passage from de Leon. That exception has to do with it being sufficient if the report "may be helpful". Expert evidence is admitted because it will assist by providing information which is likely to be outside the experience and knowledge of the trier of fact. In Mohan, Sopinka J., for the Court, said that in order to be admissible, expert evidence must be necessary:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word 'helpful' is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information 'which is likely to be outside the experience and knowledge of a judge or jury' ... (at para. 22)

¶ 33 I appreciate that s. 27.2(1) of the Code entitles me to accept evidence that might not be admissible in a court of law. However, I may only do so where I consider it "necessary and appropriate". Sopinka J. has explained that necessity is not to be judged by too strict a standard. Understood in this way, the difference between necessary, on the one hand, and helpful, on the other, may be more apparent than real. With this understanding of the necessity criterion in mind, I consider it the appropriate standard to employ in this context. Human rights proceedings should not be lengthened by unnecessary evidence. I therefore employ the necessary, rather than the merely "helpful", standard in this decision. I further note that evidence may be necessary which serves the function of clarifying or contextualizing the issues in dispute.

36In my view, while the standard remains “necessity,” the assessment of “necessity” is somewhat lower in the context of a human rights hearing than in the context of a criminal proceeding. The “necessity” requirement must take into account the nature of human rights hearings and the often subtle nature of discrimination.

37Regardless of the extent to which racial profiling has been raised in other cases, the Commission asserts that this is the first complaint before the Human Rights Tribunal in Ontario alleging racial profiling in a police investigation. I find that the proposed evidence would provide useful context about the meaning and existence of racial profiling (if any) in police investigations in Canada against which I can better understand the circumstances in which it may occur and the factors indicative of it. In that sense I find the proposed evidence to be relevant and “necessary” using the less strict standard appropriate for a human rights process.

38The Respondents also relied on the human rights case of case of Orughu v. Canada Border Services Agency 2004 CHRT 35 where Professor Wortley, although accepted as an expert, was not permitted to tender parts of his report because they were not necessary and Professor Wortley would be opining on the very issue before the Tribunal. Similarly, in Smith v. Canada Customs, supra, the Court did not permit Professor Wortley to testify on whether the custom agent’s action amounted to racial profiling, because that was the very issue before the Court.

39On that point, I find the comments of Justice Lane in the civil case of Peart v. Peel (Regional Municipality) Police Services Board [2003] O.J. No. 2669 on the use of opinion evidence on racial profiling very useful:

¶ 23 If I find that the underlying `facts' upon which Dr. Agard's opinion is based actually existed on December 1, 1997, then his evidence provides me with a basis for an inference that racial profiling was being practiced that day by one or both officers. That is the classic role of the expert: to provide the court with a ready-made inference based on scientific, medical, psychiatric, engineering or similar learning, which the court can draw if certain identified underlying facts are demonstrated to exist. … But the inference is one that the court draws. Dr. Agard's opinion is not a substitute for the court's own analysis of the evidence, taking account in so doing of the societal background and the description of the indicia of racial profiling which he has provided, to determine what the facts actually were on that day. Nor is the inference a mandatory one; it is available for the court to draw if the court is persuaded on the balance of probabilities that it is the more probable explanation for the events in question…

40Regardless of Professor Wortley’s opinion on whether factors in this case point to racial profiling, that is my decision to make, and I will not be unduly influenced by his opinion on that issue.

41Accordingly, I concluded that Professor Wortley was properly qualified, and that the evidence he proposed to give was relevant, necessary and not excluded by any other exclusionary rule.