HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randy King
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: King v. Toronto Police Services Board
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 ) Sheena Scott
Randy King, Complainant ) On his own behalf
Toronto Police Services Board ) Rosanne Giulietti
William Blair, Chief of Police for the City of Toronto ) Jerome Wiley, Q.C.
Kevin Cote, David Lenchuk and Stan Belza ) Joanne Mulcahy
Introduction
1This Interim Decision addresses requests for an order during proceedings filed by the Commission on March 27, 2008 and March 31, 2008 seeking production of various documents, information and things from the respondent and/or the Chief of Police, and requesting an extension for the filing of the Commission's hearing brief until after the requested documents, information and things have been produced.
BACKGROUND
2The complaint in this matter was filed on October 12, 2004 and alleges that the complainant experienced discrimination because of sexual orientation in the context of an incident involving the police on or about July 25, 2004, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). In its most basic terms, the complaint alleges that Mr. King was subjected to inappropriate comments and conduct because of his perceived sexual orientation when he was stopped and ultimately arrested for the offence of being intoxicated in public contrary to the Liquor Licence Act, and in relation to how he was treated when he was booked and detained in a holding cell at the police station that night. Constables Cote and Lenchuk were the arresting officers, and Staff Sergeant Belza and Constables Thomas and Stillwell interacted with the complainant at the station.
3This complaint was referred by the Commission to the Tribunal by letter dated December 18, 2007.
4On the Initial Conference Call in this matter held on January 23, 2008, the complainant expressed an intention to request to add certain personal respondents prior to mediation and dates were set for exchange of materials on this issue.
5On February 29, 2008, the Commission wrote to the Registrar to advise that it would not be seeking to add additional parties at this time. The Commission further expressed its understanding that the respondent wished to proceed without formal Tribunal mediation. Finally, the Commission stated that it would be bringing a motion for production and requested advice as to how best to set up dates for the exchange of motion materials.
6By letter dated March 3, 2008, the Tribunal set dates for the filing of hearing briefs, which is the next stage in the process if the parties do not agree to mediation. The Commission's hearing brief was scheduled for filing on April 2, 2008. With regard to the Commission's request for production, the Tribunal advised that the Commission could file this request at any time in accordance with Rules 77 to 81, and further advised that pursuant to Rule 81 the respondent is required to respond within 10 days.
7On March 27, 2008, the Commission filed its first request for production and for an extension for filing its hearing brief. The Tribunal issued an interim decision dated March 28, 2008 denying the Commission's request for an extension to file its hearing brief and reserving on the request for production pending receipt of submissions from the parties.
8On March 31, 2008, the Commission renewed its request for production and an extension, but also included a request for the Tribunal to "reconsider" its March 28, 2008 decision and for an oral hearing. Under the Tribunal's Rules, reconsideration is available only from a final decision. However, in all cases, the Tribunal has the ability to control its own process and to devise an appropriate response when further information or material is provided. That is what the Tribunal has done in this case.
9The Tribunal determined that the Commission's request would be heard in writing, and allowed the Commission until April 7, 2008 to file its full submissions. Due to personal circumstances of Commission counsel, this date was further extended to April 18, 2008. The respondents were granted until April 28, 2008 to make submissions. In addition, the Commission's request was served on the Chief of Police for the City of Toronto, as some of the requested material is alleged to be in his possession or within his control, and responding submissions were received from his counsel. The Commission's reply was filed on May 5, 2008.
10Responding submissions also were received from counsel for Police Constables Kevin Cote and David Lenchuk and Staff Sergeant Stan Belza, because the Commission's request includes disclosure of their personnel files, including any discrimination complaints made against them, and the complete file relating to the disciplinary proceedings against Staff Sergeant Belza. In its reply, the Commission requests that these submissions be disregarded on the basis that these individuals are not parties to its request. While that is correct, these individuals nonetheless are directly affected by the Commission's request and I will consider their submissions.
REQUEST FOR PRODUCTION PRIOR TO FILING HEARING BRIEF
a) Section 33(6) of the Code
11Recent decisions of this Tribunal have held that, except in the rarest of circumstances, preliminary and procedural matters should not be raised prior to a party filing its hearing brief and making disclosure: Garrelhas v. ICE Consultants Inc. (No. 1), 2005 HRTO 51; Persaud v. Toronto District School Board, 2007 HRTO 39.
12In this case, the Commission seeks to invoke an exception to this principle on the basis that it was not able to complete its investigation due to production refusals by the respondent during the investigation stage, and it accordingly referred this matter to the Tribunal pursuant to s. 33(6) of the Code. This provision states (in its relevant part):
If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal . . .
13When dealing with requests for production prior to the filing of the Commission's hearing brief, the issue in the context of the Tribunal's adjudicative process is whether or not it is more just, fair and expeditious to order the respondent to make production to the Commission prior to the Commission's requirement to file its hearing brief. In considering this issue, the Tribunal will consider not only the arguable relevance of the documents requested to the subject-matter of the proceeding, but also whether and why such production is required prior to the Commission filing its hearing brief.
14The Commission submits that where the referral is made pursuant to s. 33(6) of the Code, the Garrelhas and Persaud decisions are distinguishable, primarily on the basis that these decisions were premised upon a full investigation having been conducted during the Commission's process. In a case where the referral is made pursuant to s. 33(6), the Commission states that its efforts to conduct a full investigation and gather relevant material have been stymied by a respondent's refusal to comply with a request made by the Commission for disclosure of documents or things. The Commission further states that it is a party to the proceeding independent of the complainant, and as a public agency, it has the right and obligation to determine its own position in the proceeding, for which it needs the production sought.
15At the same time, while accepting that the Garrelhas and Persaud decisions may be distinguishable on the basis argued by the Commission, the question remains whether, from a policy and procedural perspective, the Tribunal should depart from these established principles. There are important reasons why it is helpful for the Tribunal to have the benefit of the parties' hearing briefs prior to making any determination on a production request, as the hearing briefs will set out the basis upon which the Tribunal will be able to make a determination of arguable relevance. The Tribunal would benefit from a hearing brief that is informed by any information in addition to what is set out in the complaint that the Commission was able to obtain in its investigation. For example, the Commission presumably was able to interview the complainant and obtain documents from him or her and also may have been able to interview other relevant witnesses and obtain documents from other sources, even if a respondent refused to comply with a production request made by the Commission during its investigation. It would be helpful for the Tribunal to have a hearing brief filed by the Commission which was informed by any such further information as well as hearing briefs from the other parties, for the purpose of considering the arguable relevance of any production sought.
16In addition, while not making an assessment of the evidence in the same way as the Commission does in a referral under section 36(1) of the Code, which involves a determination as to whether the "evidence warrants" a referral, it cannot be correct to say that the Commission has taken no position on the complainant's allegations in a section 33(6) referral. Presumably, prior to referring the matter to the Tribunal, the Commission has at least satisfied itself that the complaint is within its jurisdiction and should at least have turned its mind to whether the complainant's allegations lack merit on the basis of whatever information and material the Commission was able to gather during its investigation, notwithstanding any refusal by the respondent to comply with a production request.
17Further, the referral of a complaint to the Tribunal is only one option available to the Commission in response to a refusal by a respondent to comply with a production request made during the Commission's investigation. If the Commission wishes to continue to be able to exercise its investigation powers under s. 33 of the Code, then the Commission always has the ability to apply for a search warrant to obtain the documents it seeks as part of its investigation. If the Commission instead chooses the option of referring the matter to this Tribunal, then the Commission should be prepared to file its hearing brief in accordance with this Tribunal's established process.
18Having said that, the Tribunal will always ensure that its process is fair. Therefore, where a party makes a production request to another party in a timely way, perhaps prior to the requesting party's obligation to file its pleadings, and the party opposite refuses, that may prompt the Tribunal to permit the requesting party to amend its pleadings later. Further, any party, including the Commission, may make a request to amend its hearing brief in appropriate circumstances, and this may include a situation where subsequent production brings to light new facts.
b) What to do in this specific case
19Notwithstanding that, as a general rule, I have found that the principle established in the Garrelhas and Persaud cases applies even to a matter referred under section 33(6) of the Code, the determination still needs to be made as to the most fair, just and expeditious manner of proceeding in any individual case. In making a determination as to whether a production request by the Commission falls within the "rarest of circumstances" exception and should be entertained prior to the filing of hearing briefs, it may be relevant for the Tribunal to consider a number of factors, including whether the matter was referred pursuant to section 33(6), whether the documents now requested were actually requested and refused during the Commission's investigation and whether the Commission actually needs these documents prior to filing its hearing brief.
20Because this is the first decision that clearly articulates the Tribunal's approach to section 33(6) referrals and production requests made by the Commission prior to filing its hearing brief, and because the parties have made full submissions on all aspects of the Commission's request, it is my view that the most fair, just and expeditious manner of proceeding in this specific case is to proceed to deal with the Commission's request, notwithstanding that it may not otherwise have fallen within the scope of the "rarest of circumstances" exception. Such an approach may not be taken by the Tribunal in a subsequent case, now that the Tribunal's approach has been articulated.
21Having said that, it still is important, in my view, for the Commission and the complainant to make the initial disclosure and production of documents. Accordingly, in this case, it is my view that the most sensible approach is to sever the requirement for disclosure and production from the requirement to file the hearing brief, such that: (i) the Commission and the complainant would first make disclosure and production of the investigation file and all other documents in their possession that are arguably relevant to the subject-matter of the complaint; (ii) the respondent then would make disclosure and production of all arguably relevant documents in its possession or within its control including but not limited to those documents sought in the Commission's production request for which production is required by the Tribunal; and (iii) the Commission then would file its hearing brief followed by the filing of hearing briefs by the other parties. In my order, I will set out a specific schedule for these next steps.
22The disclosure and production obligation with respect to documents and information sought by the Commission in its request applies to both the respondent and the Chief of Police. I articulate this, as an issue has arisen in this proceeding as to whether certain documents are in the possession or within the control of the respondent. The respondent states that the Board does not have any jurisdiction over operational matters, which are within the sole purview of the Chief of Police, and as such cannot direct the Chief of Police to produce or disclose documents or information relating to operational matters; in response, the Commission states that defending against a human rights complaint and the attendant production falls within the overall oversight responsibilities of the respondent Board and is not merely an "operational matter" and thus the Board has the jurisdiction to direct the Chief of Police to disclose all arguably relevant documents in his possession or within his control. In my view, as the Chief of Police is a party to the Commission's request, I do not need to resolve this dispute, but instead can directly order the Chief of Police to make disclosure and production, pursuant to the Tribunal's power under Rule 14(h), and I do so.
THE COMMISSION'S PRODUCTION REQUEST
a) Material sought by the Commission
23The Commission seeks the following material:
Memorandum Book Notes or other notes of Stan Belza, Robert Stillwell and Nigel Thomas
Access to non-redacted, original Memorandum Book Notes of all officers listed above as well as of the arresting officers Cote and Lenchuk
Audio / video monitoring tapes of cell area or proof that no such tapes were made or that the tapes have been re-used
Name and contact information and notes of the designated operator of the DAMS on duty
Prisoner logs including information about others in cells that evening, including Costa, Cozlowsky, Sherwood, Gelub, Hason or Huson, Durette
Booking form
Complete personnel files of Cote and Lenchuk including any complaints made against them or disciplinary action taken regarding alleged discrimination including on the basis of sexual orientation, including complaints under the Police Services Act
Complete file relating to disciplinary proceedings against Belza
Complete personnel file of Belza
All notes or documents relating to the Court's disposition of charges against King
List of all evidence collected e.g. the alleged beer bottle
Number of arrests made by Lenchuk and Cote (arresting officers) leading to charges under the Liquor Licence Act and nature of charges in July, July and August 2004 together with location of arrests
Breakdown of percentage of arrests for Liquor Licence Act offences by location across Toronto with specific reference to Church Street and 51 Division
Copies of most recent training manuals / materials and policy documents relating to anti-discrimination and sexual orientation.
b) Standard for Disclosure
24The standard for disclosure in a human rights proceeding, including for a section 33(6) referral, is "arguable relevance", and the party seeking the disclosure must demonstrate a nexus between the information or document sought and the issues in dispute: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para. 38. However, in the absence of hearing briefs articulating those issues, "arguable relevance" to the issues in dispute in this specific case will need to be determined by reference to the complaint and any other material included in the Commission's referral brief or in the materials filed by the parties.
c) Determination on each specific request
i) Memorandum Book Notes
25The Memorandum Book notes of Staff Sergeant Belza and Constable Stillwell have now been provided. However, the respondent states that Constable Thomas's notes, while properly submitted, have been lost. Accordingly, while the Commission may be able to pursue at the hearing the circumstances surrounding how these notes came to be lost, there is simply no basis upon which to make an order for production, particularly as the respondent is on record as not objecting to production of these notes should they subsequently be discovered.
ii) Access to non-redacted original Memoranda Book notes
26There is no dispute that the Commission is entitled to access the original notebooks of the arresting officers; the only question is one of timing. The respondent states that it has no objection to a brief inspection during or immediately prior to the hearing in this matter, while the Commission states that it should have access immediately and prior to being required to file its hearing brief.
27I do not understand why it is necessary for the Commission to have access to the original notebooks prior to filing its hearing brief. The Commission already has a copy of the relevant pages from the notebooks (with the exception of those of Constable Thomas which are lost), and all that is required is to compare these copies with the originals. This can readily be accomplished at the hearing.
iii) Video of Cell Area
28The submissions filed by the Chief of Police indicate that at the time in question, videotapes of the cell area were made for monitoring purposes only and were re-used on a seven-day cycle. As a result, any video recording that may have been made of the complainant in the cell area at the relevant time is no longer in existence. However, in a letter dated May 1, 2007, counsel for the respondent states she had been informed that 51 Division was under renovations at the relevant time and therefore there were no cell tapes recorded on that date. The Commission argues the reasons for the failure to provide the tapes are inconsistent. While I am not certain that these explanations are in fact inconsistent, the fact remains that the respondent and the Chief of Police both have stated that the tape does not exist. Once again, while the Commission may be able to pursue at the hearing the circumstances surrounding why no videotape was made and/or maintained, I cannot make an order to produce something that does not exist. Nor will I require the respondent or the Chief of Police to provide "proof" tapes were either not made or have been re-used, as the explanations provided by the respondent and the Chief of Police are already on the record.
iv) Name, contact information and notes of DAMS operator on duty
29"DAMS" stands for the Detention Area Monitoring System. The submissions filed on behalf of the Chief of Police indicate that the cell area of a police facility is visually monitored for reasons of the safety of the arrested person and police officers. It is unclear from the submissions as to whether there is an actual "DAMS operator", but presumably there is a person or persons who is or are responsible for monitoring the video. In addition, the Chief of Police's submissions state that, should an incident occur in the cell area, the officer in charge of the station would have knowledge of it and would have the ability to seize that video as evidence and submit it to the Video Services Unit.
30The Commission takes the position that the history of the videotape is a matter at issue in this proceeding. I agree. If there was a person at the station who was monitoring the video from the cell area on the night in question, that person may have information as to what occurred that is arguably relevant to this proceeding. In addition, the officer in charge of the station on the night in question may have knowledge of the circumstances pertaining to any decision not to retain the tape (if in fact any tape was being made that night). Finally, if there are any notes or documents pertaining to any decision about the retention or otherwise of any videotape of the cell area from that night, these too are arguably relevant to this proceeding.
31Accordingly, I order the respondent and/or the Chief of Police to disclose the name(s) and contact information of any person who was responsible for monitoring the video from the cell area on the night in question, the name and contact information of the officer in charge of the Station on the night in question, and any notes or documents pertaining to any decision about the retention or otherwise of any videotape of the cell area from that night.
v) Prisoner logs including information about others in cells that evening
32The Commission seeks this information on the basis that it will lead to potential witnesses who may have observed or heard something that happened in the cell area on the night the complainant was arrested. The respondent and the Chief of Police object to production of this information primarily on the basis that it would constitute an unjustified invasion of the privacy rights of persons who are not parties to the complaint.
33The Commission has requested "prisoner logs" for the night in question, which the Commission states indicate the proper name and contact information for all those held in the cells, indicate times of prisoner checks, who checked the prisoners and are supposed to indicate any incidents. In his responding submissions, the Chief of Police makes reference to the Booking Tape Video Log. It is not clear to me whether the parties are referring to the same document.
34In any event, in my view, the Commission is entitled to be provided with the names and any contact information of any person held in the cell area on the night in question for any period of time that overlapped with the complainant and also the time or times when each of these persons entered and/or left the cell area, whatever the source of this information. It is arguably relevant to this proceeding for the Commission to be able to identify potential witnesses to the alleged incidents in the cell area, particularly in the absence of any videotape, and information regarding the identity of these potential witnesses is in the sole possession of the respondent and/or the Chief of Police. While disclosure of such information does involve some degree of intrusion into the privacy of these individuals, any such intrusion is justified and necessary in order to ensure that the matters at issue in this proceeding may be properly adjudicated.
35In addition, if there is any log from the night in question that includes information regarding the times of prisoner checks, who checked the prisoners and any incidents in the cell area, then such log also is arguably relevant to the matters at issue in this proceeding, as identifying any police officers or other police personnel who may have been in the cell area during the relevant time period as another potential source of witness evidence.
36I understand that the purpose of requesting this information is in order to identify potential witnesses, and expect that efforts will be made to contact these individuals once the required information has been disclosed. In this regard, I expect that any party contacting these individuals will be sensitive to the nature of the information disclosed, and will make it clear that no information has been disclosed regarding the nature of any charges for which the individual may have been detained. Finally, I note that this information is subject to the same requirement as discussed above to be used only for the purpose of this proceeding.
vi) Booking Form
37The respondent and the Chief of Police state that no such form exists, and also state that if the Commission is referring to the record of arrest for the complainant, then this already has been provided. In response, the Commission states that it is seeking "the information as noted anywhere regarding the booking procedure".
38It is unclear to me what the Commission is seeking here. If the respondent is in possession or has control over any arguably relevant documents, then it is under an obligation to disclose and produce these documents at the appropriate time pursuant to Rule 65. Clearly, any documents in the possession or control of the respondent or the Chief of Police that relate to the arrest, booking, detention, release or any other interaction with the complainant are arguably relevant to this complaint and need to be produced, regardless of what any particular document is called.
vii) Complete Personnel files of Cote and Lenchuk
39During the investigation, the Commission's request was more limited. It sought "a copy of any records, notes, memos, or other documents relating to discipline or misconduct that is or was in Officer Kevin Cote's [or] Officer David Lenchuk's [. . .] personnel records in which allegations of homophobia were a factor or raised as an issue while acting in their role as Toronto Police Service officers" and "a copy of any complaints of unprofessional or unlawful conduct made by members of the public against the above officers, in their role as Toronto Police Service officers, in which homophobia was a factor or raised as an issue" (see items 5 and 6 of the Commission's letter dated April 3, 2007 at Tab A of the respondent's material).
40The respondent, the Chief of Police and the individual officers all object to production of these records as an impermissible "fishing expedition". The submissions filed on behalf of the officers assert that the Commission has not provided a foundation for this request because it has no basis upon which to allege that there is any material in the personnel files of these officers that is arguably relevant to the complaint. The Commission can only state that it does not know, because it was not afforded access to these files as part of its investigation.
41In Nassiah v. Peel Regional Police Services Board (No. 1) (2006) 2006 HRTO 18, 57 CHRR D/38, this Tribunal ordered the production of "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 Tribunal held that details of previous incidents involving Officer Elkington relating to discrimination or racial profiling were arguably relevant to the issues in the complaint, which involved a specific allegation of racial profiling and discrimination against this officer. However, the Tribunal went on to make clear that this decision did not mean that any such material would be admissible as evidence at the hearing nor would it constitute a finding that any such material constitutes "similar fact" evidence.
42In my view, the approach taken in the Nassiah case is apposite. Evidence of complaints or incidents involving an officer relating to discrimination on the same ground as alleged in the complaint are arguably relevant to the issue of whether discrimination occurred as alleged.
43I also endorse this Tribunal's decision in Beiderman v. Banfai (2000), 2000 CanLII 49403 (ON HRT), 38 CHRR D/395 and its reliance upon the principle from R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 that the probative value of the production sought needs to be weighed against any applicable privacy rights and potential prejudice to the producing party. However, the Beiderman decision was rendered in the context of a respondent's request for access to a complainant's psychiatric records, where privacy rights and severe prejudice are clearly engaged. In contrast, in this instance, a request for production of prior complaints of sexual orientation discrimination against the arresting officers, while certainly engaging a certain level of privacy interests since it involves the production of employment records, simply does not engage privacy rights or engender prejudice to the same extent as the production of psychiatric records. In my view, any privacy interest in the protection of these documents by the respondent, the Chief of Police or the officers themselves is outweighed by the potential probative value of any such records to the matters at issue in this proceeding.
44As a result, I find that the documents requested by the Commission during its investigation are arguably relevant to this proceeding, with the exception that I would replace the use of the term "homophobia" with the term "sexual orientation discrimination", which can include but is not limited to homophobia.
45I note that, depending upon whether any such documents exist and upon the nature of any information included in any such documents, this production order may require the disclosure of information that is highly sensitive. In this context, I remind all parties that all documents or information produced in this proceeding are subject to an implied undertaking to be used only for the purpose of this proceeding and not for any other purpose.
46With regard to the broader request now made by the Commission for production of the arresting officers' complete personnel files, I find that this request is over-broad with the exception of any documents in these files that relate to the incidents in question in this proceeding or complaints or allegations of sexual orientation discrimination.
viii) Complete file on Disciplinary proceedings against Belza
47During the investigation, the Commission requested "any documents that were produced in connection with the disciplinary hearing of Officer Belza" (see item 4 of the Commission's letter dated April 3, 2007 at Tab A of the respondent's material). The current request is for the "complete file relating to disciplinary proceedings against Belza".
48The submissions filed on behalf of Staff Sergeant Belza indicate the complainant was an active participant in the disciplinary proceedings and received disclosure. In reply, the Commission advises the complainant has not provided this material to the Commission and "has been unable to assist in this regard". The Commission refers to the complainant's disability, without expressly indicating whether this explains why he has not provided the material. The complainant did not make submissions on this point. In any event, the Commission states that it is not inappropriate to seek to obtain records directly from the record-holder, rather than from another party to whom the records may previously have been disclosed. I agree.
49The disciplinary hearing against Staff Sergeant Belza related to an allegation that he did not afford the complainant his Charter "right to counsel". While the question of whether or not the complainant was afforded this right is not, by itself, an issue in this proceeding, it is arguably relevant to the issue of whether the complainant experienced differential treatment because of his sexual orientation, which may include an allegation that he was not afforded his "right to counsel" as part of this discrimination. As a result, any documents relating to the disciplinary hearing against Staff Sergeant Belza may be arguably relevant to this proceeding. No competing privacy interests or prejudice exist here, as the material requested during the Commission's investigation is restricted to documents already produced during the disciplinary hearing.
50As a result, it is appropriate to require the respondent and/or the Chief of Police to produce the documents requested during the Commission's investigation. With regard to the broader request now being made by the Commission, not just for documents produced in connection with the disciplinary hearing but for the "complete file relating to the disciplinary proceedings", I find that the complete file also may be arguably relevant for the same reason, subject to any documents in the file which are clearly irrelevant to the matters at issue in this proceeding or over which the respondent can properly claim privilege.
ix) Complete personnel file of Belza
51The Commission seeks access to the complete personnel file of Staff Sergeant Belza on the basis that there may be documents in this file relating to "a pattern of human rights violations and lack of responsiveness thereto" or "information pertaining to the subject matter of this complaint: i.e. to the stop, arrest, booking and detention of Randy King". The respondent, the Chief of Police and counsel for Staff Sergeant Belza all object to such production on the basis that it is an unjustified fishing expedition.
52For the same reasons indicated above in relation to the personnel files of the arresting officers, it is my view that a request for the complete personnel file of Staff Sergeant Belza is over-broad and unnecessary. However, also for the same reasons indicated above, it is my view that any documents relating to complaints or allegations of sexual orientation discrimination against Staff Sergeant Belza are arguably relevant to this proceeding and are required to be produced. As previously stated, any such documents are subject to the same requirement as discussed above to be used only for the purpose of this proceeding.
53In addition, obviously, any documents pertaining to the subject-matter of this complaint, i.e. to the stop, arrest, booking and detention of the complainant, also are arguably relevant to this proceeding and should be produced regardless of the source of these documents.
x) All notes or documents relating to Court's disposition of charges against complainant
54The respondent and the Chief of Police state that they do not have any notes or documents relating to the Court's disposition of charges against the complainant; however, it is indicated that these documents would be in the possession of the Ministry of the Attorney General and the complainant.
55In reply, the Commission states that "if the officers attended at court or if the police received any communications as to outcome, we are requesting officer notes or any other documentation that tracks or relates to the outcome. If there is no documentation, we are satisfied with counsel advising us as such and of the respondent's understanding of what the outcome was".
56It appears to me that the Commission's request in reply already has been answered by the respondent and the Chief of Police; however, I believe that it would be appropriate for the respondent and the Chief of Police to confirm that this is the case. In addition, if the respondent and/or the Chief of Police do have any information as to their understanding of what the outcome was, then this should be disclosed. While such information may also be known to the complainant, this does not negate the arguable relevance of the understanding as to outcome of the respondent and/or the Chief of Police.
xi) List of evidence collected e.g. the alleged beer bottle
57The respondent and the Chief of Police state that there is no record that the beer bottle, or anything else, was ever seized by the police as evidence in this matter.
xii) Liquor Licence Act arrests by Cote and Lenchuk
58Again, the request made during the Commission's investigation was narrower than what is now sought. During the investigation, the production request was for "the number of arrests made by Officer Cote and Officer Lenchuk under section 31(4) of the Liquor Licence Act (with no accompanying charges) in July 2004" (see item 7 of the Commission's letter dated April 3, 2007 at Tab A of the respondent's material). In a subsequent letter dated May 17, 2007, the Commission clarified that the production request "referred to arrests in which an individual was charged with offences under the Liquor Licence Act, R.S.O. 1990, c. L.19 ("LLA") only without being charged with additional offences under any other Act". This request now has been expanded also to encompass the months of June and August 2004, to encompass charges under any section of the LLA and whether or not charges under any other Act also were laid, and to require the location of the arrests.
59In response, the respondent states that, while it might be possible to collate such material, it is not easily obtainable. The respondent also questions the relevance of this material. The fact that the arresting officers arrested many people, or no other people (as the case might be), for LLA offences during a three month period is meaningless to the current inquiry, which is to determine if these officers treated this complainant differently on the basis of his sexual orientation. The reasons for either many or no other arrests would have to be examined, necessitating, perhaps, the invasion of the privacy of any such persons arrested.
60In reply, the Commission states that if the officers laid no such charges or if they only charge individuals in the Church Street area, this might be an indicator of discriminatory practices. The Commission submits that this is relevant information which the police can compile and which the Tribunal can order pursuant to Rule 14(h).
61I do not believe that requiring the respondent to compile this information would be helpful, as it is entirely unclear what conclusions could be drawn from any such information. If no other such charges were laid, I do not believe that such information would be helpful to me in deciding whether this complainant experienced sexual orientation discrimination on the specific night in question. If such charges were only against individuals in the Church Street area, then many additional questions would need to be addressed before any conclusion could be drawn from any such evidence, such as the scope of the area(s) patrolled by these two officers during the period in question, the number of licensed establishments in other areas that they patrolled, the circumstances leading to the charges laid, whether there were any other similar circumstances in other areas where charges could have been laid but were not, and whether the "Church Street area" can be properly relied upon as a proxy for sexual orientation.
62Moreover, I do not believe that it is necessary in this case to require the respondent to compile this information in order to decide the matter at issue. The complainant's complaint alleges that he was called a "faggot" and a "queer" when being arrested, was asked what he was doing in a "gay area" and whether he was coming from a bathhouse named Club Toronto, and was called a "bitch" when he was in the holding cell. Obviously this case will turn upon the credibility of this evidence in the context of all of the evidence elicited at the hearing. In this context, I do not find the information sought by the Commission to be arguably relevant or helpful and am concerned that it would require the parties and the Tribunal to become embroiled in matters which are peripheral to the main issues and thereby would unduly and unnecessarily prolong the hearing.
63For all of these reasons, I am not prepared to require the respondent to compile this information.
xiii) Breakdown of arrests for Liquor Licence Act offences by location
64In addition to information regarding LLA arrests by the two arresting officers, the Commission also seeks "a breakdown of percentage arrests for LLA offences by location across Toronto with specific reference to Church Street and 51 Division". The Commission states that it seeks this information in order to assess "police practices in relation to liquor licence violations and the gay community in the church street core . . . in order to determine whether or not to plead a systemic problem".
65The parties in their submissions have engaged in a debate over whether the Commission is entitled to raise a systemic issue in this case: the respondent and the Chief of Police rely upon Nassiah to submit that evidence of systemic issues does not convert an individual case into a systemic inquiry; while the Commission replies that it is entitled to raise systemic issues as part of its broad policy mandate and distinguishes Nassiah on the basis that systemic discrimination was not pleaded in that case.
66I do not need to resolve this argument on the basis that I simply do not see how the information sought by the Commission would be helpful in this case, nor does the material filed adequately establish how such information would be helpful. I agree with the respondent that the words of Justice Molloy in R. v. Khan, [2004] O.J. No. 3811 (S.C.J.) at para. 56 are apposite here:
There may well be cases where statistical evidence could be used to support a finding of racial profiling. Such evidence is sometimes used to support inferences of discrimination in human rights cases, for example. However, here there is no foundation to support the drawing of statistical inferences from the records sought. The police in Toronto do not keep records of routine stops made by officers. Records are only kept when an arrest is made. Therefore, there is no way of knowing whether Officer Asselin has a habit of stopping young black males with more frequency than individuals of other racial backgrounds, and no evidence to indicate that he does. There are no statistics available as to the number of black drivers in the area covered by Officer Asselin's precinct. There is no mechanism for comparing officer Asselin's numbers of arrest to those of other officers or to the averages for that particular police division. Even if they can be broken down by race, which is by no means clear, numbers of arrests alone will have no probative value. No expert evidence has been presented as to the statistical reliability of the available records, nor of the existence of valid statistical comparators. Accordingly, I conclude that there is no basis for believing that the records sought could provide useful statistical information relevant to the accused's case.
67While the rules of evidence in a human rights proceeding are considerably more relaxed than in a criminal proceeding, some foundation still needs to be provided in order to establish that the statistical information sought will be probative and helpful in resolving the matters at issue. No evidence indicates that the respondent collects or maintains any data regarding arrests of any nature that identify the person arrested on the basis of their sexual orientation. Instead, the Commission seeks to use a location referred to solely as "Church Street" as a proxy for sexual orientation, on the basis of the presence of the "gay community" in the "Church street core". However, no foundation has been provided by the Commission to establish that using such a location would constitute an appropriate or reliable proxy for sexual orientation. In order to justify imposing such an onerous requirement on a respondent to gather this kind of information, it is incumbent upon the requesting party to provide a proper foundation. That has not been done here. Accordingly, I will not require the production of this information.
xiv) Training manuals / materials and policy documents relating to anti-discrimination and sexual orientation
68The respondent states that policy documents are created by the Board and that it has no objection to producing them, but states that training is an operational matter within the purview of the Chief of Police. The Chief of Police expresses an objection to the production of the requested training manuals and materials, but does not indicate any rationale.
69In my view, the material sought by the Commission is arguably relevant both to the matters at issue in the complaint and to any public interest remedy that may be sought. Accordingly, I order this material to be produced.
ORDER
70For all of the foregoing reasons, the Tribunal makes the following Order:
a. by June 16, 2008, the Commission will make disclosure and production in accordance with Rule 59 of the full results of its investigation including, but not limited to, witness statements that form part of the investigation file, together with any other arguably relevant documents or records in its possession or within its control;
b. by June 20, 2008, the complainant shall make full disclosure and production in accordance with Rule 62 of any arguably relevant documents or records in his possession or within his control, not already disclosed or produced by the Commission;
c. by June 30, 2008, the respondent and/or the Chief of Police shall make full disclosure and production in accordance with Rule 65 of any arguably relevant documents or records in their possession or within their control, not already disclosed or produced by the other parties, including but not limited to
documents in the personnel files of Constable Kevin Cote, Constable David Lenchuk or Staff Sergeant Stan Belza or from any other location that relate to the subject-matter of the complaint in this proceeding or that relate to other complaints or allegations of sexual orientation discrimination against Constable Kevin Cote, Constable David Lenchuk or Staff Sergeant Belza,
the complete file relating to the disciplinary proceedings against Staff Sergeant Belza, subject to the exceptions set out in this decision,
the name(s) and contact information of any person who was responsible for monitoring the video from the cell area on the night in question, the name and contact information of the officer in charge of the Station on the night in question, and any notes or documents pertaining to any decision about the retention or otherwise of any videotape of the cell area from that night,
the names and any contact information of any person held in the cell area on the night in question for any period of time that overlapped with the complainant and also the time or times when each of these persons entered and/or left the cell area,
any log from the night in question that includes information regarding the times of prisoner checks, who checked the prisoners and any incidents in the cell area,
any documents that relate to the arrest, booking, detention, release or any other interaction with the complainant,
officer notes or any other documentation that tracks or relates to the outcome of the court proceedings against the complainant or confirmation that no such documents exist, and information as to the understanding of the respondent and/or the Chief of Police of what the outcome was, and
training manuals and/or materials and policy documents relating to anti-discrimination and sexual orientation;
d. by July 29, 2008, the Commission shall serve and file its hearing brief in accordance with Rule 57;
e. by August 8, 2008, the complainant shall serve and file his hearing brief, if any, in accordance with Rule 60;
f. by September 8, 2008, the respondent shall serve and file its hearing brief in accordance with Rule 63;
g. by September 15, 2008, any reply pursuant to Rule 66 shall be served and filed;
h. the pre-hearing conference call is scheduled for September 19, 2008 at 10:00 a.m.
I remain seized to deal with any matters relating to the implementation of this decision.
Dated at Toronto, this 4th day of June, 2008.
"Signed by"
Mark Hart
Vice-Chair