McKay v. Toronto Police Services Board, 2009 HRTO 1220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry McKay

Complainant

-and-

Toronto Police Services Board and Christopher Fitkin

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 6, 2009 Citation: 2009 HRTO 1220 Indexed as: McKay v. Toronto Police Services Board

SUBMISSIONS By

Garry McKay, Complainant ) Kimberly R. Murray and ) Mandy Eason, Counsel

Toronto Police Services Board, Respondent ) Glenn Chu, Counsel

Christopher Fitkin, Respondent ) Melany Franklin, Counsel

William Blair, Chief of Police ) Sie-Wing Khow, Counsel

1This Interim Decision deals with the complainant’s request for production of various documentary materials from the respondents and William Blair, Chief of Police, as well as confirms the directions issued by the Tribunal at the hearing of the request for production.

BACKGROUND

2This is a complaint brought under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in policing services on the basis race, colour, ancestry and ethnic origin contrary to section 1 and 9 of the Code. The complaint stems from an incident on July 9, 2003, when the complainant, an Aboriginal man, was investigated and detained by the personal respondent, a police officer.

3On July 29, 2009, a hearing was held to address the complainant’s request for production. Previously, written submissions were received from the parties, as well as from Chief Blair, who, as the custodian of some of the requested records, had been provided with notice of the production request. Oral submissions were received by all parties, as well as from Chief Blair.

REQUEST FOR PRODUCTION

4At the hearing of the request for production, counsel for the complainant confirmed that the request, which was amended in the course of oral submissions, was for the following categories of materials:

A. Break & Enter Documents between April 9-July 9, 2003

1. All Break & Enter occurrence reports for 13 Division from April 9-July 9, 2003;

2. Any statistical report of the number of stops investigated for Break & Enter occurrences reported for 13 Division from April 9-July 9, 2003, along with any supportive documentation used to prepare the report, including contact cards;

3. Copies of any memoranda, directives or Chief of Police standing orders from April 9-July 9, 2003, issued to police patrolling 13 Division regarding Break & Enters.

B. Canadian Police Information Centre (“CPIC”) Documents

4. Any Toronto Police Services (“TPS”) policies existing on July 9, 2003, regarding when and how police officers may request CPIC applications;

5. Copy of current TPS polices regarding when and how police officers may request CPIC applications;

6. Copy of training modules regarding CPIC applications existing on July 9, 2003, including any Royal Canadian Mounted Police (“RCMP”) materials in this regard;

7. Copy of current training modules regarding CPIC applications, including any RCMP materials in this regard.

C. Investigative Stops Documents

8. Copy of all policies existing on July 9, 2003, regarding police powers to conduct investigative stops;

9. Copy of training materials, polices, directives, Chief of Police standing orders and memoranda regarding police powers to conduct investigative stops.

D. Training Records

10. A record of all professional development training programs participated in and completed by Constable Ramsay;

11. A record of all professional development training programs participated in and completed by personal respondent Fitkin.

E. Training Modules and Education

12. Copy of training modules regarding diversity and ethics used in July 2003 and currently to train TPS officers;

13. Copy of TPS training modules regarding Aboriginal peoples used in July 2003 and currently to train TPS officers;

14. Copy of training modules regarding bias-free policing and racial profiling used in July 2003 and currently to train TPS officers;

15. Copy of the training module regarding police note-taking in an investigation used in July 2003 and currently to train TPS officers;

16. Any policy, directives, memoranda or standing order regarding police officer requirements to take notes;

17. Any July 2003 and current policy, directives, memoranda or standing order regarding “whistle blowing” of fellow officers for discreditable conduct and/or unlawful and unnecessary exercise of authority.

F. Project Charter & Human Rights

18. A copy of any policies or procedures, directives, memoranda or Chief of Police standing orders developed as a result of Project Charter;

19. A copy of the diversity training developed out of Project Charter;

20. All statistics of race-related human rights complaints involving TPS in 13 Division, including any supportive documentation used to formulate the statistics unless the report involves the personal respondent. In the event that no such statistical report exists, the complainant seeks that the respondents prepare such a statistical report.

21. A copy of the Statement of Relationship with the Aboriginal community and any policies developed subsequent to Statement.

5Counsel for the complainant indicated that if any of the requested documents included personal information of third parties, the complainant was seeking that the materials be produced redacted of any such personal identification information. Counsel for the complainant also clarified that past and current CPIC training modules (Items #6 and #7) had been provided by the RCMP and as such, the complainant was now only seeking any TPS policies regarding when and how CPIC applications were undertaken in 2003 and are currently undertaken (Items #4 and #5).

6During oral submissions, counsel for the respondent Toronto Police Services Board (“the Board”) provided a copy of Item #21, the Statement of Relationship with the Aboriginal community, to counsel for the complainant. Counsel for the Board also advised that there were no policies developed subsequent to the Statement. Counsel for the complainant accepted that the Item #21 request was satisfied.

7Counsel for Chief Blair indicated that statistical reports sought in Items #2 and #20 did not exist. Counsel for the complainant indicated that she nevertheless maintained a request for production of the supportive documentation (contact cards) underpinning Item #2. With respect to Item #20, counsel for the complainant reiterated the request that the respondents be required to compile the numbers of race complaints involving 13 Division and produce a report. When questioned as to what line of legal authority the complainant relied upon for requesting the Tribunal order the respondents to assemble and prepare such a report, complainant’s counsel advised that the request for Item #20 was withdrawn and should be removed from the list.

8Counsel for Chief Blair advised that there were no documents responsive to Items #18 and #19. Counsel further indicated that there was only one document, known as the Crime Management Strategy, which was responsive to the materials sought under Item #3. Chief Blair consented to produce this document, although the document being produced is only in draft and a partial copy as the original no longer exists. Counsel also indicated willingness to produce Item #4, namely the CPIC applications policy existing in July 2003. The Tribunal ordered Chief Blair to produce Items #3 and #4 on or before August 10, 2009.

9There was consent to produce Officer Fitkin’s training record (Item #11) and any related training modules. However, counsel for Chief Blair advised that the training modules would need to be culled and assessed as to their content to ensure that the training materials did not include confidential information regarding matters of police safety. The Tribunal ordered counsel for Chief Blair, on or before August 26, 2009, to review and produce the documents that did not raise safety concerns and to advise if further time was needed to redact any additional materials.

10With respect to Officer Ramsay’s training record (Item #10), counsel for the complainant agreed to first attempt to contact counsel for Officer Ramsay to ascertain whether or not he would be prepared to disclose a curriculum vitae for the purposes of the hearing.

11In sum, at the conclusion of the oral hearing, the outstanding materials sought for production by the complainant were:

• Item #1: Break & Enter occurrence reports

• Item #2: Contact cards for investigated Break & Enters stops

• Item #5: TPS’s current policy for CPIC applications

• Items #8-9: Investigative stops policies and training materials

• Items #12-17: Training and education materials

STANDARD FOR DISCLOSURE

12The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLii 46508.

13The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

PARTIES’ POSITIONS

14The complainant argues that the documents requested are arguably relevant to both issues of liability and remedy. In light of the racial profiling allegations in dispute in this case, the complainant suggests that the Tribunal should be inclined towards greater disclosure because recent caselaw has held that racial profiling is rarely proven by direct evidence and inferences must be drawn from circumstantial evidence. The complainant submits that all of the requested documents will assist in assessing whether direct, systemic or institutional discrimination occurred in the alleged circumstances of the complaint.

15The complainant highlights that the respondents have raised the frequency of break and enter occurrences that were reported in the area as an element of their defence. As such, the complainant argues that he should be entitled to examine and test this information through access to the Break & Enter occurrence reports (Item #1) and contact cards (Item #2).

16The complainant points out that the evidence suggests that, in total, ten CPIC checks were conducted during the interaction between the personal respondent and the complainant. The complainant asserts that he should be entitled to pursue a line of inquiry regarding the respondents’ CPIC practices and cross-examine the respondents’ witnesses regarding whether the policy and procedures were followed correctly. As such, the complainant argues that the respondents’ past and current policies with respect to CPIC applications are arguably relevant and Item #5 should be disclosed. Similarly, the complainant argues that, in order to prepare for proper cross-examination, he should be entitled to access the investigative stop documentation (Items #8-9) since the respondents are defending the interaction between the complainant and the personal respondent as appropriate investigative conduct. The complainant submits that, therefore, the policy and procedures regarding conducting an investigative stop are arguably relevant.

17In support of his request for the various training and educational materials sought in Items #12-17, the complainant submits that “[r]acial profiling is insidious and the circumstances must be viewed in their entirety.” The complainant argues that requested documentation is necessary for preparing for cross-examination and arguably relevant to the issue of remedies. He notes similar training materials were ordered disclosed in Nassiah v. Peel Regional Police Services, 2006 HRTO 18 and King v. Toronto Police Services Board, 2008 HRTO 33.

18The respondents and Chief Blair object to the request for production of the remaining materials on a number of bases. The respondents argue that the request for investigative stops materials (Items #8-9) is overly broad. The respondents indicate that investigative stop training permeates almost all aspects of a front line police officer’s education and as such it would be nearly impossible to amass in any discrete format the training documentation on the topic of investigative stops.

19Further, the respondents submit that the request for all current training policies is an attempt to expand the scope of the complaint, which is based on a single interaction in 2003. In particular, the respondents argue that the current training materials are not arguably relevant to the complaint. Counsel for Chief Blair submits that the retrieval of the training materials will involve significant time and effort. The respondents indicate that even if the materials may be relevant to the issue of remedies, the hearing has been bifurcated so that the matter of potential remedies is premature.

20Counsel for the personal respondent asserts that request for the Break & Enter occurrence reports (Item #1) is grounded upon the understanding that the TPS had issued a crime management strategy directing police officers in the specific area to spend non-committed patrol time towards the strategy. The personal respondent questions how disclosure of the individual Break & Enter occurrence reports sought as Item #1 would assist the complainant in making out the allegations of racial profiling. Counsel submits the issue in dispute in this case will likely be the police officer’s interpretation and actions pursuant to the crime management strategy, not the actual number of occurrences that precipitated the development of the crime management strategy. She argues that even if the statistics underlying crime management strategy (the number of reported occurrences) were flawed, the accuracy of the occurrence reports is not in issue. Rather, it is the crime management strategy and the officer’s “state of mind” flowing from the strategy that is in issue. As such, the personal respondent argues that the Break & Enter occurrence reports are not arguably relevant.

21The Board strenuously argues that the production request was made very late in the day and long after the pleadings and hearing documents were filed. The Board points out that earlier in the process this Tribunal had directed the parties to notify the Tribunal if there were outstanding disclosure concerns and the complainant failed to comply with the Tribunal’s direction.

DECISION

22I, too, am concerned with the late timing of the request for production. The Board is correct that the Tribunal had provided the parties with an earlier opportunity after the exchange of pleadings to pursue the matter of disclosure. However, as highlighted by the complainant, the litigation progress of this case has been unusual. Much of the initial pre-hearing disclosure wrangling occurred between the Ontario Human Rights Commission (“OHRC”) and the Board. Although the Tribunal directed the parties to consider whether there were any outstanding disclosure issues at that time, the Board acknowledges that some of the significance of the requested documents only become clear later during the exchange of witness will-says and hearing materials. And around that time, in the weeks immediately prior to the commencement of the original spring hearing dates, the OHRC, who had primary and active carriage of this litigation, withdrew from the case. It appears that all of these circumstances surrounded the complainant’s late request for production. Given that the respondents have not identified any prejudice and in light of the new hearing dates, I find that consideration and determination of this request for production is not negatively impacted by any delay in the timing

Item #1: Break & Enter Occurrence Reports

23While I find that there is some merit to the personal respondent’s submissions regarding the value of the individual Break & Enter occurrence reports, I am nonetheless persuaded by the complainant’s submissions that these materials are arguably relevant to the facts and issues in dispute in the case. The respondents have indicated that the frequency of the Break & Enter occurrences in the area was a serious concern and will be relied upon as a component of their defence. As such, I find that the degree and nature of the Break & Enter occurrences during the time in question may be relevant to the complainant for the purposes of testing the respondents’ defence and as such, the complainant is entitled to access this information.

24On or before September 1, 2009, the respondent Board and/or Chief Blair are ordered to produce copies of all Break & Enter occurrence reports in the patrol areas of 13 Division between April 9 and July 9, 2003. The reports are to be redacted to exclude any personal identification information regarding third parties.

Item #2: Contact Cards For Investigated Break & Enters Stops

25I am persuaded that the discretionary nature of the supporting documentation for Item #2 (contact cards) and the lack of detail or accuracy of the information render the materials unhelpful for any of the parties and possibly even too remote to the facts and issues in this case. As such, I find the contact cards are not arguably relevant. I am further satisfied that the retrieval of the contact cards would be onerous for the respondents and as such, I deny the request for production of Item #2.

Items #5: TPS’s CPIC Current Policy

26It appears that the authority, process by which, and practice of requesting a CPIC check may be in dispute in this case. The complainant appears to impugn the number of CPIC checks undertaken during the interaction between the complainant and the personal respondent, whereas the respondents assert that the complainant “was not subject to undue scrutiny during the police interaction”. The respondents and Chief Blair have agreed to provide a copy of the CPIC application policy in existence in 2003. I am satisfied that the current policy and practice may be relevant for the purposes of cross-examination and potentially also to the issue of remedies. As such, I find that the complaint should be entitled to disclosure of these materials.

27On or before September 1, 2009, the respondent Board and/or Chief Blair are ordered to produce copies of the current training modules regarding CPIC checks.

Items #8-9: Investigative Stops Documents

28I similarly find that the authority, process by which, and practice of conducting investigative stops may be in dispute in this case. The respondents propose to call expert evidence to address the issue of whether the conduct of the personal respondent “aligned with police practice at the time in question” and specifically, the proposed expert will testify that “the initial stop was consistent with police practice”. As such, I find that the TPS’s policies regarding police powers to conduct investigative stops are arguably relevant and should be disclosed.

29I appreciate the respondents’ concerns regarding the voluminous scope of documents that may be implicated if the Tribunal was to order access to all training materials on investigative stops and consider the request as framed to be overbroad. However, given that the investigative stops training is arguably relevant to the issues in the case, I order the respondents to produce the primary training manual in regards to investigative stops that was in existence in 2003. I further note that if the proposed expert witness intends to rely upon training documentation for his proposed testimony that “the initial stop was consistent with police practice” this material may also be arguably relevant and should be disclosed.

30On or before September 1, 2009, the respondent Board and/or Chief Blair are ordered to produce copies of the primary training manual used at the time of the incident regarding police powers to conduct investigative stops and any training materials that the proposed expert witness intends to rely upon for his proposed testimony regarding the initial stop.

Items #12-17: Training and education modules

31I find that the past and current training manuals regarding diversity, Aboriginal peoples, racial profiling and bias-free policing are arguably relevant to the facts and issues in the case, as well as potentially relevant to the issue of remedy On or before September 1, 2009, the respondent Board and/or Chief Blair are ordered to produce copies of any training materials used in 2003 and currently to train TPS officers regarding issues of diversity, Aboriginal peoples, racial profiling and bias-free policing.

32I am not persuaded that matters of “note taking” or “whistle blowing” are arguably relevant to the facts or the issues in the complaint, nor have any parties raised the topics of “note taking” or “whistle-blowing” as an aspect of the case they will put before the Tribunal. As such, I refuse to order production of Items #16 and #17.

33In conclusion, the Tribunal makes the following Order:

1. By no later than September 1, 2009, the respondent Board and/or the Chief of Police shall produce copies of all Break & Enter occurrence reports in the patrol areas of 13 Division between April 9 and July 9, 2003. The reports are to be redacted to exclude any personal identification information regarding third parties;

2. On or before September 1, 2009, the respondent Board and/or the Chief of Police are ordered to produce copies of the current training modules regarding CPIC checks;

3. By no later than September 1, 2009, the respondent Board and/or the Chief of Police are ordered to produce copies of the primary training manual used at the time of the incident regarding police powers to conduct investigative stops and any training materials that the proposed expert witness intends to rely upon for his proposed testimony regarding the initial stop; and

4. By no later than September 1, 2009, the respondent Board and/or the Chief of Police are ordered to produce copies of any training materials used in 2003 and currently to train TPS officers regarding issues of diversity, Aboriginal peoples, racial profiling and bias-free policing.