HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Tewogbade
Applicant
-and-
Toronto Police Services Board and Mike Earl
Respondents
-and-
Toronto Police Association
Intervenor
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Kaye Joachim
Indexed as: Tewogbade v. Toronto Police Services Board
APPEARANCES BY
John Tewogbade, Applicant ) Selwyn Pieters, Counsel
Toronto Police Services Board ) and Mike Earl, Respondents ) Heather Crisp, Counsel
Toronto Police Association, ) Intervenor ) Nini Jones, Counsel
1This is an Application filed January 7, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant filed a complaint with the Ontario Human Rights Commission on May 6, 2005 alleging discrimination in employment on the basis of race, colour, ethnic origin and disability. The applicant self-identifies as an African Canadian male with an addiction to marijuana. Following his arrest for various offences under the Criminal Code, the applicant resigned his employment as a police officer and arranged a plea bargain of the outstanding criminal charges.
3The purpose of this Decision is to address the request by the respondents for dismissal on the basis of abuse of process, lack of jurisdiction or failure to establish a prima facie case of discrimination.
The Evidence
4The applicant testified as did his father, Ojo Tewogbade, a police officer with the Toronto Police Service (“TPS”), Ian Stratford, Manager of the Employee and Family Assistance Program (“EFAP”), Tom Gabriel, former case worker, EFAP and Chris White, the applicant’s former unit commander.
5The applicant began working as police officer in 2001. He testified that he became addicted to marijuana during his service as a result of various personal and work related incidents, including the serious illnesses of his sisters, three shooting incidents involving colleagues, difficulties with his long term partner, and other matters. He first used marijuana in 2001 following a car accident and escalated his use in early 2004 as a result of the above stressors. By the time of his arrest, he was using marijuana almost every day, sometimes as many as four or five cigarettes in one day. Although he never used the drug while working, he testified that he may have been impaired at work due to its use prior to his shift.
6In February 2004, a confidential informant advised the TPS that he had purchased a quantity of marijuana from someone he believed to be a police officer. The TPS determined that the person was the applicant. The TPS conducted surveillance on the applicant and his associates on 40 separate occasions between February 26, 2004 and July 27, 2004. The applicant was observed smoking marijuana on five separate occasions in public locations. On three occasions the TPS believed that his actions were consistent with the transaction and transportation of drugs.
7The applicant testified that he stopped using marijuana approximately three weeks before his arrest and had made arrangements to enter a drug rehabilitation program in early December 2004.
8On November 5, 2004 the applicant was arrested by Detective Sergeant Mike Earl and his partner and charged with four offences under the Criminal Code: breach of trust, trafficking in a controlled substance, possession of a controlled substance for the purpose of trafficking, and conspiracy to commit or attempt to commit the offence of being an accessory after the fact in relation to the above drug offences. He was also issued a notice of suspension from the TPS.
9He testified that he was interviewed by Detective Earl, without being read his rights or offered an opportunity to contact a lawyer. This evidence was not contradicted. At one point during the interview, Detective Earl asked him if he had an addiction and he responded that he did not know. Although the applicant testified that he recalled telling Earl that he was seeking help for his addiction, that evidence does not appear on the tape of the interview. On the video, the applicant does state that he is seeking help from “the Foundation”, but that reference is too vague to establish that he claimed to have an addiction. I also note that he submitted no corroborating documentation about his alleged enrolment in a rehabilitation program in December 2004.
10The applicant spoke with Gary Clewley, a lawyer provided by the Toronto Police Association to act for him. He testified that Mr. Clewley told him he would be kept in a motel but instead, he was taken to Maplehurst prison on the evening of Friday, November 5, 2004 and brought to the Brampton court house for his bail hearing on Monday, November 8, 2004.
11The TPS sent a member of the EFAP program to visit the applicant in jail and he was given a card and encouraged to contact the program.
12On Sunday November 7, 2004, Ojo Tewogbade testified that he met with Detective Earl who suggested that his son make a plea bargain to plead guilty to the breach of trust in return for dropping the drug charges. Mr. Tewogbade subsequently met with Mr. Clewley who spoke about getting his son out of jail and reviewing the disclosure. However, after leaving the room presumably to speak to Detective Earl, Mr. Clewley returned and recommended that the applicant plead guilty to breach of trust. Mr. Clewley stated that the applicant would lose his job anyway. Mr. Tewogbade stated that it was his son’s decision.
13On Monday, November 8, 2004, the applicant was brought into an office prior to his bail hearing. Present were Detective Earl, two professional standards officers, his father, and his lawyer. The applicant testified that Detective Earl presented him with a resignation paper and told him that he wanted him to resign as a result of the criminal charges.
14He was given an opportunity to speak with Mr. Clewley and his father. The applicant testified that he understood that he would not get bail unless he signed the resignation letter. He also testified that Mr. Clewley told him that there was incriminating video evidence against him, that he needed to take ownership or responsibility for the charges in order to get a better deal, and that his chances of keeping his job were slim to none.
15Ojo Tewogbade testified that he recalled meeting Mike Earl on November 8, 2004 and Mr. Earl again suggested he should encourage the applicant to take the plea. He also testified that Mr. Clewley told his son that he would not get bail unless he signed the resignation letter.
16I have difficulty with their evidence for several reasons. As a person who had no prior criminal record, with established family connections, a home and a surety, it was extremely unlikely that the applicant would have been refused bail, and as police officers they would have been aware of that. So the applicant’s alleged understanding is at odds with the preponderance of probabilities, notwithstanding the stressful situation he was facing.
17Also, in a subsequent written statement dated April 21, 2005, Ojo Tewogbade wrote that Mr. Clewley advised resigning in return for a plea bargain and advised that “he would be a better candidate for bail if he resigned right away.” I find that while the applicant may have believed that his bail would be facilitated if he resigned, he was not specifically told that he would not get bail unless he resigned.
18Finally, the resignation letter was clearly tied up with the plea bargain and the offer to drop the drug charges. This is addressed further below.
19The applicant signed the resignation form and was released on bail.
20After his release, the applicant visited the EFAP office and was referred to a drug counsellor, Patricia Davies. He met with Ms. Davies on November 23, 2004. Based on the applicant’s self reporting of withdrawal symptoms, she indicated that he may have had an addiction. He continued to see Ms. Davies until December 2004. There are no further records of treatment by Ms. Davies until she referred the applicant to Dr. Dunn in November 2005 for an assessment.
21On December 13, 2004, the applicant pled guilty to the charge of breach of trust. An agreed statement of facts was read into the record by the Crown and the applicant was asked if he agreed. He said yes. The agreed upon facts included that the applicant observed infractions of the law and did not act upon them and received a benefit in the form of marijuana and that this constituted a breach of trust. He also agreed that he sold marijuana and smoked marijuana in a public place. Before me, the applicant testified that he barely heard or understood the facts as read out in Court and that they were mostly not true. He felt he was in a trance-like state the whole time. Before me, he denied trafficking in drugs, selling marijuana or participating in a breach of trust.
22Mr. Clewley made a statement to the Court on behalf of the applicant. Mr. Clewley relied upon the applicant’s immediate resignation as a form of owning up and accepting responsibility. The applicant was given a six month conditional sentence, including house arrest for the first four months, plus 100 hours of community service.
23The applicant testified that after the plea, Mr. Clewley asked him to sign a lengthy authorization and direction in which he agreed that he had been given certain legal advice. In that authorization, it states that he agreed to resign from the TPS in return for the withdrawal of the drug charges. Before me, he testified that he did not read the authorization and its contents were not true. On that same day he signed an agreement not to apply to any police service for employment.
24On May 6, 2005, the applicant filed a human rights complaint which was subsequently abandoned upon the filing of the transitional Application to the Tribunal on January 7, 2009.
25On June 6, 2005, the applicant wrote to the TPS and asked to rescind his resignation letter.
Abuse of Process and Jurisdiction
26The applicant alleges that the respondents’ request that he resign and their decision to lay charges constitutes discrimination in employment on the intersecting grounds of disability and race. He submits that the TPS failed to accommodate his narcotic addiction and that by offering him a plea bargain in return for his resignation, they avoided their obligation to accommodate under the Code. He also alleges that the pressure to resign and engage in a plea bargain was part of the systemic discrimination faced by Black officers in the TPS.
27I have jurisdiction over the applicant’s allegation that the TPS as his employer discriminated against him on the basis of disability and race. However, in light of the applicant’s resignation and plea bargain, there is a serious question whether it would be an abuse of process to permit the applicant to resile from the resignation and challenge the criminal conviction.
Resignation under Duress
28I am not satisfied that the applicant experienced duress in the legal sense when he decided to resign. The applicant was facing serious consequences as a result of his use of marijuana, including the possibility of a criminal conviction, a criminal record and the loss of his job. He chose to resign in order to secure more preferential treatment with respect to the criminal charges in return for his resignation. He had legal counsel to advise him.
29I do not accept his evidence that he resigned in order to obtain bail. The evidence as a whole, including Ojo Tewogbade’s written statement of April 18, 2005 indicates that the plea bargain and resignation were a package deal.
30In my view, the applicant was not under duress when he chose to resign his employment in order to secure a withdrawal of some of the drug charges and arrange a plea bargain. Having obtained the benefit of a plea bargain, the applicant now seeks to set aside part of the bargain that led to that lenient treatment. I agree with the respondents that this amounts to an abuse of process. The Tribunal has held that an applicant who signs an agreement disposing of the human rights allegations, should not be permitted to abuse the Tribunal’s process by attempting to continue with the allegations: Dube v Rockhaven Recovery 2009 HRTO 53; James v Evonik Degussa; Egwuenu v. Toronto (Catholic District School Board) 2009 HRTO 378; Stansens v Liquor Control Board of Ontario 2009 HRTO 1560.
31I recognize that this is not the same situation. The applicant did not agree to a settlement of his human rights claims or sign a release to that effect. Rather he voluntarily resigned, fully aware of his right to remain employed and allege that his addiction should be taken into account in assessing his culpability in any potential Police Services Act proceeding. In my view, permitting the applicant to resile from his voluntary resignation would amount to an abuse of process similar to those cases where the applicant attempts to resile from a settlement of a human rights complaint. The assertion that the TPS may have acted in a systemically discriminatory way (i.e., not taking a similar approach with non-Black officers) in offering the resignation is irrelevant to my analysis. It was open to the applicant to maintain his employment and his innocence and assert systemic discrimination and a failure to accommodate but he chose not to do so.
32Further, the applicant has made it clear that he also intends to challenge his breach of trust conviction and the facts agreed to on the record. In my view, to permit him to do so would be an abuse of process. In Toronto (City) v. CUPE, Local 79 2003 SCC 63 the Supreme Court of Canada held that it was an abuse of process for a person convicted of a criminal offence of sexual assault, to challenge the factual findings in an arbitration proceeding. In that case, the employee testified at his trial and was convicted for sexual assault. The employer fired the employee and he filed a grievance. The arbitrator hearing the dismissal grievance ruled that the criminal conviction was not conclusive as to whether the employee had committed a sexual assault. The court concluded that it would be an abuse of process to relitigate the sexual assault.
33I recognize that there are factual differences between the situation in the CUPE case and this case. The applicant in this case did not testify and was not found guilty after trial. Rather he pled guilty and specifically agreed to a statement of facts.
34This Tribunal has held that parties to the human rights process are bound by their agreement to the facts giving rise to a guilty plea: S.H. v. M[...] Painting, 2009 HRTO 595 and Hughes v. 1308581, 2009 HRTO 341. I agree that this is an appropriate application of the CUPE analysis.
35I note that the applicant has the option of appealing his conviction, despite his plea bargain. The applicant relied upon the case of R. v. Taillefer; R. v. Duguay, 2003 SCC 70, 2003 3 S.C.R. 307 (“Duguay”). In that case the applicant appealed his plea bargained conviction on the basis that the disclosure provided to him by the Crown was incomplete. The Supreme Court of Canada held that failure to disclose evidence that would have influenced the party’s decision to plead guilty may be a basis to set aside a plea bargained conviction. That case is distinguishable on the basis that the Crown in this case did make disclosure available to the applicant and his counsel. The applicant chose not to view the disclosure before making the plea bargain. Mr. Clewley asserts that he did view the disclosure and reported the results to the applicant. This is a significantly different scenario than the Duguay situation.
36In any event, the Duguay case simply reinforces that the appropriate procedure to appeal the plea bargained conviction would have been to make his allegations of non-disclosure, duress, poor legal advice and addiction to the Court.
37The Application is dismissed as an abuse of process.
Dated at Toronto, this 30th day of November 2009.
‘Signed by’
Kaye Joachim
Alternate Chair