Washington v. Toronto Police Services Board, 2009 HRTO 217

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lloyd Washington

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Sanjee Aroda, David Wilson, Richard Stavintsky, Nicholas Morris, Peter Shaw, Thomas Hockney, Lorne Bragg, Julian Fantino and Clayton Douglas

Respondents

-and-

Toronto Police Association

Intervenor ______________________________________________________________________

interim DECISION

Adjudicator: David A. Wright

Date: February 27, 2009

Citation: 2009 HRTO 217

Indexed as: Washington v. Toronto Police Services Board

APPEARANCES BY

Lloyd Washington, Complainant ) Vickie McPhee, ) Representative

Ontario Human Rights Commission ) Brian Smith and Jean Iu, ) Counsel

Toronto Police Services Board, ) Robert J. Baldwin, Sanjee Aroda, David Wilson, Richard Stavintsky ) Counsel Nicholas Morris, Peter Shaw, Thomas Hockney, ) Lorne Bragg, Julian Fantino, and Clayton Douglas, ) Respondents )

Chief of Police for the City of Toronto, ) Sie-Wing Khow, William Blair, ) Counsel Respondent to the Request for Order During ) Proceeding )

Toronto Police Association, Intervenor ) David Butt, Counsel

INTRODUCTION

1This Interim Decision concerns the production of information in police files about allegations by third parties of discrimination by the police officer respondents. It is released concurrently with Goodridge v. Toronto Police Services Board, 2009 HRTO 218, in which a similar issue arises. The Commission and complainant seek production of information about any complaints of discrimination on the basis of race made against respondent officers and any discipline imposed as a result.

2In these proceedings, Lloyd Washington alleges discrimination on the basis of colour, creed, place of origin and race by the nine respondent officers in their treatment of him, including brutal physical assaults and harassment of him and his family. He alleges that the harassment was ordered by the then Chief of Police, Julian Fantino, and that his treatment reflects systemic discrimination and racial profiling within the Toronto Police Service.

3The Commission and the complainant ask that the Tribunal order the disclosure of “those portions of the employment or personnel files of [the first seven individual respondents and one other officer] alleging racial profiling, racial discrimination and/or racial harassment, and that relate to any discipline imposed as a result of any such complaints”. The records sought include complaints that did not result in discipline or a conviction for misconduct. I must determine whether, to what extent, and by what process such information should be disclosed. This involves applying the recent guidance of the Supreme Court of Canada in R. v. McNeil, 2009 SCC 3 on the issue of production of police disciplinary records to the adjudication of statutory human rights. It also requires a balancing of various competing interests, including those of the parties to these proceedings and third parties, the public interest in obtaining evidence that could assist in determining these human rights issues, and the need for fair, just and expeditious resolution of Tribunal proceedings.

BACKGROUND: THE COMPLAINT AND REFERRAL

4Mr. Washington, who identifies as a Rastafarian man of Afrikan descent who is originally from Jamaica, filed his complaint with the Commission on June 24, 2004 under the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The allegations allege police mistreatment on the basis of race over an extended period of time including the following:

• On June 24, 2002 he was racially profiled, arrested, brutally beaten, and demeaned while in custody. Among the allegations are that one of the officers called him a “nigger” said that “a nigger is something everyone should have” and asked, “How did you get into this country?”.

• During the months that followed, he was verbally harassed and given tickets by various officers.

• On January 23, 2003, he was again brutally beaten. One of the officers said “the Rastaman is on the ground”.

• Chief Fantino profiled all the boys and men in Mr. Washington’s family, and various members of his family have been subject to police harassment.

• Throughout his interactions with police he has been called “’nigger’, crazy, child molester etc.”

5The respondents say that their conduct on the various occasions was appropriate, deny any racism, and assert that where they used force it was measured and as a result of the complainant’s violent conduct.

6By letter dated February 14, 2008, the Commission referred the Complaint to the Tribunal under s. 33(6) of the Code as it read prior to June 30, 2008, which provided:

If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7).

Following referral, the Commission made a request for production. In a previous Interim Decision, the Tribunal found that the request would be determined following the filing of hearing briefs: Washington v. Toronto Police Services Board, 2008 HRTO 39.

7The production request was heard in writing. The Tribunal received submissions from the Commission, the complainant, the Chief of Police (who the respondents state holds the requested records), and the TPA, which was granted leave to intervene on this issue. The respondents oppose production, but did not make detailed submissions, relying upon those of other parties. While this Interim Decision was under reserve, on January 16, 2009, the Supreme Court released its decision in R. v. McNeil, which dealt with production of police disciplinary records requested by the accused in a criminal trial. The Tribunal sought supplementary submissions from the parties on the application of McNeil to this request.

8The production request asked for various other documents. In a previous oral decision, reported at 2008 HRTO 210, the Tribunal ordered the production of most of these records. It is my understanding from subsequent correspondence from the Chief that all of the production requests, with the exception of that set out in paragraph 3 above, may have been fulfilled. If this is incorrect, the Commission should write to the Tribunal advising what request(s) remain outstanding.

NOTICE

9In preparing these reasons, it came to my attention that one of the officers whose personnel records are sought, Officer Campbell, is not a respondent, and it appears that he was not provided with notice of the Commission’s Request for Order. In my view, as this officer is affected by the Request, he should have been provided with notice and an opportunity to make submissions. If the Commission and/or the complainant wish to pursue the request for records relating to this officer, they should serve a new Request for Order upon him in accordance with Rule 23, together with written submissions in support of the Request and a copy of this Interim Decision within 14 days of the date of this Interim Decision. Officer Campbell, the Chief, the respondents and the TPA may respond with written submissions on the request within a further 14 days. The Commission and complainant may reply within a further seven days. This Interim Decision will only consider the Request relating to the records of the officers who are respondents to the Complaint.

ANALYSIS

The Referral to the Tribunal

10In its submissions, the Commission emphasizes that it referred this Complaint to the Tribunal under s. 33(6) following the refusal of the respondents to comply with a request made by the Commission investigator under the old Part IV of the Code. There is no need for me to address the issue of whether, under the old Code, the approach of the Tribunal to production in such circumstances was different from a referral under s. 36. Section 55(2) provides that on or after the “effective date”, June 30, 2008, the Tribunal is to apply the new Part IV of the Code to a Commission-referred complaint “as if it were an application made to the Tribunal” under the new Part IV. This suggests that the Tribunal’s approach to this production request should be the same whether it is a Commission-referred complaint under any of the Commission’s powers or a new application. The analysis must therefore be based on the Tribunal’s adjudicative process, and the purpose of the requested documents in that process.

King, Nassiah and McKay

11In Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, King v. Toronto Police Services Board, 2008 HRTO 33, and McKay v. Toronto Police Services Board, 2008 HRTO 98, the Tribunal made orders similar to those sought by the Commission, based upon the facts and allegations in those cases. The Commission and complainant argue that these decisions mandate the same order in this case, while the respondents to the request and the TPA argue that they did not apply the appropriate analysis.

12Since the previous cases were decided, the Supreme Court has issued the McNeil decision regarding disclosure of police disciplinary records. Moreover, each was made in a particular context (indeed the order in King is much narrower than that in Nassiah) and in my view they do not establish the general principle that an order of the type the Commission requests is appropriate in every case. I will, therefore, consider in detail the relevant principles and the approach the Tribunal should take in this case in light of the Supreme Court’s guidance in McNeil, given the allegations and facts in this complaint.

ARGUABLE RELEVANCE

13It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. As noted in Nassiah at para. 8, this is a relatively low threshold for the requesting party to meet. As the Tribunal stated in Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10,

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

14Principles of disclosure and production are particularly important in human rights adjudication. Because discrimination is often subtle, difficult to prove, and may happen behind closed doors, an applicant or complainant regularly requires information in the possession of the respondent to make his or her case. The Code, unlike the criminal law, is not about punishment but about finding and eradicating discrimination. Tribunal cases often involve a determination of whether one or more of the grounds in the Code was a factor in the respondent’s actions, and the result may depend on whether this can be inferred from circumstantial evidence. The Tribunal is sensitive to the fact that to meet their burden of proof, parties alleging discrimination must frequently put together various pieces of evidence that support the conclusion that an action was discriminatory. For these and other reasons, principles from criminal law or civil litigation cannot be directly imported into human rights without a close evaluation of the context.

15The principal argument put forward by the Commission and complainant in favour of production of these records is that other complaints against the officers in question could assist in demonstrating a pattern of behaviour by the officers supporting the veracity of the complainant’s allegations and/or the inference that their actions were affected by the complainant’s race. Since racial profiling and discrimination is often subtle and difficult to prove, evidence of a pattern, which may arise through various complaints against officers involved, may be relevant and important in proving the allegations: see, for example, Commodore Business Machines Ltd. v. Ontario (Labour) (1984), 1984 CanLII 2017 (ON HCJ), 49 O.R. (2d) 17 (Div. Ct.) and Papa Joe’s Pizza v. Ontario Human Rights Commission (2007), 2007 CanLII 23487 (ON SCDC), 59 C.C.E.L. (3d) 98 at paras. 2-7 (Div. Ct.).

16In my view, the only arguable relevance of the production sought in this case is as similar fact evidence, which is an exception to the general rule that evidence of “good” or “bad” character is not admissible. The Commission and complainant suggest that the information may be arguably relevant to “the efficacy and appropriateness of employer responses to allegations of discrimination”. This case is not, however, framed as a systemic challenge to the manner in which the TPS deals with allegations of discrimination, and it is difficult to see how the records of these seven officers alone could arguably shed meaningful light on this systemic issue. I also note that McNeil suggests where a foundation is laid in a particular case, such evidence may be “of use… in cross-examining a witness on matters of credibility or in pursuing other areas of investigation” (para. 44). There is no particular foundation in this case. Finally, the evidence is not sought to establish a comparison between the treatment of the complainant and others in support of an inference of discrimination on a prohibited ground.

17Given the nature of the request and the facts of this case, the arguable relevance of the requested evidence to the issues in this case is as similar fact evidence supporting the complainant’s allegations on the basis that the personal respondents’ actions in the past make it more likely that they violated the Code on these occasions. I turn now to a discussion of the use of such evidence.

SIMILAR FACT EVIDENCE IN HUMAN RIGHTS PROCEEDINGS

18Evidence of a pattern of behaviour supporting an allegation that particular events occurred, known as similar fact evidence or evidence of similar acts, is subject to a special set of legal rules regarding admissibility. In Sinclair v. London (City), 2008 HRTO 48, the Tribunal discussed the principles regarding the admission of such evidence in human rights proceedings, which is, of course, different than in criminal proceedings. As in other areas of law, the balancing of probative value and prejudicial effect is central to this determination, but the probative value and prejudice must be considered in the context of human rights adjudication and values. As the Tribunal stated in Sinclair at paras. 24-26:

While there is a general rule against admission of evidence relating to a person’s character or reputation, the Commission argued that this evidence properly falls within an exception to that principle permitting the admission of “similar fact evidence”. Evidence of similar facts will be admitted if the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56; Chacko v. Transpharm Canada Inc.(c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11 at para. 11. This requires a weighing by the Tribunal of the benefits of the evidence in assisting the Tribunal in determining the issues before it against the potential prejudice to the hearing process and the party whose character is placed into question through such evidence.

Various factors may affect this balancing process, depending upon the issues in the case: see Handy, supra at paras. 49-97. Probative value often, but not always, arises from the degree of similarity of the alleged similar facts in relation to the disputed issues in the case. Prejudicial effect generally arises from the fact that it may lead to distraction from the central issues in the case, inordinate consumption of hearing time, and reasoning based on the general character of a witness. As noted by the Supreme Court, “[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”.

The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be applied with consideration of the nature of human rights cases and the values relevant to human rights proceedings. These include the fact that discrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many human rights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case. There is also often prejudice to respondents in having to defend themselves against allegations that never formed the subject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis.

19Similar fact evidence will often be relevant, but may well not be admitted because of its prejudicial effects. As noted in the quotation above from Lampi, the balancing of potential probative value and prejudicial effect is a factor in determining whether production will be ordered and by what procedure.

PROBATIVE VALUE AND PREJUDICIAL EFFECT

20I turn now to a discussion of the factors that are relevant to a balancing of the potential probative value and prejudicial effect of the production. Many of the same factors considered in the admission of similar fact evidence are relevant, although their application will be different in the context of production, where the specific content of the potential evidence is not known. These factors must be evaluated in the context of Ontario’s new human rights system, in which applications are made to the Tribunal and most litigants are private parties, sometimes self-represented, rather than institutional litigants like the Commission and the Crown.

21Probative value of similar fact evidence often comes from the similarity of the alleged similar facts to the conduct at issue in the proceeding. The more the other allegations resemble those at issue in the proceeding, the more likely it is that they will be admitted. More alleged similar acts will often increase probative value. In considering probative value, the existence of a pattern may be important circumstantial evidence that weighs in favour of a finding of discrimination. Moreover, as noted by the Tribunal in Nassiah, the Tribunal’s approach generally favours broader production.

22The TPA argues that only allegations that have been upheld or led to charges through the police discipline process in Part V of the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) ought to be produced, suggesting that sufficient probative value to support disclosure can only come from a proven allegation. I disagree. Allegations that did not end in a conviction for misconduct or a charge may arguably have probative value as similar fact evidence. First, the probative value of similar fact evidence generally comes from the existence of a pattern. The existence or significance of a pattern may not be apparent until a significant number of allegations have been made. It may be that had the pattern been apparent earlier, a different conclusion would have been drawn in the earlier complaints. Second, the fact that there was no conviction does not mean that the events were necessarily found not to have occurred or not proven. For example, public complaints under the PSA may be dismissed for being made beyond a six-month limitation period (s. 59(4)), because the complainant was not directly affected by the conduct (s. 59(5)), or may be withdrawn (s. 56(4)). They may be informally resolved (s. 58) or a relatively minor penalty may be imposed by the Chief (s. 64(15)). None of these necessarily affect the probative value of the potential similar fact evidence. Moreover, even a determination that guilt has not been proven on the applicable standard of “clear and convincing evidence” (s. 64(10)) does not definitively mean that information about the events leading to the complaint could not be found to be admissible, reliable and probative similar fact evidence in a Tribunal proceeding.

23At the same time, one must be cautious about the potential probative value of unsubstantiated allegations involving police officers, who deal with the public in situations of conflict that can be expected to attract complaints. As the Supreme Court stated in McNeil at para. 45,

Ascertaining the true relevancy of records targeted for production may become particularly important when the information on the production application concerns police disciplinary records. The contentious nature of police work often leads to public complaints, some legitimate and others spurious.

24On the other side of the balance, there are various possible prejudicial effects. One is the danger that Tribunal proceedings will be sidetracked by irrelevant issues. Scarce adjudicative resources should not be used for “fishing expeditions” for evidence that may well be irrelevant or inadmissible: McNeil at para. 28, Sinclair at para. 26. Neither the interests of the parties nor those of the public will be served if human rights applications against police routinely turn into inquiries that focus on the history of complaints against the officers involved rather than the events in question or lead to extended legal arguments about the admissibility of potential similar fact evidence.

25Second, as recognized in King at para. 43, the respondent officers may have a privacy interest in records of complaints against them. The records sought relate to their employment and may have an impact on their reputation. As with probative value, the determination of the level of privacy interests engaged will depend on the specific nature of the records. In McNeil at para. 12, the Court confirmed that “no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to their contents”.

26There is another important privacy interest that was not discussed by any of the parties in their submissions: that of the complainants who made the allegations whose records are sought. Allegations of police misconduct often arise in situations in which the complainant was accused of criminal or inappropriate activity. A public complainant who withdrew or informally resolved an allegation may have done so in the belief and expectation that the matter was closed and the issues would not become public. In my view, the complainant’s privacy interests are significant when determining the issue of production of complaints that did not lead to discipline.

THE O’CONNOR Procedure

27The parties disagree about the procedure that should be used to determine whether production will be ordered in this case. Relying upon McNeil, the TPA and the Chief argue that the records sought are “third party records” and the issue of production must therefore be determined through the common law procedure which applies in both criminal and civil proceedings from R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Under the O’Connor procedure, a party seeking records held by a third party obtains a subpoena duces tecum (a subpoena compelling the person to attend a hearing with the targeted records or materials) and serves it on the third party record holder. The judge or adjudicator determines, in a two-stage process, whether the requested documents must be produced. At the first stage, the judge or adjudicator determines whether the records are “likely relevant”. If they are, they are produced to the judge or adjudicator for inspection, following which he or she determines whether they must be produced to the other side.

28The Tribunal has the specific power, under s. 43 (3)(f)(i) of the Code and Rule 14(h) of the Rules of Procedure for Commission-referred complaints to order a party to a proceeding or another person to “produce any document, information, or thing”. In light of this power, it is not necessarily the case that the common law O’Connor approach applies to requests to the Tribunal for production from third parties. However, I need not decide this issue because I agree with the Commission, which argues that the records sought are not third party records. In criminal proceedings, the opposing party to the accused is the Crown, which is a different legal entity from the police service and the officers involved (see McNeil at paras. 22-25). In this case both the officers whose personnel records are sought and the Toronto Police Services Board are party respondents.

29There are unique features about the relationship between municipal police services boards (“PSBs”) and uniform officers that make it different from a traditional employment relationship. These arise because of the legal status of police officers and the particular disciplinary regime in Part V of the PSA. Nevertheless, PSBs are, in very many ways, like the officers’ employer. The PSA provides that members of the police force are appointed by the PSB (s. 31(1)(a)), are “under the board’s jurisdiction” (s. 31(2)), the board may “terminate a police officer’s employment” during their probationary period (s. 44(3)) and may discharge a member because accommodation of a disability may result in undue hardship (s. 47). Under s. 126(3), PSBs bargain with police associations to reach agreements “dealing with the remuneration, pensions, sick leave credit gratuities and grievance procedures of the members of the police force and, subject to section 126, their working conditions”. They also establish guidelines for dealing with public and internal complaints against members of the force under Part V (s. 31(1)(i). The PSB is the equivalent of an employer for most purposes, and certainly has an important role in relation to the discipline and complaints process.

30When a PSB and an officer are respondents, the Tribunal need not apply the O’Connor common law regime specific to records held by third parties. However, in exercising its powers under the Code and its rules to determine an appropriate balancing of the relevant values and interests in the adjudication of a particular human rights complaint or application, procedures such as those used in O’Connor may be appropriate.

BALANCING THE COMPETING VALUES IN HUMAN RIGHTS ADJUDICATION

31I must determine how to balance the conflicting interests when applying the principles of production and similar fact evidence to this case. There are various methods available to the Tribunal to achieve an appropriate balance between obtaining probative evidence and protecting other affected interests: through the extent of disclosure, the procedure for making a production order, and by imposing particular restrictions on the use of the materials if disclosure is ordered.

32In light of the nature of the prejudicial effects of large-scale disclosure of records of other complaints, in my view an O’Connor-type procedure is appropriate in the circumstances of this case. Although they are not held by third parties, the privacy interests of potentially a large number of complainants who are not parties to the litigation are engaged, and the principles set out in McNeil favour review by an adjudicator to protect third parties’ interests. For this reason, together with the potential for distraction from the essence of the litigation and the privacy interests of the officers in their employment records given the nature of these allegations made in this case, any records should be reviewed by an adjudicator prior to disclosure to determine whether their probative value could arguably outweigh their prejudicial effects. As with the sensitive therapy records at issue in O’Connor and the medical records which the Tribunal reviewed prior to ordering production in McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13, the circumstances of this production request militate in favour of review by the Tribunal prior to any documents being provided to the requesting party. The Tribunal will consider any submissions the parties may make about how, consistent with the principles in this decision, it should look for potential probative value and balance it against potential prejudice in the circumstances of this case.

33If, after review, the Tribunal determines that some records should be produced, it may be appropriate to place additional conditions on the use of the records other than the general requirement that documents produced in litigation may not be used for any other purpose (the implied undertaking rule). The Tribunal will consider any restrictions that the parties request or suggest in any order it makes following review of the records.

34These reasons should not be taken to suggest that as a matter of course, the Tribunal will examine records in which one of the parties has a privacy interest before ordering production. Rather, the approach set out here reflects a response to the particular set of conflicting considerations discussed above in light of the allegations in this case and the guidance on the disclosure of police discipline records provided by the Court in McNeil.

ORDER

35Within two weeks of the date of this decision, the Chief shall produce to the Tribunal all records of complaints against Sanjee Aroda, David Wilson, Richard Stavintsky, Nicholas Morris, Peter Shaw, Thomas Hockney and Lorne Bragg alleging racial profiling, racial discrimination and/or racial harassment, and any discipline imposed as a result of any such complaints.

36By the same date, the parties may make any submissions about: (i) how the Tribunal should look for potential probative value and balance it against potential prejudice; and (ii) any restrictions that the Tribunal should place on the use of any records it orders disclosed.