Dungus v. Toronto Police Services Board, 2009 HRTO 389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Dungus Complainant

-and-

Toronto Police Services Board, Andrew Blunk, Darren Halman, Jeffrey Treusch, Sean McGuinness, David Roberts, Karen Chapman and Rosario Conrad Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: April 3, 2009 Citation: 2009 HRTO 389 Indexed as: Dungus v. Toronto Police Services Board.

APPEARANCES

Ahmed Dungus, Complainant ) On his own behalf

Toronto Police Services Board, Andrew Blunk, ) Darren Halman, Jeffrey Treusch, Sean McGuinness, ) Michele Wright and David Roberts, Karen Chapman and Rosario Conrad, ) Antonella Ceddia, Respondents ) Counsel

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

INTRODUCTION

1This Interim Decision deals with the complainant’s request for production of various arrest records as well as providing clarification on the Tribunal’s Interim Decision, on consent of the parties, to bifurcate the hearing.

BACKGROUND

2This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging that the respondents infringed the complainant’s right to equal treatment in services on the basis of race, colour and ethnic origin. The complaint arises out of an incident on June 21, 2004 in which the complainant was arrested for trafficking in cocaine. The charge was eventually withdrawn. The complaint alleges the police discriminated against the complainant by:

a. Approaching him in the first instance during an undercover drug operation; b. The manner in which he was initially detained, including allegations that he was physically mistreated; c. In their subsequent treatment of him at the police station including the fact that he was strip searched twice; d. In contacting his employer advising of his arrest; and e. In recommending that the complainant report to a particular reporting centre as one of the conditions of his bail.

3The respondents deny the allegations. They submit the complainant was approached on a random basis only after he made eye contact with an undercover officer, that he was not mistreated at any time and that the officers had reasonable and probable grounds to arrest him on the charge of trafficking in cocaine.

4The complaint was referred to the Tribunal by the Commission on December 18, 2007. Initially the complainant was represented by counsel, but approximately two weeks before the hearing on the merits was scheduled to commence, his counsel advised the Tribunal that he was no longer acting for him. In addition, approximately one week before the hearing, the Commission filed a request to withdraw from the proceeding. The Commission’s request was heard by the Tribunal on September 22, 2008 at which time the parties consented to the withdrawal subject to certain transitional orders being made including providing the complainant with an adjournment so that he could find alternative counsel.

5After some delays to permit the complainant to obtain alternative counsel, the hearing resumed by teleconference call on November 17, 2008, at which time he advised he would be self-represented. In the conference call, on the consent of the parties, the Tribunal decided that the hearing would be bifurcated between liability and remedy issues; a decision which is confirmed below, along with some clarification.

6On December 23, 2008, the complainant filed a Request for production of the arrest records. This Request was originally scheduled to be heard on January 7, 2009 but was adjourned on consent of the parties to January 29, 2009, so that notice could be given to the Chief of Police who reportedly had possession of the records being sought.

7On January 29, 2009, an oral hearing was held to address the complainant’s request. Submissions were received by the parties, as well as the Chief of Police.

REQUEST FOR PRODUCTION

Material Sought

8The complainant confirmed he seeks the following records:

a. The records of arrest relating to all individuals arrested in the undercover drug operation participated in by the police officers named in the complaint from June 21, 2004 to present;

b. All documents generated by the Toronto Police Service in connection with the arrests; and

c. The recognizances related to all individuals arrested by the respondent officers from June 21, 2004 to present.

9Further, it was agreed by the parties and the Chief of Police that the request for “all documents” in paragraph “b” above would include the following (to the extent the documents exist in respect of a particular arrest):

a. Audio recordings, such as 911 calls;

b. Video recordings, including recordings of the booking hall, cell area and interviews of the accused or potential civilian witnesses;

c. I/CAD event details report;

d. Memorandum book and other notes of police;

e. Records of arrest, supplementary records of arrest and Crown Briefs;

f. Various reports including use of force reports and injury reports; and

g. Property receipts for evidence and prisoner property.

Standard for Disclosure

10The standard for disclosure in a human rights proceeding is “arguable relevance”. It has been stated that this is not a particularly high bar. However there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: 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. Further, 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 the timing of the request risks derailing a just and expeditious hearing.

11The complainant argues that the documents requested are arguably relevant since the documents would “shed light” on the credibility of the officers involved in his arrest because they would reflect how many individuals the police target; whether they are “white or black”; and how they are doing their job generally.

12The Chief of Police and respondents object to the request on the basis that the documents are not arguably relevant because the complainant’s request is merely speculative and he has not demonstrated a nexus between the records sought and the issues in the case. Further, they argue that even if there was any probative value, any probative value is outweighed by the significant time and costs associated with the retrieval of the records. Finally, they argue that the release of the requested documents will affect the privacy rights of hundreds, if not thousands of individuals, who should be provided with notice and an opportunity to respond to the request – itself an onerous, time-consuming and expensive process. In this respect, they argue that should disclosure be ordered, the Tribunal should not order their production without examining the records to determine whether, and to what extent, the records should be produced.

DECISION ON PRODUCTION REQUEST

Arrest Records

14I decline to order disclosure of the arrest records.

15This is not a complaint alleging systemic discrimination. Instead, it is a case about whether the complainant experienced discrimination in the particular circumstances detailed above. While statistical evidence or evidence of the comparative experience of other persons who share the characteristics of a complainant may, in an appropriate case, be arguably relevant to a complaint of individual discrimination, I am not satisfied that in this particular case, the complainant has demonstrated that there is a nexus between the extensive records he is seeking and the issues in the case.

16One of the primary issues in this complaint is whether the complainant was racially profiled when he was allegedly approached by the police. Even if I accept the police approached the complainant, a fact that is somewhat disputed, I do not find that the arrest records would be helpful in ascertaining whether racial profiling was at work in this interaction. First, arrest records establish who was arrested and not necessarily who was approached. Thus I do not see how they could be useful in establishing whether racial profiling might have been a factor during any approach. Second, I agree with the respondents and Chief of Police that the numbers of arrests alone will not have any probative value in establishing racial profiling in the absence of other statistical information such as the racial makeup of the community (See for example, R. v. Khan [2004] O.J. No. 3811 (Ont. Sup. Ct.) at para. 56, where Justice Molloy made similar observations albeit in a different context).

17As for the issues pertaining to the complainant’s treatment once detained and arrested, arrest records may reflect, to some degree, the experience of other accused persons on the basis of their racial background. For example, the respondents state that the arrest records would reflect whether an accused person sustained an injury when arrested, whether an accused person was strip searched and may or may not contain information about whether an accused person’s employer was contacted. In addition, the “Record of Arrest” document should contain information as to whether an accused person is “white, brown or black”; this document combined with the videotape information where it exists, may provide the basis for some comparative data about other accused persons based on their racial background.

18However, even though arrest records may be a source of some comparative information, the complainant has not adequately explained how that information would be arguably relevant to the issues in his case. Instead, I find that the basis of the Request is entirely speculative. As Mr. Rabah states, he wants to see how the police are doing their job generally.

19Moreover I note this Request was not made earlier in the pre-hearing process during which the Commission had carriage of the complaint and the complainant was also represented. While there may be instances where a party only becomes aware of the arguable relevance of documentation as the hearing progresses, this is not the case here. No explanation was provided for why the documents are only now being sought. The lateness of the Request is significant since I am satisfied the time required to produce these documents will result in a delay to the hearing.

Recognizances

20The complainant also requests that the respondents produce the recognizances for those persons arrested in the applicable period. Recognizances set out the terms of bail for persons who have been arrested including any reporting obligations. He did not provide any detailed submissions to support the arguable relevance of these documents.

21Based on the complainant’s submissions I do not see how the recognizances are arguably relevant to the issues in the complaint. While alleging the police discriminated against him by recommending that he report to a particular reporting centre, the decision to accept that recommendation was made by a Justice of the Peace. There is no foundation in either the evidence or the complainant’s submissions to support a relationship between police recommendations and the terms of a recognizance. As such, I do not see how the recognizances are arguably relevant. Further, my concerns about the speculative nature of the Request and the potential for delay of the hearing expressed in connection with the Request for arrest records are equally present here.

BIFURCATION OF THE HEARING

22On November 17, 2008, on consent of the parties, the Tribunal decided to bifurcate the hearing such that the hearing will first deal with issues of the alleged liability of the respondents and then subsequently and only if a violation of the Code is found, deal with any issues of remedy.

23On January 7, 2009, the complainant stated that he may wish to rely on some medical information in respect of the liability portion of the hearing but that he could not remember if he sought medical attention in connection with the police treatment of him. The respondents stated that if this were the case, then the respondents may want to pursue their Request for additional disclosure of medical records which had been withdrawn when the hearing was ordered bifurcated. In order to ensure that the hearing proceed efficiently, the parties agreed to the following:

a. By January 19, 2009, the complainant will advise the Tribunal in writing if he wishes to rely on any medical treatment received at or around the time of his arrest in the liability portion of the hearing, in connection with his allegation that the police mistreated him, and if he does, the particulars of any medical treatment received; and

b. By January 26, 2009, the respondents will advise the Tribunal in writing as to whether they wish the Tribunal to hear their Request for Order During Proceeding [which dealt with the respondents’ request for medical records] filed December 23, 2008 or an amended Request For Order During Proceeding. If the latter, the respondents will file the amended Request for Order During Proceeding on or before January 26, 2009.

24The Tribunal did not receive submissions from the complainant by January 19. However, in the hearing on January 29, 2009, in the course of making his submissions on the production issue, the complainant referred to medical treatment again, although he was unsure of the dates of treatment. The respondents objected given the failure to file any material and reiterated their position on production of additional medical information. I ruled that the issue of medical treatment related to remedy and therefore this issue would be dealt with during that portion of the hearing if necessary.

25Following a review of the documents submitted by all parties in the pre-hearing process, I note there is one legible medical document that appears to relate to the time period of the arrest: a page from the notes of Dr. Daly that includes a notation from June 28, 2004. As this document has been properly produced, the complainant may advise the Tribunal whether he wishes to rely on it in respect of the liability portion of the hearing. If he does he must advise the Tribunal at the outset of the hearing on April 7, 2009. The respondents will have an opportunity to respond.

26With the exception of this document, I confirm that any medical documentation or related evidence will not be considered in the liability portion of the hearing and will only become relevant if and when there is a finding of liability and a hearing is scheduled to deal with remedy.