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: June 16, 2009

Citation: 2009 HRTO 865

Indexed as: Washington v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Lloyd Washington, Complainant ) Vickie McPhee,

) Representative )

Ontario Human Rights Commission ) Brian Smith,

) Counsel

Toronto Police Services Board and Julian Fantino, ) Robert J. Baldwin,

Respondents ) Counsel

Sanjee Aroda, David Wilson, Richard Stavintsky ) Kevin A. McGivney

Nicholas Morris, Peter Shaw, Thomas Hockney, ) and Naomi Calla, Counsel

Lorne Bragg, 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

[1] In a previous Interim Decision in this matter, [2009 HRTO 217](https://www.minicounsel.ca/hrto/2009/217), I directed that records of complaints alleging racial profiling, racial discrimination and racial harassment by the respondent officers be produced by the Chief of Police to the Tribunal for review. The Interim Decision held that the Tribunal would review the records and determine what would be produced. The deadline for production was subsequently extended to June 4, 2009 in a further Interim Decision relating to a request for a stay: [2009 HRTO 640](https://www.minicounsel.ca/hrto/2009/640). The records have now been produced to the Tribunal and this Interim Decision relates to which records, if any, the Chief must produce to the other parties.

[2] The details of the complaint, the history of this matter, and the reasons for the application of the two-stage process are fully set out in the previous decisions and need not be repeated here. I have reviewed the helpful submissions made by the complainant’s representative, counsel for the Commission and counsel for the Chief (which were adopted by the respondents and the Toronto Police Association). I agree with counsel for the Commission that the Tribunal may adopt a more flexible approach than might be taken in criminal or civil proceedings, and that ordering the production of documents regarding complaints of police misconduct is considerably less invasive than ordering medical or therapeutic records. I agree with counsel for the Chief that the Tribunal must still engage in an analysis of the records based on the facts of the case and the alleged similar acts in a logical, principled manner. I agree that temporal proximity of the alleged similar acts, the number of alleged similar acts, similarity in detail and distinctive features of the alleged similar acts, and the strength of the evidence that the alleged similar acts occurred are factors to be considered in assessing probative value. I also agree that distraction from the essence of the litigation, effects on the ability of the officers to defend themselves, and effects on privacy rights of the officers and third parties are among the factors to be considered in assessing prejudicial effect. I have weighed these competing values in making the determinations that follow.

[3] There are three records that are responsive to the Tribunal’s order. The first, “Responsive Record #1”, relates to a comment allegedly made by one of the respondent officers during a traffic stop in 2007 that the individual interpreted as related to his age or race. In view of the lack of similarity in this allegation to the allegations in this case, the significant difference in time period, and very different circumstances, I do not believe the potential probative value of producing this record outweighs its potential prejudice and it need not be produced.

[4] The second (“Responsive Record #2”) alleges that in April 2001, the individual was assaulted while at 31 Division by a group of officers that included one of the personal respondents, and that he was called racial epithets. This alleged incident took place close in time to the incidents alleged by the complainant (just over a year prior), and involved similar factual allegations: serious physical assaults based on race after arrest and while in custody at 31 Division. Although there is only one alleged incident, which weakens its potential probative value, and only one of the individual respondents was allegedly involved, the nature of the allegation and closeness in time mean that the potential probative value of producing it outweighs the potential prejudicial effects of doing so. Of course, an order for production at this stage does not mean that the evidence would be admissible at the hearing.

[5] The third (“Responsive Record #3”) was made by the complainant’s nephew about an incident involving the complainant, which forms part of the allegations in this case. It is clearly arguably relevant, directly related to the facts of this case, and may well have already been produced by the respondents. Its potential probative value clearly outweighs its potential prejudicial effects and it shall be produced.

[6] The parties disagree about whether any conditions should be placed on the records, once produced. The Chief asks (a) that personal identifiers of all non-parties be redacted; (b) that the records be used only by the parties directly involved in the litigation of this matter for: (i) the full and fair disposition of the hearing or (ii) initiating or defending an appeal; and (c) that the parties directly involved in the litigation of this matter shall not disclose the records or any information contained in them to any person who does not have a direct interest in this proceeding or any appeal that may arise from this proceeding. The Commission submits that the implied undertaking that documents produced in the proceeding are to be used only for the purpose of the proceeding and not for any other purpose is sufficient. It specifically opposes the redaction of the names or identifying information at this time so that further information can be gathered.

[7] In my view, redaction is not appropriate, as the complainant and Commission are entitled to the details of who made the allegations to fully prepare their case and determine whether to seek to call the individuals who made the complaints as witnesses. While I agree with Commission counsel that the implied undertaking rule covers the use of the documents for other purposes, in my view a specific order of the Tribunal is appropriate in view of the considerations discussed by the Supreme Court in R. v. McNeil, [2009 SCC 3](https://www.minicounsel.ca/scc/2009/3) and will cause no prejudice to the complainant or Commission. Since Tribunal decisions are not subject to appeal, I will modify the requested language to replace that term with “judicial review”.

ORDER

[8] The Tribunal orders as follows:

(1) Within seven days of the date of this Interim Decision, the Chief shall produce Responsive Record #2 and Responsive Record #3 to the other parties.

(2) Responsive Record #1 shall be returned to the Chief by the Registrar – Transition and removed from the Tribunal file.

(3) The records disclosed pursuant to (1) shall be subject to the following conditions:

(a) They shall be used only by the parties directly involved in the litigation of this matter for the full and fair disposition of the hearing or initiating or defending a judicial review.

(b) The parties directly involved in the litigation of this matter shall not disclose the records or any information contained in them to any person who does not have a direct interest in this proceeding or in any judicial review that may arise from this proceeding.

Dated at Toronto, this 16^th^ day of June, 2009.

“Signed By”

David A. Wright

Vice-chair