HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Steele
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Faisal Bhabha
Indexed as: Steele v. Ontario (Minister of Community Safety and Correctional Services)
APPEARANCES
Richard Steele, Applicant ) Selwyn Pieters, Counsel
Ontario (Ministry of Community Safety and Correctional Services), Respondent ) Jinan Kubursi, Counsel
1This is an Application that was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin resulting from treatment while he was incarcerated at Maplehurst Correctional Centre, a provincial jail.
2The hearing began on April 12, 2010. The applicant, who is presently incarcerated at Hamilton Wentworth Detention Centre, did not attend the first day of hearing. The parties’ counsel agreed to proceed by making submissions on a number of preliminary issues. Three issues were resolved on consent of the parties. First, the applicant consented to the respondent’s request to remove a number of personal respondents from the Application. Those individuals were ordered removed, and the style of cause has been amended accordingly. Secondly, the respondent partially consented to the applicant’s request to amend his witness list. The respondent does not oppose the addition of two named witnesses, though it continues to oppose the addition of further witnesses yet to be ascertained (this outstanding issue is addressed in this Interim Decision). Finally, the parties agreed to work together if necessary to facilitate the applicant’s attendance at future hearing days. Should the parties be unable to agree on appropriate measures, they may seek direction from the Tribunal by way of a Request for Order.
3A further preliminary issue, concerning a jurisdictional objection raised by the respondent, will be decided by way of written submissions. In its Request for Order, the respondent seeks dismissal of the portion of the Application that alleges discrimination in relation to a misconduct hearing. The respondent argues that the proceedings against the applicant relate to the adjudicative function of the Superintendent of Maplehurst and are therefore not a “service” within the meaning of the Code. The respondent was ordered to file submissions by May 3, 2010. The applicant has until May 14, 2010 to file responding submissions.
4This Interim Decision deals with three remaining preliminary issues.
Publication Ban
5The applicant seeks an order pursuant to Rule 5.11, granting the following:
That the name of the applicant, his mother and any inmate witnesses be kept confidential, substituting names with initials;
That all documentation and verbal communications by the Tribunal and anyone communicating with the Tribunal be cautioned with respect to disclosing the applicant’s, his mother’s or the inmate witnesses’ names; and
That no identifying information be provided by the Tribunal or the parties about the applicant, his mother or the inmate witnesses to anyone other than the parties, their counsel or members of the Tribunal.
6In support of this Request, the applicant relies on both privacy considerations and concerns about personal safety and reprisal. Counsel cited findings of this Tribunal and of other agencies and courts to argue that there is an institutional culture in the province’s correctional facilities that is intolerant of Black inmates and employees, especially those who complain of racism. He pointed me to this Tribunal’s findings in McKinnon v. Ontario (Ministry of Correctional Services), 2007 HRTO 4, where the respondent—the same one as in this case—was found to have failed to implement Tribunal orders in good faith, leaving the applicant—an Aboriginal jail guard who successfully complained about institutional racism—to be further victimized by racism and reprisals for having complained in the first place. Counsel urges me to help avoid putting his client in the same position as Mr. McKinnon.
7The respondent opposes the Request on the basis that a publication ban is a highly unusual measure in proceedings that are meant to be open and public. Counsel further argued that there is no evidence of the kind of institutional culture the applicant describes, and further that there is little reason to expect that a publication ban will necessarily protect the applicant and his witnesses from the kind of consequences he fears. In the absence of evidence establishing the existence of an institutional culture described by the applicant, and of evidence establishing a causal connection between such culture and the likelihood of adverse consequences affecting the applicant’s privacy and safety, the respondent argues that the norm of identity disclosure should be maintained.
8The importance of an open hearing is a well-established principle. However, Rule 3.11 of the Rules states that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. Section 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, (“SPPA”) also provides exceptions to the general rule that hearings be open to the public where it is necessary to protect the disclosure of matters of public security, or where “intimate financial or personal matters or other matters may be disclosed”. It calls for a balancing between the interests of having an open hearing with the particular interests of any person affected by the disclosure.
9The Tribunal has, in other circumstances, required evidence, either oral or in affidavit form, to support a request for a publication ban. See Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24. The Tribunal has been flexible in what it considers “evidence” on preliminary motions. The applicant in this case introduced social science data, newspaper articles and unsworn statements in support of his request. While these documents are not “evidence” in a technical sense, they do provide helpful contextual information.
10Granting the Request would have an impact on third-party interests, including curtailing the freedom of the media to report the case in full.
11The balancing between the risk to the administration of justice and the right to free expression will depend on the circumstances of each case. Factors can include the risk that witnesses or parties will not testify or participate in proceedings for fear of the consequences of publicity, or the privacy interests of individuals who may themselves have been the targets of discriminatory conduct. See Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 at 934-936
12While the Supreme Court’s decision in Dagenais provides a general approach to deciding a request for a publication ban, the differences between a criminal trial and a human rights hearing are sufficiently significant to warrant a specially tailored approach in proceedings before the Tribunal. The courts have held that an open hearing in the criminal context is integral to the constitutional right to a fair trial for an accused person. The Dagenais analysis requires balancing numerous factors, including the accused’s constitutional right to a fair trial, which includes the right to have the media report on the proceedings. There is no concomitant constitutional imperative in the Tribunal process. Unlike a criminal trial, a human rights proceeding is a civil matter between the parties with less of a public interest in openness than a prosecution by the Crown. As such, the only competing constitutional right at issue in this setting is the right of the parties and of third parties to publish the names of those involved, which must be balanced with the fairness of the hearing and protecting the privacy and dignity interests of the parties.
13The Tribunal has issued publication bans in varied circumstances. It has done so in proceedings involving a minor charged under the Youth Criminal Justice Act on the basis that section 110(1), which forbids the publication of the young person’s name and identifying information, applied to the human rights process. See K.F. v. Dufferin-Peel Catholic District School Board, 2008 HRTO 6.
14The Tribunal has granted a partial publication ban on the request of a complainant who alleged sexual harassment. Without making any findings as to the allegations, the Tribunal acknowledged that “the nature of sexual harassment cases, which is compounded by the societal stigma attached to same-gender relationships arguably, put the Complainant’s dignity and privacy interests directly at stake if her identity and her partner’s identity are divulged.” See August v. Richland Marketing Inc., 2003 HRTO 25 at para. 11.
15The Tribunal has also issued a limited publication ban to protect the identity of personally named respondents prior to the hearing after the applicant was found to have engaged in a strident campaign to publicize his allegations (which at the time were unproved) on the internet, with potentially damaging effects on the reputations of the personal respondents. See Nourhaghighi v. Toronto Catholic District School Board, 2009 HRTO 1519.
16The Tribunal has also held that a publication ban may go too far, even where there are legitimate privacy interests at stake. In such cases, the Tribunal has seen fit to order the anonymization of the requested party’s name in Tribunal materials, without making an order applicable to third parties. See T.S. v. Toronto District School Board, 2010 HRTO 176 and C.M. v. York Region District School Board, 2009 HRTO 735.
17The applicant does not ask for a closed hearing or for constraints on any identifying information beyond the use of names. He seeks a partial publication ban, whereby the Tribunal would refrain from publishing the applicant’s and his witnesses’ names, and would direct third-parties also to respect the ban. It would not close the hearing to the public or exempt the applicant or any of his witnesses from testifying in public and being available for cross-examination by the respondent.
18A publication ban is a discretionary remedy. Both parties agreed that the correctional setting is exceptional. However, it is impossible at this stage to ascertain exactly what risks, if any, the applicant and his witnesses face in respect of privacy and security and how a publication ban will help avert those risks.
19At the same time, there is nothing to suggest that the respondent’s interests, or those of any other person or institution, would be significantly prejudiced by granting the order. As detailed above, the impact on media freedoms would be mitigated by the fact that the hearing remains open to the public. I need only be persuaded that the risks attendant to not granting the order outweigh the risks attendant to granting it.
20On the basis of the information before me, it is not certain, or even more likely than not, that the applicant will face the risks he foresees if a publication ban is not granted. The applicant’s concerns centre on the risk of reprisal within the institutional setting. He relies on an alleged culture of “protecting one’s own” amongst guards and correctional services officials. Assuming this to be true, it is difficult to see how a publication ban will protect the applicant from the flow of information internally. In fact, again assuming the applicant’s claim to be true, it follows that the applicant’s identity and allegations can be presumed to be known within the correctional facility environment already. Any risk of reprisal can be presumed to already exist.
21It therefore seems equally plausible that a publication ban could just as easily put the applicant at greater risk if corrections staff were in fact motivated to reprise against him. Reprisal requires intent, and intent requires knowledge. A publication ban could provide cover to those with the power to reprise.
22Further, a publication ban would have the primary effect of protecting the applicant’s identity in the broader public. It is not clear how the risks the applicant cites, namely privacy and personal security within the institutional setting, require suppressing his identity within the broader public sphere.
23Finally, it is not even clear that the applicant will still be incarcerated when this matter goes to hearing, thus obviating the need for the ban.
24This Interim Decision does not amount to a finding that the applicant faces no risk of reprisal or other adverse consequences for having complained of institutional racism. That is a question that goes to the merits of the Application and must be adjudicated on the evidence. My decision at this stage in the proceedings is simply that, assuming the risks to be real, I am not persuaded that granting a publication ban is more likely than not to protect the applicant from those risks.
25With respect to the identity of the applicant’s witnesses, the imperative for full public identification is less pressing than in the case of a capable, adult applicant who has commenced litigation on his own volition. Witnesses, on the other hand, may be compelled to testify against their will. I am persuaded that anonymization of incarcerated witness names is more likely to ensure that these witnesses will deliver truthful evidence, thus safeguarding the integrity of the hearing.
Disclosure of potential witnesses
26The applicant seeks an order requiring the respondent to disclose the names of inmates who were in the same unit as the applicant at the material time, who may have been “eye” or “ear” witnesses to the allegations contained in the Application. According to the applicant, these witnesses may have evidence that is directly relevant to the events giving rise to the Application. Upon disclosure of said names, the applicant will determine whether to call any additional witnesses to testify at the hearing in this matter, and seeks leave of the Tribunal to do so.
27In support of the Request, counsel again cites an alleged institutional culture of secrecy and of racism, which mean the applicant cannot expect the respondent’s employees to give evidence that would implicate fellow officers. At the same time, because of the vast imbalance in resources and information, the applicant submits that the respondent has, or should have, particular information about witnesses that would be directly relevant to the issues of this case. Counsel argues that the respondent has an obligation to interview inmates on the living units regarding the applicant’s allegations of racism and racial harassment, and that any records of such investigations would have been relevant to these proceedings.
28The respondent opposes the Request to produce the list of names on the basis that it would breach the privacy interests of those inmates. Counsel argued that any inmates with evidence in support of the applicant and a desire to support his case can be presumed to have come forward. Any further attempt to elicit such evidence, it was submitted, amounts to a “fishing expedition”.
29There is no doubt that if the respondent conducted an investigation, any documentary record of the investigation would be compellable as evidence in this proceeding. If such records do exist, they should be disclosed with names redacted for the applicant to review and determine whether he needs further information about any individuals. If the respondent did not conduct an investigation, it is not appropriate at this stage in the proceedings for the Tribunal to order the respondent to do so. The respondent’s handling of the applicant’s complaints is an issue that will be before the Tribunal in the hearing on the merits.
30The applicant already has two inmate witnesses to give evidence in support of his allegations. It is not clear that the order sought by the applicant is necessary at this point to ensure a full and fair hearing. It is not always necessary to hear evidence from every single witness with relevant information. It may become apparent during the hearing that there are additional witnesses with relevant evidence that is important to the hearing. The parties remain free to make appropriate requests, which will be decided on the basis of what is fair, just and expeditious in the circumstances.
Disclosure of similar-fact evidence
31The applicant seeks disclosure of Ministry policies and procedures, if any, dealing with complaints of racial or ethnic discrimination by inmates against staff or fellow inmates. The respondent consents to disclose copies of Ministry policies and procedures, on the condition that the respondent can call a witness to identify the documents and provide oral evidence on context. The Request is granted.
32The applicant also requests disclosure of copies of documents relating to all outstanding internal discrimination and harassment complaints based on race, colour and ethnic origin at the Maplehurst facility. He argues that it is necessary to show that the allegations he makes in respect of his own treatment by the respondent is part of a general pattern of systemic racism and an alleged failure by the respondent to properly deal with complaints of racial or ethnic discrimination at the Maplehurst facility.
33The respondent opposes the disclosure request on the basis that the similar-fact evidence would unnecessarily expand the scope of the proceedings, that it would violate the privacy interests of third parties and that it is of questionable relevance to these proceedings.
34The Tribunal has recognized the value of similar-fact evidence—that is, evidence showing a pattern of behaviour supporting an allegation that particular events occurred—in human rights proceedings, and subjects it to a special set of legal rules when considering its admissibility. In Sinclair v. London (City), 2008 HRTO 48, the Tribunal discussed the principles regarding the admission of such evidence. 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 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.
35Similar-fact evidence will often be relevant, but may well not be admitted because of its prejudicial effects. The balancing of potential probative value and prejudicial effect is a factor in determining whether production will be ordered and by what procedure.
36In Washington v. Toronto Police Services Board, 2009 HRTO 217, in dealing with a request for production of information about other allegations of discrimination against a respondent, the Tribunal adopted the approach formulated by the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Though not strictly binding on the Tribunal, the O’Connor procedure will often, as it is here, be the most appropriate procedure for dealing with a broad and potentially sensitive disclosure request.
37In Aroda v. Ontario Human Rights Commission, 2010 ONSC 419, unreported decision of the Divisional Court, the Court approved the use of the O’Connor-type approach undertaken in Washington, supra. Under such a procedure, documents are produced to the adjudicator, who reviews them, along with the submissions of the parties on how to balance the probative value of the records against potential prejudice, to determine whether the requested documents must be produced to the other parties.
38In this case, as in Washington, supra, the records sought are not third-party records but rather are documents belonging to the respondent. Nonetheless, the privacy interests of others who are not parties to the litigation are engaged, and must be protected. For privacy protection, together with averting the potential for distraction from the central issues of the litigation, any similar-fact evidence should be reviewed by the adjudicator prior to disclosure to determine whether its probative value could arguably outweigh the prejudicial effects. The applicant’s Request is therefore granted. In order to limit the burden on the parties and on the Tribunal, and considering the diminished relevance and reliability of excessively dated evidence, the scope of this order is limited to the past four years, to January 2006.
Motion to Strike
39On March 1, 2010, the applicant delivered and filed a document entitled, “Statement of Fact and Remedies” (“Statement”). The respondent seeks an order striking out that document on the basis that it is not within the Tribunal’s Rules, and contains a series of additional allegations and particulars that were not included in the Application. As such, the respondent argues that the filing of the Statement appears to be an attempt to amend the Application and expand the scope of the allegations in a manner not permitted under the Rules. Because the scope of the Application is defined by the pleading itself, counsel submitted that an applicant should not be permitted to make “bald, unparticularized allegations of discrimination in an Application and then seek to add to the scope of an Application with content contained in a further Statement of Fact”.
40The respondent also argued that as the Statement was filed just six weeks prior to the first day of hearing the respondent would therefore suffer prejudice in not being able to respond to, or prepare to call evidence on, the additional allegations.
41The applicant argued that the Statement contained no new allegations, only fresh particulars. Counsel noted that usually respondents complain of insufficient particulars, and that the purpose of the Statement was to further particularize the allegations contained in the Application. He further submitted that the respondent clearly understood the full scope of the allegations from the Application because the respondent’s disclosure included documents directly relevant to all of the matters raised in the Application and the Statement. The applicant conceded that the Statement contains two “fresh” instances of discrimination, but counsel argued that these are simply examples of the allegations already pleaded in the Application.
42Rule 6.2 of the Tribunal’s Rules of Procedure requires that an application specifically set out the underlying facts in support of allegations of discrimination. Rule 6.2 states:
A complete Application must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant’s rights under the Code.
43Rule 5.7 provides that a possible consequence for a party which does not set out specific facts in its application or response is that the Tribunal may not allow the party to introduce evidence with respect to those facts. It reads as follows:
Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 17.2 or 18.2, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay in the proceedings.
44It is clear from the Rules that the duty to plead particulars begins with the Application but continues through the disclosure stage. While disclosure should not be an opportunity to expand the scope of the Application, it most certainly is an occasion to focus the scope of the Tribunal’s enquiry in advance of the hearing.
45I am not persuaded that the Statement expands the scope of the hearing. Although the Rules do not require it, I find that the applicant’s Statement constitutes a further particularization of the allegations and, on the whole, assists in focusing the scope of the Tribunal’s enquiry into the matter.
46To the extent that the respondent claims prejudice, this is not irremediable. The scope of the Application may be clarified by way of an amendment. The Tribunal has permitted amendments to applications, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. See Dubé v. Canadian Career College, 2008 HRTO 336.
47In this case, while the hearing has begun, there is not yet a schedule for hearing evidence. The preliminary issues continue to shape the contours of the proceedings. Neither party has yet had the comfort of knowing with certainty the full scope of the evidence to be heard and issues to be decided.
48I am also mindful of the fact that when the Statement was filed on March 1, 2010, it was within one year of the last alleged discriminatory act, being March 26, 2009. This means that even if the applicant were raising completely new allegations, he is within the timeframe for filing a fresh Application and would have been at liberty to file a second Application making any additional allegations. It is not desirable to have multiple hearings involving the same parties, overlapping issues and identical evidence. Such a situation would inevitably lead to extra steps, such as a motion to consolidate the hearing, and would unnecessarily delay the proceedings.
49It is therefore appropriate to provide the applicant an opportunity to amend his Application, and for the respondent to have an opportunity to amend its Response. Both parties are reminded of their ongoing duty pursuant to the Rules to disclose all documents in their possession that are arguably relevant to the matters raised.
ORDER
50The Tribunal orders the following:
I The applicant’s request for a partial publication ban is denied. The names of the applicant’s incarcerated witnesses shall be anonymized in the Tribunal’s decisions and correspondence.
II The respondent’s request to strike the applicant’s Statement of Fact and Remedies is denied. The applicant shall be permitted to file an amended Application within 10 days of this Interim Decision. The respondent shall be permitted to file an amended Response within 10 days of receiving the applicant’s amended Application.
III The applicant’s request for disclosure of potential witness names is denied.
IV The applicant’s request for disclosure of similar-fact evidence is allowed, subject to prior, in camera review by the adjudicator. Within 30 days of this Interim Decision, the respondent shall produce to the Tribunal copies of all records of complaints filed in respect of staff or inmates at the Maplehurst facility over the past four years (January 2006 to the date of this Interim Decision) in which allegations are made of discrimination, profiling or harassment based on race, colour or ethnicity, including any conclusions reached and discipline imposed. Also within 30 days of this Interim Decision, the parties may file submissions about:
(i) how best to balance any potential probative value against potential prejudice of admitting the records; and
(ii) any restrictions that the Tribunal should place on the use of any records it orders disclosed.
Dated at Toronto, this 6th day of May, 2010.
“Signed By”
Faisal Bhabha
Vice-chair