A.F. v. Durham Regional Police Services Board, 2010 HRTO 1508

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.F. by his litigation guardian, S. F.

Applicant

-and-

Durham Regional Police Services Board, Jeff Tucker, Jennifer Kelloway, Patrick Waters, Thomas Chambers, Matthew Flower and Jason Fisher

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: July 12, 2010

Citation: 2010 HRTO 1508

Indexed as: A.F. v. Durham Regional Police Services Board

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated June 25, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 14, 2008.

2The Application in this matter arises out of certain events which occurred on September 26, 2007, when the applicant was arrested for trespass after being asked by a police officer to leave the property of an outdoor shopping plaza. In the course of the arrest, a physical struggle ensued and a taser ultimately was applied to the applicant. In addition to being charged with trespass, the applicant also was charged with assault to resist arrest and breach of the terms of his probation. The trespass charge was subsequently withdrawn by the Crown, and the applicant was acquitted on the other charges.

3The purpose of this Interim Decision is to address the request by the respondents for dismissal of the Application pursuant to s. 45.1 of the Code on the basis that the substance of this Application already has been appropriately dealt with as a result of the dismissal of a public complaint filed by the applicant under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), or in the alternative for an order that this Tribunal make findings of fact in accordance with the decision of the Professional Standards Unit of the Durham Regional Police Service.

4In this Interim Decision, I will also address certain case management issues in anticipation of the hearing in this matter scheduled to be held on September 1, 2010.

Request for Dismissal under s. 45.1 of the Code

5Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

Was there another “proceeding”?

7In Qiu v. Neilson, 2009 HRTO 2187, I found that a police investigation of a complaint of police misconduct under the PSA and a subsequent review by the Ontario Civilian Commission on Police Services (“OCCPS”) constituted a “proceeding” within the meaning of s. 45.1 of the Code. See also Pamula v. Ontario Provincial Police, 2010 HRTO 73.

8The issue in this case is whether a police investigation and decision of the Professional Standards Unit under the PSA without a review by OCCPS is sufficient to constitute a “proceeding” within the meaning of s. 45.1 of the Code, as no OCCPS review was requested by the applicant in the instant case.

9The applicant relies upon this Tribunal’s decisions in Maurer v. Metroland Media Group, 2009 HRTO 200 and Schuyler v. Ford Motor Co. of Canada, 2009 HRTO 855 to submit that “a purely private, internal process established by an employer without guarantees of procedural fairness, impartiality and independence” does not constitute a “proceeding” within the meaning of s. 45.1 of the Code. While this is true, the difference in the instant case is that the public complaints procedure under the PSA is a procedure established by statute and cannot be regarded as a “purely private, internal process”.

10The applicant further relies upon what are described as “systemic flaws” in the police complaints process, as noted in the Report on the Police Complaints System in Ontario written by the Honourable Patrick J. Lesage and released on April 22, 2005 (the “Lesage Report”), which led to legislative amendments to the PSA and the establishment of the Office of the Independent Police Review Director (“OIPRD”) in 2009. The Lesage Report addressed concerns about the perception of conflict when police officers investigate other police officers and the resulting reluctance of witnesses to come forward and participate in the investigation process.

11While I am aware of the concerns expressed in the Lesage Report, I agree with the respondents’ submissions that the amendments to the PSA and the establishment of the OIPRD were legislative choices which do not necessarily mean that the prior procedure under the PSA should not be considered a “proceeding” within the meaning of s. 45.1 of the Code. In my view, the fact that the statutory procedure at the time (and to this day if the OIPRD decides to refer a complaint back to a police service) involved a police service investigating a complaint against its own officers does not necessarily result in a conflict or lack of independence. While the Lesage Report did recommend the creation of an independent civilian body to administer the police complaints system, he also was not prepared to conclude that all investigations into police conduct should be conducted by independent civilian investigators. In my view, the issue of whether there was a conflict or lack of independence in a specific case is best addressed in the context of a determination as to the second part of the test under s. 45.1 of the Code as to whether the substance of the application has been appropriately dealt with, and not at the initial stage of determining whether there has been a “proceeding”.

12In addition, in my view, the fact that the statutory regime at the time also involved the opportunity for a review by the OCCPS, which was an independent civilian body, is also appropriately considered in the context of the determination of whether the procedure under the PSA is a “proceeding”. While I am aware that the applicant did not exercise his right to seek such a review in this case, it is my view that the existence of this statutory review mechanism is a relevant factor in the determination that an investigation and report prepared under the PSA public complaints process constitutes a “proceeding”.

13Finally, the applicant submits that the police investigation conducted in this case lacked procedural fairness, on the basis that the applicant did not have an adequate opportunity to present his evidence during the investigation. This submission relies upon the fact that two witnesses whose names were provided to the police investigator were not interviewed as part of the investigation, and that the investigator indicated a reluctance to consider statements from anonymous witnesses. Once again, in my view, this is an issue that is more appropriately addressed under the second part of the test under s. 45.1 of the Code. In any event, I note that the police report indicates that attempts were in fact made to interview the two identified witnesses, but their parents refused to authorize their participation in the investigation. In addition, I find no fault with, and in fact concur with, the investigator’s statement to the applicant’s mother that “anonymous statements are of little value because there is no way of proving their validity”.

14As a result, I find that the public complaints process under the PSA, even in the absence of an actual review by the OCCPS of the police investigation in this matter, nonetheless constitutes a “proceeding” within the meaning of s. 45.1 of the Code.

Was the subject-matter of the Application appropriately dealt with?

15The issue on the second part of the test under s. 45.1 of the Code is whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: see Qiu, supra.

16There is no question that the portion of the issues raised in this Application relating to the September 26, 2007 incident are the same facts that provided the basis for the PSA complaint. Indeed, the applicant’s letter dated September 30, 2007 which formed the basis of his PSA complaint also was submitted as part of the complaint filed with the Commission.

17However, the complaint as filed with the Commission also raises issues regarding certain alleged events which occurred subsequent to the incident on September 26, 2007, including allegations that after this date police officers came to the applicant’s home to taunt and harass him and specifically that police officers came to the applicant’s home on October 7, 2007 to taunt the applicant about the September 26, 2007 incident. These subsequent alleged events did not form part of the PSA complaint and were not addressed as part of the police investigation. Accordingly, I find that the allegations in the complaint which post-date September 26, 2007 were not dealt with in the police investigation and as a result these allegations are not dismissed pursuant to s. 45.1 of the Code.

18With regard to the incident on September 26, 2007, the issues addressed in the police investigation were whether the police engaged in an unlawful exercise of authority when they arrested the applicant on that date and whether the police used excessive force in the course of making the arrest. In contrast, the issue raised in this Application is whether the applicant experienced discrimination because of his race and colour in relation to the events that transpired on September 26, 2007.

19While I certainly appreciate that there may be some overlap between the issue of the police officer’s authority to make the arrest and the use of force and the allegations of racial discrimination raised in this proceeding, in my view in the specific circumstances of this case they are not the same issue. In contrast, in Qiu v. Neilson, supra, precisely the same factual allegations which formed the basis of the applicant’s complaint were raised and addressed in the police investigation, such that the result of the investigation resolved the entire factual underpinning of the application in that case.

20Based upon the material filed to date, I am not satisfied that the result of the police investigation resolved the entire factual underpinning of the applicant’s allegations of racial discrimination. For example, while the investigation report addresses the issue of whether the police had the authority to be on the plaza property and to make a lawful arrest, the report’s finding is based upon the police officer’s authority under the Criminal Code and the Trespass to Property Act and does not consider the issue of whether the exercise of this authority in the specific circumstances of this case amounted to racial discrimination in violation of the Code.

21Similarly, while the police investigation found that, due to the applicant’s actions in the process of being placed under arrest, the use of physical force by the police officer was justified and could not be considered in excess of what was necessary under the circumstances, the police investigation report does not address the question of whether the applicant’s race or colour were factors in the decision to apply the degree of force that was utilized.

22I am aware that the definition of officer misconduct in the regulations under the PSA includes actions by an officer in contravention of the Code and that the police investigation report includes a general statement in its conclusion that the investigation did not disclose “the existence of proof to a degree of sufficiency that might lead to a finding of police officer misconduct”. I also am cognizant of the fact that in the portion of the investigation report reviewing the statements of the various police officer’s involved, reference is made to an allegation raised by the applicant’s mother that what had happened to her son had occurred only because he is Black. However, apart from these factual references in the section of the report reviewing the evidence, there was no allegation of racial discrimination raised in the complaint filed by the applicant and there is no analysis in the investigation report as to whether the applicant experienced racial discrimination in relation to the events on September 26, 2007. As a result, I find that the police investigator did turn her or his mind to the issue of whether police officer misconduct in the form of racial discrimination in violation of the Code had occurred.

23Finally, I note that the respondents have raised the issue that the applicant could have alleged racial discrimination as part of his PSA complaint but did not do so. Under the old Code, the Commission had discretion to decide not to deal with a complaint if the allegations “could” or “should” more appropriately have been dealt with under another Act. This provision was repealed, and the power granted to the Tribunal under s. 45.1 of the current Code requires that the substance of the application “has been” appropriately dealt with in another proceeding. Accordingly, the fact that the applicant could have raised an allegation of racial discrimination in his PSA complaint but did not do so, does not provide a proper basis upon which I can find that the allegations of racial discrimination raised in this proceeding “have been” appropriately dealt with in the PSA investigation process.

24Accordingly, in the specific circumstances of this case, I find that the issues raised in the complaint under the PSA are not in pith and substance the same as the issues raised in this Application. As a result, I find that the police investigation did not appropriately deal with the substance of the allegations in this proceeding arising out of the September 26, 2007 incident.

25Consequently, the respondents’ request for dismissal of the Application pursuant to s. 45.1 of the Code is denied.

Issue Estoppel

26As stated above, the respondents have requested in the alternative an order that this Tribunal make findings of fact in accordance with the decision of the Professional Standards Unit of the Durham Regional Police Service.

27In my view, this request calls for the application of the doctrine of issue estoppel in this case. The principles applicable to issue estoppel have been expressed succinctly in the case of O'Connor v. Canadian National Railway Co. (2006), CHRR Doc. 06-241, 2006 CHRT 5 at para 20ff. In particular, I rely upon the following statements in the O’Connor decision (at paras. 26 and 27):

The two-part test for the application of the doctrine of issue estoppel is now well-known: (1) the criteria for issue estoppel must be met; and (2) if the criteria are met, the Tribunal must determine, based on certain discretionary factors, whether it is appropriate, in the circumstances, to apply the doctrine (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 33).

The criteria to be met for the application of issue estoppel are as follows:

(i) the same questions are being decided in both proceedings;

(ii) the judicial decision which is said to create the estoppel is a final decision, and

(iii) the parties, or their privies, are the same.

28In my view, while I have found that the police investigation in the context of a complaint under the PSA is a “proceeding” within the meaning of s. 45.1 of the Code, I cannot find that the report from such an investigation is a “judicial decision” as is required for the application of the doctrine of issue estoppel. Accordingly, the second requirement for the application of issue estoppel has not been met. As a result, I find that I am not bound by the findings of fact made in the police investigation report. Nonetheless, in my view, it is appropriate for this investigation report to be introduced into evidence before this Tribunal at the hearing in this matter, and the Tribunal may have regard to the findings of the report in weighing the evidence and making its factual findings in this proceeding.

29I also am aware that two of the criminal charges laid against the applicant proceeded to trial, and that the applicant was acquitted of these charges. In this regard, the Ontario Court of Appeal has held that it is not an abuse of process to challenge in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused: Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427.

30This Tribunal has had occasion to consider the Polgrain decision, and has held that an acquittal does not establish facts for the purposes of a subsequent human rights proceeding, but that this does not preclude the possibility that the reasons in the prior criminal proceeding may be relevant and relied upon for some purpose, such as credibility, in the human rights proceeding: R.A. v. Toronto Police Services Board, 2009 HRTO 231.

31Accordingly, I similarly find that the reasons of the trial judge in the criminal proceeding also may be introduced into evidence before this Tribunal at the hearing in this matter, and the Tribunal may have regard to the findings of the report in weighing the evidence and making its factual findings in this proceeding.

Case Management

32This matter is scheduled to proceed for a hearing on September 1, 2010. In reviewing the materials filed in this proceeding, I have two concerns. First, the complaint that was filed with the Application in this matter did not include the cover page that was issued by the Commission when the complaint was filed, by which the Commission removed the grounds of record of offences and age from the complaint and added the ground of colour.

33Pursuant to s. 53(5) of the Code and the Tribunal’s Transitional Rules, an application filed under that provision must be based on the subject-matter of the complaint as filed with the Commission. On this basis, it appears that the subject-matter of the complaint as filed with the Commission did not include the grounds of record of offences or age, and alleges only discrimination because of the applicant’s race and colour. If the applicant has any submissions to make in relation to the grounds of discrimination to be determined at the hearing in this matter, he is required to serve and file any such submissions within two weeks of the date of this decision.

34Second, the material filed by the applicant to date does not identify the specific actions or omissions by the respondents upon which it is alleged that he experienced discrimination. In my view, in order for the respondents properly to have notice of the specific case they have to meet in this matter, the applicant is required to identify the specific actions or omissions by the respondents which are alleged to amount to discrimination. Accordingly, within two weeks of the date of this decision, the applicant shall serve and file a statement setting out the specific actions or omissions by the respondents which are alleged to amount to discrimination in this case.

35As stated above, I am aware that the events of September 26, 2007 have been the subject of both a police investigation report and a criminal trial, and I have indicated that both the report and the trial judge’s reasons may be introduced into evidence in this proceeding and the Tribunal may have regard to the findings made therein in weighing the evidence and making its factual findings. If the applicant is raising before this Tribunal a specific act or omission by the respondents that is alleged to constitute discrimination in violation of the Code that would require this Tribunal to make a finding of fact that is inconsistent with the findings made either in the police investigation report or in the trial judge’s decision, he shall so identify this fact and state his reasons why this Tribunal should make a different factual finding.

36If the respondents have any submissions to make in response to any material filed by the applicant pursuant to this decision, they shall serve and file any submissions within two weeks of receipt of the applicant’s material. The applicant shall file any reply submissions within five days of receipt of any submissions from the respondents.

37Finally, I am aware that the personal respondents, the applicant and two additional witnesses all testified and were cross-examined in the context of the criminal trial. In my view, the most fair, just and expeditious resolution of this matter should not involve rehearing evidence which already was given and cross-examined upon at the criminal trial. Accordingly, I am hereby directing the applicant to obtain, serve and file a transcript of his evidence from the criminal trial, including cross-examination, and the complete evidence of the two witnesses called on his behalf, if he intends to rely upon this evidence in this proceeding. Similarly, I direct the respondents to obtain, serve and file a transcript of the evidence given by the personal respondents at the criminal trial, including cross-examination. These transcripts shall be served and filed by no later than one week prior to the hearing in this matter.

38I propose that these transcripts be relied upon at the hearing in this matter, with the parties being given the opportunity to ask any additional or supplementary questions as may be required and relevant to address the allegations of discrimination raised in this proceeding. If the parties have any submissions to make in response to this proposal, they shall make any such submissions at the time they file their submissions as otherwise required by this decision.