HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allan Byaruhanga
Applicant
-and-
Toronto Police Services Board, William Blair, Daryl Cherry and Richard Hains
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Byaruhanga v. Toronto Police Services Board
WRITTEN SUBMISSIONS BY
Allan Byaruhanga, Applicant ) Janina Fogels, Counsel )
Toronto Police Services Board, Respondent ) David Gourlay, Counsel
Daryl Cherry, Richard Hains, ) and William Blair, Respondents ) Naomi E. Calla, Counsel
1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondents discriminated against the applicant on the grounds of race, colour, ancestry, place of origin, citizenship, and ethnic origin in the provision of goods, services, and facilities. The Application also alleges reprisal or threat of reprisal.
2The allegations arise out of an incident that occurred on March 9, 2009. The applicant states that the respondents subjected him to racial profiling when they detained, harassed, and abused him even though he did not meet the description of the suspects they were seeking.
3The Toronto Police Services Board (“TPSB”) has filed a Response denying the allegations of discrimination. The personal respondents have filed a separate Response in which they also deny the allegations of discrimination.
BACKGROUND
4In an earlier Interim Decision, 2010 HRTO 1639, the Tribunal indicated that, based on the materials filed with the Tribunal, the applicant appeared to have made a complaint (“Complaint”) under the Police Services Act, R.S.O. 1990, c. P.15, as amended (“PSA”), about the same events which form the basis of the Application.
5In the Complaint, the applicant alleges that he was abused and harassed by members of 31 Division. His letter of March 25, 2009, providing details of his Complaint, is identical to the narrative he provides in support of this Application.
6On July 8, 2009, the investigator assigned to the Complaint released a report, stating that the allegations of misconduct could not be substantiated. The applicant was advised of the decision to take no further action in regards to his Complaint and of his right to request a review of that decision by the Ontario Civilian Commission on Police Services (“OCCPS”).
7By letter dated July 23, 2009, the applicant sought a review of the decision by the OCCPS.
8In the earlier Interim Decision, the Tribunal sought submissions from the parties regarding the status of the OCCPS matter and invited submissions from them regarding whether consideration of the Application should be deferred pending the conclusion of the OCCPS matter.
9On June 18, 2010, the applicant withdrew his request for review to the OCCPS. The parties agree that, in light of this, a deferral is not appropriate in the circumstances.
10Instead, the respondents have filed Requests for an Order During Proceedings (“Requests”). They seek the early dismissal of the Application because the complaint process pursuant to the PSA is a proceeding within the meaning of s. 45.1 of the Code and has appropriately dealt with the substance of the Application. The TPSB also argues that the Application should be dismissed because it constitutes an abuse of process.
11All of the parties have indicated that they wish the Tribunal to determine the Requests based on the parties’ written submissions.
DECISION
12The issues before the Tribunal are:
a. does the Complaint filed under the PSA constitute a proceeding within the meaning of section 45.1 of the Code?
b. if so, did the Complaint appropriately deal with the substance of the Application?
c. does the Application constitute an abuse of process in the circumstances?
13The Requests are denied for the reasons that follow. I find that, based on the facts of this case, the PSA complaint process did not appropriately deal with the substance of the Application. In light of this conclusion, it is not necessary for me to determine whether the PSA process is a proceeding within the meaning of section 45.1 of the Code. I find that it would not be an abuse of process to allow the Application to proceed.
ANALYSIS
The PSA complaint process
14The applicant’s Complaint was filed on March 25, 2009.
15The PSA has been amended since March 2009. This decision, however, relates to the PSA complaint process in place prior to the amendments and as it existed on March 25, 2009.
16Subsection 56(1) of the PSA states:
Any member of the public may make a complaint under this Part about the policies of or services provided by a police force or about the conduct of a police officer.
17Unless the complaint is deemed frivolous or vexatious, the chief of police is required to cause every complaint about the conduct of a police officer to be investigated and a written report must be issued: s.64(1).
18Misconduct by a police officer is defined in section 74 of the PSA to include the commission of an offence prescribed in the Code of Conduct, which is contained in O.Reg 123/98. According to section 2(1)(a) of the Code of Conduct, misconduct includes, among other things:
i. the failure to treat or protect a person equally without discrimination with respect to police services because of a person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap; and
ii. the use of profane, abusive or insulating language that relates to a person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap.
19If, at the conclusion of the investigation and upon review of the written report, the chief of police is of the opinion that the complaint is unsubstantiated, no action is taken in response to the complaint and the complainant is so notified and also advised of the right to ask OCCPS to review this decision: s.64(6). The police chief is not required to hold a hearing before concluding that a complaint is unsubstantiated.
20Alternatively, if the chief of police is of the opinion that the police officer’s conduct may constitute misconduct or unsatisfactory work performance, then a hearing is require: s.64(7). This hearing is required to be conducted in accordance with the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.
21If a complainant is notified that his or her complaint is unsubstantiated, the complainant has the right to ask OCCPS to review this decision: s.72(5). The OCCPS is an independent statutory agency with broad powers to oversee and review police services in the province, and with specific responsibility to conduct reviews at the request of a complainant to a finding that a complaint is unsubstantiated: s.22(e.1). Members of the OCCPS are appointed by the Lieutenant Governor in Council: s.21(2).
22Upon a complainant’s request, OCCPS is required to review the decision that the complaint was unsubstantiated, taking into account any material provided by the complainant and the police, but is not required to hold a hearing: s.72(7). Upon completion of its review, OCCPS may confirm the decision, may direct the police to process the complaint as it specifies, or may assign the review or investigation of the complaint or the conduct of a hearing to another police service: s.72(8). The decision by OCCPS is final and binding and there is no appeal from that decision: s.72(12).
The applicant’s PSA Complaint
23The applicant filed the Complaint on about March 25, 2009. On April 3, 2009, he was advised that his Complaint had been assigned to the Unit Commander of 31 Division.
24In a letter from Nick Memme, Acting Superintendent of 31 Division, the applicant was provided with a copy of the investigation report. He was advised that no further action would be taken regarding the Complaint because there were insufficient grounds to conclude that the allegations were substantiated.
25In preparing the investigation report, the investigator contacted the two officers named in the Complaint. She contacted the applicant and reviewed his Complaint with him. She states that although she made several additional attempts to reach the applicant by telephone and in person, she was unable to contact him further.
26The investigation report cites the authorities it considered. These include section 10(a) of the Canadian Charter of Rights and Freedoms, which addresses arrest and detention. They also include sections of the Code of Conduct relating to insubordination, unlawful exercise of authority and unnecessary force, neglect of duty, and discreditable conduct - uncivil to a member of the public (which includes the use of profane, abusive or insulting language). The investigation report does not list the Code or section 2(1)(a) of the Code of Conduct among the authorities it considered.
27The investigation includes the following summary of the allegations contained in the Complaint:
The Complainant alleges that on March 9, 2009 at approximately 9:10 pm he was detained and searched without his consent. The Complainant also alleges that the officers, who were not in uniform, failed to identify themselves to him. The Complainant also alleges that he officers were uncivil to him.
28The investigation report summarizes the facts as described by the officers, both of whom denied the allegations. The report goes on to reach the following conclusion:
There is only the Complainant’s assertion that the Subject Officers were uncivil to him and uttered racial slurs. Both Subject Officers deny this allegation.
(…) based on all the available evidence, misconduct cannot be substantiated.
29On July 23, 2009, the applicant requested a review of the decision to take no further steps in regards to his Complaint. He withdrew this request on June 18, 2010, nearly a year later.
Has another proceeding appropriately dealt with the substance of the Application?
30Section 45.1 of the Code states:
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.
31The principal purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.
32In order to establish that section 45.1 applies in the circumstances, the respondents must show that the PSA matter was a proceeding for the purposes of the Code and that it appropriately dealt with the substance of the Application.
Was there a proceeding for the purposes of s. 45.1?
33In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.
34I have no difficulty concluding that the PSA complaint process, when it includes the stage of OCCPS review, meets this test and is a “proceeding” within the meaning of section 45.1 of the Code. See Qiu v. Nelson, 2009 HRTO 2187; Pamula v. Ontario Provincial Police, 2010 HRTO 73; and Leong v. Regional Municipality of Peel Police Services Board, 2010 HRTO 400.
35The applicant argues that the circumstances of this case are somewhat different, in that, although he sought a review of the decision by the OCCPS, he withdrew his request and the matter was ultimately not considered by the OCCPS. He argues that, without review by the OCCPS, the police complaint process analogizes to an internal investigation and is not a proceeding for the purposes of section 45.1 of the Code.
36The applicant states that the investigation and initial decision-making process, although they are set out in statute, are conducted by internal employees of the Police Services Board. The applicant argues that the fact that an internal investigation is mandated by statute does not change the fundamental nature of the investigation, nor does it make it a proceeding for the purposes of section 45.1.
37The respondent relies upon the Tribunal’s decision in A.F. v. Durham Regional Police Services Board, 2010 HRTO 1508 (“A.F.”), where the Tribunal concluded:
(...) 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”.
As 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.
38The applicant argues that his case is different from A.F. because, although he ultimately withdrew the request, unlike A.F., he did not abandon the complaint but exercised his right to seek a review.
39For the purposes of this case, it is not necessary for me to determine whether the PSA complaint process, when it does not include review by the OCCPS, is a proceeding within the meaning of section 45.1 of the Code. For the reasons set out below, I find that the respondents did not meet the second branch of the section 45.1 test, and I deny their Requests on that basis.
40Although I make no findings in this regard, I want to express some reservations about the applicant’s argument on the proceeding issue. In this case, the applicant engaged the PSA complaint process and, after receiving an unfavourable initial decision, he made a deliberate choice to withdraw from that process. While I appreciate that timing was also a factor in the applicant’s decision, it is not clear to me that he can successfully argue there was no “proceeding” in circumstances where he elected to pursue other options rather than see the PSA proceeding through to its conclusion. However, as I have indicated, in the circumstances of this case, it is not necessary for me to determine that issue and I leave it for another day.
Did the PSA complaint process appropriately deal with all or part of the subject-matter of the Application?
41The respondents argue that the substance of the Application has been appropriately dealt with under the PSA. They stress that the narrative in support of the Application and the Complaint are identical and raise the same facts and issues.
42The respondents argue that in determining whether the substance of the Application was appropriately dealt with, the issue is not whether the Tribunal agrees with the findings reached in the PSA process but whether the PSA process was fair and afforded the applicant an opportunity to present his allegations and supporting evidence. The respondents refer to section 2(1)(a) of the Code of Conduct, which relates to discrimination and equal treatment. They argue that, based on section 2(1)(a) of the Code of Conduct, there is no basis to conclude that the PSA process did not recognize human rights principles in reaching its conclusion.
43I cannot accept these arguments.
44First, although the documents filed in support of the Application are identical to the Complaint, I do not think this is determinative of the issue. Rather, it is more helpful to consider how the issues were framed within the actual PSA process and the nature of the allegations it actually addressed.
45The investigative report forms the basis of the decision regarding the Complaint. In that report, the investigator framed the issues raised in the Complaint very narrowly and in a way that did not trigger a human rights-like analysis. For example, the investigator does not deal with the issue of racial profiling or the allegation of harassment, which, in my view, are an important part of the allegations that would be addressed by this Tribunal. I am not stating that the PSA process could not have addressed human rights issues. In the circumstances of this case, however, human rights issues (including racial profiling and harassment on the basis of Code-related grounds) that formed part of the Complaint, were not touched upon in the investigation or in the PSA decision.
46Second, the onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application. See Haykin v. Roth, 2009 HRTO 2017.
47It is not, in my view, sufficient for the respondents to argue that there is no basis to conclude that human rights principles were not considered in the other proceeding. Rather, section 45.1 imposes a positive obligation and requires instead that the respondents show that human rights principles were considered in the other proceeding.
48It seems to me, based on section 2(1)(a) of the Code of Conduct, that human rights principles could enter into the PSA analysis. Indeed, there may be overlap between the issues of authority to arrest, the use of force, and allegations of racial discrimination. See A.F. My concern in this case is that, not only did the investigator frame the issues raised in the Complaint narrowly to exclude the human rights elements of the Complaint, she appears not to have touched upon human rights principles in the issues that she did consider. She makes no connection between, for example, her considerations of the use of force and discreditable conduct and discrimination, or any Code-related ground. She makes no direct or indirect reference to discrimination in her decision and does not appear to consider whether a Code-related ground was a factor in the respondents’ alleged behaviour.
49As the applicant points out, while the respondents rely on section 2(1)(a) of the Code of Conduct to argue that human rights principles were factored into the PSA analysis, both those provisions and the Code are absent from the list of authorities considered by the investigator.
50Although the applicant appears to have had an opportunity to present his allegations and evidence in the course of the PSA proceeding, I am not satisfied that the PSA proceeding in this case involved any recognition or consideration of human rights principles.
51Accordingly, the Request to dismiss the Application on the basis of section 45.1 of the Code is denied.
Is there an abuse of process?
52The TPSB argues that, as was the case in Penner v. Niagara (Police Services Board) 2010 ONCA 616, the Application depends on factual allegations that have been determined under the PSA process. The TPSB argues that the Application is an abuse of process because the applicant is attempting to relitigate conclusions reached in the PSA process. Had he wished to challenge the results of the PSA process, the applicant ought to have sought OCCPS review.
53As I have indicated, in my view, the PSA process does not address the substance of the issues raised in the Application. While there are conclusions reached in the PSA process that may also be relevant to the Application, I am not satisfied that the decision or the report shows that the PSA decision-maker considered human rights principles in reaching the decision. In my view, it would not be an abuse of process for the Application to proceed.
54The Request to dismiss the Application because it constitutes an abuse of process is denied.
55I am not seized of this matter.
Dated at Toronto, this 16th day of November, 2010.
"signed by"_________________
Michelle Flaherty
Vice-chair