Greg Goodridge v. Toronto Police Services Board, 2011 HRTO 1586

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Goodridge

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Anthony Piazza and Maria Perry

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: August 24, 2011 Citation: 2011 HRTO 1586 Indexed as: Goodridge v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Greg Goodridge, Applicant ) On his own behalf Ontario Human Rights Commission ) Christine Elwell, Counsel Toronto Police Services Board, ) Andrea Denovan, Counsel Respondent ) Anthony Piazza and Maria Perry, ) Naomi Calla, Counsel Respondents )

Reasons for Decision

1This is a case that was referred to the Tribunal by the Commission on May 27, 2008. It relates to an amended complaint filed by the complainant with the Commission on March 11, 2004 and a further complaint filed by the complainant with the Commission on July 7, 2005.

2The complainant alleges that he experienced discrimination because of his race, colour and ethnic origin with respect to the provision of services, goods and facilities contrary to ss. 1 and 9 of the Code and reprisal contrary to ss. 8 and 9 of the Code, arising out of several incidents with court security officers in which the applicant alleges that he was assaulted and/or verbally harassed because of his race or because he had filed a complaint with the Commission.

3The hearing in this matter commenced on June 2, 2011 and is scheduled to continue on September 22, 23 and 28, 2011.

4The purpose of this Interim Decision is to address certain evidentiary matters that arose during the course of cross-examination of the complainant by counsel for the individual respondents, and specifically whether I should permit questions to be asked regarding the applicant’s past criminal convictions and a prior credibility finding. The parties were invited to file written submissions on these issues, which they did in the intervening period.

5There is no doubt that counsel are entitled to broad latitude on cross-examination, particularly on issues of credibility: see The Law of Evidence in Canada, 3rd ed. (2009) at para. 10.13; Brownell v. Brownell (1909), 1909 CanLII 21 (SCC), 42 S.C.R. 368. There also is no doubt that I have the discretion to allow questions on cross-examination regarding a witness’ past criminal convictions and past findings of credibility: see The Law of Evidence in Canada, 3rd ed. (2009) at paras. 16.161 to 16.165; Deep v. Wood, [1983] D.L.R. (3d) 246 (Ont.C.A.).

6However, the question for me to consider is whether the probative value of the evidence sought to be elicited outweighs its prejudicial effect.

7In the instant case, there are two broad categories of past criminal convictions about which respondent counsel wish to ask questions and elicit evidence. The first is prior convictions for assault. In my view, a record of past criminal convictions for assault will be of little relevance or assistance to me in assessing the complainant’s credibility. Moreover, given the respondents’ position that they in fact were the ones who were assaulted by the complainant, I am concerned about the prejudicial impact of such evidence, as regardless of the intended purpose for which such evidence is elicited, it may unwittingly influence the outcome of the proceeding by tending to go more to the complainant’s propensity to violence or the commission of an assault. While I appreciate that I am the sole trier of fact in this case, I do not want my deliberation on the credibility of the witnesses before me to be consciously or unconsciously influenced by evidence that the complainant on previous occasions was convicted of assault. Accordingly, in my view, the potential prejudicial effect of such evidence outweighs its minimal probative value, and I disallow the questions.

8The second broad category relates to prior conviction(s) for theft. It is difficult for me to understand how a prior conviction for theft would be of any assistance to me in assessing the complainant’s credibility. While I appreciate that there has been judicial commentary regarding the probative value of past crimes that demonstrate a propensity to be dishonest, it is not at all clear to me that prior conviction(s) for theft necessarily would fall into this category. Moreover, I am concerned about the potential prejudicial impact of such evidence, as it seems more to go to the complainant’s general character, which this Tribunal has ruled is generally not permissible. Accordingly, once again, given the potential prejudicial effect of such evidence and its minimal probative value, I disallow the questions.

9This takes me to the past finding of credibility regarding the complainant. The respondents seek to introduce through cross-examination the decision of Dambrot J. in R. v. Goodridge [1998] O.J. No. 5970. I note that this decision pertains to an application by the complainant for interim release pending appeal. One of the considerations was whether the appeal was “not frivolous”. In support of his appeal, the complainant made certain allegations of impropriety against the trial judge and Crown counsel which were found to be lacking in credibility. However, in making this assessment, Dambrot J. had regard not only to his assessment of the complainant’s testimony, but also to the other evidence (or lack of evidence) before the court.

10In my view, my task in assessing the credibility of the witnesses who have and will testify before me very much will depend upon consideration of the totality of the evidence adduced in this proceeding in relation to the events at issue and my consideration as to what is consistent with the preponderance of probabilities in accordance with the guiding principles established in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at pp. 356-357. In my view, this task will be aided very little by the assessment of credibility made by Dambrot J. in a different context on the basis of a different evidentiary record some 13 years ago. Accordingly, in my view, the potential prejudicial impact of admitting such evidence would outweigh its very minimal probative value, if any, and I disallow the questions on this point.

11My understanding from the last day of hearing is that these were the final questions on cross-examination intended to be asked by counsel for the individual respondents. As a result, when we resume on September 22, 2011, I will hear cross-examination of the complainant by counsel for the Toronto Police Services Board followed by any appropriate re-examination, after which I will proceed to hear the respondents’ witnesses.