HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Clem Marshall
Applicant
-and-
Toronto Police Services, Toronto Police Services Board and Paul Goss
Respondents
INTERIM DECISION
Adjudicator: Ian R. Mackenzie
Indexed as: Marshall v. Toronto Police Service
WRITTEN SUBMISSIONS
Clem Marshall, Applicant
Sharan K. Basran, Counsel
Toronto Police Service and Paul Goss, Respondents
Kevin McGivney and Lisa C. Cabel, Counsel
Toronto Police Services Board, Respondent
No one appearing
Introduction
1Clem Marshall has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services on the basis of race, colour and ancestry. The applicant self identifies as a black man of African ancestry. The respondents are the Toronto Police Services (TPS), Constable Jason Goss and the Toronto Police Services Board (TPSB). Constable Barry O’Neill is not an individual respondent but was identified in the Application as one of the police constables involved.
2I issued an Interim Decision relating to disclosure (2012 HRTO 966). The Interim Decision ordered, among other things, that all records of prior complaints, based on race, filed in respect of Constables Goss and O’Neill be produced by TPS to the Tribunal for review, in accordance with the process identified in Washington v. Toronto Police Services Board, 2009 HRTO 217. The records have now been produced to the Tribunal and this Interim Decision relates to which records, if any, the TPS must produce to the other parties.
3I have also received submissions from the applicant as well as the TPS and Constable Goss (the “respondents”) on (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.
Submissions
4The applicant submitted that in order to best balance any potential probative value against potential prejudice of producing the records, it has been recognized that relevancy to a material issue in dispute will often supersede any reasonable expectation of privacy. The interest in obtaining disclosure of all relevant material will, as a general rule, outweigh any privacy interests, which can generally be addressed by placing restrictions or conditions on the use of the records.
5The applicant submitted that in assessing the probative value of past race-related complaints, the cardinal rule is relevancy. The applicant stated that the potential relevance is not restricted solely to whether the complaint constitutes similar fact evidence but also applies more broadly to potential evidence of a pattern of discriminatory conduct, bias or prejudice on the part of the officer: King v. Toronto Police Services Board, 2009 HRTO 644. In addition, the applicant submitted that production of past complaints is not limited to those that lead to charges or convictions under the Police Services Act, R.S.O. 1990, c. P-15.
6The applicant submitted that a past incident may support the allegations forming the basis of the Application because the incident at issue in the Application may be part of a pre-existing pattern of conduct. In the human rights context, consideration should be given, the applicant submitted, to the fact that discrimination is often subtle and difficult to prove, and that a pattern of discriminatory conduct in the past makes it more likely that a violation of the Code occurred with respect to the incident at issue: Washington and Toronto Police Services Board, 2009 HRTO 217 at paras. 17-18.
7The applicant noted that the Tribunal has recognized a list of non-exhaustive factors to measure the relevancy of past complaints: the degree of similarity between the underlying events in the past complaint and the alleged conduct in the Application; the number of alleged similar facts; the strength of the evidence; and the time frame of the alleged similar acts.
8In applying these factors to the Application, the applicant submitted that potential relevancy can be gleaned from race-based complaints that involve one or more of the following: traffic stops; interactions with complainants involving drug-related inquiries or investigations; incidents involving discriminatory comments including a reference to race and stereotypes that includes (but are not limited to) African Canadian men; and interactions arising under non-Criminal Code legislation, including the Highway Traffic Act and the Provincial Offences Act.
9With respect to appropriate restrictions, the applicant referred me to Washington v. Toronto Police Services Board, 2009 HRTO 865 (at para. 7), where the Tribunal held that redaction of third party complaints was not appropriate. The applicant stated that he would only use complaint records produced solely for the purpose of this proceeding. The applicant also agreed not to disclose the records to anyone without a direct interest in the Application. He submitted that his original representative, Ms. Veecock be considered as a person with a direct interest as she was his representative at the time of the filing of the Application and she is providing support to the applicant.
10The respondents submitted that the main determination of probative value is the nexus of the proposed similar fact records and the misconduct alleged. The respondents submitted the following list of relevant factors in assessing probative value (based on R. v. Handy, 2002 SCC 56 at paras. 76, 82 and 133-134) and Washington and Toronto Police Services Board, 2009 HRTO 865 at para. 2):
temporal proximity of the similar acts;
similarity and detail between the similar acts and the misconduct alleged;
the number of similar acts;
the circumstances surrounding the similar acts;
distinctive features unifying the incidents;
intervening events;
strength of the evidence that the similar acts usually occurred; and
any other facts that tend to support or rebut the underlying unity of the similar acts.
11The respondents submitted that proceedings can be sidetracked by irrelevant allegations of police misconduct. The respondents referred me to the warning in R. v. McNeil, 2009 SCC 3 at para. 45: “Disclosure is intended to assist an accused …, not turn criminal trials into a conglomeration of satellite hearings on collateral matters”.
12The respondents referred me to the factors of potential prejudice that the Tribunal should consider, as set out in Washington v. Toronto Police Services Board 2009 HRTO 865 (at para. 2): distraction from the essence of the litigation; effects on the ability of the officers to defend themselves; and effects on the privacy rights of the officers and third parties.
13The respondents noted that the Supreme Court in R. v. Handy, at paras. 138, 139 and 146 that the prejudicial effect of similar fact evidence includes “moral prejudice” and “reasoning prejudice”. The SCC stated that the “moral prejudice” is the risk of an unfocussed trial and a wrongful conviction: “the forbidden chain of reasoning is to infer guilt from general disposition or propensity”. Reasoning prejudice relates to the distraction from the essence of the litigation and an inordinate consumption of hearing time.
14The respondents submitted that the Tribunal should be no less rigorous in its approach to similar fact evidence than a court or any other adjudicative body. The respondents submitted that the seriousness of the issues addressed by the Tribunal and the impact of a finding of discrimination, especially on the reputation of the officers involved, merit a rigorous approach. The respondents also submitted that given the inherent risks of similar fact evidence, applying a less rigorous approach to the production of these records may lead to a finding of discrimination when none occurred.
15The respondents submitted that should the Tribunal order disclosure of any of the responsive records, it should impose any conditions on the use of the disclosed records that it considers appropriate.
Decision
16The respondents found five records responsive to the Tribunal’s Order. One of the five responsive records (“responsive record #4”) was filed by the applicant against Constables Goss and O’Neill. This was the only responsive record involving Constable O’Neill. The respondents did not object to producing this record as it deals with the same parties and same incident at issue in the Application. Accordingly, I order that responsive record #4 be produced to the applicant and the TPSB, if it has not already been provided.
17As set out in Washington v. Toronto Police Services Board 2009 HRTO 865 (at para. 2), the following factors are relevant considerations in assessing the probative value of the remaining four responsive records: 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.
18I note firstly that the four responsive records relating to Constable Goss were found to be unsubstantiated.
19Responsive record #1 relates to an incident that occurred in February of 2000. The police were called to investigate a physical altercation at a store. The complainant alleged that the officers acted in a racist manner because they did not arrest the suspect and did not obtain proper medical attention for the complainant.
20Responsive record #2 relates to a complaint received in October of 2000. The complaint arose out of an altercation between an individual and a property manager of a condominium. The police were called by the property manager. The individual filed a complaint alleging that the officers sided with the property management staff, forced him to leave the premises and were rude and threatening.
21Responsive record #3 relates to a workplace dispute that occurred in October of 2003 where the respondent is alleged to have made a racial slur. The investigation found that the allegation could not be substantiated, as two witnesses stated that they did not hear any racial slurs.
22Responsive record #5 occurred approximately one month after the alleged incident in this Application. The allegations in this responsive record relate to a domestic dispute to which Constable Goss and another officer were called to investigate. The participants in the alleged domestic dispute were reported by the police officers and other witnesses to have been intoxicated. It was alleged that Constable Goss made a derogatory comment relating to Aboriginal status and also refused to lay criminal charges because the alleged victim was an Aboriginal person. The alleged derogatory comment was that he was “sick and tired of babysitting people like her”. The other party to the domestic dispute stated to the investigator that he did not hear any derogatory comments made by the officers.
23Responsive records #1 through #3 relate to incidents that occurred in 2000 and in 2003. The traffic stop at issue in this Application occurred in 2009. As noted in Washington v. Toronto Police Services Board, 2009 HRTO 865, the temporal proximity of the alleged similar acts is an important factor to consider in determining the probative value of the responsive records. Temporal proximity is also relevant in assessing the prejudice to the respondent (discussed below). The probative value of past complaints is the possible demonstration of a pattern of behaviour. A large gap in time between alleged incidents (in this case 9 years and 6 years) is not indicative of a pattern of behaviour.
24In addition, the past complaints in responsive records #1 through #3 are not similar to the allegations in the Application. They do not involve a traffic stop, a drug-related inquiry or investigation or interactions arising under non-Criminal Code legislation, including the Highway Traffic Act and the Provincial Offences Act. Responsive records #1 and #2 do not involve alleged discriminatory comments, including references to race and stereotypes.
25Responsive record #3 includes an allegation of a racial slur. However, the events in this responsive record relate to a workplace incident and not interactions with the public. In addition, the strength of the evidence of the statement being made is not significant, as two witnesses to the altercation reported that they did not hear the alleged racial slur.
26I find that responsive records #1 and #2 have no probative value, given the lack of temporal proximity, the different circumstances of the alleged events and the absence of any allegations of discriminatory comments. Responsive record #3 has limited probative value, given the lack of temporal proximity, the different circumstances and the weakness of the evidence of alleged discriminatory comments. The limited probative value of responsive record #3 is outweighed by the prejudicial effect. In In Sinclair v. London (City), 2008 HRTO 48 (cited with approval in Washington, 2009 HRTO 217 (at para. 18), the Tribunal referred to the potential prejudice to the hearing process and to the party whose character is placed into question through such evidence. In Sinclair, the tribunal noted (at para. 26): "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." In this case, the ability of a respondent to defend against allegations made over 9 years ago (and 6 years prior to the alleged incidents in this Application) results in significant prejudice to him.
27Responsive record #5 does not involve a traffic stop, a drug-related inquiry or investigation, or an interaction arising under non-Criminal Code legislation, including the Highway Traffic Act and the Provincial Offences Act. The allegation of a failure to lay a charge under the Criminal Code is not similar to the allegations in this Application. The only aspect of the responsive record that is arguably relevant to this Application is the alleged comment made by Constable Goss. In assessing the strength of the evidence that the similar acts actually occurred, it is important to note that the other party to the domestic dispute did not hear any derogatory comments. However, the alleged comment made by Constable Goss is still arguably relevant. Accordingly, I order that responsive record #5 be released to the applicant, subject to the conditions set out below. Of course, an order for production at this stage does not mean that the evidence would necessarily be admissible at the hearing.
28I agree with the approach taken to restricting the use of records as set out in Washington v. Toronto Police Services Board, 2009 HRTO 865 (at para. 7). Since Ms. Veecock has been assisting the applicant in his Application, it is appropriate to consider her as an individual with a direct involvement in the litigation.
Order
29The Tribunal orders as follows:
(1) Within seven days of the date of this Interim Decision, the TPS shall produce Responsive Record #4 to the other parties, if it has not already done so;
(2) Within seven days of the date of this Interim Decision, the TPS shall produce Responsive Record #5 to the other parties;
(3) Responsive Records #1 through #3 shall be returned to the TPS by the Tribunal Registrar and removed from the Tribunal file; and
(4) The records disclosed pursuant to (1) and (2) 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, any Request for Reconsideration 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; and
(c) Ms. Veehook is to be considered as a person with a direct involvement with the litigation of this matter.
Dated at Toronto, this 20th day of September, 2012.
”signed by”
Ian R. Mackenzie
Member