Human Rights Tribunal of Ontario
Between:
Junior Heath Applicant
-and-
Toronto Police Services Board, Wayne Alexander and Robin Dey Respondents
Interim Decision
Adjudicator: Alan G. Smith Date: December 18, 2012 Citation: 2012 HRTO 2364 Indexed as: Heath v. Toronto Police Services Board
Appearances
Junior Heath, Applicant Self-represented
Toronto Police Services Board, Wayne Alexander and Robin Dey, Respondents Andrea Denovan, Counsel
Background
1This Application was filed on April 27, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to services and facilities on the basis of race, colour, ancestry, place of origin and ethnic origin.
2The applicant self-identifies as a man of colour. In essence, he alleges that the respondents have “racially profiled” him, particularly in planning and conducting a search of his residence, being charged with Possession of a Controlled Substance for the Purposes of Trafficking and various weapons offences on April 29, 2010. He also alleges Code-related discrimination based on the fact that he was ordered detained in custody until his trial. He further argues that the respondents acted in a discriminatory manner when charges of Criminal Harassment and Utter Threats were laid against him in November 2010.
3The respondents filed a Response on August 25, 2011, requesting that the Tribunal dismiss some or all of the Application, pursuant to section 45.1 of the Code, on the basis that Criminal Court proceedings had appropriately dealt with the substance of the Application.
4The parties agree that the applicant pleaded guilty to the lesser but included offence of Possession of a Controlled Substance in the Ontario Court of Justice on October 25, 2010. He was sentenced to time served plus one further day in jail. The other charges of April 2010 were withdrawn at the request of the Crown. The parties also concur that that the charges of November 2010 were withdrawn at the request of the Crown when the applicant agreed to enter into a common law peace bond.
5The respondents also submit that parts of the Application are outside the one-year time limit set under section 34(1) of the Code.
6The Tribunal issued a Case Assessment Direction (“CAD”) on May 22, 2012, directing that a two-hour conference call hearing be scheduled to consider whether all or some of the Application should be dismissed pursuant to sections 34(1) and 45.1 as untimely and/or appropriately dealt with by the Criminal Court proceedings.
7Pursuant to s. 43(2) of the Code a preliminary hearing by teleconference was held before me on September 11, 2012. The applicant participated in the hearing and made oral submissions. The respondents also participated through counsel and made oral submissions. The Application, Response and Reply as well as the parties’ other written submissions were also considered by me in this Decision, including the Criminal Court transcript of the applicant’s guilty plea of October 25, 2010.
Analysis
Timeliness
8At the beginning of the hearing the applicant conceded that the allegations contained in paragraphs 22, 23 and 24 in Section 8 of the Application (“What Happened”) are untimely, pursuant to s. 34(1) of the Code, as being events occurring sometime in 2008, sometime in 2009, February 20, 2010, and March 2010, i.e., all having occurred beyond one year previous to the filing of the Application. The applicant therefore consented to have those allegations dismissed.
Code s. 45.1
9Section 45.1 of the Code provides:
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.
10Section 45.1 of the Code requires a two-part analysis: (1) was there another “proceeding” and (2) if so, “did it appropriately deal with the substance of the Application”.
11The Tribunal has held that criminal Court trials are a “proceeding” pursuant to s. 45.1. See, D.H. v. Splash International Marketing Inc., 2011 HRTO 1190. Therefore, the critical issue to be decided is whether the Ontario Court of Justice proceedings, “appropriately dealt with the substance of the Application”.
12In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, the Supreme Court of Canada considered a similar provision from British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210: s. 27(1)(f). At paragraph 34 of Figliola, the Court summarized the principles that underlie provisions such as s. 45.1 as follows:
It is in the interests of the public and the parties that the finality of a decision can be relied on;
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;
Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and
Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.
13The Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears in s. 45.1. The Court makes clear that the Tribunal’s role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s. 45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process.
14In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, the Tribunal confirmed that the principles set out in Figliola apply to the interpretation of s. 45.1 of the Code.
15Thus, the Tribunal’s principal concern in applying s. 45.1 is not whether parallel litigation has correctly determined the human rights issues, but whether the applicant has already had an opportunity to have the human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code: see Figliola, at para. 49; Gilinsky v. Peel District School Board, 2011 HRTO 2024, and the recent decision in U.N. v. Tarrion Warranty Corporation, 2012 HRTO 211.
16In the present case, with regard to the search, arrest and detention of April 2010, the respondents argue in their written submissions that:
Given that the Applicant pled guilty to one of the charges, he cannot now challenge the correctness of that conviction, the investigation leading to it, his detention, or his sentence by alleging discrimination.
17With respect to the November 2010 charges and subsequent peace bond the respondents argue:
The withdrawal of criminal charges as a result of an order for a peace bond precludes a finding in subsequent civil proceedings that the charges were instituted without reasonable and probable case [sic], were motivated by malice or constitute a breach of Charter rights. The Respondents submit that an allegation that the officers were motivated by discriminatory factors could be added to this list.
18As I understand the respondents’ argument, it is that since the applicant eventually admitted to being guilty of an offence, all the actions by the respondents leading up to the applicant’s arrest and his pre-trial detention for that offence are bona fide pursuant to the Code. In my view, this argument cannot succeed. It is an attempt at “bootstrap” justification. In other words, if racial profiling is indeed occurring in the respondents decision making process (for example with regard to the obtaining of the warrant to search the applicant’s residence), the fact that one of the individuals targeted as a result of that discriminatory process is subsequently found to have offended, does not justify Code-related discrimination. Such circumstances would result in respondents being able to successfully use an “ends justifying the means” type of argument.
19I am therefore not satisfied that the substance of the Application was “appropriately dealt with” by the criminal proceedings. The issue in the criminal proceedings against Mr. Heath was whether he committed certain criminal offences. The substance of this Application is that he has been racially profiled by the respondents. There is nothing before me to suggest that the applicant’s Code-related allegations, that he was racially profiled and treated differently because of his race and ethnic background, were considered and decided or otherwise dealt with by the Judges in the Ontario Court of Justice. Perhaps it might be different had the applicant brought a motion under the Charter of Rights and Freedoms with regard to his allegation of racial profiling, but this was not done. The mere fact that Mr. Heath pleaded guilty to simple possession of a Controlled Substance based on some or all of the same facts as those underlying the Application is not a sufficient basis upon which to conclude that the human rights issues in the Application were dealt with in the Criminal proceeding. See, D.H., above. Likewise, the withdrawal of the November 2010 charges by the Crown and the imposition of a common law peace bond provide no foundation for a s. 45.1 argument.
20The criminal proceedings did not deal with the subject-matter of the Application, namely whether the respondents infringed the applicant’s rights under the Code, appropriately or otherwise. The criminal proceedings dealt only with whether the applicant had committed an offense under the Criminal Code. The Request that the Application be dismissed under s. 45.1 of the Code is therefore denied.
21Parenthetically, given that notice of the issue was not raised in the CAD ordering this preliminary hearing, I make no findings with regard to the respondents’ arguments that the Application has no reasonable prospect of success on its merits.
Order
22The allegations contained in paragraphs 22, 23 and 24 in Section 8 of the Application are dismissed on consent of the parties.
23The remainder of the Application will be scheduled for a one day hearing on the merits.
24Dated at Toronto, this 18th day of December, 2012.
“Signed by”
Alan G. Smith Member