Avila v. Toronto Police Services Board, 2012 HRTO 663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miguel Avila

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 30, 2012

Citation: 2012 HRTO 663

Indexed as: Avila v. Toronto Police Services Board

1This is an Application made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 25, 2010. This matter is scheduled to proceed to a hearing on May 4, 2012.

2The purpose of this Interim Decision is to address a Request for an Order During Proceedings filed by the applicant on March 25, 2012, requesting that the hearing be re-scheduled due to an incident that is alleged to have occurred on March 19, 2012. The respondents are not required to file a Response to this Request.

3The Application arises out of an incident that is alleged to have occurred on June 10, 2010, during which the applicant states that he observed a large number of police officers arresting a Black male. The applicant states that he was thereafter approached by a White male plain clothes officer who asked what he was doing, that this officer was then joined by three other police officers who circled around him, that the applicant was intimidated, that he was asked by the White male officer where he was from and specifically asked whether he was from Cuba (as the applicant was wearing a Che Guevera T-shirt), that the White male officer tried to make the applicant an accessory after the fact to the arrest of the Black male, that the officers intimated that they would take away the applicant’s phone, and that they refused to divulge their names or badge numbers. The applicant alleges that this conduct amounts to racial profiling and constitutes racial discrimination in relation to the provision of services, contrary to s. 1 of the Code. The applicant also alleges reprisal stemming from a prior complaint of racial profiling that is alleged to have been made by him in 2004.

4The respondents deny racial profiling, racial discrimination, or reprisal. They state that officers responded to a request for assistance by a police officer because a man being placed under arrest had tried to disarm the officer. The respondents state that the applicant was approached by two police officers, Detective Constable Bryan Maharaj and Detective Constable James McDonald, on the basis that he might be a possible witness. The respondents state that the applicant was uncooperative. Ultimately, it was determined that the original officers on the scene did not need to speak with the applicant as he did not have anything to do with the arrest. Once this was confirmed, the respondents state that the applicant was told that he was free to go.

5In his Request for Order, the applicant states that on March 19, 2012 he had an interaction with another police officer, a Detective Constable Samson from 55 Division. The applicant does not describe the interaction with DC Samson in detail in his Request, but states generally that out of this encounter he discovered the current, ongoing and persistent demand by police officers for “Brown Skin Canadians” such as himself to identify their country of origin. The applicant states that he has an audio recording of his interaction with DC Samson and believes that this recording will demonstrate that the information provided by DC Maharaj and DC McDonald is misleading and false.

6In my view, this is a different incident that occurred almost two years later involving a different police officer from a different division. There is no proper basis in my view that would warrant a delay in the hearing regarding the June 10, 2010 incident in order also to address the incident on March 19, 2012. If the applicant is alleging that his rights under the Code were infringed as a result of the March 19, 2012 incident, then the proper recourse is for him to file a new Application raising this issue.

7It appears that the applicant believes that the audio recording of his interaction with DC Samson provides relevant evidence in relation to the June 10, 2010 incident at issue in this proceeding. Whether or not this audio recording is relevant or even admissible in this proceeding, if the applicant intends to seek to rely upon this recording as relevant evidence in relation to the June 10, 2010 incident, then it is his obligation under the Rules of Procedure to disclose a copy of this audio recording to the respondents and file a copy with the Tribunal, together with a written transcript of the recording. If the applicant intends to seek to rely upon this recording as relevant evidence in relation to the June 10, 2010 incident, then he is directed to disclose a copy of the recording and transcript to respondents’ counsel and file it with the Tribunal within 14 calendar days of the date of this Interim Decision. If the applicant fails to do so, then under the Rules he may be prohibited from introducing or relying upon this evidence at the hearing, apart from any issues as to the relevance or admissibility of this evidence.

8The applicant also states in his Request that the re-scheduling of the hearing is required in order to accommodate adding DC Samson to the witness list for the hearing. If the applicant intends to call DC Samson as a witness in this proceeding, then the appropriate process is for him to serve a Summons to Witness on DC Samson. Alternatively, if respondents’ counsel agree to dispense with service of a summons, the respondents could agree to make DC Samson available as a witness on May 4, 2012 (if required) without prejudice to any ruling they may ask the Tribunal to make regarding the relevance and admissibility of DC Samson’s proposed testimony. If the respondents are prepared to agree to this, I would not require DC Samson to appear at the hearing unless and until I had ruled upon the relevance and admissibility of his proposed evidence after hearing submissions from the parties.

9Accordingly, the applicant’s Request for re-scheduling of the hearing is denied, and the hearing will proceed as scheduled on May 4, 2012 to address the applicant’s allegations arising out of the June 8, 2010 incident.

10I note that, to date, the applicant has not yet complied with his pre-hearing obligations under the Rules to serve on the respondents and file with the Tribunal:

• a copy of all documents or other materials upon which he intends to rely at the hearing;

• a list of witnesses who he intends to call to give evidence at the hearing; and

• a description of what each witness will say.

11As stated in the Notice of Hearing, these pre-hearing materials were to have been served and filed by March 20, 2012.

12If the applicant intends to proceed with his Application at the hearing on May 4, 2012, then, within 14 calendar days of the date of this Interim Decision, he shall serve and file the materials listed above. If the applicant only intends to testify himself as a witness and has nothing to add to the information disclosed in his Application, then he simply needs to indicate this to the Tribunal and the parties. If he proposes to give any additional evidence or any evidence as to his interaction with DC Samson on March 19, 2012, then he needs to provide a description of this proposed evidence together with an explanation as to how it is relevant to the issue of whether his rights under the Code were violated arising out of the incident on June 8, 2010.

13If the applicant intends to call any other witnesses to testify in support of his case, then he needs to identify them by name and provide a description of their proposed evidence. In particular, if the applicant proposes to call DC Samson as a witness as part of his case, then he needs to indicate this and provide a description of what evidence he proposes to elicit from DC Samson and how it is relevant to the June 8, 2010 incident.

14If the applicant has any documents or materials upon which he intends to rely at the hearing, then these also need to be disclosed and filed. This includes the audio recording and a transcript, any documents or materials relating to the June 8, 2010 incident, and any documents or materials upon which the applicant intends to rely to support the remedies he seeks.

15If the applicant fails to deliver these pre-hearing materials within 14 calendar days of the date of this Interim Decision, then his Application may be dismissed as abandoned.

ORDER

16For all of these reasons, I hereby make the following order:

a) The applicant’s Request for re-scheduling of the hearing is denied, and the hearing will proceed as scheduled on May 4, 2012;

b) If the applicant intends to seek to rely upon any audio recording from his interaction with DC Samson as relevant evidence in relation to the June 10, 2010 incident, then he shall disclose a copy of the recording and a transcript to respondents’ counsel and file it with the Tribunal within 14 calendar days of the date of this Interim Decision;

c) Within 14 calendar days of the date of this Interim Decision, the applicant shall serve and file:

1. a copy of all documents or other materials upon which he intends to rely at the hearing;

2. a list of witnesses who he intends to call to give evidence at the hearing; and

3. a description of what each witness will say.

Dated at Toronto, this 30^th^ day of March, 2012.

”signed by”___________

Mark Hart

Vice-Chair