Marshall v. Toronto Police Services, 2012 HRTO 966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clem Marshall

Applicant

• and-

Toronto Police Services, Jason Goss and Toronto Police Services Board

Respondents

INTERIM decision

Adjudicator: Ian R. Mackenzie

Date: May 14, 2012

Citation: 2012 HRTO 966

Indexed as: Marshall v. Toronto Police Services

wRITTEN SUBMISSIONS

Clem Marshall, Applicant ) Sharan K. Basran, Counsel

Toronto Police Services and ) Naomi E. Calla, Counsel Jason Goss, Respondents )

Toronto Police Services Board ) Michele Wright, Counsel Respondent )

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), Jason Goss (a police constable) and the Toronto Police Services Board (TPSB).

2The Application was scheduled for a one-day hearing on October 24, 2011. On September 23, 2011, the applicant made a request for further disclosure. On October 19, 2011, counsel for the applicant advised the Tribunal and the respondents that she had been retained and would be filing a Request for an Order during a Proceeding (“RFOP”) to request disclosure of the documents identified in the September 23, 2011 correspondence from the applicant. On October 21, 2011, the Applicant filed an RFOP requesting further particulars and production of additional documents. After an unsuccessful effort to mediate, the hearing was adjourned and the parties were asked to provide written submissions on the RFOP. This Interim Decision addresses the request for further particulars and for further production of documents.

3In addition, the respondents TPS and Jason Goss identified an additional witness (Constable Craig Meredith) on October 19, 2011. The applicant has submitted that this witness should not be allowed to testify, since disclosure of a summary of his evidence was not provided within the timelines set out in the Tribunal’s Rules. In the alternative, the applicant requested a more detailed statement from this witness. This Interim Decision addresses this issue as well.

4The applicant agreed to the late disclosure of some of the documents provided by the respondents. In addition, some of the requested documents and particulars were provided by the respondents.

Background

5On January 26, 2009, the applicant was stopped by two police constables, Jason Goss and Barry O’Neill while driving. There was a passenger in the car with the applicant. The applicant alleges that he was racially profiled and stopped illegally; that he was verbally abused based on his race; and that he was publicly humiliated because of his race. As a result of being stopped by the police he was given a ticket under the Highway Traffic Act. It is the respondents’ position that the applicant was stopped for a violation under the Highway Traffic Act.

6The applicant is seeking $20,000 in financial compensation for general damages, emotional distress, reimbursement of expenses, and violation of his human rights. He is seeking an “appropriate and meaningful apology”. He is also seeking a public interest remedy of “an ongoing program that seriously addresses the harm and trauma caused to members of the Black community..”.

7The applicant was initially represented by a friend. He retained counsel shortly before the hearing (on or about October 19, 2011).

8A Notice of Confirmation of Hearing was provided to the parties on May 17, 2011. In accordance with the Tribunal’s Rules, the deadline for the disclosure of arguably relevant documents was June 7, 2011 and the deadline for the disclosure and filing of documents to be relied upon, witness lists and summary of each witness’ evidence was September 9, 2011.

9A Case Assessment Direction (CAD) was issued on September 16, 2011 requiring the applicant to provide the names of witnesses he intended to call and a summary of that evidence. On September 23, 2011, the applicant provided witness statements for himself and Mr. Abdulhamid. He also provided copies of documents he intended to rely upon. As noted above, the applicant retained counsel after this date (the Tribunal was advised on October 19, 2011).

10On October 19, 2011, Toronto Police Services and Jason Goss wrote to the Tribunal and the parties to advise that an additional witness had been identified: Craig Meredith, a police constable who was present at the incident in question.

Timeliness of Requests and Disclosure

11The respondents have objected to the late disclosure request and request for further particulars by the applicant. The applicant has objected to the late identification of an additional witness for the respondents. The Tribunal has the discretion to allow late disclosure if there is no substantial prejudice to the parties and no undue delay to the proceeding (Rule 5.7). In light of the fact that the scheduled hearing day was used for another purpose (mediation), the request for further production, further particulars and the identification of an additional witness will not cause an undue delay in the proceeding. There is no substantial prejudice to the parties in considering these requests. In the sections below I have addressed the specific requests of the parties.

Testimony of Constable Meredith

12The applicant objected to the calling of Constable Meredith as a witness. In the alternative, he argued that a more detailed witness statement was required. The applicant also requested copies of any notes taken by Constable Meredith.

13The applicant has submitted that proposed witness should not be allowed to testify because of the late disclosure of this witness and the late filing of a witness statement. He submitted that he is significantly prejudiced by late identification of this witness. The respondents stated that they only became aware of the presence of Constable Meredith in preparing for the hearing. They also note that Constable Meredith was not identified in the Application.

14Although the Rules require the early identification of witnesses and a summary of their evidence, I accept that it may be the case that witnesses with limited involvement in a matter may not always be identified in advance of preparation for a hearing. Given that Constable Meredith is not mentioned in the Application or the Response, it is likely that he is not a main protagonist in the events at issue. Any prejudice that might have arisen by the late identification of this witness has been addressed by the adjournment of the hearing. Accordingly, this witness will be permitted to testify.

15The applicant has asked for further particulars in the witness statement from Constable O’Neill. The witness statement provided is as follows:

PC Meredith will testify that, on January 26, 2009, he was assigned to the 14 Division Community Response Unit and his escorts for the day were Police Constable Jason Goss and Police Constable O'Neill. PC Meredith was present when a vehicle stop was initiated in respect of Mr. Marshall, though he did not have any direct contact with Mr. Marshall or his passenger.

16A witness statement is a brief summary of the intended testimony of a witness. Constable Meredith will be testifying about what he saw and heard, if anything, at the time of the events in question. The applicant was present for all of the events. He has sufficient information in order to be able to prepare for the hearing and to know in advance the case he has to meet.

17The respondents agreed that any notes of Constable Meredith would be arguably relevant. However, they stated that after a diligent search they had not been able to locate the constable’s notebook. In the circumstances, I cannot order their disclosure. However, there is an implied undertaking of the respondents to disclose such notes if they do materialize.

Further particulars from Constable O'Neill

18The respondents provided a witness statement for Constable O'Neill. The applicant requested further particulars of what he saw and heard of the interaction between the applicant and Constable Goss.

19The respondents submitted that they had filed a detailed Response as well as a detailed witness statement for Constable O'Neill. The respondents submitted that the applicant has already received a sufficient level of detail such that he can adequately prepare for the hearing and know in advance the case he has to meet. They submitted that the applicant can cross examine the witness on exactly what he heard and saw.

20The purpose of a witness statement is to set out the anticipated evidence in sufficient detail to allow the applicant to prepare for the hearing and know in advance the case he has to meet. It is not necessary to have the details of conversations or interactions spelled out in a witness statement. Such details can be obtained through questioning the witness at the hearing. Accordingly, no further particulars are required from this witness.

Applicant’s Request for further documents

21The applicant’s RFOP requested disclosure of the following documents:

Any previous complaints against the three constables alleging racial profiling, racial discrimination and/or racial harassment;

Policies, procedures and information relating to the TAVIS initiative (Division and Parkdale);

Documents relating to Project Charter;

Any document relied upon, created as a result of, or arising out of the internal investigation of the applicant’s complaint against the TPS under the Police Services Act;

All procedures, directives, policies addressing biased policing and racial profiling in the provision of police services; and

Procedures, policies, training manuals or Educational Materials with respect to stops, detentions, questioning and record checks that the officers in question would have received and/or existed at the time of the incident.

22It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. As noted in Tribunal decisions, this is a relatively low threshold for the requesting party to meet.

23In examining a request for disclosure, the first task is to determine if the requested documents are arguably relevant. If the requested documents are arguably relevant, I must then consider whether the documents are privileged, whether the probative value is outweighed by any prejudice to the party producing them, or if the timing of the request risks derailing a just a expeditious hearing: Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10.

Prior complaints

24The applicant requested copies of all prior complaints against the three constables, related to race. The respondents TPS and Goss consented only to the release of all complaints, if any, against Constable Goss to the Tribunal for vetting in accordance with the procedure set out in Washington v. Toronto Police Services Board 2009 HRTO 217 (discussed below). The respondents submitted that in the past, disclosure of prior complaints had only been ordered by the Tribunal as against personal respondents. Only Constable Goss is a personal respondent.

25The applicant submitted that the Tribunal has ordered disclosure of prior complaints against officers who were not named as personal respondents. It submitted that past complaints against all three police officers were arguably relevant.

26The Tribunal has held that past complaints relating to the same alleged ground of discrimination are arguably relevant. The respondents do not dispute the arguable relevance of past complaints, as against the named personal respondent. The issues to be determined are whether disclosure should be ordered as against the other officers and the manner in which such complaints should be disclosed.

27The Tribunal has ordered disclosure of past complaints against police officers not named as personal respondents. In King v. Toronto Police Services Board, 2009 HRTO 644 (at para. 34) the adjudicator concluded that the fact that the police officer was not a named respondent was not relevant in determining disclosure. The actions of Constables Goss and O’Neill are both at issue in this Application. Any prior complaints relating to race of both the officers are therefore arguably relevant.

28Constable Meredith is not identified in the Application as a participant in the alleged discriminatory conduct. There is no factual foundation to support the disclosure of any past complaints against him. If a factual foundation is established during the hearing of the Application, the applicant can seek the disclosure of any such prior complaints at that time.

29The parties disagreed on the procedure for the release of prior complaints. The respondents argued that the documents should be disclosed to the Tribunal and vetted by it to determine if disclosure to the applicant is appropriate. The respondents relied on the Tribunal decision in Washington to support its position. The applicant argued that the prior complaints should be released directly to him and relied on the Tribunal decision in King.

30In Washington, the Tribunal ordered a two-stage disclosure process, commonly referred to as an O’Connor-type order (in reference to a Supreme Court of Canada criminal law decision, R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411). Under such a procedure, the documents are first provided to the adjudicator who then reviews the documents to determine if they are “likely relevant”. If they are, they are then produced to the other side. The adjudicator concluded (at para. 34):

These reasons should not be taken to suggest that as a matter of course, the Tribunal will examine records in which one of the parties has a privacy interest before ordering production. Rather, the approach set out here reflects a response to the particular set of conflicting considerations discussed above in light of the allegations in this case and the guidance on the disclosure of police discipline records provided by the Court in McNeil [R. v. McNeil, 2009 SCC 3].

31In King, the adjudicator declined to order an O’Connor -type order (para. 39):

… In my view, the use of an O’Connor-type procedure is an extraordinary departure from the ordinary principles that apply to production and disclosure in a human rights proceeding, and can only be justified in the most exceptional circumstances. This is because the use of this type of procedure puts a double burden on the party seeking disclosure: first to demonstrate arguable relevance; and then, in the absence of access to the records at issue, to satisfy the Tribunal as to the “likely relevance” or the “true relevancy of the targeted records”: R. v. McNeil, 2009 SCC 3 at paras. 34 – 39.

32The Divisional Court in Aroda v. Ontario Human Rights Commission, 2010 ONSC 419, stated that the arguments in favour of using an O’Connor-type order were “compelling” (para. 16). This endorsement was an observation of the court, but not binding (obiter dicta). In Steele v. Ontario (Minister of Community Safety and Correctional Services) 2010 HRTO 1019, the adjudicator relied on Aroda and came to the following conclusion (at para. 38):

In this case, as in Washington, supra, the records sought are not third-party records but rather are documents belonging to the respondent. Nonetheless, the privacy interests of others who are not parties to the litigation are engaged, and must be protected. For privacy protection, together with averting the potential for distraction from the central issues of the litigation, any similar-fact evidence should be reviewed by the adjudicator prior to disclosure to determine whether its probative value could arguably outweigh the prejudicial effects.

33In my view, it is appropriate to order the disclosure of past complaints first to the adjudicator for review, in accordance with the process identified in Washington

34Accordingly, the TPS shall disclose to the Tribunal any prior complaints based on race against Constables Goss and O’Neill. The parties may also make submissions on how to balance any probative value against the potential prejudice of admitting the records and on any restrictions that should be placed on the use of any disclosed records.

TAVIS related documents

35The applicant requested any policies, procedures or information related to any TAVIS initiative in the Division and Parkdale Community predating and at the time of the incident.

36The respondents submitted that the request is not arguably relevant because the officers involved in the incident were not assigned to the TAVIS initiative. The respondents submitted that the incident at issue in this Application was a result of a traffic violation. He was not stopped as a part of the TAVIS initiative or any other crime prevention or management strategy. The comments that the applicant alleges were made do not render crime prevention strategies in the neighbourhood arguably relevant to the Application.

37Whether or not the incident at issue in this Application was a traffic stop or a crime prevention action is a factual dispute that will only be determined at the hearing. Documents relating to crime prevention strategies are therefore arguably relevant at this preliminary stage. However, only documents that existed at the time of the incident are arguably relevant.

38Accordingly, any documents relating to any TAVIS initiative in the Division and Parkdale Community that existed at the time of the incident are to be disclosed.

Project Charter Documents

39The respondent produced a report related to Project Charter. The applicant has requested the “Gap analysis of the Conduct of Service Members and Race and Ethnocultural Policy” (referred to in the Final Report) and a copy of any changes to TPS policies to ensure compliance with Project Charter.

40The respondents submitted that this request is not arguably relevant to the Application. Documents relating to Project Charter as well as the Conduct of Service Members and Race and Ethnocultural Policy were produced by the TPSB to respond to the public interest remedies requested by the applicant and to support their position (which is also the position of the other respondents) that no public interest remedies ought to be granted in this case if liability is found.

41The respondents stated that the relevant human rights policies have been produced and the language of those policies is all that the Tribunal requires in order to evaluate whether or what public interest remedy might be appropriate in this case if liability is found.

42The respondents submitted that the applicant does not mention Project Charter in his Application and it is not in issue. The respondents submitted that there is no connection between Project Charter and the Application. In addition, disclosure of such documents would sidetrack the proceeding and would interfere with the fair, just and expeditious resolution of the Application.

43The applicant submitted that it was not appropriate to selectively disclose documents and then fail to produce other arguably relevant documents referenced in the report. Such documents are arguably relevant to whether the respondents have rectified any deficiencies in policies which existed at the time of the incident and, by extension, to any requested public interest remedies.

44Project Charter is a joint working group formed as a response to a Human Rights Commission-initiated complaint. One of its main objectives is the elimination of any discrimination that may exist in the provision of policing services by the TPS (Phipps v. Toronto Police Services Board, 2009 HRTO 1604 at para 38).

45I note that in McKay v. Toronto Police Services Board, 2009 HRTO 1220, the applicant requested a copy of any policies or procedures, directives, memoranda or Chief of Police standing orders developed as a result of Project Charter; and a copy of the diversity training developed out of Project Charter. At that time, the police chief stated that there were no documents responsive to those requests.

46I agree that it is not appropriate, in these circumstances, to allow the respondents to selectively disclose documents relating to the public interest remedy. If the respondents are intending to rely on the Project Charter report, then the underlying documentation and any changes in policies as a result of Project Charter are also arguably relevant. I am not deciding on the relevance of any of these documents for the hearing. That is a matter to be determined at the hearing on the merits of the Application.

47Accordingly, the respondents are required to disclose the requested Project Charter documents.

Documents created or relied upon in the PSA complaint investigation

48Before filing this Application, the applicant filed a complaint with the TPS in accordance with the public complaints process set out in the PSA.

49The applicant has disclosed a copy of the investigation report as well as two letter from the TPS related to the investigation. The applicant submitted that the issue before the Tribunal was whether race was a factor in the actions of the Officers and in their treatment of him. The applicant stated that the investigation dealt with these very issues and documents or information gathered in the investigation are highly relevant to findings of fact and the legal analysis of whether he was subject top discrimination and profiling. The applicant also submitted that the Tribunal’s ability to fairly adjudicate the Application may be compromised if production is not ordered.

50The respondents submitted that the applicant did not mention his complaint in the Application and did not make any allegations relating to the investigation of the complaint. The respondents argued that, therefore, the PSA investigation is not at issue in this proceeding and the contents of the investigation are not arguably relevant.

51The respondents argued, in the alternative, that if the PSA investigation dealt with the allegations of racial profiling, the Application should be dismissed on the basis that it was already appropriately dealt with, in accordance with section 45.1 of the Code.

52The respondents also argued that the contents of the investigation file were privileged under the PSA. In light of my conclusion on the arguable relevance of these documents, I do not need to determine if the documents are privileged.

53In his reply submissions, the applicant stated that the investigation report under the PSA does not “in any way” deal with the allegation of racial discrimination. The applicant also submitted that the contents of the investigation file are relevant because it will show whether the respondent TPS appropriately responded to the complaint and it will assist in resolving the contradictory accounts of the incident at the centre of the Application. The applicant also argued that the contents of the investigation file are arguably relevant in determining credibility of witnesses. He submitted that the statements made by the applicant and the officers contained in the file could resolve any factual disputes and could also be used to cross examine the officers with respect to any inconsistencies in their testimony.

54An investigation under the PSA has been determined to be a “proceeding” within the meaning of section 45.1 of the Code (see most recently, Kau v. Regional Municipality of Waterloo Police Services Board 2011 HRTO 1873). However, the respondents have not filed an RFOP requesting dismissal of the Application on the basis that it was appropriately dealt with in this other proceeding. In addition, the Tribunal’s Rules require that the parties be given an opportunity to make oral submissions before a dismissal under section 45.1 of the Code (Rule 22). I am therefore not able to consider this submission of the respondents.

55The applicant objects to the raising of the section 45.1 issue at this late stage of the proceeding. As I have concluded, the section 45.1 issue is not properly before me. However, the respondents are free to raise this objection in the appropriate form at any time during the proceeding: Rule 19.1.

56The applicant has not made any allegations of discrimination relating to the conduct of the PSA investigation. The Application is not an appeal or a review of the PSA investigation and, absent any allegations of discrimination in the conduct of an investigation, it is not the role of an adjudicator under the Code to determine if the investigation process was conducted properly. Any evidence obtained through that investigation has no bearing on the findings of fact that an adjudicator must make under the Code. The applicant will have a full opportunity to testify about the events and to cross-examine the police officers. Given the conclusion of the investigation report (which is in the applicant’s possession) there is no factual foundation to justify disclosure of statements made during the investigation for challenging the credibility of a witness. I therefore find that the documents and notes from the PSA investigation are not arguably relevant, in the circumstances of this Application.

57The applicant stated that he had lost his copy of the letter of complaint under the PSA and requested disclosure of it. I have determined that documents relating to the PSA investigation are not arguably relevant, and this includes the originating letter of complaint.

Procedures, directives, policies or other documents addressing biased policing or racial profiling

58The respondents submitted that all responsive procedures or policies have already been disclosed by the TPSB.

59The applicant also requested earlier versions of existing policies so that revisions made as a result of Project Charter can be identified. The respondent TPSB submitted that earlier versions are not relevant because public interest remedies are prospective, not retrospective.

60Earlier versions of existing policies are not arguably relevant, in the circumstances of this Application.

Procedures, policies, training manuals or Educational Materials with respect to stops, detentions, questioning and record checks

61The respondent TPS identified three procedures as arguably relevant. It noted that there is not necessarily a policy or procedure that corresponds to each aspect of policing. The TPS stated that it was continuing to search for training manuals or educational materials that may be arguably relevant and undertook to disclose them if any are identified.

62The applicant requested that I direct the TPS to produce any procedures related to stop, record checks, questioning and investigation and the discretion to lay charges. He submitted that the TPS has not addressed whether such procedures exist. The applicant also requested an order directing the disclosure of manuals or educational materials as set out in its request.

63The respondent has identified those procedures that are arguably relevant and it would be redundant to order disclosure when a respondent has complied with the request for disclosure. Similarly, the respondent has stated that it is continuing to search for arguably relevant training and educational materials and I see no need for an order requiring disclosure in these circumstances.

Request for additional particulars in witness statement of Andre Goh

64Andre Goh is the Manager of the Diversity Management Unit of the TPS.

65The applicant submitted that the witness statement of Mr. Goh listed general topics and did not provide a summary of his anticipated evidence. The applicant requested a witness statement that provided:

Particulars of what advice and information it had actually provided to other units in the Service to facilitate the incorporation of human rights principles and practices into the training, practices, and policies of the Service. Specifically, what will Mr. Goh say about the specific measures TPSB had taken to effect the incorporation of these principles (including those set out in the TPSB policies produced) into the training and practice of TPS?

66The respondent TPSB submitted that Mr. Goh’s evidence will be limited to the public interest remedy sought by the applicant. It submitted that the existing policies, procedures and training (which have all been produced) when read in conjunction with Mr. Goh's witness statement give the applicant sufficient information to understand the position that will be advanced by the TPSB at the hearing. The TPSB also submitted that a more detailed witness statement could not be provided because the evidence of Mr. Goh will respond to the applicant's evidence on the details of the public interest remedy sought.

67The respondent also submitted that it was not appropriate for the witness to provide specific evidence as to exactly what advice the DMU has provided to the TPS and TPSB.

68The applicant submitted that he was not asking for details of advice provided at the drafting stage of existing policies, procedures or training. He was seeking information on ongoing activities and steps including monitoring of racial profiling within the TPS. He stated that he was requesting whether there are measures taken to track racial profiling and to ensure the application or incorporation of anti-discrimination policies and training into TPS policing practice and service to the public.

69Mr. Goh is testifying about the institutional response to racial profiling. In my view, his statement when read together with the documents that he will be speaking to, are sufficient for the applicant to know the case he has to meet and to adequately prepare for the hearing.

Request for transcript of handwritten notes and further particulars

70The applicant has asked for a transcript of the notes of Constables Goss and O’Neill on the basis that the notes are not legible. The respondents state that the notes are legible. The notes are not extensive. Legibility is often in the eyes of the reader. Accordingly, I will order that the respondents provide a transcription of the notes within two weeks of the date of this Interim Decision.

71The applicant has also asked that the respondents identify what parts of the notes relate to the applicant and what parts relate to Mr. Abdulhamid. The determination of this may require testimony from the constables. It is therefore appropriate to leave the details of what is being referred to in the notes to examination and cross examination at the hearing.

Order

72Constable Meredith is permitted to testify.

73Within two weeks of the date of this Interim Decision, the respondents shall provide to the applicant the following:

a. Documents relating to TAVIS in the Division and Parkdale Community that existed at the time of the incident;

b. The disclosure of the requested documents relating to Project Charter; and

c. A transcription of the notes of Constables Goss and O’Neill.

74Within 30 days of this Interim Decision, the respondents shall produce to the Tribunal copies of all records of prior complaints, based on race, filed in respect of Constables Goss and O’Neill. Also within 30 days of this Interim Decision, the parties may file submissions about:

(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.

75I am not seized.