HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mafario Amicucci
Applicant
-and-
York Police Services Board, Chris Parsons, Mario Gentili and Guy Guindon
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Amicucci v. York Police Services Board
APPEARANCES
Mafario Amicucci, Applicant
Self-represented
York Regional Police Services Board and District 4, Chris Parsons, Mario Gentili and Guy Guindon, Respondents
Ministry of the Attorney General
Raj Anand, Counsel
Judith Parker, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services.
2On March 18, 2013, the Tribunal scheduled a conference call to address a number of outstanding issues and Requests for Orders During Proceedings.
3The purpose of this Interim Decision is to provide Orders to the parties with respect to the matter and the conduct of the proceedings.
Conduct of the Hearing
4I have reviewed the applicant’s Application and I find that there are two Code-related allegations that have been identified.
5The first is with respect to the conduct of the respondents during the January 26, 2010 arrest which is captured at paragraphs 1 through 12 of the Application. The remainder of the allegations do not appear to be Code-related and accuses the respondents of negligence and malicious prosecution.
6The other Code-related allegation is captured in a letter drafted by the applicant dated September 1, 2011, which alleges that the respondents arrested the applicant on June 8, 2011, because he had initiated this Application. The respondents filed a Response to this allegation in which they take the position that they had no knowledge of the existence of the Application at the time of the June 2011 arrest. During the conference call I confirmed to the parties that the Application had been sent to the respondents on January 9, 2012 and that a preliminary threshold issue would be whether the applicant could establish that the respondents had knowledge of the Application in June 2011. What is unique to the circumstances of this case is that the applicant’s computer was seized by the respondent in March 2011 and the applicant alleges that it contained a copy of the Application.
7I therefore, advised the parties that the hearing of the merits of this Application would proceed as follows:
a. The applicant would lead his case with respect to the January 26, 2010 arrest and conduct of the respondents. The applicant advised that both he and his brother would testify with respect to this issue;
b. The applicant would lead his case to establish the evidence upon which he relies to prove that the respondents had knowledge of the Application on or before June 8, 2011;
c. The respondents should be prepared to lead evidence with respect to the events of January 26, 2010 including the arrest and interaction with the applicant at the police station; and
d. The Tribunal would not require the respondents to lead its case with respect to the June 8, 2010 arrest at the scheduled hearing.
Production
8During the conference call the Tribunal canvassed a number of outstanding production issues, but focussed on documents which are arguably relevant to the issues identified at paragraph 7.
9Both parties agreed that any documents and/or notes and/or recordings that were obtained on January 26, 2010 are arguably relevant to the proceedings. The respondents advised that they have provided this information to the applicant. The applicant advised that his arrest was videotaped. The respondents advised that there are no such tapes but that they would review the matter and that if any such evidence existed that it would be produced to the applicant.
10With respect to the June 08, 2012 arrest, I find that the following documents are arguably relevant:
i. Any notes and recordings that were obtained on June 8, 2011 during the applicant’s arrest, including any notes that Detective Constable Ian McLellan may have made;
ii. Any notes and/or recordings that DC Gentili may have made about his interactions with the applicant between March 16, 2011 and June 8, 2011; I want to make it clear that the respondents are not required to provide any notes and/or documents with respect to any interactions that did not personally involve the applicant;
iii. Any documents and/or records with respect to the chain of custody of the applicant’s seized computer, including the documents that have been identified by the respondents at paragraph 9.c of their submissions dated February 19, 2013; and
iv. Any internal communications between DC Gentili and the Tech Data Recovery between March 16, 2011 and June 8, 2011, with respect to the search and seizure of the computer.
11As noted in a previous Interim Decision, 2013 HRTO 242, the respondents objected to production of certain documents on the basis of crown privilege and the Tribunal directed them to provide notice to the Crown. The Crown was given notice of the outstanding production issues and counsel for the Attorney General wrote to the Tribunal on March 1, 2013 to advise with respect to the production issue:
As the investigating police are a party to the proceedings, there is no need to resort to a release from the undertaking given when Mr. Amicucci was provided his Crown disclosure, since all relevant police-generated records in the Crown disclosure will be produced by the police as part of the normal production and discovery process between the parties pursuant to the rules of the HRTO.
Furthermore, pursuant to the Court of Appeal decision in P.(D.) v. Wagg (2004), 2002 CanLII 23611 (ON SCDC), 61 O.R. (3d) 746 aff’d in part 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.) at paragraph 84, where the police are defending themselves, it is not necessary for the Crown to consent to the use of police-generated materials. Therefore, the Crown would not take any further position on the use of documents produced by the police.
12Having reviewed the pleadings and also considered that the hearing is in a few weeks, I find that it is appropriate to limit the scope of the remaining production as identified above at this time.
13The respondents have requested that the Tribunal issue an Order with respect to confidentiality of the documents that are provided to the applicant. The applicant indicated on the phone that he does not oppose this request since he has no wish to make this information public. As such the Tribunal will issue an Order with respect to confidentiality and in confirmation of Rule 3.3.
Order
14The Tribunal Orders as follows:
a. The respondents will deliver to the applicant the documents identified at paragraphs 9 and 10 of this Interim Decision within 7 days;
b. The respondents will deliver and file with the Tribunal its witness statements and hearing materials within 7 days;
c. The applicant is directed to comply with Rule 3.3 which states;
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
d. The applicant shall keep the content of these documents in absolute and strict confidence at all times, without time limitation, including after the final disposition or other resolutions of this matter. The applicant will not disclose the content of these documents to any third party, person or entity whatsoever except for the purposes of obtaining legal advice, if he so seeks; and
e. The respondents will provide one copy of these documents to the applicant who will retain possession of this copy at all times and will not make any additional copies except for the purpose of the adjudication or other resolution of this matter. Upon final completion of this proceeding which includes any review proceedings, the applicant shall destroy and/or return to the respondents all remaining copies.
15The Tribunal will remain seized with the outstanding Requests for Orders which includes, the respondents’ Request that this Application should be dismissed as an abuse of process however, these requests including the abuse of process allegations will be dealt with at a later stage if necessary.
Dated at Toronto, this 21st day of March, 2013.
“signed by”
Geneviève Debané
Vice-chair