Aiken v. Ottawa Police Services Board, 2013 HRTO 901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chad Aiken Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Ottawa Police Services Board Respondent

-and-

Ottawa Police Association Intervenor

DECISION

Adjudicator: Leslie Reaume Date: May 24, 2013 Citation: 2013 HRTO 901 Indexed as: Aiken v. Ottawa Police Services Board

APPEARANCES

Chad Aiken, Applicant Virginia Nelder and Donald McLeod, Counsel

Ontario Human Rights Commission, Commission No one appearing

Ottawa Police Services Board, Respondent Charles V. Hofley and Leanne Fisher, Counsel

Ottawa Police Association, Intervenor Steven Welchner, Counsel

Introduction

1This Decision addresses a Request by the Ottawa Police Service (the “respondent”) to bring this case to a final resolution on the basis of two settlement agreements reached prior to the hearing of this matter. In the first agreement which was signed in 2010, Mr. Aiken (the “complainant”), the Ontario Human Rights Commission (the “Commission”) and the respondent agreed to certain individual and public interest remedies. The first agreement left one public interest issue outstanding which was resolved between the Commission and the respondent when they signed the second agreement in 2012. In the second agreement the respondent agreed to direct its police officers to collect race-based data in the context of traffic stops and to provide the Commission with the data for future study.

2The complainant did not sign the second agreement. He now wishes to proceed to a hearing for the purpose of obtaining further orders which he believes will enhance the data collection project agreed to by the Commission and the respondent.

3The question before me is whether there is a reasonable prospect that after hearing evidence and argument, I would find that a different data collection remedy would be ordered that goes beyond what the respondent has already agreed to do.

Background

4The Complaint was filed with the Commission on July 5, 2005 and referred to the Tribunal under the provisions of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) which existed prior to the substantial amendments which came into force on June 30, 2008. The complainant alleges discrimination on the basis of race against the respondent.

5On May 29, 2005, the complainant was driving a Mercedes-Benz with four passengers whom he described as racialized youth. The complainant was pulled over by police for a reason which he alleges was pre-textual. He describes the officer with whom he had his primary interactions as threatening, belligerent, unprofessional and verbally abusive. The complainant also alleged that he was assaulted and that when a senior officer arrived on the scene he ignored the complainant’s concerns.

6The following statement in the narrative of the Complaint describes the complainant’s belief about the reason for the stop: “I believe that the only reason I was stopped was because I was racially profiled: I was an 18-year-old African Canadian male, driving a Mercedes Benz, with four other racialized youth as passengers”. The complainant alleges that both the stop and his subsequent treatment by the officers arises from racial profiling and racial discrimination. As part of the Complaint, the complainant listed the remedies he was seeking: an apology; systemic remedies; general damages and special damages.

7This Complaint has a very unique history. In addition to being positioned between the provisions of the old and the new Code, the parties have engaged in a series of settlement negotiations which have resulted in two settlement agreements and the resolution of all but one issue. The specific terms of the two settlement agreements are described in more detail later in this Decision.

8To summarize, the first agreement is between the respondent, the complainant and the Commission, and was approved by the Commission on November 26, 2010. That agreement encompasses both individual and public interest remedies. One issue, which is referred to throughout this Decision as the “data collection issue”, remained outstanding after the first agreement was achieved.

9The data collection issue refers to the collection of race-based data by the respondent and the dissemination of that data to the public. In the context of the second agreement with the Commission, the respondent has agreed to create a data collection project of at least 2 years’ duration, retain an expert in consultation with the Commission, collect the data and provide the data to the Commission for further study by the Commission or any member of the public.

10When the first agreement was signed, the parties entered into a consent agreement to proceed to hearing on the basis that the only outstanding issue between them was the data collection issue.

11The parties prepared for hearing in accordance with the consent agreement and the directions of the Tribunal. The complainant and the Commission intended to call Professor Scott Wortley as their expert witness on data collection. Professor Wortley prepared a report dated August 26, 2011 (the “Wortley Report”) with a number of recommendations related to data collection which the Commission and complainant indicated that they intended to rely upon when the hearing resumed.

12Just prior to the resumption of the hearing on data collection, counsel for the respondent received new instructions to agree to a data collection project. The parties agreed to return to settlement discussions and an agreement between the Commission and the respondent was achieved.

13The second agreement was approved by the Commission on April 25, 2012. In the second agreement, the respondent and the Commission resolved the data collection issue to their satisfaction but not to the satisfaction of the complainant.

14The settlement discussions which gave rise to the two settlement agreements and the consent agreement to proceed to hearing on the data collection issue were conducted on the consent of the parties in the context of the Tribunal’s mediation/adjudication process. A Mediation/Adjudication Agreement was signed by the parties on April 20, 2012. The agreement provides that the parties must give their consent and voluntarily participate in settlement discussions with me as their hearing adjudicator. Where a resolution is not reached, the parties return to the hearing process with the same adjudicator. The agreement precludes the adjudicator from taking into consideration anything which occurred during the settlement discussions. The role of the adjudicator in these negotiations is to assist the parties in achieving a resolution and to ensure that if the matter proceeds to hearing in whole or in part, issues arising in the negotiations are not taken into consideration as part of the decision-making process.

15In the normal course, having failed to reach a resolution, the respondent and the complainant would return to the hearing process. However, following the second settlement, the respondent requested an opportunity to make submissions on why the Tribunal should exercise its discretion to dispose of the Complaint following the resolution of the data collection issue with the Commission. The complainant opposes the request.

16The unique feature of this case is that the complainant has already achieved individual and public interest remedies arising from the specific facts of his case. He does not take issue with the decision by the respondent to agree to a data collection project. He is of the view that the terms of the settlement between the Commission and the respondent are insufficient. The complainant is seeking to proceed to hearing to demonstrate why the Tribunal should make further orders which the applicant argues will enhance the data collection project agreed to by the respondent and the Commission.

17The Commission is no longer participating and is seeking an order confirming its withdrawal from this proceeding on the basis of the two settlement agreements. I would have preferred to have the Commission participate in the argument of this issue, not for the purpose of explaining the reasons for the settlement but for the purpose of addressing the complainant’s ability to proceed in light of the settlement and the unique circumstances of this case. However, I do recognize that as a separate party, the Commission is entitled to withdraw, and accordingly I grant its request for an order removing it as a party from this proceeding.

18The Ottawa Police Association, which was granted intervenor status, continues to participate but takes no position on the issues before me.

19The Tribunal is required to provide the parties with an opportunity for oral submissions before disposing of a Complaint. The parties filed extensive written material and were provided with an opportunity to make oral argument, in person, in relation to the issues before me.

20I begin first with a review of the terms of the settlement agreements followed by a discussion of what the complainant is seeking to achieve at a hearing.

The Settlement Agreements

Confidentiality Provisions

21The first settlement agreement contains limited confidentiality provisions which cover certain terms. I have been careful to preserve the confidentiality associated with those terms in this Decision. The second agreement is completely non-confidential.

The First Settlement Agreement

22The first settlement agreement provides for both individual and public interest remedies. The terms of the individual remedies, with the exception of a letter of regret, are subject to a confidentiality agreement. A redacted copy of the agreement was entered as an exhibit during oral submissions. The non-redacted portions of the section entitled “Public Interest Remedies” read as follows:

• It is acknowledged that the Board has numerous community outreach initiatives in place dealing with diversity and race relations including racial profiling;

• It is further acknowledged that the Board has accomplished significant progress in its efforts to work with its diverse multi-cultural and multi-racial communities and to sensitize and train its officers on how to better serve such communities;

• The Board agrees to incorporate into its current outreach programs components that:

a. educate African Canada youth on their legal rights when interacting with the Ottawa Police Service;

b. address effective communication between African Canadian youth and the Ottawa Police Service in an effort to improve relations between these two groups;

The Board agrees to provide the parties with confirmation that these education programs have been incorporated into its current outreach programs within 1 year of the ratification of this agreement.

• It is acknowledged that pursuant to its partnership with the Law Enforcement Accountability Project (“LEAP”), the Board is developing a training approach and materials on racial profiling (“the Training Materials”) for new recruits, current officers and supervisors. The Anti-Racial Profiling Training materials currently cover traffic stops, which include pedestrian stops, including the proper basis for making traffic stops and how officers are to interact with racialized individuals who believe the officer or officers are engaging in racial profiling.

23The individual remedies are clearly for the benefit of the complainant. However, the public interest remedies, agreed to by the complainant and the Commission, also relate directly to the complainant’s belief that he was stopped by police as a result of racial profiling, because he was a young black man, driving a luxury car with other racialized young people as passengers.

The Consent and Agreement dated July 23, 2010

24As I previously indicated, the parties signed a document entitled “Consent and Agreement” at the time of the signing of the first agreement, which was intended to govern their return to the hearing process in the event that the terms of the first agreement were not fully ratified by the respondent Board.

25That text of the Consent and Agreement reads as follows:

1. The parties agree that the attached Minutes of Settlement and specifically the paragraphs on data collection (paras. 8-12) shall be placed before the Ottawa Police Services Board (the “Board”) for consideration on July 26, 2010.

2. The parties agree that if the Board does not approve the proposed data collection project as set out in paras. 8-12, the Human Rights Tribunal of Ontario (“the Tribunal”) shall reconvene to consider afresh the issue of data collection (“the data collection question”). The Tribunal shall decide on the number of witnesses to be called by the parties. It is agreed that the proposed terms of settlement, as set out in the Minutes of Settlement, are not to be taken into account/considered by the Tribunal in determining the data collection question.

3. For the purposes of this hearing, the parties agree that, in taking jurisdiction over the data collection question, the Tribunal has the authority to make orders with respect to data collection as if the requirements of section 45.2 (1) of the Code had been met.

4. The parties agree to be fully bound by the decision rendered by the Tribunal in respect of the data collection question. The parties agree that they will not seek reconsideration and/or judicial review of this decision on the basis of an absence or lack of jurisdiction of the Tribunal as established under this Consent and Agreement.

5. The parties consent to the Tribunal remaining seized of the implementation of its decision on the data collection question, if required.

6. The parties consent to placing this Consent and Agreement before the Tribunal for its approval and consent to the Tribunal issuing an Order without reasons. The parties agree that if such approval is not provided, this Consent and Agreement is null and void.

26The Tribunal indicated its approval on July 26, 2010, and the parties commenced their preparations to return to the hearing process.

27The significance of paragraph 3 of the agreement is that the parties agreed to proceed to have the data collection issue adjudicated without the necessity to prove liability. The agreement provides that the parties will proceed as if the Tribunal’s remedial powers have been triggered under section 45.2(1) of the Code:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

28The hearing was reconvened for the purpose of determining whether it would be appropriate to order the respondent to undertake a data collection project and if so, what directions the Tribunal should make in relation to the project. As I indicated above, just prior to the commencement of that hearing, the parties consented to participate in mediation based on the respondent’s agreement to commence a data collection project.

The Second Agreement

29The second agreement settled the data collection issue as between the Commission and the respondent. The substantive terms, which are not confidential, read as follows:

Underlying Values

1. The OPSB is committed to professional policing, the delivery of unbiased services, and promoting trust and confidence by addressing community concerns, as set out in its policy on racial profiling (Policy No. 5.39).

2. The OPSB and Commission are committed to transparency and accountability in the collection and delivery of disaggregated race-based data.

3. The OPSB and Commission recognize that the purposes underlying these Minutes of Settlement are to advance the study of data collection in policing within Canada, provide policing services in a manner that is consistent with the Code, address the concerns and perceptions of minority communities, and not to disparage the OPS, OPSB or individual officers.

4. The OPSB will not rely on the race-based data it collects for the purpose of discipline or performance evaluation of its officers.

5. The OPSB and Commission agree that the data collected will be used in a manner that is consistent with the Code.

6. The OPSB and Commission recognize the importance of officer and community safety and morale in the delivery of professional policing services.

Consultation

7. Prior to commencing data collection, the OPSB shall have a period of six (6) months from the execution of these Minutes of Settlement to participate in dialogue, cooperation and engagement with community partners, including but not limited to the Commission, Community Action and Police Action Committee and other stakeholders on the topic of data collection.

Data Collection

8. Following this consultation and having regard to the insights derived from it, the OPSB will collect disaggregated race-based data on traffic (vehicle) stops by observational recording of perceived race by officers (as opposed to self-identification by the person stopped).

9. Within nine (9) months of the execution of these Minutes of Settlement, the OPSB shall engage an expert in relation to race-based data collection to assist in the development of the methodology (collection, retention and delivery of the data). The OPSB shall engage in meaningful consultation with the Commission in selecting this expert. The OPSB will not select an expert identified as a witness in this matter.

10. Within twelve (12) months of the execution of these Minutes of Settlement, the OPSB shall begin collecting the data. The data shall be collected for no less than two (2) full years (the “data collection period”). The data collection period may be extended if recommended by the expert.

What is the Applicant Seeking to Achieve at Hearing?

30If there had been no second settlement between the Commission and the respondent, the parties would have returned to the hearing in accordance with their agreement to deal with the issue of data collection. However, the respondent and the Commission were at liberty to negotiate and reach an agreement at any point in the proceeding. The respondent was also at liberty to commence a data collection project regardless of the agreement by either the Commission or the complainant, a fact I would have been obligated to take into consideration in adjudicating this issue. In both Phipps v. Toronto Police Services Board, 2009 HRTO 1604, and Maynard v. Toronto Police Services Board, 2012 HRTO 1220, the Tribunal declined to make further orders to promote future compliance with the Code because of the existence of a partnership between the Commission and the Toronto Police Services Board directed at the elimination of discrimination in the provision of policing services.

31If the Commission had settled and withdrawn from the proceeding without achieving an agreement on data collection, I would have exercised my discretion to permit the complainant to proceed. A data collection project was sought by both the Commission and the complainant from the commencement of the proceeding and there would be no basis for refusing to permit the complainant from calling the necessary evidence to substantiate that request. He may not have been successful in achieving the orders he seeks, but I would not have precluded him from proceeding.

32However, in this case, the respondent has agreed to commence a data collection project. The complainant is not seeking a public interest remedy that is separate and apart from the one achieved by the Commission. The applicant is seeking to enhance and to repair inadequacies which he perceives to exist in the current agreement. The applicant is seeking to have a series of recommendations set out in the Wortley report incorporated into an order of the Tribunal and imposed upon the data collection project agreed to by the respondent and the Commission.

33Not surprisingly, the parties were not able to point me to a case which has addressed this unique set of circumstances. In McKenzie Forest Products Inc. v. Ontario (Human Rights Commission), 48 O.R. (3d) 150, 2000 CanLII 5702 (“Tilburg”) (Div. Ct.), the Court affirmed the separate, independent status of a complainant in a context where the Commission had settled with the respondent and withdrawn from the proceeding. The complainant was permitted to pursue the complaint and attempt to achieve the individual remedies which were not part of the settlement between the Commission and the respondent. That decision affirms the important relationship between individual and public interest remedies – many public remedies are achieved, after all, as a result of the courage of individual complainants who are prepared to open their lives to what is often intrusive public scrutiny.

34In my view, the respondent has raised a compelling legal question about whether, in these unique circumstances, the hearing should proceed. However, I do not accept the assertion by the respondent that the complainant has not had a personal interest in this matter since signing the first agreement. While the data collection issue was articulated by the Commission in its original hearing brief, it has been clear from the outset that the complainant is seeking systemic remedies arising from his experiences.

35The complainant set out, in his written submissions, recommendations 1 to 9 from the Wortley Report, which he would like to see incorporated into an order of the Tribunal. I have summarized the recommendations under the following headings:

New Recommendations Not Set Out in the Original Hearing Briefs

• The establishment of a permanent data collection system to record information on all stops of civilians which would include both traffic stops and pedestrian stops. This recommendation also includes details on how the data should be collected, recorded and monitored over time;

Recommendations related to choosing an expert and developing the methodology

• The formation of a research or evaluation committee responsible for the development and implementation of the research and evaluation plan consisting of police personnel, community representatives and academic researchers, ideally approved or accepted by both the police and community representatives of the research committee. The purpose of this recommendation is the development of a sound methodological strategy for the project;

• Recommendations related to the use of different forms of benchmarking, with the exact benchmarking techniques decided by the research committee;

• The collection of official police data should be supplemented with periodic surveys of the general public surveys. General population surveys should collect information on self-reported contacts with the police as well as respondent attitudes and perceptions of the police and wider criminal justice system. Survey data on self-reported stops could be compared with official stop data in order to identify significant commonalities or differences;

• Periodic surveys should be conducted on the police themselves to measure the impact of data collection on officer morale and job satisfaction, officer attitudes towards anti-racism programs or policies and officer decision making with respect to stop and search techniques. Such surveys could be expanded to measure prejudice and stereotyping, attitudes towards specific minority groups and minority crime and opinions about the effectiveness of anti-racism policies;

• The periodic implementation of qualitative research methods including interviews and focus groups with both community members and police officers to collect more detailed information about public perceptions of their interactions with police;

• Reports documenting the results of all data collection and research activities be released to the public on an annual or biannual basis;

Recommendations which conflict with the agreement

• Police managers should use internal benchmarking techniques to identify, and correct through re-training and discipline, individual officers who are potentially engaged in racially biased stop and search practices. The report does not recommend that the names of individual officers be released, but rather that the use of internal benchmarking could remain an internal strategy for identifying problematic officers.

36When this matter was referred to hearing, the Commission set out its request for an order related to data collection in paragraph 44 of its hearing brief:

At present, the Commission expects to ask the Tribunal to award the following public interest remedies:

a. An order requiring the OPSB to collect race-based data for all traffic stops for a period of three years to monitor for the existence and prevalence of racial profiling as well as the effectiveness of its policy and training initiatives (including as they may be revised in accordance with the Tribunal’s decision in this case), and to thereby assist in preventing future discrimination. The TPSB shall retain an expert in data collection subject to approval by the Commission to assist them with this process, and to prepare a report that analyzes the results of the data collected with recommendations for future action. This report shall be made available to the public.

37The Commission achieved a number of commitments from the respondent in the settlement: to participate in dialogue, cooperation and engagement with community partners; to engage in meaningful consultation with the Commission in selecting and expert to assist in the development of the methodology for the collection, retention and delivery of the data; to refrain from selecting the expert it proposed to call in the hearing for the purpose of defending itself against an order for data collection; to collect data for not less than two years, to be extended on the advice of the expert; to make the data, excluding the names of the individual officers, available to the Commission for study every two years. The respondent has also committed to maintaining a collaborative relationship with the Commission and to give good faith consideration to any recommendations the Commission makes arising out of the study of the data.

Analysis

38It is trite law that the Code is remedial and not punitive in its focus. The values underlying traditional adversarial litigation, which are obviously present in this case, should not supplant the search for creative and enduring solutions which advance the cause of eradicating discrimination.

39I have assumed, for the purpose of this analysis, that Professor Wortley’s recommendations are sound, beneficial considerations for any expert who is involved in the design and implementation of a data collection project. Both the Commission and the respondent had the benefit of Professor Wortley’s report in the context of their settlement negotiations and as a result, I cannot assume those recommendations did not, or will not, play a role in the commitment to data collection. In an ideal world, the expert hired by the respondent would take Professor Wortley’s recommendations into serious consideration along with the opinions of other experts who are currently engaged in the study of this complex issue.

40I also accept that the respondent is in the business of delivering policing services and not conducting social science research. This is not to suggest that the respondent has no interest in what race-based data might reveal about its policing practices. On the contrary, the respondent has agreed to release the data to the public and therefore must remain open to the conclusions that might be drawn from it.

41In my view, the role of the respondent is to collect the data in a manner which is meaningful to the researchers with the expertise to assess it. The Commission has given itself an active role in the project. If the Commission is not satisfied that the respondent is acting in good faith to choose an appropriate expert and collect data in a meaningful way, it is open to the Commission to challenge the respondent’s conduct in whatever manner it sees fit.

42With respect to the specific recommendations the applicant seeks to advance at a hearing, there is only one which directly contradicts the agreement entered into by the Commission and the respondent: the use of internal benchmarking for the purpose of discipline. The second agreement specifically precludes the respondent from using the data in this manner. In addition, the intervenor, which represents the officers who will collect the data, opposes data collection in part because of the potential for this data to be used in disciplinary action. Even if, at the conclusion of the evidence, I accepted Professor Wortley’s evidence about the benefits of this recommendation, there is no reasonable prospect that I would impose it. I do not consider this recommendation vital enough to override the express agreement of the Commission and the respondent, who are in the best position to understand the dynamics of introducing a data collection project to a reluctant police force.

43With respect to the request for a permanent data collection project which includes traffic and pedestrian stops, I could not consider those requests without first granting the complainant leave to amend his Complaint. Neither the Commission nor the complainant sought a remedy which would include pedestrian stops or a permanent data collection project at the commencement of this case. Even if I accept the applicant’s assertion that the broader problem of racial profiling is not limited to traffic stops similar to the one that he experienced, and that linkages exist between traffic and pedestrian stops, I would be overstepping my jurisdiction to provide a remedy which does not arise from the facts of the case before me.

44I would not permit the complainant to amend the complaint at this late stage. No formal request to amend the application was made until after Professor Wortley rendered his report in 2011. It would be extremely prejudicial to the respondent, who agreed to proceed to a hearing on the data collection issue without the necessity to prove liability, to consider amending the Complaint for the purpose of broadening the remedies beyond those originally requested.

45With respect to those recommendations which relate to the establishment of the methodology for collecting, retaining and disseminating the data, the Tribunal is not an expert in this field. The role of the Tribunal is to determine whether the request for data collection is an appropriate remedy in light of the facts of the case. Unless I was presented with a compelling reason for taking a detailed, instructional approach to the development of the methodology, I would direct the respondent to work with the Commission to retain the right expert who would then go on to initiate and manage the project. I heard no evidence that the respondent has failed to follow through on the public interest remedies agreed to in the first settlement. At this stage there can only be speculation rather than evidence, that the data will be compromised by the respondent’s choice of expert and methodology.

46For all of those reasons I find that there is no reasonable prospect that the complainant will succeed in achieving the remedies he is seeking. No further remedial purpose is served by continuing the hearing. Mr. Aiken’s complaint created an opportunity for dialogue, reflection and real change. It is the Commission’s role, working in collaboration with the respondent, to ensure that the data collection project serves the broader public interest.

47Accordingly, the Complaint is disposed of in accordance with the two settlement agreements entered into by the parties in this matter.

Dated at Toronto, this 24th day of May, 2013.

“Signed by”

Leslie Reaume Vice-chair

CORRECTION

The decision released on May 24, 2013 incorrectly identified the date of Professor Wortley’s expert report at paragraphs 11 and 44. The correct date of the report is August 26, 2011. The error is corrected.