Haye v. Toronto Police Services Board, 2016 HRTO 1314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Everton Haye

Applicant

-and-

Toronto Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 12, 2016

Citation: 2016 HRTO 1314

Indexed as: Haye v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Everton Haye, Applicant

Self-represented

Toronto Police Services Board, Respondent

David Gourlay, Counsel

1The hearing of this Application is scheduled to take place October 17, 2016. This Interim Decision addresses the respondent’s objection to the admissibility of two audio-recordings filed by the applicant. It also addresses certain redactions made in the materials filed by the respondent.

Audio-recordings filed by the applicant

2On August 12, 2016, the applicant filed with the Tribunal a copy of two audio-recordings upon which he intends to rely at the hearing. By letter dated September 23, 2016, the respondent objected to the admissibility of the audio-recordings and asked for a ruling on this issue in advance of the hearing.

3In his Application, the applicant alleged that the respondent discriminated against him because of his race and colour when, on April 21, 2014, one of its officers told him to leave a street corner where he had been singing. The officers attended at the location where the applicant was singing in response to two complaints made by members of the public.

4The applicant intends to rely upon audio-recordings of two 911 calls he made in May 2016. The operator on the first call advised the applicant that he needed to call the non-emergency number, as 911 does not deal with noise complaints. The operator on the second call asked the applicant whether the person he was complaining about was disturbing the peace, whether the person appeared drunk or high and whether the applicant knew why the person was singing. The second operator also asked the applicant what the person looked like and whether he was White, Black, Indian or Asian.

5The respondent submitted that the recordings are irrelevant and amount to an abuse of the 911 system. In addition, the respondent argued that the applicant should not be permitted to expand the scope of the hearing by submitting the audio-recordings. The respondent submitted that the audio-recordings are irrelevant as they were made two years after the incident set out in the Application, involved different officers, the applicant refused to describe the person he was complaining about in the calls, the complaints made against the applicant in 2014 were from residents of the area and there was no indication whether the person in 2016 had a busker’s permit.

6The applicant submitted that he was not seeking to amend his Application. He argued that the recordings were relevant to show that the police do not respond to noise complaints and that race is a factor in how the police respond to noise complaints. The applicant also claimed that the audio recordings show “systemic racism” by the police.

Findings

7I find that the 2016 audio-recordings may have some relevance to the issues raised in the Application. At this stage, I cannot say that they have no relevance and must therefore be ruled inadmissible. The issue raised in the Application is whether the applicant’s race and/or colour were factors in the way the respondent’s officers dealt with the applicant on April 21, 2014.

8I agree with the respondent that the fact that the 2016 calls were made to 911 and not to the non-emergency police line is significant. I do not see much relevance to the first audio-recording submitted by the applicant because the operator simply told him to call the non-emergency line, as 911 does not deal with noise complaints. I cannot see much relevance, if any, to this call since the complaints made against the applicant in 2014, and responded to by the police, were made to the general police line that the applicant was told to call to report noise complaints.

9At this stage, I find that the second recording submitted by the applicant may be relevant to the applicant’s contention that race is a factor in how the police deal with noise complaints and, therefore, that may have been a factor in how the police dealt with the complaints against him in 2014. I understand that the respondent likely will advance evidence and arguments for why the operator on the call asked the questions he did and, specifically, why he asked about the race of the person against whom the applicant was complaining. I will have to weigh this evidence and consider the arguments of both parties in determining the weight to be attached to the second audio-recording. As I cannot say at this stage that they are irrelevant, I find the audio-recordings admissible. In my view, all of the arguments made by the respondent against admissibility are more appropriately considered in my determination of how much weight, if any, to attach to the audio-recordings.

10Although I have found the audio-recordings admissible, I wish to make clear that the scope of this Application remains focused specifically on the incident in April 2014. Although the applicant referred to “systemic” racism in his recent correspondence, his Application relates specifically to the incident on April 21, 2014. He made clear in his later correspondence that he is not seeking to amend his Application and it would be too late to do so in any event. Therefore, the sole allegation I will address in this case is the allegation contained in the Application about the incident on April 21, 2014.

redactions in respondent’s materials

11In October 2015, the applicant requested production of unredacted audio-recordings of calls made to the respondent to complain about his singing on a street corner in 2014. This request was premature as the deadline for the production of documents had not yet passed. The respondent filed these redacted audio-recordings with the Tribunal as part of the materials it intends to rely upon at the hearing.

12It appears from the context of the audio-recordings that some of the redactions relate to the name and address of the callers. However, the content of at least one of the redactions in the first call is not obvious from the context of the recording. The respondent must be prepared to speak to the reason for the redactions at the hearing. The respondent must also bring an unredacted copy of the audio-recordings to the hearing for me to verify that the redactions are appropriate, if necessary.

13In addition, I note that many passages in the copies of the memobook notes filed by the respondent contain redactions. The respondent will be asked to speak to the reason for the redactions at the hearing. As with the audio-recordings, the respondent must bring an unredacted copy of the memobook notes for me to verify that the redactions are appropriate, if necessary.

Mediation-Adjudication

14I am aware that the parties did not participate in a mediation in this case. The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal, preferably prior to the hearing.

ORDER

15For the reasons set out above, the respondent’s objection to the admissibility of the audio-recordings filed by the applicant is denied. I find the audio-recordings admissible and will consider the parties’ evidence and arguments when determining the weight, if any, I should accord to the audio-recordings.

16If necessary, the respondent will be permitted to add documents to its hearing documents or witnesses to its list of witnesses to respond to the audio-recording. If the respondent wishes to add any hearing documents, it must file a copy of the additional documents with the Tribunal, copying the applicant, by noon on Friday October 14, 2016. If the respondent wishes to add any witnesses to its witness list, it also must provide the names of the intended witnesses to the Tribunal and the applicant by noon, by noon on Friday October 14, 2016.