Roberts v. Toronto Police Services Board, 2016 HRTO 1464

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rohan Roberts

Applicant

-and-

Toronto Police Services Board, William Blair, Mark Saunders, Tony Riviere, Dion Monahar, Andrew Keown and Ryan D’Sena

Respondents

-and-

Ontario Human Rights Commission

Intervenor

-and-

Toronto Community Housing Corporation

Affected Party

INTERIM DECISION

Adjudicator: Mark Hart

Date: November 15, 2016

Citation: 2016 HRTO 1464

Indexed as: Roberts v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Rohan Roberts, Applicant

Selwyn Pieters, Counsel

Toronto Police Services Board, William Blair, Mark Saunders, Tony Riviere, Dion Monahar, Andrew Keown and Ryan D’Sena, Respondents

Brennagh Smith, Counsel

Ontario Human Rights Commission, Intervenor

Sunil Gurmukh and Rana Arbabian, Counsel

Toronto Community Housing Corporation, Affected Party

W. Gordon Steinberg, Counsel

1This Interim Decision is written in anticipation of the hearing in this matter, which is scheduled to proceed on December 8 and 9, 2016, and to address the following Requests for Order which have been filed by the parties: (1) the applicant’s request for production from the Toronto Community Housing Corporation (“TCHC”); (2) the request by the intervenor Ontario Human Rights Commission (“OHRC”) for production from the respondents; and (3) the respondents’ request for bifurcation of the hearing.

2While the applicant and the OHRC have requested that their requests be dealt with in person, it is my view that all of these requests can appropriately be dealt with in writing given the rather fulsome written submissions and materials filed, such that an in-person hearing to address these issues is not necessary.

Respondents’ request for bifurcation

3The respondents seek an order for bifurcation of the hearing in two respects: (1) that the evidence regarding the alleged “individual discrimination” be heard prior to the determination of the necessity, scope and hearing of the proposed contextual evidence regarding systemic discrimination; and (2) that consideration of the requested non-monetary and public interest remedies (and the hearing of any evidence in respect thereof) be reserved pending a determination on liability. The respondents have further clarified that evidence regarding the applicant’s personal damages would be heard as part of the first stage of the hearing.

4As I understand it, the respondents essentially are asking that this matter proceed in three distinct stages. The first stage would hear evidence from the parties regarding the alleged incidents of discrimination which form the basis of the Application, as well as evidence regarding the applicant’s claim for monetary compensation. In my view, trying to label this stage of the hearing as addressing “individual discrimination” as opposed to “systemic discrimination” is not helpful. The only issue before this Tribunal in the context of this Application is whether the applicant’s right to equal treatment without discrimination has been violated by any of the respondents. There is a range of evidence that may be relevant to the determination of that issue. One source of evidence that is needed to determine the issue before this Tribunal is evidence from the parties and any witnesses who were direct participants in the events at issue, and who can speak to their direct observations of these events. As I understand it, it is this direct, observational kind of evidence that the respondents are proposing be heard at the first stage of the proceeding.

5The second stage of the hearing, and prior to any determination as to whether the applicant’s rights under the Code were violated, would consider whether there are any other or broader sources of evidence that the parties propose to call that are relevant to the determination of whether the applicant’s rights had been violated. This would include the kind of expert evidence the OHRC proposes to call, as well as expert or contextual evidence that the other parties may wish to call. In my view, the distinguishing feature of such evidence is not whether it is relevant to “individual discrimination” or “systemic discrimination”. At the end of the day, any such evidence must be relevant to the sole issue before this Tribunal, which is whether the applicant’s rights under the Code have been violated in the manner alleged in the Application.

6What is proposed, as I understand it, is that after the Tribunal has heard all of the direct, observational evidence regarding the events at issue and evidence relevant to the applicant’s claim for monetary compensation, the Tribunal at that time would invite the parties to identify what, if any, further broader, expert or contextual evidence they wish to call in relation to the issue of whether the applicant’s rights have been violated, and the Tribunal would make a determination at that second stage as to whether such proposed evidence is relevant and/or required for the purpose of determining whether the applicant’s rights have been violated. This second stage also would include the hearing of any such evidence, if permitted.

7The third stage of the proceeding would take place only if this Tribunal determined that the applicant’s rights under the Code were violated by the respondents, or any of them, and would address the issue of non-monetary and/or public interest remedies sought, including the hearing of any evidence relevant to the determination of the remedial issue. As indicated above, in the respondents’ proposal, the only exception would be with regard to the applicant’s claim for monetary compensation, which would be heard and determined in the prior stages of the proceeding.

8The respondents rely on this Tribunal’s decisions in Carasco v. University of Windsor, 2011 HRTO 1931, and DeFreitas v. OPSEU, 2010 HRTO 618, where orders of this nature have been issued by this Tribunal.

9The applicant opposes the bifurcation of the proceeding as it relates to the first two proposed stages of the proceeding, but supports the bifurcation of the hearing as it relates to the non-monetary and public interest remedies requested by the OHRC. The applicant notes that bifurcation of a proceeding is not done by this Tribunal as a matter of course, and submits that there is no compelling reason to deviate from the normal practices of this Tribunal in the instant case. The applicant also takes the position that bifurcation would not simplify or expedite the hearing, and may in fact complicate or lengthen the proceeding.

10The OHRC opposes any bifurcation of the hearing. It takes the position that separating the individual and systemic allegations of discrimination and liability is impractical, inefficient and unjust. It submits that evidence regarding individual and systemic discrimination is often interwoven, and that there is an overlap between the evidence that would need to be heard at all proposed stages of the proceeding. The OHRC notes that the Application alleges both individual and systemic discrimination, and that the applicant’s allegations in relation to the individual officers at issue must be viewed in the context of a broader pattern of discrimination by the police against African-Canadians. It submits that bifurcation is impractical, inefficient and unjust given that much of the disclosure sought by the OHRC from the respondents is relevant to both the allegations of individual and systemic discrimination. The OHRC distinguishes the Carasco and DeFreitas decisions, above, on the basis that the proposed systemic evidence sought to be called in those cases was largely collateral of the issue of the alleged violation of the applicant’s rights. The OHRC opposes the bifurcation of liability and remedy primarily on the basis that there is significant overlap between the evidence it proposes to rely upon in relation to the allegations of systemic discrimination and the evidence it intends to rely upon in relation to the remedies it seeks.

11I have carefully considered the arguments advanced by the parties. In my view, in the specific circumstances of this case, the manner of proceeding proposed by the respondents makes sense and accords with this Tribunal’s mandate to ensure the fair, just and expeditious resolution of disputes, with the caveat that the Tribunal wishes to avoid, to the greatest extent possible, the necessity for witnesses having to be re-called to testify at different stages of the proceeding.

12My understanding is that all witnesses who have direct observational evidence to provide regarding the events at issue in this proceeding and any evidence regarding the applicant’s claim for monetary compensation will testify at the first stage of the proceeding. This would include any of the police officers involved in these events. As will be discussed below in the context of the OHRC’s request for disclosure, the cross-examination of some or all of these police officers may include such matters as training or any pattern of conduct on the part of these officers relevant to the issue to be determined. All of this evidence will be heard at the first stage of the proceeding.

13At the conclusion of the first stage of the proceeding, the Tribunal would not then be making any determination as to whether the applicant experienced “individual discrimination”. Rather, at that time, the Tribunal would invite the parties to identify and propose what broader expert or contextual evidence they wish to call relevant to the determination of whether the applicant’s rights under the Code had been violated. At this stage, the Tribunal also would consider what, if any, further disclosure may be required from the parties in relation to any such expert or contextual evidence. In my view, adopting such a process should not necessitate the re-calling of witnesses, as this kind of broad contextual or expert evidence would not have been heard at the first stage of the proceeding. Adopting this kind of process also will allow the Tribunal a more informed factual context in order to assess the relevance and/or necessity of such evidence, and better define the scope of such evidence.

14With regard to the bifurcation of the proceeding in relation to the non-monetary and public interest remedies sought by the OHRC in this proceeding, it is my view that the evidence relating to such remedies is better addressed after the basis for establishing any entitlement to such remedies has been established and in the context of any specific violation of the applicant’s rights as may be found.

15Accordingly, the respondents’ request is granted with the caveat that the evidence to be given by the witnesses at the first stage of the proceeding will not be restricted solely to their direct observation of the events at issue or the applicant’s claim for monetary compensation, but may also extend to encompass relevant contextual or pattern evidence such as training and patterns of conduct.

Applicant’s request for production from TCHC

16The applicant makes a request for production from a third party, namely the TCHC, of certain Closed Circuit Television (“CCTV”) footage and/or surveillance footage in the vicinity of the events at issue on December 16, 2014, on or about 1:30 a.m., as well as certain other logs or documentation relating to any communications with the applicant or a Constable Gini on December 16 or 17, 2014, relating to the securing of this CCTV or surveillance footage.

17TCHC’s response states that it does not have the CCTV or surveillance footage requested. The TCHC has a three-day retention period for this kind of video footage, after which this footage is no longer retrievable. It is noteworthy that this three-day retention period expired on December 19, 2014, almost two years ago. The TCHC states that it has no records of receiving any request either from the applicant or the police for the retention of this footage within the three-day retention period, and as a result no such footage was secured and is no longer retrievable from the system.

18The TCHC also states that it conducted a search of its electronic and written records, and could locate no records of any request made either by the applicant or Constable Gini or anyone else relating to retention of the video footage in question within the three-day retention period. It also could locate no telephone records of any call received from Constable Gini on December 16 or 17, 2014. As a result, the TCHC could locate no records responsive to the applicant’s request.

19The applicant provided written submissions in reply to the TCHC’s response. The applicant takes issue with the TCHC’s submission that his request for disclosure should be dismissed. He states that the TCHC has not addressed the question of whether it received a request from the police under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”), for the video footage at issue. In my view, the TCHC in fact has addressed this in its Response, where it states that it conducted a search of all physical and electronic records and confirmed that there is no record relating to the incident or any request made either by the applicant or the police. This, in my view, would include a request under MFIPPA.

20The applicant also states that the TCHC has not addressed in its Response such things as the number of cameras at issue, its backup system for storing the recorded footage, attempts to retrieve the footage from its backup system, and the process for releasing footage to police officers. With regard to the second and third points, I respectfully disagree. The TCHC has indicated that it has a three-day retention period, after which video footage which has not been secured is irretrievable on its system. With regard to the first and fourth points, no request was made by the applicant for the number of cameras which may have recorded the events, or for information regarding the process for releasing footage to police officers.

21Accordingly, in my view, the applicant’s request for production from the TCHC should be dismissed, as I cannot order the production of documents, records or footage which simply do not exist.

22I well appreciate the potential significance that such video footage, if it had been secured in a timely manner, may have had to the determination of the matters at issue in this proceeding. The Tribunal may consider whether to draw an adverse inference due to any failure by the Toronto Police Service (“TPS”) to take proper steps to ensure that this video footage was secured, and will want to hear from Constable Gini regarding the steps he took to secure this footage.

OHRC’s request for production from the respondents

23The OHRC makes a number of requests for production, which are supported by the applicant and opposed by the respondents. I will address each of them in turn.

Item #1

24The OHRC first requests any documents in the personnel files or employment records of Constables Keown or D’Sena that relate to complaints, allegations or incidents of racial profiling, racial discrimination, racial harassment or other misconduct based on race; unlawful or unnecessary exercise of authority or force; or unlawful or unnecessary arrest. Similar orders have been made by this Tribunal in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18; Washington v. Toronto Police Services Board, 2009 HRTO 217, judicial review denied, 2010 ONSC 419 (Div. Ct.); and King v. Toronto Police Services Board, 2009 HRTO 644.

25The respondents state that, apart from minor unit-level counseling or remedial training that is not referred to the Chief’s office or the Professional Standards Unit, there would not be any of the kinds of records sought by the OHRC that would not also qualify as records falling under Part V of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). The respondents rely on s. 83(8) of the PSA, which states: “No document prepared as a result of a complaint made under [Part V] is admissible in a civil proceeding, except at a hearing held under this Part”. The respondents also rely on s. 95 of the PSA, which requires every person engaged in the administration of Part V to preserve secrecy with respect to all information obtained in the course of his or her duties under Part V and not to communicate such information to any other person, subject to certain exceptions including “as may be required for law enforcement purposes”.

26These provisions of the PSA most recently were considered by this Tribunal in McWilliam v. Toronto Police Services Board, 2016 HRTO 934. I agree with the reasoning in that decision. In particular, I agree that a proceeding before this Tribunal is a “civil proceeding” within the meaning of s. 83(8) of the PSA and that the “law enforcement” exception under s. 95 of that Act does not encompass proceedings before this Tribunal, for the cogent reasons expressed in the McWilliam decision.

27Having said that, I note that the McWilliam decision held that the actual complaint made under Part V is not covered by s. 83(8), as it is not “prepared as a result of” a complaint made under Part V of the PSA. However, s. 83(8) only relates to whether a document is admissible in a civil proceeding, which I find includes a proceeding before this Tribunal. Section 95, on the other hand, requires every person engaged in the administration of Part V to preserve secrecy with respect to all information obtained in the course of his or her duties under Part V and not to communicate such information to any other person. A complaint made under Part V of the PSA would, in my view, clearly contain information obtained by a person engaged in the administration of Part V in the course of his or her duties, about which they are statutorily required to preserve secrecy. As a result, given that I find that the “law enforcement” exception under s. 95 does not apply to a proceeding before this Tribunal, it appears that the respondents are statutorily required to maintain secrecy regarding the information contained in complaints made under Part V, which in my view would militate against an order requiring the disclosure of such complaints. Accordingly, I find that s. 95 of the PSA applies to prevent me from ordering disclosure of complaints made under Part V of that Act.

28I note that the respondents have indicated that there may be records of minor unit-level counseling or remedial training that are not referred to the Chief’s office or the Professional Standards Unit, which would not fall within the ambit of Part V of the PSA. If there are any such records in relation to Constables Keown or D’Sena within the scope of the OHRC’s request, then I find that any such records are arguably relevant to the matters at issue in this proceeding and should be produced.

Item #2

29The OHRC next requests any documents that relate to investigations of Constables Keown or D’Sena by the Professional Standards Unit or complaints relating to the Office of the Independent Police Review Director relating to the same issues, including a specific incident pertaining to an identified individual.

30For the reasons already stated above, these documents fall within the scope and protection of s. 95 of the PSA, and cannot be produced.

Item #3

31The OHRC requests any documents that relate to investigations conducted by Constables Keown or D’Sena into potential violations of ss. 31(2) and (4) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (“LLA”), from November and December 2014. This request stems from the position of the respondents, which is denied by the applicant, that the initial reason for the stop was because the applicant was observed carrying open liquor in a public place.

32The respondents state that the Toronto Police Service does not maintain records of investigations organized by type of investigation or underlying statutory authority. They note that records regarding an investigation under the LLA are generally only created if a Provincial Offences Ticket is issued, which for example was not done in the applicant’s case.

33While that may be true, it seems to me that these officers’ memo book notes should contain notes of interactions with members of the public where an alleged violation of the LLA has been observed. It seems to me that, given the restricted temporal scope of the OHRC’s request, which is only a period of two months, these two constables should be able to review their memo book notes and identify any interactions with members of the public involving an alleged violation of ss. 31(2) or (4) of the LLA and disclose these to the OHRC and the applicant with names, addresses and phone numbers redacted (but not notes of physical descriptions, including race or colour).

34The respondents take the position that such records have only a tenuous factual nexus to the matters at issue in this proceeding, and may lead to the need to address many collateral matters. I clarify that at this stage, I am only making an order for disclosure of these records on the basis that they are arguably relevant to the matters at issue in this proceeding, in that they may (or may not) reveal a pattern in terms of stops by these constables for alleged LLA violations. That is an entirely different question from whether any evidence that may arise from the disclosure of these records may be admitted at the hearing, or the extent to which these records may be used, for example, in the cross-examination of these constables.

Items #4 and #5

35In items #4 and #5, the OHRC requests the TPSB and/or TPS policies, procedures, standing orders and training manuals that would have applied at the time of the incident regarding racial profiling, racial discrimination, racial harassment, carding practices, patrol vehicle video, and the enforcement of ss. 31(2) and (4) of the LLA, as well as current TPS policies, procedures, standing orders and training materials regarding racial profiling, racial discrimination, and racial harassment.

36With regard to relevant policies, the respondents state that their Response includes a detailed listing of the publicly available TPSB policies, which can be accessed on the TPSB’s website. As these policies already are available to the OHRC, I am not prepared to make an order for production.

37With regard to relevant procedures, the respondents state that they already have produced those procedures which have arguable relevance to the allegations of discrimination set out in the Application, namely the procedures regarding Arrest, Release and Use of Force. The respondents also have produced the TPS Human Rights procedure which was in effect at the relevant time. The respondents state that there is no procedure specific to investigations under the LLA.

38The respondents take the position that the OHRC has failed to articulate any basis upon which any additional policies or procedures are arguably relevant to the matters at issue in the Application, apart from submitting that whether or not the involved officers followed applicable policies or procedures is arguably relevant to whether the applicant’s Code rights were violated. With respect, that is the arguable relevance of any applicable policies and procedures. Whether or not a specific officer followed an applicable policy or procedure is arguably relevant to the issue before this Tribunal as a piece of circumstantial evidence to be considered in relation to whether to draw an inference of racial discrimination.

39In my view, the OHRC has properly articulated the scope of its request in terms of subject areas, sufficient to enable the respondents to identify any policies or procedures that fall within the scope of the request. The respondents have not provided any specific response in relation to standing orders, but if there are any standing orders that fall within the scope of the OHRC’s request, these too should be produced.

40With regard to training materials, the respondents take the position that these materials hold little relevance to the matters at issue, as the issue is what the officers did, not what they were generally trained to do. Once again, in my view, whether or not any specific officer acted in accordance with the training provided by the TPS is arguably relevant as a piece of circumstantial evidence to be considered in relation to whether to draw an inference of racial discrimination. These training materials should be produced.

41Finally, the respondents object to production of policies, procedures, standing orders or training materials relating to carding practices. The respondents state that no issue of “carding” arises in this case, as the applicant was stopped because he was being investigated under the LLA for drinking alcohol in a public place. With respect, that is a matter in dispute between the parties. I am well aware that this is the respondents’ position. However, I also am aware that the applicant denies that he was drinking alcohol in public at the time he was stopped. The applicant’s position, as I understand it, is that the officers have fabricated the reason for the stop as a pretext for stopping a Black man walking from his home to a party. Whether or not that constitutes “carding”, the applicant’s position, if supported by the evidence, would represent the stopping of a citizen for reasons unrelated to any specific investigative purpose. As a result, in my view, in light of this factual dispute between the parties, the TPSB and/or TPS policies, procedures, standing orders and training materials relating to carding practices also are arguably relevant to this proceeding.

Item #6

42The OHRC requests production of the memo book notes of Constables Keown and D’Sena from the shifts immediately prior to and after the incident involving the applicant, redacted to exclude any personal information regarding third parties.

43As noted above, I already have ordered production of these memo book notes for a two-month period to the extent that they relate to LLA investigations. The reason for the OHRC’s request, as articulated in its submissions, is that disclosure of these notes will allow the opportunity to determine whether the notes made in the instant case are consistent with how these officers recorded their notes in relation to other calls. In my view, the production order already made will give the OHRC a sufficient basis to make this comparison in relation to similar alleged offences, such that no further production order is warranted on this basis.

Items #7 and #8

44The OHRC requests patrol vehicle video or any other video related to the incident involving the applicant in the possession of the respondents, and also requests information as to whether the patrol vehicle of Constables Keown and D’Sena was equipped with patrol vehicle video at the time of the incident.

45The respondents state that all available relevant in-car camera system video footage has already been produced.

46The respondents object to providing information as to whether the patrol vehicle of Constables Keown and D’Sena was equipped with patrol vehicle video at the time of the incident on the basis that this is not a “document” and that the respondents are only obligated to produce “documents”. While it is correct that Rule 16.1 only requires the production of “documents”, Rule 1.7(p) empowers this Tribunal to make an order requiring a party or other person to produce any document, information or thing.

47I agree with the respondents that it is not the purpose of the Tribunal’s pre-hearing procedures to allow a party to conduct full discovery or cross-examination in advance of the hearing. However, this does not appear to be what the OHRC is doing. Rather, the OHRC is making a rather straightforward request for a specific piece of information which is certainly relevant to the issue before this Tribunal. In these circumstances, I am requiring the respondents to provide the information requested.

48While not set out in the order requested, the OHRC’s submissions in support of its request make reference to a request for a “dispatch audio transcript”, on the basis that the dispatch audio produced by the respondents is inaudible at times. The respondents object to this request on the basis that it amounts to a request for a document to be created. While that is true, that is not a sufficient basis in and of itself to reject the request, given this Tribunal’s broad powers under Rule 1.7(p).

49I agree with respondents’ counsel that it would be of little utility for him to listen to the audio and try to create some kind of transcript, since counsel is likely in no better position than anyone else to understand what is being said. What would be helpful, however, is for the parties whose voices are on the dispatch audio to listen to their own voice and provide a transcript to the best of their ability as to what they said during the call. This in my view would save time at the hearing in relation to any witnesses whose voices are on the dispatch audio, and it would obviate the necessity of calling the dispatcher to testify as to what that person said. Accordingly, I am making an order for creation of a transcript pursuant to Rule 1.7(p).

Item #9

50The OHRC requests any verifications or searches of the applicant’s identification in criminal justice databases, including carding databases, that were conducted during the incident, including the results of any such verifications or searches.

51The respondents state that these records already have been produced. As a result, no further production order is required.

Item #10

52The OHRC requests all carding reports completed with information about the applicant. The OHRC submits that these reports are arguably relevant on the basis that the Application makes reference to the applicant previously having been racially profiled by the police, and forms the basis for his alleged statement to the police on the night in question that “you guys always like to harass people”.

53The respondents contest this request on the basis that only the records relating to the incident on December 16, 2014 are relevant to the issue before this Tribunal, as the Application only alleges racial discrimination arising out of that one incident.

54I agree with the respondents on this point. The Application does not raise any allegation that the applicant’s Code rights were violated in relation to any prior stops, nor does the Application provide any particulars regarding any such stops. The only incident of alleged discrimination before me relates to the December 16, 2014 incident. In these circumstances, I do not find any prior carding incidents involving the applicant to be arguably relevant to the issue of whether he experienced discrimination arising out of the December 16, 2014 incident.

Item #11

55The OHRC requests all use of force reports for 31 Division, identifying those related to use of force by Constables Keown and D’Sena, completed in 2014 and 2015, linked to include information about the race, age, gender of injured parties and redacted to exclude other personal information regarding third parties.

56The respondents request that consideration of this request be deferred until after the completion of the first stage of the proceeding. To the extent that this request extends beyond Constables Keown and D’Sena, I agree. However, as stated above, I wish to avoid to the greatest extent possible the prospect of witnesses having to appear to testify twice. Accordingly, I will determine this request now as it relates to use of force reports pertaining to Constables Keown and D’Sena.

57The OHRC seeks these reports on the basis that they may reveal a pattern of conduct by Constables Keown and/or D’Sena that may provide a piece of circumstantial evidence in support of an inference of racial discrimination.

58The respondents object to production of these reports for a number of reasons. First, they note that the use of force report does not record any information about the individual’s race, age or gender. Further, they note that these reports are not filed or categorized by officer name, and indeed s. 14.5(3.1) of Regulation 926 under the PSA requires Part B of the report (which sets out the officer’s name) to be destroyed within 30 days (unless retention is otherwise ordered under sub-s. (3.2) for training purposes). The respondents also note that use of force reports apply to a wide range of circumstances, which vary greatly from the specific circumstances of the incident at issue in this case.

59In my view, the fact that these specific constables’ names are removed from the use of force reports within 30 days makes compliance with the OHRC’s request virtually impossible as it relates specifically to Constables Keown and D’Sena. Accordingly, that specific aspect of the OHRC’s request is denied.

Item #12

60Finally, the OHRC requests data from carding reports completed between November 1, 2013 and December 31, 2014, produced in the same format as data obtained by the Toronto Star for the period from 2008 to early November 2013 and including a number of listed variables.

61In this regard, I agree with the respondents that this request is not relevant to the first stage of this proceeding. Accordingly, consideration of this request is deferred to the second stage of the proceeding.

Next steps

62The hearing in this matter is scheduled to commence on December 8 and 9, 2016. The parties were to have filed their hearing materials, including witness statements and documents, by October 24, 2016, but have not done so pending determination of these Requests for Order.

63In my view, given that I have directed that this proceeding move forward in stages, it should still be achievable for the parties to file their hearing materials and make the production I have ordered in time for the December hearing dates to proceed.

64Accordingly, I am ordering the parties to file their hearing materials and make production by no later than November 29, 2016. If any party wishes to rely on any of the documents or information disclosed by the respondents for the purpose of the hearing, then that party may file a supplementary document brief containing any such documents by December 5, 2016.

ORDER

65For the foregoing reasons, I hereby make the following order:

a. The hearing in this matter will proceed in three stages in the manner set out at paras. 3 to 15 above, with the first stage commencing on December 8 and 9, 2016;

b. By no later than November 29, 2016, the parties shall comply with their pre-hearing obligations in relation to the first stage of the proceeding in accordance with Rules 16.2, 16.3 and 17;

c. By no later than November 29, 2016, the respondents shall disclose to the OHRC and the applicant:

i. Any records of minor unit-level counseling or remedial training in relation to Constables Keown or D’Sena that were not referred to the office of the Chief of Police or the Professional Standards Unit that relate to: complaints, allegations or incidents of racial profiling, racial discrimination, racial harassment or other misconduct based on race; unlawful or unnecessary exercise of authority or force; or unlawful or unnecessary arrest,

ii. All excerpts from the memo book notes of Constables Keown and D’Sena from November and December 2014 that relate to investigations conducted into potential violations of ss. 31(2) and/or (4) of the LLA, with names, addresses and phone numbers redacted (but not notes of physical descriptions, including race or colour),

iii. All TPSB and/or TPS policies, procedures, standing orders and training manuals that would have applied at the time of the incident regarding racial profiling, racial discrimination, racial harassment, carding practices, patrol vehicle video, and the enforcement of ss. 31(2) and (4) of the LLA, as well as current TPSB and/or TPS policies, procedures, standing orders and training materials regarding racial profiling, racial discrimination, and racial harassment, to the extent these are not publicly available on the TPSB and/or TPS website(s) and/or have not already been produced by the respondents,

iv. Information as to whether the patrol vehicle of Constables Keown and D’Sena was equipped with patrol vehicle video at the time of the incident on December 16, 2014, and

v. A transcript of the dispatch audio recording(s) as prepared with the assistance of the individuals whose voices are on the dispatch audio recording(s) in relation to what each of them said during the call; and

d. If any party wishes to rely on any of the documents or information disclosed by the respondents for the purpose of the hearing, then that party may file a supplementary document brief containing any such documents by December 5, 2016.