Briggs v. Toronto Police Services Board, 2016 HRTO 966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph Briggs Applicant

-and-

Toronto Police Services Board and Benjamin Wester Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 22, 2016 Citation: 2016 HRTO 966 Indexed as: Briggs v. Toronto Police Services Board

APPEARANCES

Joseph Briggs, Applicant Roger Love, Counsel

Toronto Police Services Board and Benjamin Wester, Respondents Robert Baldwin, Counsel

1In his Application, the applicant alleged that the respondents discriminated against him because of race, colour and ethnic origin, and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that he was subjected to racial profiling during an unjustified stop on June 9, 2011 and that his vehicle was illegally searched and impounded during the stop. In addition, the applicant alleged that the personal respondent reprised against him when he re-laid charges against the applicant after he made a Freedom of Information (“FOI”) request for the personal respondent’s notes and those of another police officer who was involved in the events of June 9, 2011. The respondents deny any discrimination or reprisal.

2This Interim Decision addresses the respondents’ request that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. The other proceeding relied upon by the respondents is a motion made by the applicant under the Canadian Charter of Rights and Freedoms (“Charter”) during his trial with respect to the charges laid against him under the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) following his stop by the police in June 2011.

Procedural History

3In their Response, the respondents requested that the Tribunal defer consideration of the Application pending the completion of the applicant’s POA trial. By Interim Decision, 2013 HRTO 46, the Tribunal granted the respondents’ request. The Tribunal noted that the applicant was facing multiple charges and the individual respondent was directly involved in the alleged events giving rise to the charges as well as the allegations in the Application. As such, the Tribunal held that there was a substantial overlap between the facts raised in the Application and those relevant to the charges against the applicant. The Tribunal also noted that the court process was already under way.

4In June 2013, the applicant requested that the Application continue to remain deferred pending the disposition of his attempts to appeal his conviction. He indicated that he had been convicted in absentia. The respondents consented to the continued deferral of the Application. Accordingly, the Tribunal ordered the Application deferred pending the completion of the appeal process

5At the conclusion of the applicant’s appeal, the Tribunal granted his request to re-activate the Application. Following the re-activation of the Application, the respondents requested that the Tribunal dismiss the Application under s. 45.1 of the Code. The respondents submitted that the Ontario Court of Justice (“OCJ”) appropriately dealt with the substance of the Application when it dismissed the Charter motion made by the applicant during his POA trial.

6I conducted a preliminary hearing at which the parties made submissions on this issue.

POA Trial

7The POA trial related to the two following charges under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25: operating a motor vehicle without insurance and producing false evidence.

8In his POA trial before the OCJ, the applicant defended against the charges against him by bringing a motion under the Charter. Among other things, in his Charter motion, he alleged that he had been subject to racial profiling and that the evidence obtained against him should be excluded under s. 24(2) of the Charter. The applicant alleged that he was arbitrarily detained, subjected to unreasonable search and seizure, and deprived of the rights to counsel under ss. 8-10 of the Charter.

9The applicant’s Charter motion was heard as part of a blended voir dire. Accordingly, the Court heard the evidence and submissions relating to the Charter motion and the charges against the applicant contemporaneously. The personal respondent testified during the blended voir dire. The applicant did not. The applicant’s criminal counsel argued that an inference of racial profiling was made out based on the personal respondent’s evidence.

10The Justice of the Peace held that the evidence before her did not support the applicant’s allegation that the respondents breached his Charter rights when he was stopped on June 9, 2011. In the Ruling portion of her decision, the Justice of the Peace stated:

…in this particular case there is no evidentiary basis the Court has heard to grant your application for a stop for the reasons that you are indicating.

So, the Charter application on the basis of essentially what has been loosely termed as being stopped – and, I will say it – what is the term that you sometimes hear on the street? There is driving while impaired and there is driving while black. All right. That is your argument in this case thus far.

The evidence of the officer, the Prosecution’s Crown witnesses and having heard no other witnesses, no other type of information to support such an argument, the Court has no foundation on which to consider it. And, therefore, I can tell you, it cannot be considered, it will not be considered and it will not be a successful argument in this case.

11Following the denial of his Charter claim, the applicant accepted that the prosecution had made out its case on the trial proper. As a result, the applicant was convicted of both charges.

parties' submissions

12According to the applicant, the Application alleged that several aspects of the respondents’ conduct on June 9, 2011 were racially motivated. The applicant listed the following forms of conduct by the personal respondent and his partner (the “police”) that were referred to in the Application:

a. the decision to check the applicant’s license plates; b. the decision to pursue and stop the applicant’s car; c. the decision to request the applicant’s driver’s license as well as his ownership and insurance documents; d. the decision to request that the applicant get out of his car and to refuse to look at his documents; e. the decision to impound the applicant’s car; f. the decision to search the applicant’s car while the car was being impounded; and g. the decision, following the applicant’s FOI request for the police notes, to re-lay charges that were never processed against the applicant.

13The applicant submitted that the Justice of the Peace’s decision did not deal with the allegations contained in subparas. a, d, e, f, and g above. He argued that these allegations therefore cannot be dismissed under s. 45.1 of the Code.

14In addition, the applicant submitted that it would be unfair to dismiss the Application on the basis of the OCJ proceedings. In making this submission, he relied upon the Supreme Court of Canada’s decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 and the Ontario Divisional Court’s decision in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (“De Lottinville”).

15The applicant provided three reasons why it would be unfair to use the results of the OCJ proceeding to preclude his human rights Application: (1) the reasonable expectations of the parties would be that the OCJ proceeding would not preclude an Application because the applicant did not have access to a personal remedy in the OCJ proceeding; (2) the applicant had no “financial stake” in the OCJ proceeding; and (3) important policy considerations, including the risk that defendants will not raise Charter arguments to avoid prejudicing their applications to the Tribunal.

16The respondents submitted that the Justice of the Peace’s decision appropriately dealt with the substance of the Application. The respondents submitted that the Justice of the Peace’s decision dealt squarely with the issue of whether the applicant was subject to racial profiling when he was stopped by the police. According to the respondents, the allegation that the police racially profiled the applicant when they ran a check on his plates does not appear in the Application. Instead, in the Application, the applicant argued that the police followed him before they would have had the chance to conduct a search of his plates. In addition, the respondents argued that all of the actions of the police prior to, and after, the stop in June 2011 are peripheral allegations that are subsumed within the Justice of the Peace’s determination with respect to the stop. The respondents submitted that the applicant could have raised his allegations regarding these other issues, as well as his reprisal allegation, in this Charter motion but he did not. They argued that the applicant should not be allowed to split his case to pick and choose the forum in which he argues bits and pieces of his racial profiling claim.

17According to the respondent, the Tribunal should not take into account the fact that the applicant did not testify before the Justice of the Peace when determining whether the Application should be dismissed under s. 45.1 of the Code. According to the respondent, in a traditional voir dire, the applicant could have testified in support of his Charter motion without his testimony being used against him with respect to the charges he faced. The respondents noted that it was the applicant’s own counsel who requested the blended voir dire in which any testimony by the applicant or any other witnesses would be used in relation to both the Charter motion and the charges against the applicant. Therefore, the respondents argued that the Tribunal should attach no importance to the fact that the applicant did not testify during the OCJ proceedings.

applicable law

18Section 45.1 of the Code states:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

19Section 45.1 of the Code is the statutory reflection of the collective principles underlying the common law doctrines of issue estoppel, collateral attack, and abuse of process. These doctrines are used by the common law to deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) at paras. 24-25. The parties made submissions with respect to each of the doctrines encompassed by s. 45.1 of the Code. In this decision, I apply the analysis that the Tribunal consistently applies under s. 45.1 which includes within it the principles underlying the common law doctrines encompassed by s. 45.1.

20Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

21There is no question that a POA trial before the OCJ is a “proceeding” within the meaning of s. 45.1 of the Code. As a result, the only remaining issue is whether the substance of the Application was appropriately dealt with in the OCJ proceeding.

22In Figliola at para. 37, the Supreme Court of Canada stated that a tribunal should ask itself the following questions in assessing whether the substance of a complaint has been appropriately dealt with in another proceeding:

… whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.

23As a result of the Supreme Court of Canada’s decision in Penner, above, the Tribunal has held that, in applying s. 45.1, the Tribunal must consider whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding. See Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 aff’d in De Lottinville, above; K.M. v. Kodama, 2014 HRTO 526, also aff’d by the Div.Ct. in De Lottinville. In assessing fairness, the Tribunal takes into account, for example, the nature of the other proceeding, the applicant’s stake in it, and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights. See Penner, above, at para. 42.

findings

24In my view, the Application should not be dismissed under s. 45.1 of the Code. For the reasons that follow, I find that the OCJ proceeding only dealt with the applicant’s allegations of racial profiling in relation to the stop of his vehicle by the police. It did not deal with the other allegations in the applicant’s Application. In addition, and more fundamentally, I find that it would be unfair in the circumstances of this case to use the results of the OCJ proceeding to preclude the applicant’s human rights Application.

Allegations not dealt with by OCJ

25The Application, which was self-drafted by the applicant, includes a narrative of the events that occurred on June 9, 2011 and the events relating to his claim of reprisal. The main allegation in the Application relates to the applicant being stopped by the police. However, the Application also contains a number of other allegations of Code breaches which relate to other police conduct on June 9, 2011 that preceded and followed the applicant’s being pulled over by the police. It may be the case that the Application would have benefited from a more precise listing of the racial profiling allegations that the applicant was intending to raise. However, it is not at all unusual for a self-represented applicant before this Tribunal to include a narrative of events as the applicant has done in this case. In any event, the applicant’s current counsel has now more precisely listed the Code allegations that the applicant seeks to raise in his Application.

26The only allegation contained in the Application that was addressed by the OCJ was the allegation that the police engaged in racial profiling when they stopped the applicant’s vehicle on June 9, 2011. While the Notice of Constitutional Question is drafted broadly, it is evident from the Justice of the Peace’s decision that her finding related specifically to the stop of the applicant’s vehicle. The applicant’s criminal counsel did not raise any other allegations of racial profiling before the Justice of the Peace and therefore her decision does not deal with any other allegations of racial profiling.

27I am not persuaded that all of the applicant’s allegations from the June 2011 incident are peripheral and subsumed within his allegation relating to the police stop. In my view, his allegations relating to the police’s conduct after the stop are separate and distinct allegations of Code violations that cannot be subsumed within his allegation relating to the stop.

28For example, the applicant’s allegations relating to how the police treated him after the stop and his allegations in relation to the search and impoundment of his car are distinct allegations. Even if the stop of the applicant’s car might not have involved racial profiling, it is nevertheless possible that racial profiling was a factor in the police’s conduct after the stop. For this reason, I find that the applicant’s allegations regarding what occurred after the stop are separate and distinct allegations that were not dealt with by the OCJ.

29The applicant’s allegation relating to the decision to run a check of his license plates is more closely connected to his allegation in relation to the stop. In my view, I do not have to determine whether this allegation is subsumed within the applicant’s allegation in relation to the stop due to my finding below that it would be unfair to use the Justice of the Peace’s decision to preclude the applicant from proceeding with this Application.

30As for the applicant’s reprisal allegation, this allegation cannot be fairly found to be subsumed within his allegation regarding the stop since the alleged facts relating to the reprisal claim occurred six months after the night of his stop. With respect to the reprisal allegation, the respondents’ position was that the applicant should have raised this allegation as part of his Charter motion. According to the respondents, it would be an abuse of process to permit him to raise this reprisal allegation as well as the other allegations set out above before this Tribunal as he had the opportunity to raise them in his Charter motion and did not. I address this submission in the next section.

Unfair to Preclude Application Because of OCJ Proceeding

31Even if I were to find that all of the applicant’s allegations are subsumed within the Justice of the Peace’s decision, I find that it is unfair to use the results of the OCJ proceeding to preclude this Application.

32I agree with the respondents in this case that finality is important both to the parties and to the adjudicative system in general. However, it is clear from the case law that courts and the Tribunal seek to achieve a balance between finality and fairness in the application of s. 45.1 of the Code, as well as the common law doctrines that underlie that provision. See Penner, above, at para. 42; Figliola, above at paras. 64-65; De Lottinville, above at paras. 79-81. The question under s. 45.1 is not just whether another proceeding has dealt with the substance of an Application but whether it has appropriately dealt with it. Even when a previous proceeding has dealt with the issues raised in an application, it may be unfair to use the results of that proceeding to preclude an application to the Tribunal. As the Supreme Court held in Penner, this may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings.

33In my view, it would not be within the reasonable expectations of the parties that the outcome of the Charter motion in the OCJ proceeding would preclude this Application before the Tribunal for at least two reasons. First, there are significant differences between the purposes, processes and stakes involved in the two proceedings in this case. The OCJ proceeding in which the applicant made his Charter motion is a quasi-criminal proceeding in which he was defending himself against charges brought against him under the POA. By contrast, the Tribunal’s mandate is to provide access to remedies, whether systemic or personal, designed to prevent discriminatory behaviour and to compensate victims of such behaviour. See De Lottinville, above, at para. 86. I am not persuaded that an argument raised as a defence to quasi-criminal charges can reasonably be expected to preclude the applicant from pursuing a discrimination claim and a personal remedy before this Tribunal. In my view, the significant difference between the purposes, processes or stakes involved in the two proceedings weighs against dismissing the Application under s. 45.1 of the Code.

34Second, while both this Application and the applicant’s Charter motion raise the issue of racial profiling, the issue was raised in different ways in each proceeding. In the OCJ trial, the applicant claimed racial profiling as part of his claim that he was subject to arbitrary detention and unreasonable search and seizure contrary to the Charter. This is a different claim than his claim that he was discriminated and reprised against under the Code. I note that the applicant did not make any claims under s. 15 of the Charter nor did he seek any monetary remedy for any violation of his rights under the Code or the Charter in the motion he brought in his OCJ trial.

35In addition, there are public policy reasons that weigh against using the outcome of the OCJ proceeding to preclude the Application in this case. A decision by the Tribunal to dismiss applications in cases like this one could have significant consequences on the strategic and other decisions made by an applicant in a criminal or quasi-criminal trial. First, it is possible that applicants might be less likely to advance racial profiling defences in quasi-criminal trials if they intended to challenge the police’s actions under the Code. In some cases, the penalties an application might face in quasi-criminal proceedings might be less significant than the remedies they may be awarded if they make out discrimination under the Code. Therefore, in some cases, there may be a reduced incentive to bring Charter motions in quasi-criminal proceedings if an applicant is concerned about the impact such a motion will have on their human rights Application.

36Second, a decision by the Tribunal to dismiss cases such as this one under s. 45.1 could influence the strategic choices made by an applicant and his or her criminal counsel with respect to the applicant’s criminal or quasi-criminal trial. A decision by the Tribunal to dismiss cases under s. 45.1 of the Code in cases such as this one could place undue pressure upon an applicant/defendant to testify in support of a Charter motion brought as part of a defence to criminal or quasi-criminal charges. I recognize that, as noted by the respondents, applicants have the option of choosing a traditional voir dire in which they are not forced to testify in relation to the actual charges against them. However, there may be reasons why defendants may choose not to testify in a voir dire even if, theoretically, their testimony will not be used against them on the actual criminal or quasi-criminal charges they face. If the Tribunal were to routinely dismiss applications such as this one, an applicant could face undue pressure to testify when they might otherwise choose not to.

37In addition, there may be strategic, financial or other reasons why criminal counsel for an applicant might wish to proceed with a blended voir dire, as in this case. If the Tribunal dismissed applications in case like this one, an applicant’s counsel who wished to proceed with a blended voir dire would face the prospect of having to call the applicant to testify in the blended voir dire despite the applicant’s right to remain silent with respect to the criminal or quasi-criminal charges against him. This is another way in which a decision to dismiss applications in circumstances such as the present might have unintended adverse consequences on the applicant’s criminal or quasi-criminal trial. In my view, this is a further reason for why it would be unfair to use the results of a Charter motion such as the one in this case to preclude proceeding with an application under the Code.

38I do not agree with the respondents’ position that it would be an abuse of process to permit the applicant to proceed with these allegations because he should have raised them during the OCJ proceeding. In many cases, arising usually in an employment context, the Tribunal has found that it is an abuse of process for an applicant to attempt to re-litigate the same factual circumstances where it is clear that an issue could have been dealt with in a prior proceeding commenced by the applicant. See Cunningham v. CUPE 4400, 2011 HRTO 658 at paras. 13 and 38 and Asiamah v. Olymel S.E.C./L.P, 2009 HRTO 1750 at para. 38. However, these cases are premised on the principle that applicants should not be permitted to split their cases by seeking to proceed before the Tribunal with allegations that would have fallen within the scope of claims they filed in another forum.

39In my view, the circumstances of this case are distinguishable in that the applicant is not forum shopping or inappropriately splitting his case in the same way as applicants in the employment cases set out above. The applicant in this case is not choosing to file claims in multiple forums. He was charged with offences under the POA and advanced Charter arguments that he was entitled to advance as part of his defence to those charges. In my view, that is a different situation than the circumstances in the employment cases referred to above. I do not agree that it was an abuse of process for the applicant in this case to only raise the Charter arguments that his counsel for the POA trial considered appropriate for that proceeding. I do not agree that the applicant should be required to have advanced racial profiling claims related to other police actions that were not directly relevant to the charges he faced in his criminal or quasi-criminal trial.

40For all the above reasons, I do not find it appropriate to dismiss this Application under s. 45.1 of the Code.

Applicant’s Production Request

41In March 2016, the applicant requested the production of various materials from the respondents. The respondents disclosed many of the requested materials to the applicant and confirmed that certain requested items did not exist. There remained two sets of materials requested by the applicant that the respondents refused to produce: (1) protocols and training materials for officers when stopping civilians on Highway Traffic Act violations and (2) protocols and training materials for officers in relation to engaging their onboard or dash cameras. The respondents submitted that these materials were not arguably relevant since there was no allegation in the Application that training was an issue.

42It is well established that the test for production is arguable relevance. In my view, the requested materials are arguably relevant. If the police officers involved in the applicant’s stop were not acting in accordance with applicable protocols and training materials, this factor could support an inference of discrimination in this case. As a result, I find that the requested protocols and training materials are arguably relevant to the issues in dispute. I note that Tribunal has ordered respondents to produce such materials in other cases. See Marshall v. Toronto Police Services, 2012 HRTO 966.

order

43For the reasons set out above, the Tribunal orders as follows:

a. The respondents’ request to dismiss the Application under s. 45.1 of the Code is denied.

b. The applicant’s production request is granted. No later than 14 days from the date of this Interim Decision, the respondents shall deliver to the applicant a copy of the following: (i) any protocols and training materials that apply when the organizational respondent’s officers stop civilians on Highway Traffic Act violations, and (2) any protocols and training materials for officers in relation to engaging their onboard or dash cameras.

44The Registrar will schedule this Application for a two day merits hearing.

Dated at Toronto, this 22^nd^ day of July, 2016.

“Signed By”

__________________________________

Jo-Anne Pickel Vice-chair