Toronto Police Services Board v. Briggs, 2017 ONSC 1591
CITATION: Toronto Police Services Board v. Briggs, 2017 ONSC 1591
DIVISIONAL COURT FILE NO.: 400/16
DATE: 20170406
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER and McKELVEY JJ.
BETWEEN:
TORONTO POLICE SERVICES BOARD and BENJAMIN WESTER
Applicants
– and –
JOSEPH BRIGGS and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Fred Fischer and Philip Chan, for the Applicants
Toby Young and Roger Love, for the Respondent, Joseph Briggs
Margaret Leighton and Jason Tam, for the Respondent, Human Rights Tribunal of Ontario
HEARD at Toronto: March 8, 2017
Swinton J:
Overview
[1] The Toronto Police Services Board and P.C. Benjamin Wester seek judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) that dismissed their application under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The applicants sought the dismissal of the Code application (the “Code Application”) of the individual respondent, Joseph Briggs (the “Respondent”), on the ground that the issue of racial profiling raised in it had been appropriately dealt with in a criminal trial before the Ontario Court of Justice (the “OCJ”).
[2] The Tribunal refused to dismiss the Code Application, leading the applicants to bring this judicial review proceeding on the basis that the decision was unreasonable. The Respondent and the Tribunal argue that the application for judicial review is premature, given the interlocutory nature of the decision.
[3] For the reasons that follow, I would grant the application for judicial review and set aside the decision of the Tribunal.
Factual Background
[4] The Code Application alleged that the Respondent was racially profiled during a vehicle stop on June 9, 2011. The Respondent is a black male who was, at the time, in his mid-20’s. P.C. Wester and another officer stopped the Respondent’s car and questioned him at the roadside to determine whether he was driving while his licence was under suspension. In the course of that investigation, it was discovered that he was operating his car without insurance. During the investigation, the Respondent presented a forged proof of insurance to the officers. His car was impounded and inventoried prior to being towed.
[5] The traffic stop and subsequent investigation resulted in charges being laid against the Respondent under the Provincial Offences Act, R.S.O. 1990, c. P.33. Initially there were three charges: operating a motor vehicle without insurance and producing false evidence, contrary to the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (the “CAIA”) and driving while suspended contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). When the Respondent appeared for trial, the charges were not on the docket at the OCJ, and the Crown did not proceed. In December 2011, P.C. Wester re-laid the two charges under the CAIA. The charge under the HTA could not be re-laid, because the applicable limitation period had expired. In December, prior to those charges being re-laid, the Respondent had made a freedom of information request for the police officers’ notes of the events on June 9, 2011.
[6] On May 18, 2012, the Respondent commenced the Code Application against the applicants under s. 34(1) of the Code. He alleged discrimination based on race, colour and ethnic origin. He also alleged reprisal, claiming that when the two charges were re-laid, it was intended as retaliation for his request for the officers’ notes.
[7] In response to a request by the applicants, on January 10, 2013, the Tribunal deferred a hearing of the Code Application pending the disposition of the outstanding charges. In its decision deferring the hearing, the Tribunal said, in part:
…there is substantial overlap between the facts raised in the Application and those relevant to the criminal charges against [the Respondent].
[8] The Respondent was convicted in absentia of the charges on April 18, 2013, after failing to appear on his trial date. On June 13, 2013, he sought a further deferral of his Code Application in order to appeal his conviction. In explaining why he wanted the deferral, he wrote, in part:
The other proceeding which was the traffic court matter was dealing with the same issues raised in the actual Application, and have not been addressed in the proceeding.
The request for a further deferral was granted on August 8, 2013. The conviction was ultimately overturned, and a trial was ordered.
[9] At the trial before the OCJ, on March 25, 2015, the Respondent had legal representation. His counsel brought an application to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, asserting that the stopping of the Respondent’s car had been the result of racial profiling in violation of his rights under the Charter. As part of that application, counsel for the Respondent filed a Notice of Constitutional Question that set out the alleged actions of P.C. Wester that were said to have constituted a violation of the rights guaranteed by various sections of the Charter: ss. 8 (the right to be free of unreasonable search and seizure), 9 (the right to be free from arbitrary detention), 10(a) (the right to be informed of the reasons for an arrest or detention) and 10(b) (the right to counsel).
[10] On the suggestion of the Respondent’s counsel, the Charter application proceeded as a blended voir dire. P.C. Wester gave evidence as to the circumstances of the vehicle stop and was cross-examined. The Respondent did not give evidence. The presiding Justice of the Peace accepted P.C. Wester’s evidence. She found no racial profiling had occurred in relation to the vehicle stop and dismissed the Charter application. The Respondent offered no other defence to the charges, and he was convicted (the “OCJ decision”). He did not appeal his conviction.
[11] On March 27, 2015, the Respondent’s request to the Tribunal to re-activate his deferred Code Application was granted. The applicants then made a request for an order, pursuant to s. 45.1 of the Code, asking the Tribunal to dismiss the Code Application because the substance of it had been appropriately dealt with in the proceedings before the OCJ. Section 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.
The Decision of the Tribunal
[12] In a decision dated July 22, 2016, the Tribunal rejected the applicants’ request and allowed the Code Application to proceed. It held that the OCJ decision had only addressed the allegation that the police engaged in racial profiling when they stopped the Respondent’s car. However, the Code Application contained additional allegations regarding P.C. Wester’s conduct following the stop, including the refusal to receive a copy of a notice that his driving suspension had been stayed, the search of the Respondent’s car and its impoundment. Moreover, the facts pertaining to the allegation of reprisal, which was dated six months after the stop, had not been addressed.
[13] The Tribunal then went on to say that even if all the allegations in the Code Application were subsumed in the OCJ decision, it would be unfair to preclude the Code Application, given the different purposes, processes and stakes involved in the Code Application and the proceedings before the OCJ. In particular, the proceedings before the OCJ were quasi-criminal in nature, whereas the Tribunal’s mandate is to provide remedies designed to prevent discriminatory behaviour and to compensate victims of such behaviour. The Tribunal also held that the issues were different: in the OCJ proceeding, the issues were raised as part of an arbitrary detention and unreasonable search and seizure claim under the Charter, and the Respondent did not raise s. 15, the Charter equality rights guarantee, at the OCJ proceeding.
[14] Finally, the Tribunal held that there were public policy reasons not to dismiss the Code Application. In the Tribunal’s view, dismissing cases like the Respondent’s could have significant consequences for strategic and other decisions made by other accused in criminal or quasi-criminal trials. For instance, an accused might be less likely to mount a racial profiling defence in a criminal trial if he or she intended to seek relief under the Code. Moreover, an accused might be unduly influenced to testify in support of a Charter motion at a voir dire or blended voir dire, knowing an adverse decision would result in the dismissal of the human rights proceeding.
[15] The Tribunal also rejected the applicants’ argument that it would be an abuse of process to allow the Respondent to proceed with allegations that he could have raised during the OCJ proceeding.
Issues
[16] All the parties agree that the standard of review of the decision of the Tribunal is reasonableness.
[17] The applicants argue that the decision is unreasonable, both in finding that most of the allegations had not been dealt with by the OCJ and in finding that dismissal of the Code Application would be unfair to the Respondent. The Respondent argues that the decision falls within a range of reasonable outcomes.
[18] The Respondent and the Tribunal also raise an issue of prematurity, arguing that the Court should not determine the application for judicial review because the Tribunal’s decision is interlocutory, and there are no exceptional circumstances that warrant judicial review at this stage of the proceedings. The applicants submit that this application falls within the category of exceptional circumstances where the review of interlocutory orders is permitted.
Prematurity
[19] As a general rule, a court will not entertain an application for judicial review of an interlocutory decision of an administrative tribunal and will not intervene until the administrative proceeding is completed (Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras. 35-36; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67). The underlying concern is the fragmentation of the administrative proceeding, with consequent delay and added costs. As well, it is useful to have a proper record on judicial review and it is desirable to avoid a multiplicity of proceedings. However, in exceptional circumstances, a court may decide to intervene – for example, to prevent the continuation of a proceeding that is fatally flawed due to a denial of procedural fairness, or to review certain types of orders, such as one directing the disclosure of privileged documents, that cannot be adequately corrected in a later review.
[20] The applicants submit that there are exceptional circumstances here, because the effect of the decision is to require a hearing with respect to issues that have been determined by the OCJ. This creates a risk of inconsistent findings, if the Code Application succeeds, or a waste of resources, if the Code Application fails. In either event, proceeding with the Code Application will bring the administration of justice into disrepute.
[21] In my view, there are exceptional circumstances that warrant determining this application for judicial review, despite the interlocutory nature of the decision. As discussed in greater detail below, the principles that underlie s. 45.1 of the Code are those of issue estoppel, preventing collateral attack and abuse of process. The section is designed to avoid a multiplicity of proceedings. It is also designed to ensure that matters that have been appropriately determined on their merits, in another forum, are not re-litigated at the Tribunal. In this case, the Tribunal recognized that at least one issue – whether the stop was the result of racial profiling – had been determined by the OCJ. However, the Tribunal determined that all the issues in the Code Application should proceed to a hearing.
[22] To preclude any review of the Tribunal’s decision would defeat the purpose of s. 45.1. It is not in the interests of the parties or the Tribunal to incur the time and expense of determining a human rights application if the issue has been appropriately dealt with in another proceeding. Moreover, it is undesirable for there to be the potential of inconsistent findings on important issues, such as the motivation for the vehicle stop. Given the findings made by the Justice of the Peace in the OCJ, there is a real prospect of that occurring here. Should that occur, there is no way to remedy such a result in an application for judicial review determined after a final decision.
[23] The Tribunal attempts to distinguish this case and Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.) where this Court also refused to find that the application for judicial review was premature. There, the two decisions under review were in the nature of test cases in which the Tribunal had applied s. 45.1 of the Code, and all parties sought to have the application for judicial review decided.
[24] It is true that the present decision is not a test case. However, the decision of the Tribunal, if followed, has broad implications for other cases in which there are overlapping issues in human rights and criminal proceedings. The Tribunal has concluded, as a general proposition, that it is unfair to an individual to dismiss a human rights application dealing with the same allegations - racial profiling - that were considered and rejected in a criminal proceeding. As will be set out in detail below, that conclusion was based on an improper application of the Supreme Court’s jurisprudence and is not a reasonable one.
[25] Finally, the Supreme Court of Canada in the Halifax case cited above did not preclude judicial review of an interim decision. I note that in para. 36, the Supreme Court observed that courts show restraint in reviewing interim decisions, particularly when reviewing a preliminary screening decision. The decision before the Court was the referral of a human rights complaint to a board of inquiry. There had been no decision about the merits of the complaint. In contrast here, the Tribunal has made a decision to hear all allegations in the Code Application despite the findings of the OCJ on the motivation for the vehicle stop. The merits of this racial profiling issue have been determined by the OCJ.
[26] Finally, this is not a case where delay is likely to result from hearing the application for judicial review, as the Tribunal’s hearing on the merits of the Code Application is not scheduled until September of this year.
The Reasonableness of the Tribunal’s Decision
Did the Tribunal unreasonably conclude that only the stop issue was determined by the OCJ?
[27] Section 45.1 requires the Tribunal to decide if “another proceeding has appropriately dealt with the substance of the application.” In doing so, it has to determine two questions: whether the substance of the application has been dealt with in another proceeding, and whether that proceeding dealt “appropriately” with it.
[28] A similar section in British Columbia’s human rights legislation was considered by the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422. The Supreme Court explained that the provision does not codify the common law doctrines of issue estoppel, res judicata, collateral attack and abuse of process. However, “it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay” (at para. 37).
[29] The first task for the Tribunal was to determine whether the legal issue in the Code Application was essentially the same as the issue decided in the OCJ (Figliola at para. 37). It found that the OCJ proceeding dealt only with the allegations of racial profiling in relation to the stop of the vehicle. The Tribunal held that the allegations relating to police conduct after the stop - for example, the failure to consider the Respondent’s document pertaining to the stay of the licence suspension, the impoundment of his vehicle, and the search of the vehicle - were “separate and distinct allegations of Code violations that cannot be subsumed within his allegation relating to the stop” (Decision at para. 27). The Tribunal made no finding as to whether the officer’s check of the Respondent’s licence plate was “subsumed” within the allegation in relation to the stop (Decision at para. 29). The Tribunal also found that the reprisal allegation was not subsumed within the allegation relating to the stop, as the allegation was based on events that occurred six months later.
[30] The applicants argue that the legal issue raised in the Code Application is racial profiling with respect to the stop of the Respondent’s vehicle. They submit that the decision of the OCJ dealt with that issue and found that there was no racial profiling. They also take issue with the way in which the Tribunal characterized the Application as containing a series of allegations of Code breaches, rather than one breach. They submit that there was one allegation of racial profiling in stopping the vehicle. Events subsequent to the stop were the unlawful consequences of that stop if the Respondent had been pulled over because of his race.
[31] In my view, it was not improper nor unreasonable for the Tribunal to read the Code Application as it did – that is, as setting out a series of incidents that allegedly constituted infringements of the Code. The Code Application was drafted by a self-represented person. The application form invites the individual to provide a detailed narrative of each event the individual believes is discriminatory. In compliance with that instruction, the Respondent provided a detailed description of events that he believed were discriminatory. The Tribunal’s approach is consistent with past cases which have held certain aspects of a police stop and its aftermath were discriminatory in circumstances where other actions have been held not to violate the Code (see, for example, McKay v. Toronto Police Services Board, 2011 HRTO 499).
[32] I turn now to the reasonableness of the Tribunal’s findings. In my view, the Tribunal reasonably concluded that the OCJ made no determination as to whether the post-stop conduct of the officer was racially motivated. However, it unreasonably failed to determine whether the checking of the licence plate had been determined by the OCJ.
[33] The reasons of the Justice of the Peace are brief, but a fair reading of the transcript leads to the conclusion that she found the stop, including the licence plate check, was not racially motivated. She accepted the officer’s evidence that he made a plate check while driving past the Respondent’s vehicle, found the Respondent’s licence was under suspension, and then stopped the vehicle. She concluded at pp. 65-66 of the transcript:
But, in this particular case, there is no evidentiary basis the Court has heard to grant your application for a stop[sic] 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.
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.
[34] Having found that the stop was lawful and that there was no evidence of racial profiling, the Justice of the Peace rejected the motion to exclude evidence. She said nothing in her reasons about the events after the stop, although the officer had been questioned about what happened after the stop. Thus, it was reasonable for the Tribunal to conclude that the post-stop conduct had not been the subject of adjudication by the OCJ, including the reprisal allegation.
[35] As I have noted above, the Tribunal failed to make a finding about the allegation relating to the plate check (Decision, para. 29). According to Figliola, a necessary part of the analysis, in applying a provision like s. 45.1 of the Code, is to determine whether the allegations have been dealt with in the earlier proceeding. In my view, it was unreasonable for the Tribunal not to have determined whether the OCJ had dealt with this issue. Had it done so, the only reasonable conclusion is that this aspect of the Code Application - the stop and events preceding it - was addressed in the OCJ decision.
[36] In the Code Application, the Respondent alleged that there was no time for a plate check before he was stopped, and the check actually occurred after the stop. The Justice of the Peace found that there was a licence plate check before the stop and concluded that there was no racial profiling. She also stated that even if she accepted the defense version of events – that the officer turned and followed the Respondent - there was no evidence to support a finding of racial profiling (Transcript at pp. 69-70).
Did the Tribunal unreasonably conclude that it would be unfair to dismiss the human rights Application?
[37] Using the analysis set out in Figliola, the Tribunal was required to consider whether those aspects of the Code Application that had been dealt with by the OCJ proceeding had been “appropriately” dealt with. In answering that question, the Tribunal appropriately turned to the decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, a case decided after Figliola, in which it revisited the common law doctrine of issue estoppel.
[38] Penner dealt with issue estoppel in the context of a civil action for damages brought by an individual respecting alleged misconduct by police officers. He had also made a complaint against them that led to a police disciplinary hearing in which he had actively participated. The discipline charges were dismissed. At the Supreme Court, the issue was the scope of judicial discretion not to apply issue estoppel because to do so would cause unfairness.
[39] The majority in the Supreme Court emphasized that issue estoppel “balances judicial finality and economy and other considerations of fairness to the parties” (at para. 29). In Penner, the Court refused to create a rule of public policy that would preclude the applicability of issue estoppel to all police disciplinary hearings (at paras. 35 and 69). The majority stated at para. 35:
We are not persuaded that it is either necessary or desirable to create a rule of public policy excluding police disciplinary hearings from the application of issue estoppel. The doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results; it calls for a case-by-case review of the circumstances to determine whether its application would be unfair or unjust.
[40] The majority described two situations in which unfairness could arise: where there is unfairness in the prior proceeding, and where there is unfairness in applying the result in the second proceeding (at para. 39). In the present case, the unfairness is said to lie in applying the result in the OCJ in the Tribunal proceeding. The test to be applied for determining unfairness in this context is set out at para. 42 of Penner:
We recognize that there will always be differences in purpose, process and stakes between administrative and court proceedings. In order to establish unfairness in the second sense we have described, such differences must be significant and assessed in light of this Court’s recognition that finality is an objective that is also important in the administrative law context.
The application of the test is nuanced, and takes into account the reasonable expectations of the parties (at paras. 42 and 49).
[41] In the present case, the Respondent argued that it would be unfair that he be bound by the result in the OCJ, and the Tribunal agreed. In so doing (and without looking only at the stop and the licence plate check), the Tribunal seems to withdraw from its earlier findings as to what had been decided in the OCJ. At para. 31 of the Decision, the Tribunal states, “Even 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 is unfair to use the results of the OCJ proceeding to preclude this Application.”
[42] The concerns that the Tribunal had on the fairness issue can be summarized as follows:
(a) there are significant differences between the purposes, processes and stakes involved in the two proceedings in this case;
(b) the issue of racial profiling was raised in different ways in each proceeding; and
(c) there are public policy reasons that weigh against using the OCJ outcome to dismiss the Code Application.
[43] While the Tribunal purported to rely on Penner, in fact, it failed to apply the nuanced, case-by-case approach that Penner requires. In discussing each of these concerns, the Tribunal speaks in the abstract. It does not focus on the particular facts of this case and the unfairness to this individual Respondent. In contrast, a review of the majority decision in Penner reveals numerous references to the circumstances of Mr. Penner or an individual like him, and a careful analysis of the differences between the police disciplinary process and the civil action, including discussion of the different standards of proof in the two proceedings and the role of the police chief as adjudicator in the disciplinary proceeding.
[44] I turn now to the Tribunal’s first concern. It found there were significant differences between the purposes, processes and stakes in the two proceedings, because one was quasi-criminal and the other remedial. However, it fails to engage with the kinds of questions examined in Penner: notably, the stakes and the differences between the two proceedings.
[45] Indeed, the issue is not the question of remedy, should the Respondent ultimately succeed before the Tribunal. The issue is the fairness of treating the factual finding - that racial profiling was not involved in the police stop - as final for purposes of subsequent proceedings before the Tribunal. The two proceedings raise that same issue. It is a necessary finding - that there was racial profiling - that the Tribunal must make before it can consider the question of any remedy. There is no fundamental difference between the purposes or processes involved in the two proceedings in respect to that central issue.
[46] The Tribunal stated, using the language from Penner, that there was “a significant difference between the purposes, processes or stakes involved in the two proceedings”. While that conclusion is stated, no real explanation is offered for that conclusion. Indeed, it would seem that the stakes for the Respondent were much greater in the proceeding before the OCJ than they were before the Tribunal. In the court proceedings, the Respondent, if convicted, faced a minimum fine of $10,000, a possible impoundment of his vehicle for three months, and a possible licence suspension for one year. In the Tribunal proceedings, the worst result that he faced was a dismissal of his Code Application, although if successful, he would likely obtain damages. Given those respective outcomes, it would seem logical that the Respondent would take seriously the proceedings before the OCJ in an attempt to gain an acquittal. In contrast, Mr. Penner, while a participant in the disciplinary proceeding, was not directly affected by the outcome of that proceeding.
[47] In terms of the second concern, the Tribunal said that, at trial, the Respondent claimed racial profiling as part of his claim that he was subject to arbitrary detention and unreasonable search and seizure contrary to the Charter. The Tribunal found this to be a different claim than his claim that he was discriminated and reprised against under the Code. However, in both instances, the Respondent is claiming that the police stop resulted from racial profiling. Whether that results in the exclusion of evidence at his trial, or results in a remedy from the Tribunal, the central issue is the same. There is no principled basis for drawing the distinction that the Tribunal did.
[48] In terms of the third concern, the public policy reasons were stated by the Tribunal to be the possible impact on strategic decisions in criminal proceedings including that accused persons might be less likely to advance racial profiling defences if this might preclude their Code application; it might place undue pressure on an accused person to give evidence in support of a Charter motion; and there might be strategic, financial or other reasons why an accused person would not want to give evidence.
[49] It is not clear what evidentiary foundation the Tribunal was drawing upon in order to advance these public policy reasons. Certainly, there was no evidence before it to establish any of these concerns. Consequently, the conclusions amount to nothing more than speculation.
[50] In addition, in engaging in this broad public policy analysis, the Tribunal appears to have done exactly what the Supreme Court of Canada cautioned against doing in Penner. It has created a rule of public policy that an individual who raises a racial profiling defence in relation to a vehicle stop and is unsuccessful before the courts is not precluded from litigating that issue before the Tribunal. That conclusion invites collateral attacks on the decisions of the courts.
[51] In any event, the focus should have been on the situation of the Respondent and the fairness of applying finality in this case. There is no claim that he was actually deprived of his right to remain silent. He had criminal defense counsel who chose to proceed by a blended voir dire instead of a voir dire. The Respondent chose not to testify in support of his Charter challenge.
[52] The standard of proof with respect to his Charter claim and his human rights allegation of racial profiling was the same – a balance of probabilities. This is not a case like Penner where two of the important factors in the fairness analysis were that the chief of police was, in effect, the adjudicator in the disciplinary proceedings, and the standard of proof in the disciplinary hearing was higher than the civil standard of proof. Here, in contrast, the adjudicator was a judicial officer, and the civil standard - a balance of probabilities - applied in both proceedings.
[53] Moreover, there are other process factors in the present case that the Tribunal failed to consider. The Respondent had a right to appeal the OCJ decision, but he chose not to do so, instead turning to the Tribunal to hear his Code Application. As well, the parties and the Tribunal had all acknowledged that the allegations in the OCJ proceeding and the Code Application were overlapping, as indicated by the two applications to defer consideration of the Code Application pending the OCJ hearing and the Tribunal’s reasons for doing so.
[54] The Tribunal did not engage in a case specific analysis of why a decision dismissing the those allegations in the Code Application that had been dealt with in another forum would work an injustice or unfairness to the Respondent. Without that individualized analysis, the conclusion that unfairness would result, based on generalized concerns about public policy, renders the decision an unreasonable one.
Conclusion
[55] For these reasons, the application for judicial review is granted, and the decision of the Tribunal is set aside. The matter is referred back to be decided by a different member of the Tribunal in light of these reasons.
[56] Costs to the applicants are fixed at $7,500 all in, an amount agreed upon by the parties, payable by the individual Respondent.
Swinton J.
I agree
McKelvey J.
NORDHEIMER J. (dissenting in part):
[57] I have read the reasons of my colleague, Swinton J. I agree with her that the application must be allowed and the matter referred back to the Tribunal, to a differently constituted panel, for reconsideration. More specifically, I agree with Swinton J. that this application is not premature, for the reasons that she has given. I also agree that the Tribunal’s application of s. 45.1, in this case, is fundamentally flawed, again for the reasons that Swinton J. has given. Where I part company with my colleague is with respect to which of the allegations, contained in the Code Application filed by the Respondent, are encompassed by the ruling of the Ontario Court of Justice.
[58] My colleague concludes, at para. 35, that “the stop and events preceding it” are the only allegations addressed in the OCJ’s decision. I respectfully disagree. In my view, all of the allegations, surrounding the traffic stop, are properly considered as having been determined by the ruling of the OCJ on the Respondent’s Charter application. The only allegation not encompassed by the ruling is the decision to re-lay the charges (the “reprisal” allegation).
[59] In order to explain my disagreement with my colleague’s conclusion, in this one respect, I believe it is important to review the approach that is to be taken when making determinations as to the presence of racial profiling. I begin with the decision in R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.) where Morden J.A. spoke about the nature of the evidence, that will need to be considered, where an allegation of racial profiling is made. Morden J.A. said, at para. 44:
A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.
[60] Two factors are relevant to the fact that racial profiling must be proven by inference, drawn from circumstantial evidence. One factor is that the credibility of the officer, against whom the allegation of racial profiling is made, is of some significance. Notwithstanding that the conclusion regarding racial profiling will usually have to be drawn from indirect evidence, the credibility of the officer, in explaining why s/he took the actions that s/he did, will still figure prominently in the analysis.
[61] The other factor is that the circumstantial evidence that is relevant to the analysis will include all of the interaction between the officer and the person, who claims to have been racially profiled. The entire interaction between the two must be examined in order to gain insight into the motivations of the officer.
[62] The fact that the first factor, that is, the credibility of the officer, is a necessary consideration should be self-evident. Nevertheless, it is referred to a number of cases. For example, I note the observation made in Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457 (C.A.) where Doherty J.A. said, at para. 108:
The essential question was not whether Officer Ceballo had reasonable grounds to suspect the appellants of any misconduct when he conducted the computer check, but whether he was motivated to do so in part, at least, because of the colour of the appellants’ skin. The answer to that question turned in part on Officer Ceballo’s credibility.
[63] In the proceedings before the OCJ, the Justice of the Peace heard Officer Wester’s evidence. She accepted his evidence without qualification. It is important to realize that Officer Wester was questioned, at length, on all of the allegations that arose out of the traffic stop. He was found to be a credible witness, and his evidence was accepted, with respect to all of those matters. That finding of credibility is important, for the reasons that Goldstein J. noted in R. v. Thompson, [2014] O.J. No. 3818 (S.C.J.) at para. 42:
If the trial judge accepted that there was a basis to pull over the Plymouth based on the traffic violation, then it undermined the claim of racial profiling. If the trial judge rejected the officer’s evidence that there was a basis to pull over the Plymouth then a finding of racial profiling may well have flowed. The question of racial profiling could likely only have been resolved by addressing the officer’s credibility: [citations omitted]
[64] Against that evidentiary background, the OCJ concluded that the allegation of racial profiling was not made out. Consequently, there is little room, on the conclusion reached by the OCJ, for a finding that, unlike the decision to “run” the Respondent’s licence plate and to stop his vehicle, the subsequent decisions to ask for documents; to request that the Respondent step out of the vehicle; to impound the vehicle; and to search the vehicle; could have been the subject of racial profiling. Indeed, there is no evidence that the Respondent advanced any such distinction.
[65] When one is considering the circumstantial evidence that is relevant to the racial profiling claim, one cannot, as my colleague does (at para. 31) and, evidently, the Tribunal did, compartmentalize the series of interactions between Officer Wester and the Respondent, and treat them as separate and distinct events. Rather, they are all part of a continuous course of conduct between Officer Wester and the Respondent. It is the totality of the interaction between Officer Wester and the Respondent that must be examined, in concluding whether the evidence can give rise to an inference that the conduct of the officer was motivated by racial profiling. As Doherty J.A. said in Peart, at para. 131:
Factual determinations are made by a consideration of the totality of the relevant evidence be it direct or circumstantial.
[66] In saying that, I am cognizant of another observation that Doherty J.A. made in Peart, at para. 92, where he said:
I cannot, however, accept the submission made by the ACLC that if the initial action taken by the police towards an individual is tainted by improper racial considerations, further actions taken towards that individual by the police will always be equally tainted. Often, the initial improper racial consideration will flow through to the subsequent police conduct. There will be situations, however, where despite improper racial profiling in the initial contact, the subsequent acts of the police are based on and justified by non-racial considerations.
[67] While that observation is undoubtedly true, it is not so clear that the reverse could be true. That is, if the original stop was not tainted by racial profiling, it would be an unusual case where it could be found that the subsequent conduct was tainted by racial profiling. I do not say that that could never be the case. I simply say that it is a much less likely event.
[68] In this case, the OCJ concluded that the traffic stop was not the result of racial profiling. I agree with Swinton J. that that conclusion, especially given the acceptance of Officer Wester’s evidence, must inevitably lead to the conclusion that the decision to “run” the Respondent’s licence plates, which is the event that led to the stop, was also not the result of racial profiling.
[69] After the untainted traffic stop, the officer asked the Respondent for his documents. He is fully entitled to do so.[^1] Given that the officer had lawful authority, at that point, to require the Respondent to produce his documents, and given the knowledge that the officer had that the Respondent’s licence to drive was suspended, I do not see how the request for documents could, in the circumstances, become tainted conduct, when both its origin was non-tainted conduct, and the officer had the lawful authority to do what he did.
[70] The next event was that the officer impounded the Respondent’s vehicle. The officer had no choice but to impound the vehicle. For good and sufficient reason, the officer believed that the Respondent’s licence to drive was suspended. That was what the officer’s computer, in his scout car, told him. With that knowledge, the officer could not allow the Respondent to simply drive away. There was no one else to take control of the car. The officer had to impound the vehicle.
[71] Once it became necessary to impound the vehicle, a search or inventory of the vehicle was similarly necessary. Doing an inventory of a vehicle, when it is impounded, is standard police practice, and for good reason. The police would otherwise leave themselves open to allegations, either that valuables were taken from the vehicle or, if any incriminating evidence was subsequently found in the vehicle, that someone had later “planted” that evidence.
[72] Given that the officer had to impound the vehicle, and also had to inventory it, I do not see any reasonable basis upon which a finding could have been made that those actions were the result of racial profiling. It becomes even more difficult to see any such basis, given the acceptance of Officer Wester’s evidence throughout. In finding that the traffic stop was not motivated by racial profiling, and in accepting the evidence of the officer, the only reasonable conclusion, absent some subsequent and contrary evidence, is that the actions that flowed from the traffic stop were similarly not tainted by the presence of racial profiling.
[73] I repeat that one cannot scrutinize the interactions, between Officer Wester and the Respondent, as if they were separate events, unconnected one to the other. They are part of a continuing course of conduct between the two. My colleague’s conclusion that the decision to stop the Respondent, and the actual stop, can be divorced from the subsequent events, that took place between the two, is artificial. It ignores the reality of the events and it is contrary to the proper evidentiary approach to the issue, that is, to consider the totality of the evidence.
[74] Consequently, I conclude that all of the allegations made in the Code Application relating to the traffic stop are encompassed within the conclusion, made by the OCJ, that racial profiling was not the motivating factor for these events. In reaching that conclusion, I appreciate that the reasons in the OCJ did not specifically address each of the allegations separately, nor were specific individual findings made with respect to each. In my view, the Justice of the Peace was not required to do so. All of the allegations were before the court. They were all contained in the Notice of Constitutional Question filed on behalf of the Respondent. They were all directed to the constitutional challenge, made by the Respondent, to exclude the evidence under s. 24(2) of the Charter. They were all canvassed with Officer Wester during the course of his evidence. The Justice of the Peace rejected the Charter challenge. Her decision, fairly read, makes her conclusion, with respect to the component parts of that challenge, clear.
[75] The Justice of the Peace did not accept the Respondent’s allegation that Officer Wester was motivated by racial profiling in his dealings with the Respondent. The Respondent did not appeal that decision. The Respondent now, in essence, seeks to re-litigate his allegations before the Tribunal. The reality is that the Respondent can only realistically succeed before the Tribunal, if the Tribunal reaches a different conclusion, than the OCJ did, regarding the credibility of Officer Wester. That is precisely the type of result that the collective principles underlying the doctrines of issue estoppel, abuse of process and collateral attack are designed to avoid. Provisions in statutes, like s. 45.1, are a statutory reflection of those principles. All of those principles are directed at:
... 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.[^2]
[76] In concluding, I return to the language of s. 45.1. It permits the Tribunal to dismiss an application where another proceeding has dealt with the “substance” of the application. The plain language of the section does not require that each and every allegation, or particular, must be addressed. It requires simply that the substance, or essential nature, of the allegations be addressed. In my view, the decision of the OCJ addressed the Respondent’s essential allegation. He ought not to be allowed to take another “kick at the can”. This is especially so when the Respondent did not give evidence before the OCJ but, presumably, intends to do so before the Tribunal – a reality that, in and of itself, strongly resembles a collateral attack.
[77] The matter should be remitted back to the Tribunal, differently constituted, but only for it to consider the allegation that the charges were re-laid as a “reprisal” for the Respondent’s efforts to enforce his rights.
Nordheimer J.
Date of Release: April 6, 2017
[^1]: See, for example, s. 33(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, and s. 3(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.
[^2]: British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 at para. 25