Sie-Wing Khow

This is a costs endorsement following a successful constitutional application by the applicant against the Chief of Police, with no relief granted against the Toronto Police Services Board (TPSB).

The applicant, self-represented, sought costs including fees and disbursements against both respondents.

The court declined to award costs against the TPSB due to the limited scope of relief sought against it and its role in assisting the court on a jurisdictional issue.

Against the Chief of Police, the court applied the two-part test from *Fong v. Chan* for awarding costs to self-represented litigants, requiring demonstration of time and effort doing lawyer's work and incurred opportunity cost by forgoing remunerative activity.

The applicant failed to demonstrate foregone remunerative activity, as his decision to pursue lower-paying part-time work predated the litigation and was a quality-of-life choice.

Therefore, no fees were awarded.

However, the court ordered the Chief of Police to pay the applicant's reasonable disbursements, as the applicant was successful in advancing constitutional rights in the public interest.

The applicant challenged the constitutionality of a practice instituted by the Chief of Police requiring all individuals entering police headquarters to submit to a security search.

The applicant argued this violated his freedom of expression under s. 2(b) of the Charter, as it was a condition precedent to attending public meetings of the Toronto Police Services Board held in the building.

The court found that attending a public government meeting is protected expression and the searches infringed this right.

The court further held the infringement was not justified under s. 1 because the Chief of Police lacked statutory authority under the Occupiers' Liability Act or the Occupational Health and Safety Act to impose warrantless searches as a condition of entry to a public meeting.

A declaration was granted.

The appellant appealed the penalty of forfeiture of five days' pay imposed on the respondent police officer for discreditable conduct.

The respondent had previously been convicted of assault with a weapon for his actions during the appellant's arrest at the G20 Summit.

The appellant argued the Hearing Officer erred in assessing aggravating and mitigating factors, and the intervener argued the Hearing Officer improperly allowed a collateral attack on the criminal conviction.

The Ontario Civilian Police Commission dismissed the appeal, finding the Hearing Officer's penalty decision was reasonable and did not constitute an impermissible collateral attack.

The appellant police officer appealed the penalty of dismissal imposed by a Hearing Officer after pleading guilty to deceit and insubordination.

The misconduct involved making a false statement to investigators regarding his brother's whereabouts and conducting unauthorized database searches.

The Commission found the penalty of dismissal unreasonable, noting the Hearing Officer erred in principle by relying on speculative findings and the fact of the officer's suspension.

The Commission varied the penalty to a forfeiture of nine days' pay for insubordination, and a 30-day suspension without pay followed by a two-year demotion to fourth-class constable for deceit.

The appellant brought a motion to introduce fresh evidence at the hearing of his appeal regarding the penalty imposed on a police officer for misconduct during the G20 protests.

The Ontario Civilian Police Commission applied the Palmer test for fresh evidence and found that the proposed evidence either could have been adduced at the original hearing with due diligence, was already part of the record, or was irrelevant.

The motion to adduce fresh evidence was dismissed.

The Chief of Police appealed a youth court judge's decision denying the disclosure of a young person's youth records.

The records were sought by both the prosecuting police service and the subject officer for use in a police disciplinary proceeding, where the young person was a key witness.

The appeal court found that the principle of diminished moral culpability under the Youth Criminal Justice Act does not shield a young person's records from disclosure when they are a witness and their credibility is at issue.

The court set aside the youth court judge's decision and ordered the records produced, subject to publication bans and redactions to protect the young person's identity.

The appellant police officer appealed a Hearing Officer's finding of discreditable conduct and the resulting penalty of forfeiture of eight days' pay.

The misconduct involved the officer repeatedly accepting free meals from a restaurant while in uniform.

The Commission applied a reasonableness standard of review to the finding of misconduct and the penalty.

The Commission found that the Hearing Officer's decision was justified, transparent, and intelligible, and that the penalty was within the appropriate range given the officer's conduct and disciplinary history.

The appeal was dismissed and the decision confirmed.

The moving party, a public complainant, sought leave to appeal a penalty decision that suspended a police officer for one day without pay for making an unlawful arrest during the 2010 G20 Summit.

The moving party argued that the arrest breached his Charter rights and that the appropriate penalty was of significant importance to the policing profession and the community.

The Ontario Civilian Police Commission applied the test for leave to appeal and found that, given the circumstances of the unlawful arrest and detention, the issue of the appropriate penalty was of significant importance.

Leave to appeal was granted.

The respondent in a human rights application alleging sexual harassment sought production of undisclosed documents from a Crown Brief detailing the applicant's prior interactions with police.

The respondent argued the documents were relevant as similar fact evidence and necessary for full answer and defence.

The Tribunal denied the request, finding that the undisclosed documents, which primarily concerned domestic incidents and were not of a sexual nature or related to a workplace, were not arguably relevant to the allegations in the application.

The complainant, an Aboriginal man, alleged he was subjected to racially biased policing when he was stopped, investigated, and arrested for possession of stolen property (his own bicycle) by a Toronto police officer.

The Tribunal found that the officer's heightened suspicions, closed-minded investigation, hasty arrest based on flawed information, and post-release demands were influenced by negative stereotypes about Aboriginal people lacking credibility and being prone to criminality.

The Tribunal concluded that the complainant's race was a factor in his treatment, establishing a case of racial discrimination in the provision of policing services.

The hearing was bifurcated, with liability and remedies to be determined subsequently.

The applicant alleged discrimination by Toronto Police Service officers during two stops.

The respondents requested dismissal under section 45.1 of the Human Rights Code, arguing the substance of the application was already dealt with through the Police Services Act complaints process and reviewed by the OCCPS.

The Tribunal directed the applicant to provide written submissions on the applicability of section 45.1.

The Tribunal deferred ruling on an outstanding production request pending the section 45.1 determination, and noted that the Toronto Police Association must file a formal request if it wishes to intervene.

The complainant, an Aboriginal man alleging racial profiling during a police stop, brought a motion for the production of various documents from the respondents and the Chief of Police.

The Tribunal applied the 'arguable relevance' standard for pre-hearing disclosure.

The Tribunal ordered the production of break and enter occurrence reports, current CPIC policies, primary training manuals on investigative stops, and training materials regarding diversity and racial profiling.

The Tribunal denied the request for contact cards due to their discretionary nature and the burden of retrieval, and denied the request for note-taking and whistle-blowing policies as they were not arguably relevant to the issues in dispute.

The Chief of Police and respondent officers sought to vary a previous Tribunal order requiring the production of documents related to previous race-based complaints against the officers, proposing to redact complainant identities.

They also sought a stay of proceedings pending judicial review.

The Tribunal declined to vary the order, finding the proposed redaction and contact method inappropriate and unnecessary.

The Tribunal also denied the stay, finding no exceptional circumstances and that the balance of convenience did not favour a stay, as delaying production would prejudice the complainant and the Commission.

In an interim decision regarding a human rights complaint alleging racial profiling and assault by police officers, the Tribunal reviewed records of past complaints against the respondent officers to determine if they should be produced.

The Tribunal ordered the production of a 2001 complaint alleging a racially motivated assault at the same police division, finding its probative value outweighed potential prejudice.

A 2007 complaint lacking similarity was withheld.

The Tribunal declined to redact personal identifiers from the produced records but imposed conditions restricting their use to the current proceeding or any subsequent judicial review.

In an interim decision, the Human Rights Tribunal of Ontario addressed three preliminary matters in a complaint alleging sexual orientation discrimination by police officers.

The Tribunal ordered the hearing bifurcated into liability and remedy phases.

It dismissed the Toronto Police Services Board's request to dismiss the complaint, finding the Board could be held vicariously liable for the actions of individual officers under s. 46.3(1) of the Human Rights Code.

Finally, the Tribunal ordered the production of an officer's personnel file and relevant policy documents, declining to apply an extraordinary O'Connor-type procedure for the disclosure of the personnel records.

The moving parties sought a stay of an interim Tribunal decision ordering the production of police discipline records pending their application for judicial review.

The Tribunal applied the traditional three-part test for a stay, considering it in the context of the revised Human Rights Code, which emphasizes expeditious resolution and limits judicial review of procedural rulings.

The Tribunal found that producing the records to the adjudicator would not cause irreparable harm and that the balance of convenience strongly favoured proceeding without delay.

The request for a stay was denied, though a brief extension was granted to allow the moving parties to seek a stay from the Divisional Court.

The applicant police officers sought judicial review of a Human Rights Tribunal of Ontario decision ordering the production of their personnel files in relation to a human rights complaint.

After the police service confirmed no responsive records existed, the respondents argued the application was moot.

The Divisional Court agreed, finding no live controversy remained.

The Court declined to exercise its discretion to hear the moot case, noting that recent Supreme Court of Canada jurisprudence regarding police disciplinary records should be applied in a genuine adversarial context.

The complainant, alleging racial discrimination by police during an arrest for drug trafficking, requested the production of arrest records and recognizances for all individuals arrested in the same undercover operation.

The Tribunal dismissed the request, finding that the complainant failed to demonstrate the arguable relevance of the records to his specific allegations of racial profiling and mistreatment.

The Tribunal also confirmed the bifurcation of the hearing into liability and remedy phases.

In an interim decision, the Human Rights Tribunal of Ontario addressed requests by the complainant and the Commission for the production of records relating to other complaints of racial discrimination against the personal respondents, who are civilian court officers.

Applying the principles from a concurrent decision, the Tribunal ordered the records produced to the Tribunal for review prior to disclosure to balance probative value against privacy interests.

The Tribunal also ordered the production of officer badge numbers and a photograph of the complainant, but declined to order the production of correctional officers' names due to security concerns.

The Commission and the complainant sought the production of information in police files about allegations by third parties of discrimination by the respondent police officers.

The complainant alleged discrimination on the basis of colour, creed, place of origin, and race, including physical assaults and harassment.

The Tribunal considered the application of the Supreme Court's decision in R. v. McNeil regarding the production of police disciplinary records.

The Tribunal found that the requested records were arguably relevant as similar fact evidence.

To balance the potential probative value against the prejudicial effects and privacy interests of the officers and third-party complainants, the Tribunal ordered the Chief of Police to produce the records to the Tribunal for review prior to determining whether they should be disclosed to the parties.