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Surge of racial profiling complaints possible as procedural hurdle cleared

|Written By Yamri Taddese

Police forces across the province could face a surge of racial profiling complaints as the Human Rights Tribunal of Ontario is allowing discrimination hearings to proceed despite police arguments that their internal disciplinary systems have already dealt with the matters.

It’s unacceptable that a person who has complained to police about discrimination can’t later pursue a human rights application, says Bruce Best.

Lawyer Bruce Best, who’s representing three racial profiling complainants, says there’s a lack of transparency and independence in the decision-making process with police essentially investigating themselves. The Office of the Independent Police Review Director often sends complaints back to the police force implicated in the matter for an investigation, he notes.

“The respondent could decide they are not responsible,” he says.

In the last two weeks, the tribunal allowed at least five racial profiling cases against Toronto police to proceed despite an ongoing judicial review that’s challenging the HRTO’s right to hear matters already dismissed by an internal police investigation.

The Ontario Provincial Police launched a judicial review after the HRTO handed down a 54-page decision in Claybourn v. Toronto Police Services Board last year. The judicial review challenges the HRTO for hearing complaints against police despite the fact internal investigations had already deemed the allegations to be unsubstantiated. The decision looked at three cases against police in Ontario: two against Toronto police and one against the OPP. All three cases involve black men who alleged police targeted them because of their race.

The OPP’s judicial review application says that after Elliot Lake, Ont., man Dean De Lottinville filed a racial profiling complaint in 2009, both the provincial force and the Ontario Civilian Police Commission concluded there was no evidence for it. The review application says the tribunal erred in its interpretation of s. 45.1 of the Human Rights Code that bars parties from re-litigating matters that have already been decided.

Recently, Toronto police sought to delay several racial profiling applications pending a finding in the judicial review. But in a slew of decisions this month, the tribunal said it wouldn’t wait for a ruling in the judicial review to hear the cases.

Best says the tribunal got it right, adding it’s simply unacceptable that a person who has complained to police about discrimination can’t later pursue a human rights application.

“It’s a matter of fairness,” says Best, a lawyer with the Human Rights Legal Support Centre. He likens the idea to an employer deciding it was firing an employee for just cause through an internal investigation and later arguing the worker can’t sue for wrongful dismissal. “If someone dealt with the police and felt discriminated against, they file a complaint. It doesn’t occur to them that one might preclude the other,” he says.

Although it didn’t cite a number, the Office of the Independent Police Review Director says it refers “the majority” of complaints against police back to local forces for investigation. In Toronto, Chief Bill Blair often undertakes these investigations.

Toronto lawyer Avvy Go, who was an intervener in Claybourn on behalf of the Metro Toronto Chinese and Southeast Asian Legal Clinic, says police aren’t fit to rule on human rights complaints.

“In our view . . . the issue of racial profiling will not be appropriately dealt with under the Police Services Act,” she says.

“The chief of police or his delegates — the officers who investigate these cases — do not have any expertise on human rights issues and very often, in our view, do not even admit that there is racism in the police force,” she adds.

Lawyer David Gourlay, who represented the police in Claybourn, tells Law Times he can’t comment on the matter because other similar cases are still before the tribunal. According to the HRTO, 13 cases had been on hold pending a decision in Claybourn last year.

Andrew Morrison, spokesman for the Ministry of Community Safety and Correctional Services, said the OPP wouldn’t comment on the matter beyond what’s in its judicial review application. 

   

In its decision last year, the HRTO said that since the internal investigations through the Police Services Act weren’t sufficient to address the substance of the applications, a hearing into the complaints wouldn’t be the kind of duplicate proceeding barred under s. 45.1 of the Human Rights Code.

“If the [Police Services Act] investigation process were to be considered a ‘proceeding’ for the purposes of s. 45.1, I would still dismiss the requests in this matter on the basis that it has not dealt with the ‘substance’ of the applications that are before us,” wrote tribunal vice chairwoman Judith Keene.

“Section 45.1 requires not only that ‘another proceeding’ has taken place, but that the proceeding has dealt with the ‘substance’ of the application,” she noted.

To address the substance of an application, a proceeding must ask whether there has been a breach of the Human Rights Code and, if so, what remedies are appropriate, Keene added.

“The above questions are neither asked nor answered at the investigatory stage of a [Police Services Act] complaint. Instead, that stage deals with whether the complaint of misconduct is substantiated; that is, whether there are reasonable grounds to believe that misconduct (which may include discrimination) may have occurred, and whether the complaint should be sent to a hearing,” she wrote, noting the police investigations “obviously” didn’t consider what remedies would be appropriate if they found a breach.

The Office of the Independent Police Review Director took a neutral position in Claybourn last year and explained that its processes don’t preclude a hearing at the HRTO, says spokeswoman Claudia Williams.

“We provided information and clarification as to our processes with the public complaints system and took the position that our screening decision should not provide an obstacle to a complainant in the HRTO process,” she said in an e-mail to Law Times.

“Each complaint is screened on its merit. Oftentimes, complaints have multiple allegations. We track statistics according to the requirements of the Police Services Act. Generally speaking, a high percentage of cases are referred to police for investigation,” Williams added.

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