Speaker's Corner: HRTO lacks expertise to deal with racial profiling

Advocating for a standard of correctness in the review of administrative tribunal decisions in Ontario and particularly those of the Human Rights Tribunal of Ontario at the Divisional Court and elsewhere is a steep, uphill climb for even the most able advocates.

The advent of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick has witnessed a new era of judicial deference to the decisions of administrative tribunals. Lawyers, legal scholars, and jurists alike have all thrown themselves at the altar of political correctness to welcome this new era of judicial deference. While the language of preliminary questions going to jurisdiction and patent unreasonableness have come and gone, the supervisory function of the superior courts over inferior tribunals like the HRTO remains firmly in place after Dunsmuir.

I believe this newfound deference to the decisions of administrative tribunals based on Dunsmuir stems from an incorrect interpretation of the Supreme Court of Canada’s holding in that case. In addition, with reference to the adjudication of cases involving racial profiling in which individuals are arrested or charged with a criminal offence, the court must hold the HRTO to a standard of correctness. It’s my contention that the Supreme Court in Dunsmuir expressly prescribes this legal conclusion.

What does Dunsmuir tell us? Dunsmuir tells us there are two standards of review: correctness and reasonableness. The following is what the Supreme Court of Canada said on the correctness standard: “When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own and provide the correct answer.”

On the other hand, the Supreme Court of Canada said the following about reasonableness: “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision-makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian system.”

The Supreme Court of Canada tells us very clearly in Dunsmuir that decision-makers like the HRTO and others must be held to a standard of correctness in the following three circumstances:

1. Questions of law that are of central importance to the legal system as a whole and outside the specialized area of expertise of the administrative decision-maker.

2. Questions regarding the jurisdictional lines between two or more competing specialized tribunals.

3. Constitutional questions regarding the division of powers in the Constitution Act.

What’s of concern here is how the law in this regard applies to issues of racial profiling before the HRTO. Racial profiling refers to the law enforcement practice of using race as a basis to target individuals for arrest and charge in the criminal law context. By this definition, inherent in any act of racial profiling is a denial of equality in the application of the law under s. 15 of the Charter of Rights and Freedoms.

Racial profiling in this context is clearly not within the area of expertise of the HRTO. A proper adjudication of a racial-profiling case in this context calls for a sound knowledge of the Criminal Code and criminal law generally along with a sound knowledge of the Charter and the fundamental rights it provides to individuals in the context of the enforcement of the criminal and quasi-criminal law.

How can we reasonably expect an HRTO adjudicator who knows nothing about the Criminal Code, the Controlled Drugs and Substances Act or the Charter to properly adjudicate a case involving racial profiling in the context of a street-level police undercover drug operation? Without this fundamental knowledge, the best that such an adjudicator can do is to make conclusionary and arbitrary findings supporting the police action or denouncing it. Such a practice is dangerous because it makes for a conflict in our jurisprudence on racial profiling in the broader criminal context and deprives the litigants who chose that forum for adjudication of a fair hearing of their dispute on its merits. A careful review of the HRTO’s decisions shows a glaring lack of consistency and the absence of a serious policy position on discrimination, especially as it affects African-Canadians. Some HRTO adjudicators assess the credibility and reliability of evidence and some do not. In adjudicating cases involving racial profiling, some adjudicators refer to and apply binding authorities such as R. v. Brown and others do not.

In Phipps v. Toronto Police Services Board, which I submit isn’t a racial-profiling case as defined herein, the tribunal applied Brown.

However, in Dungus v. Toronto Police Services Board, a case in which an African-Canadian man who was on his way home from work was entangled in a police drug sting operation conducted at the corner of Church and Carlton streets and arrested and charged with trafficking in cocaine, the tribunal made no reference to Brown. The charges against Ahmed Rabah Dungus were withdrawn, but he suffered lasting and permanent injury from the forceful takedown by police and lost his job with the Department of National Defence when police called his employer to confirm his employment. The police officer reasoned that he had never encountered a drug trafficker who worked for the Department of Defence. The adjudicator’s approach in adjudicating this very serious infringement of Dungas’ rights provides splendid evidence in support of my thesis that the HRTO has no expertise in this area and must be held to a standard of correctness when adjudicating these issues. “It is not my role to evaluate the conduct of the police in general, or to determine whether the complainant was treated fairly,” wrote Kathleen Martin.

Interestingly, the adjudicator went even farther. She went on to conclude that the undercover nature of the police work immunized them from liability for racial profiling. “I find there is insufficient evidence to find race a factor. The evidence was that [Karen] Chapman [the undercover office] both approaches individuals and in some cases they approach her. In this case, the complainant was standing around having a cigarette. It seems apparent from subsequent events that the complainant was interested in Chapman. In light of this, I find it more probable than not that the complainant nodded at Chapman or otherwise expressed interest in her. However, even if he did not express interest, I am not convinced that approaching the complainant in these circumstances would necessarily amount to profiling him on race given the nature of the officer’s undercover work.”

The HRTO, then, has shown it lacks the expertise to deal with such matters.

Ernest Guiste is a trial and appeal lawyer and blogger. His practice involves trial and appeal work in both criminal and civil litigation.

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