The Toronto Police Service is facing a $3.6-million lawsuit launched by a Crown attorney who alleges police improperly searched him because of his race in 2007.
Roger Shallow’s lawsuit seeks damages for malicious prosecution and negligent investigation. He’s also seek declarations that police subjected him to an unlawful and unconstitutional strip search and that they unlawfully arrested him contrary to the Charter of Rights and Freedoms. Examinations for discovery are concluding with a possible trial date set in the near future. None of the allegations have been proven in court.
Information on the civil suit arose in a recent Human Rights Tribunal of Ontario ruling against Toronto police alleging racial discrimination. In Shallow v. Toronto Police Services Board, he argues police improperly searched him because of his race.
In 2007, police arrested Shallow in Toronto’s club district and charged him with causing a disturbance and assault to resist arrest. The charges have since been dropped, but the incidents following his arrest left a bad taste in Shallow’s mouth. The lawyer, who’s black, claims police searched him in a manner that constitutes sexual assault. His lawyer said in court in 2009 that police officers made Shallow “manipulate his sexual organs.”
On May 16, the tribunal threw out a part of Shallow’s application that names the Toronto Police Association as a respondent. That part of the application relates to allegations the association sought reprisal against Shallow for his human rights complaint. But in an interim decision, tribunal vice chairman David Muir said that issue is already the subject of civil proceedings.
The tribunal also ruled it would defer judgment when it comes to the other respondents until his court cases are complete. Shallow brought the reprisal allegations following letters to his employer expressing concern about the fact that he still served as a Crown attorney.
The respondents — four police officers, the Toronto Police Association, and the Toronto Police Services Board — have sought to dismiss Shallow’s application. The tribunal granted the request in part by dismissing the allegations against the association.
“In my view, the basis for this remedial claim is indistinguishable in any meaningful way from the claim advanced in the application, which is substantially that the TPA engaged in ‘a deliberate course of conduct designed to deter, punish, and belittle the applicant for having filed a human rights complaint against members of the Toronto Police Association,’” wrote Muir.
“Accordingly I find that the applicant has commenced a civil proceeding which incorporates within its remedial claim a remedy for an alleged infringement of the code — a reprisal for his having filed a human rights application. For these reasons, the application as it relates to the TPA is dismissed.”
Shallow says he’s considering an appeal. “All I can really say at this point is that there is still a time frame within the Human Rights Tribunal rules as to reconsideration. My lawyers will be sorting through that. As much as I’d like to, it’s not proper for me to comment any further about it at this point.”
The Toronto Police Association had also sought to have Shallow’s application dismissed through an abuse of process consideration. Shallow didn’t seek to add the Toronto Police Association as a respondent until six months after filing his statement of claim and a year after having all of the facts to support his reprisal allegation, Muir found. Shallow also failed to file his written argument by the deadline issued to him, the decision noted.
Shallow says he became aware of many of the delays only after reading the decision. “The one thing that really struck me in the decision . . . is that it refers a lot to failures by the applicant to comply with certain timelines that were set. It is unfortunate that that’s the language that was used because that makes it seem as though it’s me when it’s not,” he says, noting it was his former counsel who “dropped the ball in that regard.”
“I take my deadline very seriously,” he says. “I can tell you that it’s not a reflection of me.”
Despite the failures, the adjudicator said dismissing the application altogether would be inappropriate. “While I appreciate that the applicant’s failures will have caused the respondents here as well as in the lead case to incur some further, and arguably unnecessary, costs in dealing with this matter, the circumstances in my view are not such as would justify the extraordinary measure of the dismissal of the application,” wrote Muir.
In an e-mail to Law Times, Toronto Police Association president Mike McCormack said he couldn’t comment on the case. “As there is still ongoing litigation, the Toronto Police Association declines to make any comment at this time,” he said.
The tribunal didn’t dismiss the application when it came to the rest of the respondents as it found that there was a section in the human rights complaint that didn’t arise in the civil proceedings.
“Different considerations apply with respect to the application related to the TPS respondents,” wrote Muir. “While the factual underpinnings are identical, the civil claim alleges that the alleged strip search and unlawful arrest and detention were contrary to sections 8, 7, and 9 of the Charter. Section 15 is not pled nor is there any allegation in the statement of claim that a factor in the applicant’s alleged mistreatment was his race and colour.”
Still, Muir said it wouldn’t be appropriate to deal with the matter before the civil proceedings are over. “In my view, the most fair, just, and expeditious manner of proceeding with this application is that it be deferred pending the conclusion of the civil proceeding. This civil claim was filed more or less concurrently with the application. It raises the identical factual issues and is considerably broader in scope. But for the lack of a few words in the statement of claim, it is identical to the application.”
For more, see "Did cops assault Crown?"