Law Times

Law TiMes • March 31, 2014 Page 5 www.lawtimesnews.com olice forces across the province could face a surge of racial pro- filing complaints as the Human Rights Tribunal of Ontario is al- lowing discrimination hearings to pro- ceed despite police arguments that their internal disciplinary systems have already dealt with the matters. Lawyer Bruce Best, who's representing three racial profiling complainants, says there's a lack of transparency and indepen- dence in the decision-making process with police essentially investigating themselves. e Office of the Independent Police Re- view Director oen sends complaints back to the police force implicated in the matter for an investigation, he notes. "e respondent could decide they are not responsible," he says. In the last two weeks, the tribunal al- lowed at least five racial profiling cases against Toronto police to proceed despite an ongoing judicial review that's chal- lenging the HRTO's right to hear matters already dismissed by an internal police investigation. e Ontario Provincial Police launched a judicial review aer the HRTO handed down a 54-page decision in Claybourn v. Toronto Police Services Board last year. e judicial review challenges the HRTO for hearing complaints against police despite the fact internal investigations had already deemed the allegations to be unsubstanti- ated. e decision looked at three cases against police in Ontario: two against To- ronto police and one against the OPP. All three cases involve black men who alleged police targeted them because of their race. e OPP's judicial review applica- tion says that aer Elliot Lake, Ont., man Dean De Lottinville filed a racial profil- ing complaint in 2009, both the provin- cial force and the Ontario Civilian Police Commission concluded there was no evidence for it. e review application says the tribunal erred in its interpre- tation 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 pend- ing a finding in the judicial review. But in a slew of deci- sions this month, the tribunal said it wouldn't wait for a rul- ing in the judicial review to hear the cases. Best says the tribunal got it right, adding it's simply un- acceptable that a person who has complained to police about discrimination can't later pur- sue a human rights application. "It's a matter of fairness," says Best, a lawyer with the Human Rights Legal Sup- port Centre. He likens the idea to an em- ployer deciding it was firing an employee for just cause through an internal investi- gation and later arguing the worker can't sue for wrongful dismissal. "If someone dealt with the police and felt discriminat- ed 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 Of- fice of the Independent Police Review Di- rector says it refers "the majority" of com- plaints against police back to local forces for investigation. In Toronto, Chief Bill Blair oen 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 pro- filing will not be appropriately dealt with under the Police Services Act," she says. "e chief of police or his delegates — the officers who investigate these cases — do not have any expertise on human rights issues and very oen, in our view, do not even admit that there is racism in the police force," she adds. Lawyer David Gourlay, who represent- ed the police in Claybourn, tells Law Times he can't comment on the matter because other similar cases are still before the tribu- nal. According to the HRTO, 13 cases had been on hold pending a decision in Clay- bourn last year. Andrew Morrison, spokesman for the Ministry of Community Safety and Cor- rectional 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 com- plaints 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 'pro- ceeding' 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 applica- tions that are before us," wrote tribunal vice chairwoman Ju- dith Keene. "Section 45.1 requires not only that 'another proceed- ing' has taken place, but that the proceeding has dealt with the 'substance' of the applica- tion," she noted. To address the substance of an application, a proceed- ing must ask whether there has been a breach of the Human Rights Code and, if so, what remedies are appro- priate, Keene added. "e above questions are neither asked nor answered at the investigatory stage of a [Police Services Act] complaint. Instead, that stage deals with whether the com- plaint of misconduct is substantiated; that is, whether there are reasonable grounds to believe that misconduct (which may in- clude 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. e 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 clarifi- cation as to our processes with the public complaints system and took the position that our screening decision should not provide an obstacle to a com- plainant in the HRTO process," she said in an e-mail to Law Times. "Each complaint is screened on its merit. Oentimes, complaints have multiple allegations. We track statistics according to the require- ments of the Police Services Act. Generally speaking, a high percent- age of cases are referred to police for investigation," Williams added. LT with it — is that these short-term, temporary solutions have a way of becoming long-term solutions and I would be very surprised if that temporary courtroom doesn't sit there in 10 years time," he says. "It is bound to be an eyesore and it will destroy any attractiveness about the existing courthouse, and I think the concern we all have to have is whenever the court system is forced to make the best of substandard ac- commodation, it reduces the court system in the eyes of the public." e ministry says the new courtroom is a response to the growing number of complex criminal cases in Barrie. "e addition is necessary due to the in- crease in the number of criminal jury and multi-accused cases, and the length and complexity of cases at the Barrie court- house," said Crawley. "e Barrie courthouse is one of the busiest court locations in the province, as it services court activities for Barrie, as well as providing space for judges and staff who serve in the four satellite courts for Simcoe County — Bradford, Collingwood, Mid- land, and Orillia," he added. Crawley also noted the ministry "is cur- rently reviewing long-term plans for the Barrie courthouse as part of our annual in- frastructure planning process." Barrie lawyer Mark Kelly says the in- crease in complex criminal matters means civil cases end up on the back burner. "Civil trials are not getting reached as quickly as they possibly could be," he says. e new court, "if it alleviates the wait times, is certainly is helpful," he adds. Previously in Barrie, lawyers worked out of the old courthouse located in what's now the courtyard with the current building erected around it. "All the windows were boarded up and it was really quite a dreadful situation," says Oatley. "e irony is that the former court- house that predated what we have now was in the centre courtyard of the present courthouse, exactly where they're plan- ning to put the portable. So it really is like coming full circle here." LT NEWS scope to explore access to justice issues for linguistic minorities. Inconsistencies in the French- speaking abilities of Ontario judges have come to light in recent years. A report published last year by the commissioner of official lan- guages recommended stricter tests for assessing the language skills of superior court judges. e report's findings stemmed in part from a survey of 373 lawyers, the biggest proportion of whom practised in Ontario. LT Surge of racial profiling complaints possible as procedural hurdle cleared New AG appointed Continued from page 1 Continued from page 1 Construction is underway on a temporary courtroom to relieve space pressures in Barrie, Ont. Photo: Laura Pedersen BY YAMRI TADDESE Law Times P It's unacceptable that a person who has complained to police about discrimination can't later pursue a human rights application, says Bruce Best. Barrie cases now longer, more complex

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