Law Times

Law Times • sepTember 12, 2016 Page 9 www.lawtimesnews.com Allowing them increases accountability, says CCLA Should intervenors participate at police tribunals? BY YAMRI TADDESE Law Times T he confusion around whether interveners are allowed to participate in police disciplinary hear- ings should be resolved in favour of more accountability, lawyers say. Whether interveners can participate in Toronto Police Service Disciplinary Tribunal hearings remains unclear after two recent conf licting decisions from the tribunal. An Ontario police tribu- nal recently declined to grant intervener status to the Ontario Human Rights Commission in the so-called Neptune Four matter, which arises out of a vio- lent police encounter with four black teenagers in 2011. A sec- urity video recording showed an officer punching a teenager who tried to walk away when stopped by Toronto police. The officer also drew a handgun on the teens before he and his part- ner arrested them. The Ontario Human Rights Commission sought intervener status to bring the issue of ra- cial profiling before the tribunal in that case. But the tribunal's hearing officer Peter Lennox said he did not have jurisdiction to grant intervener status to the commission or anyone. "As he stated, the Police Ser- vices Act does not explicitly pro- vide for interveners. He found that he had no implicit power to grant intervener status either," says lawyer Peter Rosenthal, who represents the complainants in the Neptune Four case. But the police tribunal has previously allowed the Cana- dian Civil Liberties Association to intervene in the G-20 kettling case against Toronto police of- ficer Mark Fenton. Lennox said he could not follow the prec- edent in Fenton's case because the hearing officer in that case did not explain the basis for his jurisdiction to allow an inter- vener's involvement. Rosenthal says Fenton is ap- pealing his conviction and sen- tence to the Ontario Civilian Police Commission. One of the grounds for his appeal is that the hearing officer did not have jurisdiction to add the Canadian Civil Liberties Association as an intervener in his case. The ju- risdictional issue will, therefore, be examined again in that case, Rosenthal adds. Sukanya Pillay, executive director and general counsel at the Canadian Civil Liberties As- sociation, says interventions in police tribunal matters only add accountability to the process. "Given that there is no clear prohibition to intervene, an in- tervention would only bolster the accountability that's re- quired," Pillay says, adding that as long as the interveners can aid decision-makers in the case, there should be no resistance to their involvement. "We're not saying that any- body can intervene. But if a party has a stake in the outcome, if they have something to con- tribute to the hearing, and given that it serves the public interests . . . it's hard to understand why anybody would be against an in- tervention," she adds. "When it comes to police disciplinary hearings, it's hard to think of a better situation that better satisfies the criteria justifying intervention," Pillay continues. The Ontario Human Rights Commission is considering the possibility of bringing a judicial review following the tribunal's refusal to grant it intervener sta- tus in the Neptune Four case, according to Afroze Edwards, spokeswoman for the commis- sion. "We're looking into it," Ed- wards tells Law Times. Following the decision against the OHRC's interven- tion in July, the commission said it "remains concerned that there is no effective mechanism to hold police accountable for sys- temic discrimination." "To date, the police prosecu- tor has not committed to raising the issue of racial profiling in the Neptune 4 case, despite the fact that we believe it is relevant. Given the Tribunal's decision, we call on the police prosecutor to fully address it in the upcom- ing hearing," said Renu Mand- hane, chief commissioner of the OHRC, in a press release. Rosenthal says he isn't sure how the jurisdiction issue will ultimately be resolved, but, he adds, "I do think that the inter- vention by the Canadian Civil Liberties Association in Fenton and the proposed intervention by the Human Rights Commission would be in the public interest. "If it is determined that the present Police Services Act does not provide for such interven- tions, it would be appropriate to amend the Police Services Act to include such a provision," Rosenthal says. Although the commission argued it is asking to participate as "a friend of the court" and not a party to the case, Lennox said granting the commission leave to do so would essentially amount to allowing it to become a party to the case. " . . . The OHRC is asking for standing in the disciplinary hearing that will put them into a position to make arguments, which will have an impact on the proceedings of the tribunal, whether with respect to finding or penalty. "However positive this im- pact may be and recognizing that their intention is to support the public interest and assist the hearing officer in an under- standing of the unarguably per- nicious and destructive impact of racial profiling, doing so has the potential (and seems to be intended) to add new elements to the hearing and its outcome," Lennox said. "Despite OHRC counsel's position and its use of the phrase 'non-party,' I cannot escape the conclusion that the stand- ing being sought by the OHRC would make it a de facto party to the proceeding. This is, again, a request that I do not have the authority under governing legis- lation to grant," he added. Pillay says the Canadian Civil Liberties Association generally does not take a position on facts of the case or what its outcome should be when it gets involved in a matter as an intevener. LT FOCUS Sukanya Pillay says interventions in police tribunal matters only add accountability to the process. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. CRAIG BROWN | WENDY MOORE MANDEL | STEPHEN BIRMAN Untitled-6 1 2016-09-06 9:54 AM Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes

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