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ENFORCEMENT AND PROCEDURE - Human rights tribunals and boards of inquiry - Appeals and judicial review

Thursday, May 11, 2017 @ 8:33 AM | By John Carson

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Application by the Toronto Police Services Board and Wester (the “Police”) for judicial review of the dismissal of their application to dismiss the human rights application of Briggs. Briggs, a black male in his mid-20’s, was stopped by Wester and another officer at the roadside and questioned about whether he was driving while his licence was under suspension. During the investigation, Briggs presented forged proof of insurance to the officers. It was discovered that he was operating the vehicle without insurance. Ultimately, Briggs was charged with driving without insurance and producing false evidence under the Compulsory Automobile Insurance Act (CAIA) and driving while suspended contrary to the Highway Traffic Act (HTA). The Crown did not proceed with the charges on the trial date, as the charges were not on the docket. Wester subsequently re-laid the CAIA charges. The HTA charge could not be re-laid because the applicable limitation period had expired. Briggs subsequently commenced a human rights application alleging he was discriminated against on the grounds of race, colour and ethnic origin. He also alleged reprisal, claiming that the charges were re-laid after he requested the officers’ notes. The application was deferred while the criminal proceedings were ongoing. Ultimately, Briggs was convicted. The Police then brought an application to dismiss Brigg’s application because the substance of it had been appropriately dealt with in the criminal proceedings. The Tribunal refused to dismiss the application finding that not all of the issues raised by Briggs had been addressed in the criminal proceedings. The Tribunal further concluded that even if all of the allegations were subsumed in the criminal proceedings, it would be unfair to preclude the complaint given the different purposes, processes and stakes involved. The Police sought judicial review of the decision on the grounds that it was unreasonable. Briggs and the Tribunal argued that the application was premature.

HELD: Application allowed. There were exceptional circumstances that warranted determining the application for judicial review, despite the interlocutory nature of the decision. It was not in the interests of the parties or the Tribunal to incur the time and expense of determining a human rights application if the issue had been appropriately dealt with in another proceeding and it was desirable to avoid the potential for inconsistent verdicts. Hearing the application would likely not delay the proceedings, as the discrimination application was not scheduled to be heard for several months. The Tribunal reasonably concluded that the criminal court made no determination as to whether the post-stop conduct of the officer was racially motivated. However, it unreasonably failed to determine whether the issue related to the checking of the licence plate had been determined by the criminal court. Had it done so, the only reasonable conclusion was that this aspect of the discrimination complaint was addressed in the criminal proceedings. The reasons of the Justice of the Peace were brief, but a fair reading of the transcript lead to the conclusion that she found the police stop, including the licence plate check, was not racially motivated. The two proceedings raised the same issue of racial profiling and there was no fundamental difference between the purposes or processes involved in the two proceedings in respect to that central issue. The decision of the Tribunal was set aside and referred back to the Tribunal to be determined by a different member.

Toronto (City) Police Services Board v. Briggs, [2017] O.J. No. 1700, Ontario Superior Court of Justice – Divisional Court, K.E. Swinton, I.V.B. Nordheimer and M.K. McKelvey JJ., April 6, 2017. TLD-May82017012