Wednesday, July 10, 2013

The HRTO and Racial Profiling: The Case for a Standard of Correctness on Judicial Review

     The advent of the Supreme Court of Canada's decision in Dunsumuir v.  New Brunswick [2008] 1 S.C.R. 190 has witnessed a new era of judicial deference to the decisions of administrative tribunals.  Lawyers, legal scholars and jurists alike have thrown themselves at the altar of political correctness to advocate this new era of judicial deference.  Gone are the days of preliminary questions going to jurisdiction(see for example Bell  v. OHRC and patent unreasonableness (see for example Cupe  v.  New Brunswick Liquor...).   Advocating for a standard of correctness in the review of administrative tribunals in Ontario and particularly the Human Rights Tribunal of Ontario (HRTO) at the Divisional Court is a steep, uphill climb for even the most able of advocates.  That is not to suggest that the Divisional Court has a closed mind on this subject.  They most clearly do not. (see for example - Pieters   v.  Peel Law Association 2012 ONSC 1048 )

     In this post it is my objective to demonstrate that this new-found deference to the decisions of administrative tribunals based on Dunsmuir(supra) is based on an incorrect interpretation of Dunsmuir (supra) and that with specific reference to the adjudication of cases involving racial profiling - as I have previously defined this term - by the HRTO that they must be held to a standard of correctness.  It is my contention that this legal conclusion is expressly prescribed by Dunsmuir (supra) and was not something "invented" by this blogger.

What does Dunsmuir really say ?

     Dunsmuir (supra) tells us that there are two standards of review: correctness and reasonableness.  This 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 view and provide the correct answer."

     On the other hand, Dunsmuir(supra) had this to say 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."

When is a correctness standard called for ?

     The Supreme Court of Canada tells us very clearly in Dunsmuir (Supra) 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 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, and 3. constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867.

What is racial profiling ?

     Racial profiling or racial profiling/denial of equality as I prefer to call it refers to the law enforcement practice of using race as a basis to target individuals thereby violating their right to be left alone by the state unless there are reasonable grounds to interfere with the subject's person.   Racial profiling is not what transpired in the Pieters  v.  Peel Law Association case.  Racial profiling is where on account of one's race one is subjected to criminal liability and the loss of their liberty and other fundamental constitutional rights.  In Pieters  v.  Peel Law Association Mr. Pieters was subjected to humiliation and inconvenience but not to humiliation, possible bodily harm, loss of liberty and the possible stigma of a criminal record.

     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 of Rights and Freedoms 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 street-level police under-cover 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.

      I have already written elsewhere about the lack of consistency and the absence of a serious policy position on discrimination and especially discrimination as it affects people of African descent at the HRTO.  A careful review of that tribunal's decisions shows that some adjudicators assess the credibility and reliability of evidence and some do not.(see for example Clennon  v  Toronto East General Hospital 2009 HRTO 1242 and McKay  v.  Toronto Police Service 2011 HRTO 499)  In adjudicating cases involving racial profiling as it is defined in this post some adjudicators refer to and apply binding authorities such as R  v. Brown and others do not. (see for example - Phipps  v.  Toronto Police Services Board et al 2009 HRTO 877 and Dungus  v.  Toronto Police Services Board et al  2010 HRTO 2419)  This is not acceptable on any reasonable standard.


     Adjudicators at the HRTO are simply not equipped to adjudicate issues involving racial profiling as that term is defined in this post.  The unfortunate but very real phenomenon of racial profiling by law enforcement in Ontario requires sound knowledge of the Criminal Code of Canada, the Controlled Drugs and Substances Act, the Canadian Charter of Rights and Freedoms and how these statutory enactments interact with the application and enforcement of the Criminal Law.  This area is clearly of general importance to the law generally and is outside of any expertise that the HRTO can be said to possess.  Accordingly, the HRTO must be held to a standard of correctness when adjudicating cases involving racial profiling and the application of the criminal law.

NOTE:  This pieces is written for the sole purpose of drawing public attention to an issue of public importance - the proper adjudication of claims of racial profiling by the HRTO and the proper and just development of the law on racial profiling.   I welcome your comments.


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