Natural Justice and Ineffective Assistance of Counsel in Administrative Law Hearings

     Our law is settled on the recognition that ineffective assistance of counsel in a criminal trial can impact on the fairness of a criminal trial and quash a conviction for any crime but this policy is not so well recognized in the civil forum. (R  v.  G.D.B. [2000] 1 S.C.R. 520 - R  v.  J.B. 2011 ONCA 404)  The simple rationale underlying the policy is well stated by Doherty J. A. in R  v.  Joanise (1995) 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 57: "Where counsel fails to provide adequate representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers.  In some cases the result will be a miscarriage of justice."   Under our law an appellant must be able to establish the following three points to succeed on an appeal involving ineffective assistance of counsel.  First, the appellant must establish the facts underlying the allegation of inadequate representation on a balance of probabilities.  Second, the appellant must establish that the acts or omissions amount to incompetence. Lastly, the appellant must establish that the ineffectiveness resulted in a miscarriage of justice by undermining either the appearance of a fair trial or the reliability of the verdict.  Our courts have determined the last question first since there must be a nexus between the ineffectiveness and the result.

        The claim of ineffective assistance of counsel in criminal trials is so well established and recognized in our criminal law that the Court of Appeal for Ontario has a specific policy on the handling of such appeals in criminal matters in that court.  Surprisingly, there does not appear to be any such policy with respect to the quality of legal representation which litigants in civil proceedings receive from their lawyers.  Some observers rationalize this failure by pointing to the ability of litigants to sue their lawyers for negligence.  However, that "knee-jerk" response overlooks the fact that the criminal litigant has this option and much more.

     In this brief post I will attempt to state a case for the recognition of ineffective assistance of counsel in the civil context and for now expressly in the administrative law context.

Denial of Natural Justice:

Material witnesses:

     In circumstances where a person stands accused of discreditable conduct, judicial misconduct, securities fraud or non-compliance or the breach of the Ontario Human Rights Code it stands to reason that ineffective assistance of counsel has the potential to adversely impact the fairness of the hearing and the reliability of the evidence and decision and amount to a denial of natural justice.  Indeed our Divisional Court correctly concluded in Audmax  v.  HRTO 2011 ONSC 314 (Div Crt.) that an unrepresented litigant was denied natural justice and fairness by virtue of a Human Rights Tribunal of Ontario adjudicator's failing to provide an unrepresented litigant an adjournment to enable that party to secure the evidence of a material witness. Clearly this denial of natural justice would occur in the same way if the litigant had counsel who made the proper request and it was denied.   However, where counsel fails to make the proper request in similar circumstances that failure amounts to ineffective assistance of counsel and a breach of natural justice.

Language impediments:    

     Just as the circumstances in which a duty of care in negligence are not closed so too are the circumstances in which a litigant can be denied of natural justice and fairness in an administrative law proceeding which may render a hearing void.  In Dungus  v.  Toronto Police Service a French speaking litigant whose complaint was written in the French language was self-represented before the HRTO,  a tribunal whose enabling legislation and rules of procedure provide litigants with a right to a hearing in French or English and the adjudicator failed to address his language needs and proceeded with the hearing in English.  This omission on the part of the adjudicator is arguably a breach of natural justice which impaired the reliability of the evidence and the fairness of the proceedings.  Clearly, if Mr. Dungus had counsel at his hearing who overlooked this important point in circumstances where there is evidence to support a language impediment that ought not to remedy the breach of natural justice in the circumstances.

Jurisdictional questions:

      Statutory schemes like the Justices of the Peace Act, R.S.O. 1990 ch. J.4 which call for a two-step process involving an investigation of a complaint and then a formal hearing depending on the outcome of the investigation are excellent candidates for ineffective assistance of counsel claims. Under this particular statutory scheme the receipt of a written complaint from a complainant triggers the appointment of a "complaints committee" which is tasked with investigating the subject complaint.  At the conclusion of their investigation the "complaints committee" can decide to, among other options, dismiss the complaint or order that a formal hearing be heard before a "hearing panel".  Since the receipt of a written complaint is a pre-condition to this statutory actors taking of jurisdiction the question of what constitutes a complaint within the framework of the statute is a serious question of law going to the issue of jurisdiction.  Although the statute indicates that any person may make a complaint about the conduct of a justice of the peace it expressly expressly prohibits other justices of the peace, judges or the Attorney General from bringing complaints on behalf of others and directs them to provide such complainants with information about the role of the Justice of the Peace Council in the justice system and about how a complaint may be made and to refer them to the Justices of the Peace Review Council.

     Clearly it would be contrary to the express language of the statute for the Attorney General to interview complainants, take will-say statements from them and send those to the JPRC as a complaint.  The same would apply to a complaint submitted by a justice of the peace or judge in similar circumstances.  Arguably a complaint stemming from the Deputy Attorney General or the Assistant Attorney General in similar circumstances is equally objectionable.  That is not to say that these individuals may not be able to bring their own complaints on matters which they have direct knowledge of.

     Counsel acting for a justice of the peace in such a proceeding who fails to address the question of whether or not the alleged complaint complies with the statutory scheme would have arguably failed to provide his or her client with effective representation and accordingly deprived them of natural justice.The fact that the matter proceeds to a formal hearing without the lawyer addressing this point does not cure the problem.

Biased Investigation:

     What happens if the investigation is clearly biased on its face ?  For example, should not the investigators be bound by the audi alteram partem rule -i.e. hear both sides ?  Also, if the investigators request a written response from the litigant when investigating allegations of sexual harassment-type allegations should not the response be put to the alleged victims ?  Should not the litigant's written response be considered by the "complaints committee" who decides whether or not the matter should proceed to a full hearing ?

Improper delegation:

     Under the Justices of the Peace Act supra the investigation of complaints are expressly reserved for the "complaints committee."  What if the investigation was conducted by someone or persons other than the "complaints committee" ?

Failure to act:

     What happens if the litigant is represented by counsel during the entire two stage process and counsel fails to see or raise any of these issues by way of a preliminary motion before the hearing panel or a case conference with a judge - as provided by the enabling legislation ?  What if counsel puts the litigant on the stand to testify without proper preparation ?  What if counsel makes admissions which are clearly harmful to the litigant's case without consultation or consent ?

COMMENTARY:

     The right to effective assistance of counsel is not exclusively reserved to defendants in criminal cases.  In any legal proceeding in which a litigant has a right to counsel it must be presumed that he or she has the right to effective representation of counsel.  Anything less requires express legislation from the legislature to the contrary.

     Any argument that the litigant is absolutely barred from raising such failures by his or her counsel on judicial review is simplistic and fails to appreciate the supervisory function of the superior court in our system of justice.  Granted, if the litigant's lawyer unsuccessfully raised these issues this may create an answer to the alleged breaches of jurisdiction, natural justice and fairness.  However, where they were not addressed the litigant can not be said to have had a fair hearing in accordance with law.   This is so not because I say so but because the Supreme Court of Canada said so in Dunsmuir   v.  New Brunswick 2008 SCC 9 in the following words:

     "By virtue of the rule of law principle, all exercises of public authority must find their source in law.  All decision-making powers have legal limits, derived from the enabling stature itself, the common law or civil law or the Constitution.  Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.  The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes."

     Note:  This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the right of litigants to the effective representation of counsel in all legal proceedings.  Democracy and the Rule of Law work best with public discourse on issues of public importance.

The Justices of the Peace Review Council: A Primer on the Complaint Process

   Many citizens in Ontario are unaware of the existence of a very important administrative tribunal known as the Justices of the Peace Review Council.  This tribunal is tasked with, among other responsibilities, to receive and process complaints of misconduct against Ontario's justices of the peace.

   In this post I wish to introduce the reader to Ontario's complaint process with respect to misconduct complaints against justices of the peace.

The Justices of the Peace Act:

   The Justices of the Peace Act, R.S.O. 1990 Ch. J.4 is the statutory enactment which governs the complaints process involving justices of the peace in Ontario.  The Justices of the Peace Review Council (JPRC) was first established in 2006 and is continued under s.8(1) of the current legislation.  S.8(2)(b) provides the JPRC with express jurisdiction with respect to complaints involving justices of the peace in the following words: "to establish complaints committee from among its members to review and investigate complains under section 11."

Composition of JPRC:

   S.8(3) provides that the JPRC is composed of: (a) the Chief Justice of the Ontario Court of Justice, or another judge of the Ontario Court of Justice designated by the Chief Justice; (b) the Associate Chief Justice-Coordinator of Justices of the Peace; (c)  three justices of the peace appointed by the Chief Justice of the Ontario Court of Justice; (d)  two judges of the Ontario Court of Justice appointed by the Chief Justice of the Ontario Court of Justice; (e)  one regional senior justice of the peace appointed by the Chief Justice of the Ontario Court of Justice; (f)  a lawyer appointed by the Attorney General from a list of three names submitted to the Attorney General by the Law Society of Upper Canada; (g)  four persons appointed by the Lieutenant Governor in Council on the recommendation of the Attorney General.

Complaint re justice of the peace:

   S.10.2(1) provides that any person may make a complaint to the JPRC about the conduct of a justice of the peace and s.10.2(2) stipulates that a complaint to the JPRC must be in writing.  What is meant by the writing requirement can be gleaned from other portions of the Act and the JPRC procedures to suggest that the complaint in writing must be from one who is directly affected by the acts and omissions of the justice of the peace as distinct from a representative complaint. For example, s.10.2(3) provides that judges, justices or the peace or the Attorney General must provide any complainant who approaches them with a complaint with information about the JPRC and how a complaint may be made.  Accordingly none of these enumerated sources can bring a representative complaint on behalf of any complainant.  The rationale for this would seem to be rooted in concerns of impartiality and fairness.  The question of whether or not a Director of Court Operations who supposedly took statements from various court staff regarding the conduct of a justice of peace and forwarded them to the JPRC while copying the Deputy Attorney General for Ontario is currently the subject of a judicial review application before Ontario's Divisional Court*.  It is asserted in that case that the JPRC exceeded its jurisdiction in entertaining such a complaint and in fact displayed a lack of institutional impartiality and institutional independence from the Attorney General and the Ministry of the Attorney General for Ontario.

Investigations
Complaints committees:

   S.11(1) of the Act mandates the JPRC to establish a "complaints committee" to investigate and dispose of complaints as provided for by 11(15).  A complaints committee is a subset of the JPRC which under s.11(2) of the Act must be composed of the following: (a) a judge who shall chair the complaints committee; (b)  a justice of the peace; and (c)  a member who is neither a judge nor a justice of the peace.  The complaints committee has four mandatory functions under the Act.  S.(11)(3) requires that the complaints committee, "shall report in a timely manner to the complainant that it has received the complaint and it shall report in a timely manner to the complainant on its disposition of the matter."  Under s.11(7) the complaints committee must conduct "such investigation as it considers appropriate".  The wording of the section seems to contemplate that the committee itself must conduct investigations and that this important function can not be delegated - even to counsel.  Had the drafters intended that this function could be delegated they would have used language such as "the complaints committee shall cause to be conducted...or better yet they would have expressly stated this in the legislation.  S.11(15) provides that the complaints committee with what is referred to in the administrative law jurisprudence as a statutory power of decision.  A statutory power of decision is essentially the right to make a decision with respect to competing rights.  Under this provision the complaints committee has the jurisdiction to (a) "dismiss the complaint if it is frivoulous, an abuse of process or outside of the jurisdiction of the complaints committee, (c) order that a formal hearing into the complaint be held by a hearing panel. The fourth mandatory function of the complaints committee under the act is found in s.11(18) and is to report to the JPRC on its decision.

Expert assistance:

   S.8(15) allows the JPRC to "engage persons, including counsel, to assist it and its complaints committee and hearing panels."  This provision would seem to permit the JPRC to retain counsel to assist it with investigations but it is not clear to what extent the actual delegation of the investigation itself may be delegated to counsel so retained. Clearly, if counsel is retained to undertake such functions it raises serious questions about such things as jurisdiction and fairness.  For example, does counsel retained by the JPRC have the legal authority to actually conduct the investigation ?  If so - do they assume the same degree of obligations such as fairness and the like as does the complaints committee.

Hearings
Hearing panels:

     When a complaints committee orders that a complaint against a justice of the peace should proceed to a hearing under s.11(15) the chair of the JPRC must establish a hearing panel from among the members of the JPRC to hold a hearing in accordance with that section of the Act.  A hearing panel is a subset of the JPRC and under the Act is must consist of a (a) a judge who shall chair the panel; (b)  a justice of the peace; and (c)  a member who is a judge, lawyer or a member of the public.  S.11(18) vests the panel with another statutory power of decision and provides that they may "dismiss the compliant, with or without a finding that it is unfounded.  Where the panels upholds the complaint the section provides specific enumerated remedies which the panel may order from a reprimand to a recommendation to the Attorney General that the justice of the peace be removed from office.

Note:  This piece is written for the sole purpose of educating the users of our court system on a very important tribunal in the administration of justice.
*Massiah   v.  Justice of the Peace Review Council - Divisional Court File No. 449/13.

Mandela's Embrace by the Mainstream

      The recent passing of Mr. Nelson Mandela and the outpouring of public support while touching and without doubt well deserved left me with very mixed emotions.  As one who was able to see the righteousness in his cause from the outset -  the  mainstream's recognition of the legitimacy of his struggle and the justness of his cause raises a question in my mind that the greatest impediment to positive social change may be the mainstream itself.  When I graduated from Montreal's McGill University in 1986 and found my way to Toronto publications like the Toronto Sun were running articles where Mr. Mandela was openly referred to as a terrorist.  Later when I went on to law school at the University of Windsor I had countless heated discussions where some fellow students echoed similar sentiments about Mr. Mandela.  Indeed, the U.S.A. had Mr. Mandela on a terrorist watch list as late as 1998 or so.

     Of course - my faith in the mainstream is shaken even more when I consider that it was not very long ago that African-Americans in the United States of America were involved in there own struggle over  laws which deprived them of the right to vote and legal equality generally.  In that struggle - as in Mr. Mandela's struggle - there was one man who stood courageously and denounced those morally bankrupt laws - Rev. Martin Luther King Jr.  He too was imprisoned - albeit not to the extent that Mr. Mandela was.

     If we are to use the two above-referenced historical experiences as a gauge - they tend to reveal that both the Canadian and American mainstream (and others) suffer from a condition akin to that provided for in the insanity defence in criminal law.  The insanity defence in criminal law provides that  one who is suffering from a disease of the mind and can not appreciate the nature and quality of there actions is not criminally responsible for their conduct.  These two historical events show that the mainstream clearly appeared to be incapable of appreciating the moral  bankruptcy of both Jim Crow and Apartheid at the outset like myself and others.  In both instances it was not until after years and years of senseless killing and untold human suffering that they embraced both struggles and leaders as legitimate and heroic.  Why?  It is my sense that shame, embarrassment and what the social psychologists refer to as cognitive dissonance had more to do with this embrace than anything else.

ALERT: FORMER EMPLOYEES OF THE TOWN OF RICHMOND HILL AND SEA MEMBERS

   If you are a former employee of The Town of Richmond Hill and the terms and conditions of
your employment were purportedly covered by a "working agreement" between the Town of Richmond Hill and the Salaried Employees Association(SEA) and your employment was terminated in circumstances where you sought to grieve your dismissal and could not - I wish to speak to you.

   I am counsel to Mr. Compton Chance in an action in the Superior Court of Justice where this precise issue is raised in the action.(Court File No.CV-11-432083)  Mr. Chance attempted to grieve his unjust dismissal but was unable to.  The Chairperson of SEA told him and the employer that they could not take his case to arbitration since they have no money as the employer does not deduct dues from SEA members as it does with legitimate union members.  The SEA Chairperson stated that they have never taken a case to arbitration in the organization's 20 years of existence.

Contact:

Ernest J. Guiste
Trial & Appeal Lawyer
(416) 364-8908
E mail - ejguiste@yahoo.com

Punitive Damages Sought Against The Town Of Richmond Hill

     Former Parking Control Officer, Compton Chance, is seeking reinstatement, amongst other damages and $100,000 in punitive damages against his former employer The Town of Richmond Hill.  Mr. Chance's statement of claim asserts claims under the Human Rights Code as well as common law claims for intentional infliction of mental distress and wrongful dismissal.  The human rights portions of the clam assert the following claims against the Town of Richmond Hill:

"Age:  The Town's pattern and practice of harassment and discriminatory treatment escalated markedly once the Plaintiff applied for his CPP entitlement in June-July, 2009.  From that time until his dismissal he was falsely accused of improper conduct or poor performance on roughly six occasions."

"Race:  The Plaintiff asserts and the fact is that the Defendant Town consistently held him to a higher and differential standard of performance and general conduct that his white workmates."

"Religion:  The plaintiff asserts and the fact is that the Defendant Town condoned a work place in which it was common place to make jokes about his religious convictions without fear of discipline."

Punitive Damage Claim:

     Perhaps the most novel aspect of this claim is the fact that Mr. Chance's terms and conditions and employment were the subject of what the statement of claim refers to as a "sham agreement" between the Town of Richmond Hill and an organization coined the Salaried Employees Association(SEA).   Mr. Chance asserts the following material facts in his statement of claim on this point:

(8)  "The Plaintiff pleads and the fact is that the Town established and maintains the organization known in their workplace as the SEA - Salaried Employees Association as a means of defeating his rights pertaining to this employment with them at common law, the Employment Standards Act, Labour Relations Act and the Human Rights Code."

(9)   "The Town negotiates a sham agreement with the SEA and passes this documents off as a collective agreement with the SEA being the bargaining agent for the employees including himself.  However, in fact the SEA is totally controlled by the Town and it has no means to advocate on behalf of the employees it is supposed to represent."

(10)   "The Plaintiff pleads and the fact is that he attempted to assert his rights under the sham agreement described above to challenge his dismissal only to be told by Mr. Mario Da Silvo that the SEA does not have the financial means to litigate grievances and that in fact they never litigated a single grievance and consequently could not assist him against the Defendant's acts and omissions detailed herein."

(18)   "The Plaintiff asserts that the Defendant Town's handling of the allegations against him and their course of action in falsely accusing him of a lack of integrity was outrageous, irresponsible and with little or no regard for the Plaintiff and his well-being.  Further, their establishment of the SEA in order to systematically defeat his common law and statutory rights with respect to his employment is deserving of strong condemnation by the Court."

Defence:

     The Town of Richmond Hill has served and filed a Statement of Defence in the action denying all of the allegations made by Mr. Chance.  The allegations made by Mr. Chance in his Statement of Claim have yet to be proved in a court of law and should be the subject of trial in the Superior Court in due course.

Witnesses Sought:

     Anyone with material information regarding the allegations referred to above are asked to contact Ernest J. Guiste, Trial & Appeal Lawyer: (416) 364-8908 - E mail - ejguiste.rightslawyer@gmail.com



  

RACIAL PROFILING AND THE HRTO: The Jurisdiction Question

     In this my follow-up post on the question of the propriety of the HRTO adjudicating claims involving claims of racial profiling I assert that this inferior tribunal has no jurisdiction to deal with such claims when the police are executing their common and statutory law duties of enforcing the criminal law.  The argument is very succinct and is based on a plain reading of the word "services" in s.1 of the Human Rights Code, R.S.O. Ch H.19.  The following is what the Code provides:

Services

"Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry,  place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender express, age marital status, family status or disability."

What are "services" ?

     The Consise Oxford Dictionary provides some useful guidance on this point.  It states, "benefit conferred on or exertion made on behalf of someone .."  For example, as a lawyer I provide a service to my clients in the form of legal representation.  When I have a toothache I go to see my local dentist.  My local dentist provides a service to me in the form of assessing and treating my dental problem.  After a long hard day of court I may decide to go to my local Irish pub and have a pint of Guiness.  My local bartender provides a service to me in terms of listening to my chit-chat and pouring me a proper pint.  When I wore my hair in dreadlocks I regularly visited my hairstylist - who provided me a service of styling and grooming my hair.  I believe you see my point.  In all of these circumstances it is I who requests the service and the service-provider confers a benefit on me.

     In the context of racial profiling cases where the police actually arrest and charge a person it is simply unreasonable and wrong to suggest that this person is requesting a service.  On the other hand of the equation, the respondent police personnel do not ask this person - "how would you like to be arrested today- by way of take-down or voluntary submission ?  "Would you like to be held for a bail hearing or released on your own recognizance" ?  In my twenty some years of providing legal services this sort of interaction between police and defendants does not happen.

   It does not happen because the police are not providing any service to the defendant.  The police are executing their common and statutory powers of enforcing the criminal law.  During such encounters the defendant is protected by various fundamental common law and rights under the Canadian Charter of Rights and Freedoms which govern and dictate the nature and scope of the police personnel's acts and omissions. In assessing and evaluating the question of whether or not the defendant was discriminated against based on race one simply can not divorce the contextual nature of the interaction from the analysis as the HRTO has been known to do. (see for example Dungus  v.  Toronto Police Services Board 2011 HRTO 366)  The legality of the stop and the propriety of the criminal charge are all highly relevant to the question of whether or not the police acts and omissions were in part motivated by a racial animus.

     Now - this is not to say that there are never any circumstances in which the police can be brought into the definition of "services" under s.1 of the Code.  One which comes to mind is where someone calls the police for police assistance.  If the police refuse the call because the call was from a person of certain racial or religious group that would clearly engage s.1 of the Code.  The caller is requesting a service and the police are or are supposed to confer a benefit on the caller - that is respond to his or her call.

But - Mr. Guiste the Court of Appeal
heard Shaw  v. Phipps 2012 ONCA 155  !

     The fact the Court of Appeal for Ontario heard and ruled on the issue of racial profiling in Shaw   v.  Phipps 2012 ONCA 155 does nothing to detract from the argument advanced here.  That case involved a situation where a uniformed letter carrier of African-Canadian racial background was approached and investigated by police while doing his route in an upscale Toronto neighborhood.  Mr. Phipps was never charged criminally.  He was questioned but it is debatable as to whether one could find this to constitute an arrest.


NOTE:  This piece is written for the sole purpose of drawing attention to what is clearly and issue of public importance - the proper adjudication of racial profiling cases as I have defined that term elsewhere - i.e. where persons get arrested and charged criminally as a result of their race.  This is a matter for the Superior Court and not the HRTO as they are not equipped to adjudicate such claims and in doing so there is a concern that they may be doing more harm than good to the victims.

   

   

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.

Commentary:

     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.