Using the Rules of Evidence

1. RACIAL PROFILING LITIGATION: USING THE RULES OF EVIDENCEPrepared by LEAP and Professor David M. Tanovich (Faculty of Law, University of Windsor) (23/11/09)

2. Using the Rules of Evidence • 1. Adverse Inferences • 2. Using Social Context Evidence in Fact-Finding • 3. Judicial Notice • 4. Expert Evidence • 5. Similar Fact Evidence and Impeachment Evidence • Production Orders

3. 1. Adverse Inferences • The OHRC Policy and Guidelines on Racism and Racial Discrimination (June 2005) sets out the following data collection obligation (at 45): • “It is therefore the Commission’s position that data collection and analysis should be undertaken where an organization or institution has or ought to have reason to believe that discrimination, systemic barriers or the perpetuation of historical disadvantage may potentially exist.”

4. In the context of policing, there is a recognition both by the police and courts that racial profiling is a systemic problem • Test is therefore met • Indeed, the Policy specifically identifies a “reasonable basis” to conclude that data collection is necessary where there is “public concern with the phenomenon of racial profiling”

5. Consequences of failure to meet data collection obligation • 1. Police should be, generally speaking, foreclosed from rebutting a prima facie case • In the words of the Policy, “… failure to collect accurate and reliable data may foreclose a respondent from making a credible defence that it did not discriminate.” • 2. Data collection should be part of the remedy requested as a public interest remedy

6. 2. Using Social Context Evidence in Fact-Finding • Since it is generally recognized that most RP cases will be proved circumstantially, it is important to focus on the process of inductive reasoning which governs the drawing of inferences for circumstantial evidence • What reasonable inferences are open to be drawn from the evidence • This is relevant in determining whether there is a prima facie case and whether it has been rebutted

7. Social context evidence plays a critical role in the inference drawing process • It provides the generalizations and understanding of human experience upon which the specific inferences can be drawn from the evidence presented

8. “The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct … The indicators of racial profiling recognized in the literature by experts and in the case law can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted.” • Peart v. Peel Regional Police (2006) 43 C.R. (6th) 175 (Ont. C.A.) at paras. 95-96 [hereinafter Peart]

9. Factoring in the broader context of RP is critical to rebut perceptions and defensive arguments grounded in White privilege • These include: • Arguments about randomness (e.g. police make mistakes all the time) or coincidence (e.g. it is just a coincidence that the accused is Black) • Reluctance to make conclusion about racial stereotyping based on conduct in one case

10. The most significant authority in this regard isnow R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) at para. 126 where the Court of Appeal acknowledges that social context evidence can be used as a lens: • “R. v. S. (R.D.) draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper; the former is not.” • See also Peart at paras. 96

11. This social context evidence can come from: • 1. Judicial notice of the manifestations and indicators of racial profiling from prior case law and academic articles • 2. Expert evidence • R. v. Abbey (2009), 246 C.C.C. (3d) 301 (Ont. C.A.) • 3. Personal adjudicative experience

12. 3. Judicial Notice • As Peart implies, judicial notice can be taken of indicators , manifestations and other relevant evidence from prior cases and academic writings • This is consistent with the view of the Supreme Court of Canada which recognized that subsequent courts can take judicial notice of previous judicial findings • R. v. Williams, [1998] 1 S.C.R. 1128 at para. 54

13. In our presentation on adjudicative standards, we identified a number of relevant facts that can be judicially noted • These include some of the manifestations of profiling (see 4. Understanding Correspondence – The Varied Manifestations of RP); and, some of the indicators (see 6. General Adjudicative Standard)

14. There are a number of other relevant findings and generalizations from the jurisprudence that can be judicially noted

15. (1) That African Canadians and Aboriginals are more likely than Whites to be stopped and searched by the police • R. v. Brown (2003), 173 C.C.C. (3d) 23 at para. 9 (Ont. C.A.) [hereinafter Brown]; R. v. Golden, [2001] 3 S.C.R. 679 at para. 83; and, Peart at para. 94

16. “The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system: see e.g. R. v. S. (R.D.) … R. v. Parks … With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.” • Peart at para. 94

17. (2) That racial profiling can be the product of overt, subconscious or institutional racial bias • Brown at para. 8; Peart at para. 93

18. (3) “Racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates.” • Peart at para. 93; R. v. Singh (2003), 15 C.R. (6th) 288 at para. 18 (Ont. S.C.J.) [hereinafter Singh]

19. (4) That racial profiling can occur when race is used in conjunction with other factors such as gender, youth, location or dress • Brown at para. 9 • (5) That racial profiling can occur even where the officer is not rude or hostile • Brown at para. 81

20. (6) That racial profiling can occur even where the officer is racialized • Peart at para. 64; Singh at para. 18 • (7) Racial profiling causes substantial harm • “It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping”

21. “It fuels negative and destructive racial stereotyping of those who are subjected to profiling” • “… undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race” • Peart at para. 93; R. v. Harris (2007), 225 C.C.C. (3d) 193 (Ont. C.A.) at para. 63

22. 4. Expert Evidence • The OCA in R. v. Abbey (2009), 246 C.C.C. (3d) 301 (Ont. C.A.) [hereinafter Abbey] has set out a new framework based on Mohan to be used in cases where the expert is giving context evidence based not on the scientific method but rather on “specialized knowledge gained through extensive research, years of clinical work and … familiarity with the relevant academic literature.”

23. Two stage approach • Preconditions to Admissibility Stage [para. 80] • The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence • The witness must be qualified to give the opinion • No other exclusionary rule triggered by opinion • Proposed opinion must be logically relevant to a material issue

24. Gatekeeper Stage [paras. 86-95] • Cost-benefit analysis assessing probative value and prejudicial effect • The probative potential of the evidence and the significance of the issue to which the evidence is directed

25. In assessing probative value, reliability is factored in here but not the JJL standard for novel science where the expertise is not based on the scientific method or theory • Reliability of the subject matter, the methodology used in arriving at the opinion, the expert’s expertise and the extent to which the expert is shown to be impartial and objective • See para. 119 for some of the relevant reliability factors to consider in this context

26. Other relevant factors to reliability include the possibility of “confirmation bias” • Is the evidence from experts who seek to “generate information for the purposes of litigation?” • Does the expert “come to a case with firmly held preconceived notions that place the expert firmly on one side of the controversy” [para. 124]

27. Consumption of time, prejudice and confusion • Concern that complexity of material underlying opinion, expert’s impressive credentials and impenetrable jargon will prevent an effective evaluation by the trier of fact and lead to an abdication of their duty • Concern about unduly protracting and complicating proceedings • Necessity • Is the expert evidence necessary to a proper adjudication of the facts?

28. Generally recognized that in human rights cases, the Mohan/Abbey standard for expert evidence will be relaxed • Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 [hereinafter Nassiah 18]

29. Issue in human rights cases is the question of necessity • Experts can provide social context evidence to better understand how the narrative is consistent with the racial profiling phenomenon • Nassiah 18 at para. 36 • See also, Johnson v. Halifax (Regional Municipality) Police Service, [2003] N.S.H.R.B.I.D. No 2; Radek v. Henderson Development (Canada) Ltd., [2005] B.C.H.R.T.D. No. 302

30. No ultimate issue rule anymore • No reason why an expert cannot testify that police conduct consistent with racial profiling phenomenon • R. v. Bryan (2003), 175 C.C.C. (3d) 285 (Ont. C.A.) • Purpose of the opinion is to “provide the court with a ready-made inference …” • Broader question of whether we need an expert given cost, time and the # of cases involving racial profiling and academic literature from which the social context can

31. 5. Similar Fact and Impeachment Evidence • Disciplinary and police records provide an opportunity to reveal patterns of behaviour for a similar fact application • Test for admissibility of similar fact evidence in human rights cases involves balancing of probative value and prejudicial effect • Less strict approach than in criminal cases • Sinclair v. London (City), [2008] HRTO 48 at paras. 24-26 • Washington v. Toronto Police Services Board, [2009] HRTO 217 at paras. 18-19; King v. Toronto Police Services Board, [2009] HRTO 644 at para. 30

32. Relevant discreditable conduct to use for impeachment • They are also critical for the narrative and can assist in revealing inconsistencies in officer’s evidence and to establish intent (e.g. whether traffic stop was for a criminal investigation)

33. Requests for preservation of records given destruction policies • General test of “arguable relevance” • Washington v. Toronto Police Services Board, 2009 HRTO 217 • How do you access this information? What should you be requesting?

34. Look for other reported cases where racial profiling argument found or raised • Officer Ceballo (who is Black) in Peart was alleged to have engaged in similar conduct in R. v. Singh (2003), 15 C.R. (6th) 288 (Ont. S.C.J.) affirmed (2005), O.J. No. 4505 (C.A.) (sub nom. R. v. Edgar) • Ceballo stopped vehicle because he thought backseat passenger might not have his seatbelt on • See “Annotation” (2003), 15 C.R. (6th) 289 • Keep a roster of police officers involved in human rights cases

35. Production of disciplinary record/race-based complaints against officer • Washington v. Toronto Police Services Board, [2009] HRTO 217 [production order] • Applying principles from R. v. McNeil [2009] 1 S.C.R. 66 • Relevant as similar fact evidence • Washington v. Toronto Police Services Board, [2009] HRTO 865 [review of records under O’Connor procedure] [2 found admissible including one where excessive force and racial epithets were made similar to Washington’s claim]

36. King v. Toronto Police Services Board, [2009] HRTO 644 [records of complaints against officer involving sexual orientation bias] • No O’Connor procedure adopted contrary to earlier decision in Washington • More reasoned decision because of focus on nature of the privacy interest rather than on potential for large number of complaints? What approach will be followed in the future? • See too earlier decision in King v. Toronto Police Services Board, [2008] HRTO 33

37. Accessing Police Investigative Records • Records Relating To Incident • Call(s) to dispatch • Timing of CPIC (Canadian Police Information Centre) check(s) in case • Other MDT (Mobile Data Terminal) or computer checks • MANIX (Master Name Index) • 208 card information is entered • COPS (Centralized Occurrence Processing System) • CIPS (Crime Information Processing System) • Arrest/Charge information

38. Historical computer records of complainant • How many times has the complainant been stopped before? • Is he or she on the police system? Why? • Kampe v. Toronto Police Services Board, [2008] HRTO 128 (records involving other interactions between Kampe and police not ordered because relevance not shown)

39. Police records to generate statistical record of stops or to contact individuals for similar fact evidence • Kampe v. Toronto Police Services Board, [2008] HRTO 128 • Stop of Kampe while he was riding his bike • TPS ordered to produce name and contact information of cyclists stopped by two officers involved including any documentary information (e.g. tickets, police notes) during a one week period before incident in question

40. Contact cards for all stops during time period of stop of complainant • Not granted – McKay v. Toronto Police Services Board, [2009] HRTO 1220 [hereinafter McKay 1220] • Records of arrest of individuals caught up by undercover police operation • Not granted – Dungas v. Toronto Police Services Board, [2009] HRTO 389 (systemic breach not alleged) • See too R. v. Khan, [2004] O.J. No. 3811 (Ont. S.C.J.)

41. Police training materials • Diversity, bias-free and racial profiling modules • McKay 1220 • See too: Nassiah v. Peel Regional Police Services, 2006 HRTO 18 at para. 14; King v. Toronto Police Services Board, 2008 HRTO 33; and King v. Toronto Police Services Board, [2009] HRTO 644 • Investigative detention policies and training materials • McKay 1220 • Training record of officers involved • McKay 1220

42. Police documents relevant to identification of area as “high crime” area • McKay 1220 [crime management strategy directives and occurrence reports relating to the particular crime of concern (e.g. b/e) (April to July, 2003)] • Database training and procedure (e.g. CPIC) • McKay 1220