In Toronto Police Services Board v Briggs, 2017 ONSC 1591, the Divisional Court dealt with whether the Ontario Human Rights Tribunal could hear an allegation of racial profiling by the Toronto police. The police officer had stopped a young black man driving a vehicle and charged him for driving while suspended, for providing a forged document and for driving while not having insurance. The driver brought a motion under the Canadian Charter of Rights and Freedoms to exclude evidence on the basis that the traffic stop was based on racial profiling. The driver did not testify at that motion. The criminal court dismissed the application and the driver was convicted of two of the charges. The driver did not appeal, but he made a complaint to the Human Rights Tribunal about the police officer. The police officer challenged the human rights proceeding on the basis that it was a collateral attack on the court findings. The Tribunal concluded that there were different aspects to the racial profiling allegation that had not been addressed by the court and that it was appropriate for the human rights application to proceed.
In a detailed review of the criteria for determining whether the Tribunal can determine issues addressed in previous proceedings, the Divisional Court concluded that the human rights complaint was indeed a collateral attack on the court findings. The Court concluded that the Tribunal had not properly considered all of the relevant factors in determining whether it was appropriate to proceed with the human rights application. For example, the Court held that the Tribunal relied on policy considerations without an adequate evidentiary basis (e.g., that accused may feel pressure to testify), instead of focusing on the particular situation of the driver and the fairness of applying finality in this case.
There was also a preliminary issue as to whether the application to the Divisional Court was premature because it related to a preliminary ruling by the Tribunal before the actual hearing had been held. The Court indicated that an abuse of process argument of this sort fell within the rare exception where the Court would intervene in the midst of a pending hearing. Failing to do so would defeat the whole purpose of the abuse of process protection in that the police officer would be put through the very hearing that was, arguably, abusive. In addition, the court process would not cause delay to the Tribunal process because the Tribunal hearing was not scheduled for many months.