Richards v. Correctional Service Canada

Richards v. Correctional Service Canada
Collection
Canadian Human Rights Tribunal
Date
2020-08-14
Neutral citation
2020 CHRT 27
File number(s)
T2218/4017, T2282/3718, T2395/5419
Decision-maker(s)
Lustig, Edward P.
Decision type
Ruling
Decision status
Interim
Grounds
Colour
Disability
Race
Religion
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
27
Date:
August 14, 2020
File Nos.:
T2218/4017, T2282/3718 and T2395/5419
Between:
Ryan Richards
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Correctional Service Canada
Respondent
Ruling
Member:
Edward P. Lustig
Table of Contents
I. Context 1
II. Background 1
A. Impugned Portions of the SOPs 6
III. Summary of the Parties’ Positions 11
B. CSC’s Position 11
(i) Reply Submissions 14
C. Position of Mr. Richards 18
(ii) Submissions by Mr. Richards 18
(iii) Submissions by Ms. Halls 20
D. Commission’s Position 20
IV. Issues 25
V. Analysis 25
VI. Order 41
I. Context
[1] This ruling addresses a motion brought by the Correctional Service of Canada (CSC) to strike portions of Ryan Richards’ Statement of Particulars (SOP), the entirety of R. Richards’ Amended SOP, and portions of the Commission’s Amended SOP, (collectively referred to as the “impugned portions of the SOPs” as identified in paragraph 26 below) and to prevent the Canadian Human Rights Commission (Commission) from calling a proposed expert witness.
[2] This motion arises in the context of case management. The purpose of case management is to assist the parties in coming to a final resolution of the human rights complaint before the Tribunal in an informal and expeditious manner that respects all parties’ rights to natural justice (Canadian Human Rights Act, RSC 1985, c. H-6 [CHRA], s. 48.9).
II. Background
[3] CSC is the Respondent in three complaints Mr. Richards filed with the Commission and that the Commission referred to the Tribunal. All three complaints have been joined to be heard together in this inquiry, and are collectively referred to as “the complaints”.
[4] Mr. Richards identifies as a Black Sufi Muslim. He is an inmate in CSC’s custody. Mr. Richards’ mother, Beverley Halls, is assisting him in this matter, in particular as it relates to email correspondence. Mr. Richards continues to take substantive steps in his representation and appears to have handwritten his substantive submissions on this motion while incarcerated.
[5] The Commission is fully participating in this proceeding in accordance with s. 51 of the CHRA.
[6] The first complaint, with a Commission file number 20121069 and Tribunal file number T2218/4017, was received by the Commission on February 17, 2012. The original summary of the complaint identifies religion and sex as the prohibited grounds of discrimination. As of March 21, 2017 and prior to the complaint being referred to the Tribunal, an amended summary of the complaint identifies the prohibited grounds of discrimination as religion, sex, race and colour. The Commission conducted an investigation in which CSC participated. In the course of the investigation, the Commission canvased the parties’ positions on whether the Commission should decline to consider the complaint under section 41 of the CHRA. In a letter dated July 26, 2017, the Commission referred the complaint to the Tribunal for an inquiry. The referral letter attached the complaint form, including the amended summary of the complaint. The Commission sent a letter to Mr. Richards the same day informing him of the referral decision. The Commission indicates, and CSC does not dispute, that a similar letter was sent to CSC. Neither the referral letter to the Tribunal nor the letter to Mr. Richards indicates any limitation on the scope of the complaint referred to the Tribunal. No party sought a judicial review of the Commission’s decision to refer the complaint to the Tribunal.
[7] In general terms, the first complaint alleges multiple incidents in four of CSC’s institutions: Fenbrook Institution, Springhill Institution, Dorchester Institution and Matsqui Institution. The bulk of the incidents allegedly occurred at the Springhill Institution. The incidents allege a connection between religion and security classification, disrespect of religious objects, harassment for wearing religious headgear, lack of support for and access to prayers, lack of accommodation of religious practices, being targeted for being Muslim, transfer to a maximum security institution because of religion, derogatory comments based on religion, lack of access to a medical and religious diet, damage to Muslim and Black Inmates and Friends Association books, consistent lockdowns during Black Heritage Month, being subjected to worse conditions in segregation, experiencing institutional violence, and sexual harassment.
[8] The second complaint, with a Commission file number of 20150411 and Tribunal file number of T2282/3718, was received by the Commission on June 15, 2015. The original summary of the complaint identifies retaliation as the prohibited ground of discrimination. As of August 29, 2017, an amended summary of the complaint identifies the prohibited grounds of discrimination as retaliation, harassment and adverse differential treatment. [1] The Commission conducted an investigation in which CSC participated. The Commission’s consideration of section 41 of the CHRA also applied to this complaint. In a letter dated June 5, 2018, the Commission referred the complaint to the Tribunal for an inquiry. The referral letter attached the complaint form, including the amended summary of the complaint. The Commission sent letters to Mr. Richards and CSC the same day informing them of the referral decision. Neither the referral letter to the Tribunal nor the letters to the parties indicates any limitation on the scope of the complaint referred to the Tribunal. No party sought a judicial review of the Commission’s decision to refer the complaint to the Tribunal.
[9] The introduction to the second complaint refers to problems experienced at Matsqui Institution and alleges denied access to the Commission and the courts and actions that have affected Mr. Richards’ health. The incidents allege problems with diet, removed legal documents and denied access to legal resources, obstructing the filing of a complaint, confrontational and provocative behaviour by correctional officers, and inadequate healthcare services. Some of the incidents specifically refer to problems arising because of Mr. Richards’ religion while others indicate, as context, his attempts to help Black and Muslim inmates.
[10] The third complaint, with a Commission file number of 20171002 and Tribunal file number of T2395/5419, was received by the Commission on November 16, 2017. The complaint form signed by Mr. Richards states that the grounds of discrimination are race, colour and religion. The summary of the complaint adds disability as an additional ground. The Commission conducted an investigation in which CSC participated. In a letter dated June 28, 2019, the Commission referred the complaint to the Tribunal for an inquiry. The referral letter attached the complaint form, including the amended summary of the complaint. The Commission sent letters to Mr. Richards and CSC the same day informing them of the referral decision. Neither the referral letter to the Tribunal nor the letters to the parties indicates any limitation on the scope of the complaint referred to the Tribunal. However, a letter from the Commission to CSC dated November 27, 2017 indicates “the allegations in paragraph 2 of the complaint will not be investigated as these are Official Language issues.” No party sought a judicial review of the Commission’s decision to refer the complaint to the Tribunal.
[11] The introduction to the third complaint raises concerns about retaliation and discrimination on the basis of language and religion at both Donnacona Institution and Archambault Institution. The first section of the complaint alleges problems with Mr. Richards’ diet, which is described as a medical and religious diet. The second section of the complaint alleges challenges accessing services in English and a lack of support from Mr. Richards’ parole officer.
[12] The Commission filed its SOP addressing the first two complaints on March 1, 2019, while Mr. Richards filed his SOP on April 30, 2019. Mr. Richards filed an Amended SOP on August 1, 2019 addressing the third complaint, while the Commission filed an Amended SOP on August 16, 2019. [2] CSC filed its SOP on May 18, 2020.
[13] On December 24, 2019, the Commission provided notice that it intended to call an expert witness, Dr. Akwasi Owusu-Bempah. The Commission indicated the proposed testimony would include, among other things, “the application of institutional discipline, use of force, security classification, segregation/isolated and restrictive conditions of confinement, the availability of culturally relevant correctional programming and their impacts on federally incarcerated black inmates.”
[14] On February 13, 2020, CSC filed this motion with the Tribunal. As noted in more detail below, the Tribunal requested CSC to provide more clarity to assist the Tribunal in identifying exactly which passages of the SOPs it sought to have the Tribunal strike. In an email dated April 7, 2020 responding to this request, CSC provided additional submissions in support of its motion. The Commission and Ms. Halls, on behalf of Mr. Richards, objected to the supplementary submissions. In an email dated April 8, 2020, CSC reiterated its additional arguments and indicated that it had intended to raise those arguments in its reply submissions. In an email dated April 8, 2020, the Tribunal requested that Mr. Richards and the Commission include any arguments about the use the Tribunal should make of these emails in their motion submissions.
[15] The Tribunal will consider the additional arguments in CSC’s April 7 and 8, 2020 emails as part of CSC’s reply submissions. This is consistent with CSC’s indication in its April 8, 2020 email that it originally intended to raise these issues as part of its reply. In addition, Mr. Richards’ handwritten submissions are dated March 16, 2020. There is no indication that Mr. Richards received a copy of the April 7 and 8, 2020 emails to update these submissions nor that it would have been feasible for him to do so. Mr. Richards is receiving correspondence in hard copy and is not included on the emails. It is appropriately the parties’ usual practice to provide hard copies of legal submissions directly to Mr. Richards as well as a copy to Ms. Halls. Treating CSC’s April 7 and 8 emails as reply submissions most accurately reflects how they appear to have been received by Mr. Richards.
[16] The Commission filed its submissions on April 22, 2020. The Tribunal received, via the Commission, an electronic copy of Mr. Richards’ handwritten submissions on the same date. Mr. Richards’ submissions are dated March 16, 2020.
[17] Ms. Halls filed additional submissions on April 29, 2020, after the Complainant’s deadline for filing submissions. The focus of these submissions is to provide additional information on intended witness testimony, which the Tribunal requested through case management. The Tribunal will, accordingly, address these submissions through ongoing case management rather than in adjudicating this motion.
[18] CSC filed its reply submissions late on May 4, 2020 and provided some minor corrections to its reply on May 6, 2020.
[19] While the Tribunal recognizes the challenges parties face in conducting litigation in the present circumstances, the Tribunal urges all parties to try their utmost to respect deadlines. The Tribunal reminds parties that it may decline to consider late submissions where doing so would prejudice another party’s right to a fair process or added delay risks jeopardizing hearing dates.
A. Impugned Portions of the SOPs
[20] When CSC brought this motion to strike on February 13, 2020, it initially identified the impugned portions of the SOPs as follows:
48) The Complainant’s SOP goes further and beyond what is included in the Complaints (the portions that are further and beyond the complaint are underlined).
a) The Complainant’s SOP refers to the following discrimination issues that, according to the Complainant, need to be inquired by the Tribunal:
i) CSC took discriminatory measures that impacted my security classification; [paras 21-23] [3]
…
iv) CSC systematically mistreats Black and Muslim inmates; [paras 30-45]
…
[CSC’s] underlined
b) The Complainant’s SOP refers to the following public remedies in which many are not related to the Complaints (the portion that are further and beyond the complaint are underlined).
i) Security Classification [paras 92-95]
ii) Segregation [paras 96-98]
iii) Institutional charges and use of force [paras. 99-105]
…
vi) Accommodation policies and practices [para. 109]
vii) Access to religious services for Muslim inmates [paras 110-113]
…
ix) Data Collection and Reporting [paras 117-119]
[CSC’s] underlining
49) Because of the insufficient Nexus, the lack of proportionality with the Complaints and the procedural fairness principle, the following passages and references of the Complainant’s SOP should be struck out:
a) the discrimination issues of “security classification” referred to at 48 a) i); [paras 21-23]
b) the discrimination issues of “systematically mistreats Black and Muslim inmates” referred to at 48 a) iv); [paras 30-45]
c) remedies of “security classification” referred to at 48) b) i); [paras 92-95]
d) the remedies of “segregation” referred to at 48) b) ii); [paras 96-98]
e) the remedies of “accommodation policies and practices” referred to at 48) b) vi); [para 109]
f) the remedies of “access to religious services for Muslim inmates” referred to at 48) b) vii); and [paras 110-113]
g) the remedies of “Data Collection and Reporting” referred to at 48) b) ix). [paras 117-119] [4]
…
51) Accordingly, for the same reasons of the procedural fairness principle, the absence of a sufficient Nexus and the lack of proportionality with the Complaints, as expressed above in section 49 of the present motion, among other things, the following passages and references of the [Amended] SOP of the Commission should be struck out:
a) the discrimination issues of “security classification”; [paras 19-20]
b) the discrimination issues of “systematically mistreats Black and Muslim inmates”; [paras 27-38]
c) the remedies of “security classification”; [para 88]
d) the remedies of “segregation referred”; [para 89]
e) the remedies of “accommodation policies and practices”; [para 93]
f) the remedies of “access to religious services for Muslim inmates”; and [para 94]
g) the remedies of “Data Collection and Reporting” [para. 98]
[21] CSC also requested that the entirety of Mr. Richards’ Amended SOP be struck.
[22] The Tribunal, in an email dated March 6, 2020, requested CSC to provide a strikethrough version of the SOPs that identified, by means of a strikethrough, the precise portions of the SOPs that CSC wished to strike. The Tribunal followed up on this request by email on March 17, 2020. The Tribunal identified a lack of precision in which passages CSC wished to strike and noted “The Tribunal is not comfortable guessing the Respondent’s intentions.”
[23] On April 7, 2020 the Tribunal inquired of CSC whether it had provided the strikethrough version of the SOPs and requested that CSC provide the strikethrough version by April 9, 2020 so that Mr. Richards and the Commission had this information when submitting their materials in response to CSC’s motion to strike.
[24] On April 7, 2020 the CSC provided an email that, among other things, identified the following impugned portions of the SOPs:
Complainant’s [Amended] [5] SOP
striking of the complete [Amended] Complainant’s SOP
Commission’s [Amended] SOP
subparagraphs 19 and 20, of the Commission’s [Amended] SOP and their respective title
subparagraphs 88 (Security Classification), 89 (Segregation) and 93 (Data collection and reporting) and their respective titles
striking the title “CSC took discriminatory measures that impacted Mr. Richards’ security classification”
Striking subparagraph 37, 38 of the Commission’s [Amended] SOP
Complainant’s SOP
subparagraphs 42 of the Commission’s [Amended] SOP [sic] and their respective title
subparagraphs 88 (Security Classification), 89 (Segregation) and 98 (Data collection and reporting) and their respective titles
[25] In addition to the error referring to the Commission’s Amended SOP instead of the Complainant’s SOP, paragraphs 88, 89 and 98 do not correspond to the identified headings in the Mr. Richards’ SOP. Similarly, paragraph 93 of the Commission’s Amended SOP does not correspond to its identified heading. The Tribunal regretfully agrees with the Commission that “it is still not entirely clear … exactly what sentences or paragraphs [CSC] seeks to strike”. [6]
[26] For the purpose of this motion, the Tribunal will consider the CSC’s request to strike the impugned portions of the SOPs identified below:
Mr. Richards’ SOP
Paras. 21-23 under the heading “CSC took discriminatory measures that impacted my security classification”
Para. 42 under the heading “CSC systematically mistreats Black and Muslim inmates”
Paras. 92-95 under the heading “Security Classification”
Paras. 96-98 under the heading “Segregation”
Paras. 117-119 under the heading “Data Collection and Reporting”
Mr. Richards’ Amended SOP
The entirety of the document
Commission’s Amended SOP
Paras. 19-20 under the heading “CSC took discriminatory measures that impacted Mr. Richards’ security classification”
Para. 37-38 under the heading “CSC systematically mistreats Black and Muslim inmates”
Para. 88 under the heading “Security Classification”
Para. 89 under the heading “Segregation”
Para. 98 under the heading “Data Collection and Reporting”
[27] Despite the lack of precision and errors on CSC’s part in identifying the passages it wants struck, the Tribunal notes that Mr. Richards and the Commission substantively addressed these topics and portions of the SOPs in responding to the motion to strike. In particular, the Commission identified similar and slightly broader passages it believed CSC wanted struck. [7] Neither Mr. Richards nor the Commission indicated CSC’s lack of specificity hindered their ability to respond to the motion.
III. Summary of the Parties’ Positions
B. CSC’s Position
[28] CSC submits that the jurisdiction of the Tribunal is linked to the complaint. CSC argues that evidence should not be considered by the Tribunal if there is not a sufficient connection between the complaint and the evidence. Similarly, the Tribunal should not admit evidence that is not proportionate to the complaint or exceeds the boundaries of the complaint. CSC contends that the current scope could result in examining each and every one of CSC’s administrative processes despite the limited scope of the complaints. CSC argues that failing to limit the scope of the complaints would create procedural unfairness for CSC and would undermine the efficient administration of justice.
[29] CSC raises a concern that a failure to ensure the evidence at the Tribunal properly relates to the complaint could result in a situation where a complaint relating to a narrow incident morphs into a broader inquiry by the Tribunal into a potentially unrelated issue. Improperly expanding the scope of the complaint at the Tribunal would be akin to allowing a new complaint that had not properly passed through the Commission process.
[30] CSC relies on sections 40(1), 41(1), 41(1)(a), 43(1), 44(1), (2) and (3) of the CHRA to support the point that the Commission investigation and the Tribunal process are limited by the scope of the complaint. CSC relies on Kanagasabapathy v. Air Canada, 2013 CHRT 7; Canadian Postmasters and Assistants Association v. Canada Post Corporation, 2018 CHRT 3 [Postmasters Association]; Tabor v. Millbrook First Nation, 2013 CHRT 9 [Tabor] and Casler v. Canadian National Railway, 2017 CHRT 6 for the proposition that the Tribunal has the jurisdiction and obligation to limit the scope of a complaint, including when an amendment to a complaint is sought.
[31] CSC argues that proportionality is an important consideration in determining the scope of the inquiry. In this case, CSC submits, the essential nature of the complaint as religious discrimination, the speculative nature of the alleged discrimination and Mr. Richards’ credibility issues all impact the proportionality analysis. CSC indicates that Tribunal Rule 1(1) requires proceedings to occur in an efficient manner. CSC relies on former Chief Justice Beverley McLachlin’s extrajudicial comments for the proposition that proportionality is a foundational concept in litigation (“Proportionality, Justification, Evidence and Deference: Perspectives from Canada,” Judicial Colloquium 2015 at the Hong Kong Court of Appeal).
[32] CSC summarizes the complaints. In its summaries, CSC asserts the number of alleged incidents that relate to grounds of race, religion and sex. CSC also asserts the number of incidents that relate to discipline, use of force, security classification, segregation and religious and cultural accommodation. CSC does not identify which specific incidents it is referring to in each category.
[33] CSC also interprets Mr. Richards’ Amended SOP and asserts that it involves a large number of incidents of which a limited number relate to race or religion while the remainder are not related to any prohibited ground of discrimination. CSC does not identify which specific incidents it is referring to in each category. CSC views adding these incidents to the complaint as creating a substantially new complaint that bypasses the referral process through the Commission.
[34] CSC asserts that many of the alleged incidents in Mr. Richards’ Amended SOP were addressed in a Quebec Court decision, described in the next section.
[35] CSC argues that any document related to security classification should be rejected or struck on the basis that the issue of security classification does not have a nexus with the complaints and the issue was unsuccessfully raised in Richards c. Giordano (Établissement Archambault), 2018 QCCS 4271, confirmed 2019 QCCA 560 [Richards QCCS].
[36] CSC argues that these decisions addressed Mr. Richards’ change in security classification from medium to maximum security and his transfer to a maximum security institution. The court found that the security classification and transfer decisions were justifiably based on Mr. Richards’ behaviour.
[37] CSC submits that the previous consideration of security classification matters makes it vexatious to again raise the matter before the Tribunal.
[38] CSC identifies the intended subjects of Dr. Owusu-Bempah’s evidence to include the effect on Black inmates of the application of institutional discipline, use of force, security classification, segregation/isolation and restrictive conditions of confinement, and availability of culturally relevant programming.
[39] CSC argues that Dr. Owusu-Bempah’s proposed expert evidence does not have a sufficient link to the complaints and goes beyond the complaints and SOPs. The evidence is not proportionate because the complaints are essentially about religious rather than racial discrimination, the complaints have not been proven, and the disproportionate evidence will create additional costs and delays. In the event that the Tribunal does not reject the proposed expert evidence in its entirety, CSC requests that the Tribunal limit the scope of the evidence only to those topics for which there is sufficient evidence of discrimination.
[40] CSC relies on its proportionality rationale and argument for striking the impugned portions of the SOPs to also justifying excluding the proposed expert evidence. Further, CSC objects to the admission of the expert evidence when no discrimination based on race has been demonstrated. CSC raises concerns that the cost and time of expert reports is not justified given the lack of reliable evidence, including the credibility issues of Mr. Richards as a witness.
[41] CSC relies on Christoforou v. John Grant Haulage Ltd., 2016 CHRT 14 for the proposition that White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 articulates the correct test for determining whether an expert witness should be permitted to provide evidence at the Tribunal. The proponent of the evidence must first establish the four threshold requirements of admissibility: relevance, necessity, absence of an exclusory rule and a properly qualified expert. The second step requires the decision-maker to exercise discretion to determine whether the proposed evidence, having met the threshold admissibility criteria, is sufficiently beneficial to justify the various risks and costs of hearing it (White Burgess at paras 23-24).
(i) Reply Submissions
[42] In its April 7, 2020 email, CSC provides a more detailed analysis of the impugned portions of the SOPs. CSC argues that the heading in the Commission’s Amended SOP “CSC took discriminatory measures that impacted Mr. Richards’ security classification” is overly broad for the evidence presented. CSC contends that the title of the section should not influence the scope of the inquiry.
[43] Similarly, the email outlines objections to paragraph 19 of the Commission’s Amended SOP because it is based on Mr. Richards’ mistaken belief that the pictures of him in his security file affected his security classification and the complaints did not raise concerns about security classification in this context.
[44] Similarly for paragraph 20 of the Commission’s Amended SOP, CSC contends Mr. Richards never alleged a discriminatory lack of programming. As for the allegations related to institutional discipline, CSC indicates it will provide the lengthy list of institutional discipline charges faced by Mr. Richards in its SOP. CSC contends that Mr. Richards grieved many of these charges through the Corrections and Conditional Release Act, S.C. 1992, c. 20 [CCRA], such that re-litigating them amounts to an abuse of process. Further, reviewing these decisions after the passage of significant time denies CSC the opportunity to properly defend its actions. Similarly, security classification issues can be addressed through the CCRA through a process capable of considering Charter issues. CSC contends that courts have recognized the specialized expertise of the CCRA process and have rarely intervened.
[45] CSC provides more details of its concerns about the portion of the SOPs alleging “CSC systematically mistreats Black and Muslim inmates”. In particular, the evidence does not demonstrate systemic mistreatment based on race as only one paragraph refers to systemic racial discrimination, which is based on Mr. Richards’ beliefs. CSC requests that paragraph 42 of Mr. Richards’ SOP and paragraphs 37-38 of the Commission’s Amended SOP be struck on the basis that there is no reference to parole support or inmate programming in the complaints other than part of the third complaint. CSC indicated the Commission previously took the position this portion of the complaint related to official languages and would therefore not be pursued.
[46] In the email, CSC elaborates on its reasons for requesting to strike remedies related to security classification, segregation and data collection and reporting from the SOPs. CSC asserts these remedies go beyond the complaints and there is a lack of proportionality in requesting data reporting and collection.
[47] Similarly, in its April 7, 2020 email, CSC summarizes its concerns with Mr. Richards Amended SOP as containing new facts based largely on Mr. Richards’ feelings and impressions and bypassing the investigative process of the Commission.
[48] In its formal reply submissions, CSC asserts that it is essentially aiming to limit the scope of the proceedings to the allegations contained in the three complaints. It identifies its main arguments as the requirement to maintain proportionality and the requirement that there is a sufficient connection between the allegations and the complaints.
[49] CSC refers to Moore v. British Columbia (Education), 2012 SCC 61 [Moore] for the proposition that an inquiry must be appropriately focused, including that the remedies must be within the scope of the complaint. CSC asserts that Moore prevents the allegation of systemic discrimination from expanding an inquiry beyond the scope of a complaint.
[50] CSC provides additional documentary evidence. It summarizes a letter from the Commission indicating that the Commission was not investigating the official languages portion of the third complaint. It also provides correspondence demonstrating a dispute between CSC and the Commission about whether CSC was responsive during the investigation. CSC reiterates its position that it is not responsible for delaying the investigation. CSC provides email correspondence of disputes between the parties about the appropriate scope of the complaint, including an itemized request for disclosure from the Commission.
[51] CSC indicates that its response to the Commission’s submissions equally applies to similar issues raised by Mr. Richards in his submissions. In addition, CSC contends Mr. Richards is asking the Tribunal to re-examine the results of Richards QCCS; expand the scope of the inquiry to consider security classification despite adequate alternative remedies; and contends that the adverse treatment suffered by Mr. Richards is not discriminatory because of his extensive disciplinary file.
[52] CSC indicates that it does not understand the purpose of the submissions by Ms. Halls.
[53] CSC criticizes the Commission for providing an insufficiently particularized argument and treating the three complaints globally rather than individually. In particular, CSC is concerned that the Commission is taking a global perspective on the scope of the inquiry rather than identifying how individual allegations of discrimination that support the scope of the complaint are presented in the SOPs. In fact, CSC states that the Commission did not provide a single example of how one of the impugned issues related to the complaints. CSC contends that considering a global complaint rather than three separate complaints allows a broader scope of any one complaint to inappropriately enlarge the scope of the other complaints. Similarly, the fact that one alleged incident may relate to a particular ground of discrimination or topic does not mean that all the incidents do.
[54] In addition, CSC alleges that evidence the Commission quotes in its submissions are taken out of context. CSC asserts that the Commission did not consider the issue of proportionality in its submissions.
[55] Finally, CSC provides an itemized response to the Commission’s submissions. CSC’s objections frequently assert the Commission has mischaracterized one or more of the complaints, CSC’s submissions or the supporting evidence. CSC often suggests that a correct interpretation of the issues can be determined by referring back to its initial motion materials. In one instance, CSC contends that the Commission is misrepresenting the relief CSC requests on this motion. Elsewhere, CSC denies it is engaged in an improper attack on the Commission’s referral decision by indicating that it accepts the Commission’s referral decision and providing various procedural details aimed at demonstrating CSC’s cooperation with the investigative process. While CSC consented to combining the complaints in a single inquiry to facilitate an efficient adjudicative process, that does not amount to consent to increase the scope of the complaints. CSC contends that the complaints present a series of unconnected events and that they cannot be systemically linked because CSC employees do not have access to all aspects of the file to use it to perpetuate discrimination or retaliation. Similarly, the fact that one incident has a racial aspect does not indicate that there is a racial element to all of the complaints. CSC frequently presents variations on the argument that the scope of a complaint cannot be expanded indefinitely. CSC requests that the scope of the inquiry be determined now rather than have it postponed on prematurity grounds.
C. Position of Mr. Richards
(ii) Submissions by Mr. Richards
[56] Mr. Richards asks the Tribunal to dismiss CSC’s motion in its entirety. He identifies that the case highlights that Black inmates suffer abuse and harassment and experience retaliation when they complain.
[57] Mr. Richards asserts that the scope of the inquiry has grown beyond the initial complaint he submitted because of CSC’s retaliation against him. Segregation, inmate charges, and security classification were part of CSC’s retaliation. The ability to amend the SOP permits the Tribunal to consider ongoing human rights violations. He cites Ethnicity and Human Rights in Canada by Evelyn Kallen on Canada’s international human rights obligations under the International Covenant on Civil and Political Rights and the ability of individuals who have exhausted domestic legal recourses to seek to have a case heard at the United Nations Human Rights Committee.
[58] Mr. Richards objects to the request to exclude racial discrimination from the complaint and limit the complaint to religious discrimination. He identifies that he is a Black man. He challenges the suggestion he lacks credibility and anticipates that the evidentiary record will support his position. He suggests that racial discrimination can be more subtle than religious discrimination. Expert evidence will demonstrate that his mistreatment by CSC is consistent with systemic mistreatment of Black inmates. He cites Beatrice Vizkelety in Proving Discrimination In Canada explaining the difference between prejudice, based on intention, and discrimination, based on an effect. He asserts that he has evidence of disproportionate security classification and risk assessment of Black inmates compared to White inmates that CSC is unable to explain.
[59] Mr. Richards contests CSC’s argument that his security classification was addressed through the Quebec Courts. In particular, the judgements only addressed one security classification decision and did not address security classification more broadly. He identifies an informal policy of requiring inmates convicted of murder to spend a minimum of two years in a maximum security institution. This policy had an adverse effect on young Black inmates who were disproportionately subjected to such sentences and because it exposed Black inmates to racial violence from other inmates. Mr. Richards indicates that there is a relation between his November 22, 2019 transfer from Cowansville to Donnacona and his allegation of sexual assault and sexual harassment. Further, Mr. Richards raises additional concerns about the judgements based on the quality of representation received by his then counsel but he concedes that the issues raised in that particular habeas corpus application and appeal are not before the Tribunal.
[60] Mr. Richards contests that the inmate grievance process provides an adequate alternative remedy. Mr. Richards contends that well over 90% of his complaints and grievances are denied by CSC and that the process provides an opportunity for staff to retaliate. He argues the process is neither procedurally fair nor legally binding. He cites Spidel v. Canada (Attorney General), 2012 FC 958 and May v. Ferndale Institution, 2005 SCC 82 for the various shortcomings in the grievance process.
[61] In response to CSC’s procedural fairness arguments, Mr. Richards raises concerns about CSC’s cooperation during the Commission’s initial investigation of the complaint and CSC’s failure to abide by deadlines during both the Commission process and before the Tribunal. He also alleges CSC engaged in perjury. Given the nature of this alleged conduct, it would be inappropriate to grant CSC’s motion. It would also be counter to the good and efficient administration of justice if any part of the case were to be struck without any explanation of CSC’s conduct. He cites Proving Discrimination In Canada for the proposition that a respondent’s failure to provide an explanation of alleged discrimination may support an inference that the respondent’s evidence would have been adverse. He cites C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29; Therrien (Re), 2001 SCC 35 and Université du Québec à Trois-Rivières v. Larocque, [1993] 1 SCR 471 for the requirements of procedural fairness.
[62] Regarding the expert evidence, Mr. Richards indicates Dr. Owusu-Bempah’s education, experience and insight put him in a position to provide evidence necessary to the case. The statistical evidence is particularly difficult to adduce through other means. The complainant cites R. v. Mohan, 1994 CanLII 80, [1994] 2 SCR 9; Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302; Merck & Co. Inc. v. Apotex Inc., 2005 FC 755; and AB Hassle v. Canada (Minister of National Health and Welfare), 2002 FCA 421 for the role of expert evidence. He cites the section on the purpose of statistical evidence from Proving Discrimination in Canada.
(iii) Submissions by Ms. Halls
[63] In her submissions, Ms. Halls outlines testimony and evidence she intended to provide at the hearing. She also outlines in general terms some of the issues other family members will testify to at the hearing.
D. Commission’s Position
[64] The Commission opposes the entirety of the relief sought by CSC.
[65] The Commission understands CSC’s motion to amount to a request to strike any references to policies, practices and systemic discrimination. In particular, the Commission views CSC’s motion as targeting individual and systemic discrimination issues relating to security, systemic aspects of mistreatment of Black and Muslim inmates, and various systemic remedies.
[66] The Commission frames this motion as raising two issues. The first is whether the Tribunal should significantly limit the scope of the inquiry on a preliminary basis and dismiss the allegations of racial and systemic discrimination which have been referred for inquiry. The second issue is whether Mr. Richards and the Commission should be deprived of a full and ample opportunity to present evidence and legal positions relevant to the inquiry and the subject matter of the complaints.
[67] The Commission argues that the Tribunal’s powers to strike Statements of Particulars on a preliminary basis should only be exercised in the clearest of cases. This case does not constitute one of those clearest of cases. The Commission suggests that CSC’s request is to exclude questions of whether negative stereotypes about Black men have played a role in Mr. Richards’ treatment and to exclude a consideration of whether CSC’s practices and policies have disproportionate adverse effects on Black and/or Muslim inmates. This request would deprive the Commission of its ability to present its public interest case. The complaint would be reduced to an individual complaint about access to a religious diet.
[68] The Commission identifies the Tribunal’s statutory obligation, confirmed through the Rules of Procedure and case law, to ensure that each party has a full and ample opportunity to be heard. Accordingly, CSC’s arguments about Mr. Richards’ credibility and insufficient evidence of racial discrimination are not sufficient to support a motion to strike the Statements of Particulars. Similarly, the Quebec Court’s adjudication of one security classification does not justify foreclosing the Tribunal from examining the CSC’s administration of security classifications.
[69] In