Abbott v. Toronto Police Services Board, 2009 HRTO 1909

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Abbott

Applicant

-and-

Toronto Police Services Board, William Blair and Stephen Ruffino

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: November 9, 2009

Citation: 2009 HRTO 1909

Indexed as : Abbott v. Toronto Police Services Board

APPEARANCES BY

Sharon Abbott, Applicant ) Glen Morrison, Representative

Toronto Police Services Board, William Blair ) Robert Baldwin, Counsel and Stephen Ruffino, Respondents )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated September 17, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 1, 2007.

2The applicant, who self-identifies as a Black woman of African descent, alleges that she experienced discrimination in respect of services because of her race, colour, ancestry, place of origin, ethnic origin and sex contrary to ss. 1 and 9 of the Code, arising out of an incident involving a police officer, the personal respondent Stephen Ruffino, on March 26, 2007.

3The Case Resolution Conference (“hearing”) in this matter was held on September 1, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of the parties, I took the lead in questioning the witnesses and heard from the applicant and officer Ruffino. After I had completed my questioning, the parties were afforded the right to cross-examine opposing witnesses.

Review of Evidence

4The applicant delivers newspapers for the Globe & Mail. In the early morning hours of March 26, 2007, the applicant was out on her route. At around 3:15 a.m., she parked her car by an apartment building on Glenlake Avenue in Toronto and went into the building to deliver papers there.

5Sergeant Ruffino was out on patrol that morning and passed by the applicant’s car. He observed the applicant’s car parked in a dimly lit, no parking area with its four-way flashers on. The applicant was not with her car at the time. At 3:32 a.m., Sergeant Ruffino checked what he thought was the licence plate for the car; however, due to the dimly lit conditions and the condition of the plate, he was not able to correctly identify the plate number and the result came back identifying a different vehicle than Sergeant Ruffino had observed. As a result, Sergeant Ruffino turned his patrol car around and proceeded back to where the applicant had parked her car.

6By this time, the applicant had exited the building and returned to her car. Sergeant Ruffino was able to ascertain that the applicant was Black, but could not tell if she was a man or a woman. Sergeant Ruffino took down the correct licence plate number and ran a further check at 3:34 a.m. Sergeant Ruffino observed the applicant driving her car away from where it had been parked and proceeding to the corner of Oakmount Road, where the applicant made a left turn. Sergeant Ruffino’s evidence is that the applicant was not wearing her seat belt and she did not signal her left turn. This is disputed by the applicant.

7The applicant proceeded north on Oakmount Road and continued delivering her newspapers. By this time, Sergeant Ruffino was aware that the applicant was a newspaper delivery person. Sergeant Ruffino followed the applicant and states that his intention at that time was merely to speak with the applicant and give her a warning about not wearing her seat belt and the fact that there was no working light for her licence plate.

8The applicant’s car was parked on the east side of Oakmount Road while she was delivering her papers to several houses. Sergeant Ruffino’s evidence is that he pulled his patrol car alongside the applicant’s car with his passenger side window aligned with her driver’s side window. Sergeant Ruffino states that he started rolling down his passenger side window with the intention of speaking to the applicant, however he states that the applicant drove away and narrowly missed hitting the front right bumper of his patrol car. This is disputed by the applicant, who says that she was not aware that the officer was trying to speak with her.

9The applicant proceeded to drive her car further along Oakmount Road and was followed by Sergeant Ruffino in his patrol car. The applicant’s evidence is that she saw that Sergeant Ruffino was following her, and thought that perhaps her car was in his way. As a result, she drove her car so that it mounted the curb with two of the car’s wheels off the road area. The applicant then exited her car and continued delivering her papers.

10Sergeant Ruffino observed the applicant’s car mounting the curb and proceeding for some distance before stopping. He also observed that the applicant had her driver’s side door open while she was doing this. It is not disputed that the applicant had her driver’s side door open while she mounted the curb, although the parties dispute whether it was open wide enough for the interior light to be on.

11At this point, Sergeant Ruffino’s evidence is that he became concerned about what he regarded as erratic driving by the applicant. Accordingly, he pulled his patrol car alongside the applicant’s car, so that the front end of his vehicle overlapped with the back end of the applicant’s vehicle, with Sergeant Ruffino’s driver’s side door clear. Sergeant Ruffino waited until the applicant finished delivering her newspapers before attempting to speak with her.

12As the applicant was leaving a house where she had delivered a paper and neared her car, Sergeant Ruffino rolled down his window and commenced speaking to the applicant. The applicant’s evidence is that Sergeant Ruffino said “come here” in a gruff manner, to which she replied “excuse me”. The applicant’s evidence is that Sergeant Ruffino then repeated the direction to “come here”, this time through clenched teeth.

13Sergeant Ruffino’s evidence is that he said, “Ma’am, can I speak with you”, to which the applicant replied, “I didn’t do anything. I know my rights”. Sergeant Ruffino states that he then said, “Ma’am, would you come and speak with me”, to which the applicant responded, “I can hear you from here”.

14There is no dispute that after this initial exchange, Sergeant Ruffino exited his patrol car and walked over to where the applicant was standing. There is also no dispute that at this time, the applicant had taken out her cellphone and was punching in numbers to make a call. The applicant’s evidence is that she was trying to call her husband, in part because she was aware of reports of women having been assaulted by persons impersonating police officers. Sergeant Ruffino’s evidence is that the applicant said that she was not going to speak with him until she had a witness on the phone.

15Sergeant Ruffino’s evidence is that he asked the applicant to produce her driver’s licence, ownership and insurance card. He states that he repeated this request three times, in accordance with his standard practice. His evidence is that the applicant ignored his requests and continued punching numbers in her phone. Sergeant Ruffino states that he then asked the applicant three times for her name, which he states again was ignored by the applicant while she continued punching numbers in her phone. He states that before making the final request for her name, he cautioned her that if she continued to refuse to identify herself, he would arrest her for failure to identify, again in accordance with his standard practice.

16The applicant’s evidence is that when Sergeant Ruffino saw her trying to call someone on her cellphone, he asked what she was doing, to which she replied that she was calling her husband. The applicant states that Sergeant Ruffino then became agitated and started issuing a series of commands. She states that Sergeant Ruffino first asked for her name twice. In the complaint that she filed with the police shortly after the incident, the applicant records that she only responded with her first name. At the hearing, the applicant’s evidence was that, in response to the second request for her name, she provided her full name. I prefer her evidence as recorded in her police complaint closer to the time of the incident, and find that the applicant provided only her first name in response to both requests.

17The applicant’s evidence is that after asking twice for her name, Sergeant Ruffino then asked for her licence and registration. She states that she turned towards her car in order to retrieve the requested documents. This is disputed by Sergeant Ruffino, who states that the applicant made no motion towards her car at any time. The applicant denies that she was given a caution that she would be placed under arrest.

18Sergeant Ruffino then proceeded to place the applicant under arrest and a struggle ensued. The parties differ regarding many of the details of this struggle. Sergeant Ruffino states that he grabbed the applicant’s right arm in the bicep area. The applicant states that he grabbed her left arm, which was holding the cellphone, in the wrist area. There appears to be no dispute that the applicant was pushed up against the side of the patrol car as the arrest was being made. Sergeant Ruffino’s evidence is that as he was attempting to grab the applicant’s left arm in order to complete putting on the handcuffs, her cellphone fell out of her hand onto the floor by the driver’s seat in his patrol car through the open door. He states that as the applicant attempted to retrieve her cellphone, the two of them lost their balance and fell to the ground. The applicant’s evidence is that the driver’s side door was closed but the window was open, and her cellphone fell into the car through the open window. She states that Sergeant Ruffino threw her to the ground.

19There is no dispute that Sergeant Ruffino pinned the applicant to the ground in order to complete putting on the handcuffs. There also is no dispute that Sergeant Ruffino grabbed the applicant’s belt at the rear of her pants. Sergeant Ruffino states that he did this in order to get the applicant onto her feet, so that he could open the rear door of his patrol car and put the applicant inside. The applicant states that Sergeant Ruffino pushed her head into the ground in order to get leverage to stand up, then used her belt to hoist her into the patrol car so that half of her body was on the floor of the car and half outside the car. This is denied by Sergeant Ruffino.

20During the struggle, there are various allegations about what was said by the parties. There is no dispute that at some point, the applicant cried out for help, although the parties differ as to when this was said. The applicant alleges that Sergeant Ruffino told her to “shut up”, which is denied. There also is no dispute that the applicant made a statement about having a medical condition. The applicant alleges that Sergeant Ruffino said that he didn’t care, which is also denied.

21There also is no dispute that, when placing the applicant under arrest, Sergeant Ruffino failed to advise her of her right to counsel. This was acknowledged by Sergeant Ruffino during the course of the police investigation, for which he received a written reprimand which remained on his file at the time of the hearing.

22Whatever the precise details of the struggle, both parties sustained minor injuries. I was provided with photographs that were taken at the police station on the morning of the incident. These photographs show that the applicant sustained an abrasion over her left eye and cuts on the inside of her upper lip, as well as bruising from the handcuffs. The photographs also show that Sergeant Ruffino sustained abrasions to a knuckle on his right hand and to the pinky finger of his left hand.

23There is no dispute that Sergeant Ruffino next called for assistance. Police records indicate that this call was placed at 3:36 a.m. and that the first officers arrived at the scene at 3:40 a.m. Several officers attended the scene, including a female police officer who conducted a search of the applicant. Sergeant Ruffino proceeded to the applicant’s car, where he found her driver’s licence, permit and insurance card in the glove box.

24There is dispute about what was said between the parties during the time that the applicant was handcuffed in the back of the patrol car. There is no dispute that the applicant again raised her medical condition, and Sergeant Ruffino offered to call an ambulance, which the applicant declined. The applicant alleges that after seeing that her driver’s licence required her to wear glasses, Sergeant Ruffino raised this issue with her and said that she was not wearing glasses when she was driving her vehicle. The applicant states that she said that she was wearing her glasses, but they fell off during the struggle. The applicant states that Sergeant Ruffino responded that it was his word against hers. The applicant states that she later discovered that her glasses had fallen off and become entangled in her hair and her coat.

25Sergeant Ruffino’s evidence is that while the applicant was in the patrol car, she said that she was going to get the documents in response to the officer’s request, but he stopped her. When Sergeant Ruffino replied that this was not what had happened, he says that the applicant replied that there were no other witnesses except for him and her and that she could say what she wanted.

26There is no dispute that at a certain point, Sergeant Ruffino offered to remove the handcuffs from the applicant. Sergeant Ruffino’s evidence is that he said that he would do so if she was willing to remain calm and sit in her own vehicle while he completed writing out the tickets. He states that the applicant then became hostile and claimed that she hadn’t done anything. Sergeant Ruffino states that another officer had found a knife in the applicant’s car, which she apparently used to cut the cords off the paper bundles. Because of the applicant’s hostile state and the presence of the knife in her car, Sergeant Ruffino states that he felt it was safer for the applicant to remain handcuffed in the back of the patrol car.

27Sergeant Ruffino proceeded to write out seven tickets to give to the applicant. These tickets were for: failure to wear a seatbelt, careless driving, failure to surrender her licence, failure to surrender her vehicle permit, failure to surrender her insurance card, failure to identify herself, and driving her vehicle in contravention of conditions (this was for not wearing her glasses). Six of these charges proceeded before a Justice of the Peace, and the applicant was acquitted on all six charges. While the decision of the Justice of the Peace was tendered into evidence before me and arises out of the same incident, it is clear that he was dealing with different issues than arise before me and a different standard of proof than applies in this proceeding, and I have not relied on his findings for the purpose of this decision. There is no evidence before me as to the disposition of the seventh charge, which was failure to wear a seatbelt.

28The applicant was released at 4:40 a.m. Immediately after she was released, Sergeant Ruffino went back over the scene and made detailed notes of the incident. For her part, the applicant proceeded to the police station that morning to make a complaint against Sergeant Ruffino. She provided a detailed typewritten account of the incident shortly thereafter.

29Also produced into evidence before me were the records of the internal police investigation. While the respondent Board typically takes the position that these documents are subject to a statutory privilege, all parties waived this privilege so that I could receive these documents. Included in these documents is a detailed statement from Sergeant Ruffino in response to the applicant’s police complaint, as well as the report from the police investigation which essentially accepted the officer’s account of the incident and found no misconduct on the part of Sergeant Ruffino with the exception of his failure to advise the applicant of her right to counsel.

Discussion and Analysis

General Principles

30The relevant principles that apply in cases where an allegation of racial discrimination has been raised have been usefully summarized as follows:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

31In this case, as in many cases alleging racial discrimination, there is no direct evidence that the complainant’s race or colour was a factor in the incident at issue. As a result, the issue of whether the respondents’ actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the well-established principles applicable to circumstantial evidence cases. In the instant case, as in many circumstantial evidence cases, the determination comes down to whether an inference of racial and/or gender discrimination is more probable than the respondents’ explanation for Sergeant Ruffino’s conduct: see Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).

32In determining whether an inference of racial discrimination is more probable than the explanation offered by the respondents, I need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14; R. v. S. (R.D.) 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 46; R. v. Parks (1993) 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.) at p. 342.

33In this case, given that only two parties were involved for much of the incident and they both have given starkly conflicting evidence as to what transpired, I need to assess the credibility of the parties. In making my assessment of credibility, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pp. 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

34In this case, I am dealing with two parties who made a detailed record of their recollection of the incident very shortly after it occurred, and largely gave evidence that was consistent with the recorded recollection. At the same time, there is no question that this was a dynamic and unexpected situation, in which events unfolded quickly and intensely. In these circumstances, even where both parties genuinely tried to record their recollections shortly after the event, it is not surprising to me that there would be differing accounts as to what transpired.

35In my view, neither party’s account of this incident is 100% reliable. There were small details in the evidence to support this. In his evidence at the hearing, Sergeant Ruffino insisted that the applicant was wearing a large, floppy hat at the time of the incident. There is no evidence to support that this was the case. The applicant insists that Sergeant Ruffino was pulling his car into the driveway at Glenlake Avenue and had to back out in order for her to exit; however, Sergeant Ruffino says that he was on the street and never entered the driveway. There is no reason for either party to be lying about what happened at this early stage of their encounter, and I believe that both were giving me their genuine best recollection about this aspect of the incident. The applicant states that she proceeded to deliver two more papers on Glenlake Avenue before making her turn onto Oakmount Road, while Sergeant Ruffino says that she proceeded directly to the intersection. Given that the applicant is a newspaper delivery person and these houses are on her route, I prefer the applicant’s evidence that she made these deliveries.

36These are but a few illustrations of where the parties differ in their evidence on largely inconsequential points, but which, in my view, reveals that each party is trying to the best of their ability to recall an intense and fast-developing event, but is unable to do so with complete accuracy. At the same time, I am aware that each of the parties provided their account of the incident from their own perspective, and I find that each of them in various ways tried to put their own actions in the best possible light. For her part, the applicant changed her evidence at the hearing to indicate that she provided her full name to Sergeant Ruffino, which is not what she said in her police complaint.

37For Sergeant Ruffino’s part, while I don’t doubt that he strives to be polite, I do not find it credible that he was as polite and even-tempered in the context of this incident as he tried to portray in his evidence. Before he first spoke to the applicant, Sergeant Ruffino’s own evidence is that he pulled up alongside her car and tried to speak with her and that it was clear that he was trying to speak with her, but she simply drove away. Sergeant Ruffino also gave evidence that she almost hit his patrol car in doing so. In these circumstances, from the standpoint of what “a practical and informed person would readily recognize as reasonable in that place and in those conditions”, it is my view that Sergeant Ruffino would have been frustrated and somewhat agitated, and may not have approached the applicant as politely as he maintains. Similarly, I found Sergeant Ruffino’s evidence as to the number of times he requested documents and the applicant’s identification, including the administration of the caution, to be more a reflection of his standard approach as opposed to an actual recollection of what he said in the context of this particular incident.

38In the end, in order to make my determination in this matter, it is not necessary for me to reconcile all of the many differences in the conflicting accounts of this incident provided by the applicant and Sergeant Ruffino. The question that I need to address is whether the applicant’s race or gender, or some combination of these two, was a factor in the events that unfolded.

39In making this determination, the salient feature of this case in my view is that a fairly routine traffic encounter escalated quickly into an arrest where both parties were injured. The applicant was out performing her job. I accept Sergeant Ruffino’s evidence that she was doing things, like not wearing a seatbelt and driving up on the curb with her door open, that warranted at least speaking with her. But then within a very short time from when Sergeant Ruffino initially spoke to the applicant, she was being arrested, pushed up against the patrol car and handcuffed. My concern is the manner in which this fairly routine matter escalated so quickly and physically.

40One thing that strikes me about this incident is that Sergeant Ruffino does not appear to have taken any steps to try to de-escalate the situation. After asking the applicant to come and speak with him, Sergeant Ruffino proceeded to ask the applicant either to identify herself or to produce her documents. At this time, the applicant was trying to call someone on her cellphone, for reasons that were clearly related to the approach by Sergeant Ruffino. In these circumstances, the choice made by Sergeant Ruffino was simply to continue repeating the questions, issue a caution and then make the arrest. He didn’t try to allay the applicant’s concerns, explain why he wanted to speak with her, or take any other action to try to defuse the situation.

41When giving his evidence, I asked Sergeant Ruffino whether, on reflection, there was something else he could have done to have avoided the escalation of this incident. His response was that the only other thing he could have done was to walk away from the situation, which he says would have been a dereliction of his duties as a police officer. I agree that simply walking away from the situation was not an acceptable option for a police officer. But I find that this was not, in fact, the only other option available. He could have asked the applicant why she felt it necessary to call someone in order to have a witness or otherwise could have adverted directly to what was going on in front of him, which was that a woman was trying to call someone on a cellphone when approached by a police officer. He could have told the applicant what he had observed about her driving in order to explain why he wanted to speak with her and why he needed her name and documents. In other words, he could have done something to engage the applicant and get her attention focused on him, rather than continuing to ask the same questions over and over while the applicant was clearly focusing on something else. In my view, it was this failure to take steps to engage the applicant that led inexorably to the escalation of this incident.

42The question for me is whether the applicant’s race and/or gender played a role in Sergeant Ruffino’s failure to take steps to try to de-escalate the situation in the manner I have indicated. I find that they did. Racial discrimination, whether on its own or in combination with gender, involves the inappropriate exercise of power by a member of the dominant racial group over a member of what is perceived as a subordinate racial group. There is no doubt that the exercise of power is inherent in the interaction between a police officer and any member of the public, given the powers that are granted to a police officer by statute. But this imbalance of power can be inappropriately exacerbated when it is layered on top of a racial and gender power dynamic. In dealing with any member of the public, police officers are constantly making choices about how to exercise their power. In any individual case, these choices can be affected by the racial and gender power dynamic that overlays the interaction between the police and the public.

43As was observed by the Nova Scotia Board of Inquiry in Johnson v. Halifax Regional Police Service, (2003) 2003 CanLII 89397 (NS HRC), 48 C.H.R.R. D/307 at para. 51,

in order to consider if differential treatment occurred, the board must necessarily hypothesize about how events would have unfolded if the driver . . . of the vehicle had been white rather than black.

This is necessarily a hypothetical exercise because in these kinds of cases, there rarely if ever is an incident involving precisely the same circumstances with the sole exception that the member of the public involved is White as opposed to Black. But it is nonetheless important to engage in this exercise in order to try to tease out what aspects of an interaction between a police officer and a member of the public can be attributed merely to the power imbalance that flows from the officer’s statutory authority, as opposed to any inappropriate racial dynamic that may be overlaid.

44In this case, I have tried to hypothesize a White woman out delivering papers in the early morning having fairly routine traffic matters escalate into an arrest. I have been unable to do so. There is no doubt that the applicant could have been more compliant and cooperative in response to Sergeant Ruffino’s requests and could have accepted her arrest more calmly. But even in these circumstances, I find it hard to imagine that Sergeant Ruffino would not have made different choices if the applicant had been White.

45In saying this, I am not at all suggesting that Sergeant Ruffino made the choices that he did on the conscious basis that the applicant is a Black woman. As stated above, and as confirmed by the Supreme Court of Canada in R. v. S. (R.D.), supra, that is not how racial discrimination most often operates. Most often, racial discrimination emanates from unconscious attitudes and belief systems. In a historical context, some of these attitudes and belief systems include that Black persons (and other groups) are expected to “know their place” and that any Black person who talks back or refuses to comply is to be regarded as “uppity” and needs to be dealt with harshly. There is no evidence before me that Sergeant Ruffino consciously subscribes to any such attitudes or belief systems. But these kinds of attitudes and belief systems are part of our historical and social fabric, and are imbued in all of us through social interactions, the education system, the media and entertainment industries, and other means.

46On the basis of my consideration of the totality of the evidence, I draw the inference that the applicant experienced discrimination because of her race and gender in relation to her encounter with Sergeant Ruffino on the basis of the following findings:

a) I find that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding;

b) I find that when Sergeant Ruffino got out of the patrol car and went to speak with the applicant, her attention was focused on calling someone on her cellphone and she was distracted from hearing and responding to Sergeant Ruffino, and this was apparent to him at the time;

c) I find that the applicant, as a woman of relatively small stature and as a Black woman being approached by Sergeant Ruffino in the wee hours of the morning, was fearful and confused, and this ought reasonably to have been apparent to Sergeant Ruffino;

d) I find that, on Sergeant Ruffino’s evidence, he was aware that the applicant wanted to have a witness on the phone before she would speak with him, and Sergeant Ruffino ought reasonably to have appreciated that the applicant’s desire was related to her confusion and fearfulness and was linked to issues of distrust between the Black community and the police;

e) I find that, notwithstanding the presence of these factors, Sergeant Ruffino unreasonably persisted in making demands for the applicant’s documents and name, without taking any steps to try to defuse or de-escalate the situation;

f) I find that Sergeant Ruffino’s actions in this regard are consistent with a manifestation of racism whereby a White person in a position of authority has an expectation of docility and compliance from a racialized person, and imposes harsh consequences if that docility and compliance is not provided;

g) I find that Sergeant Ruffino’s actions led directly to his decision to place the applicant under arrest, which I find was unjustified and unnecessary in the circumstances;

h) I find that a White woman would not have been treated in the same manner in similar circumstances;

i) I find that the harsh consequences imposed upon the applicant by Sergeant Ruffino include not only his decision to arrest the applicant, but also his decision to lay the number of charges he did against the applicant, and particularly the charges for failure to identify herself or provide her documents when he had the applicant’s name and documents at the time the charges were laid and was aware or ought to have been aware of the applicant’s state of distraction, confusion and fearfulness at the time he was demanding this information from her.

47As a result, for all of these reasons, I find that a combination of the applicant’s race, colour and gender were factors in how she was treated by Sergeant Ruffino, in violation of ss. 1 and 9 of the Code. In light of this finding, I do not find it necessary to address the grounds of ancestry, place of origin or ethnic origin, which I find are duplicative of the principal allegation of racial discrimination.

Liability of the Respondents

48Sergeant Ruffino was named as a personal respondent to this Application, and accordingly is directly liable for the infringement of the Code that I have found.

49Counsel for the respondents takes the position that there is no basis upon which I can find either the Toronto Police Services Board or William Blair as Chief of Police liable for the infringement of the applicant’s rights under the Code, because no allegation was made against these respondents in the Application or in the underlying complaint. I disagree.

50On the face of the Amended Complaint attached to the Application, both the Toronto Police Services Board (the “Board”) and William Blair, Chief of Police (the “Chief of Police”) are identified along with Sergeant Ruffino as the “Individual/Organization complained about”. On the second page of the complaint, both the Board and the Chief of Police are identified under the heading “Business, organization or association you are complaining about”, while Sergeant Ruffino is identified under the heading “Names of persons you are complaining about”. From this, in my view, it is clear that the Board and the Chief of Police were named as respondents in their representative capacities as being alleged to be liable for the actions of the personal respondent Sergeant Ruffino.

51The next question is whether either or both of the Board and/or the Chief of Police are liable for the infringement of the Code I have found against Sergeant Ruffino. For the reasons expressed in King v. Toronto Police Services Board, 2009 HRTO 644 at paras. 15-21 and in Phipps v. Toronto Police Services Board, 2009 HRTO 1604 at paras. 33 to 40, I find that the Board is liable for the actions of Sergeant Ruffino. While I am aware that the Phipps decision involves an application under s. 53(3) of the Code and so does not have precedential value under the Transitional Rules, I agree with and adopt the reasoning expressed in that Decision.

52With regard to the Chief of Police, I am aware that in Phipps v. Toronto Police Services Board, supra, the Chief of Police in that case conceded that he accepted institutional responsibility for the actions of police officers found to be in violation of the Code. Accordingly, on this basis, I find that the Chief of Police also is jointly liable with the Board for the actions of Sergeant Ruffino.

Remedy

53The only remedy sought by the applicant is an award of damages in the amount of $20,000 for the “pain, suffering and mental trauma” she suffered because of the violation of her rights.

54The evidence indicates that the incident on March 26, 2007, was quite traumatic for the applicant. As noted above, she suffered a minor abrasion to her forehead above her left eye and cuts to the inside of her upper lip, as well as bruising to her wrists from the handcuffs. The applicant testified that she sought medical attention for these injuries, but that the doctors were unwilling to produce any medical records. These doctors could have been summonsed and required to produce these documents or a request made to the Tribunal for an order requiring production, but these steps were not taken. Accordingly, while I will have regard to the evidence of the injuries sustained by the applicant as indicated in the photographs, I will have no regard to her evidence that she sought medical attention.

55The applicant’s evidence also is that the incident had a profound emotional impact upon her as well. She testified that immediately after the incident, she sat in her car and cried. She testified that she was scared for a while after the incident, and took someone along with her when she was delivering papers. She also testified that she would get flustered every time she saw a police officer.

56In assessing damages, I also need to consider the extent to which the applicant’s own actions contributed to the incident. While the applicant has testified about the impact that the overall incident had upon her, I can only compensate her for any injury to her dignity, feelings and self-respect that is attributable to the discriminatory actions I have found and not which is attributable to her own actions.

57In this case, while I have found that Sergeant Ruffino violated the Code, I also find that the applicant played her own part in contributing to the escalation of this incident. I find that she was not responsive to the questions being asked of her by Sergeant Ruffino and instead was trying to call her husband on her cellphone. I do not accept the applicant’s evidence that she turned towards the car to retrieve the requested documents, whether because she was flustered and confused or whether she was focused on calling her husband. In either event, the applicant’s own actions contributed to the sequence of events that led to her arrest.

58With regard to the arrest itself, I find that the evidence indicates that the applicant was struggling against the officer’s attempt to arrest her, which contributed to the injuries she sustained.

59In all of these circumstances, I find that an award of $5,000 as compensation for injury to the applicant’s dignity, feelings and self-respect is appropriate.

Order

60For all of these reasons, I make the following order:

a) I find that the applicant’s race, colour and gender were factors in how she was treated by Sergeant Ruffino on March 26, 2007, in violation of ss. 1 and 9 of the Code;

b) I find that the Toronto Police Services Board and William Blair as Chief of Police are jointly and severally liable for the actions of Sergeant Ruffino;

c) The respondents are ordered to pay to the applicant the sum of $5,000 as monetary compensation for the loss arising out of the infringement of the Code including compensation for injury to dignity, feelings and self-respect, together with post-judgment interest on the above at the applicable rate under the Courts of Justice Act, R.S.O. 1990, c. C.43, commencing 30 days from the date of this Decision.