Abbott v. Toronto Police Services Board, 2010 HRTO 1314

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

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: June 9, 2010

Citation: 2010 HRTO 1314

Indexed as: Abbott v. Toronto Police Services Board

1This Decision addresses a request for reconsideration by the respondents in relation to the Tribunal’s Case Resolution Conference Decision (the “Decision”) dated November 9, 2009 upholding the Application, 2009 HRTO 1909.

2On February 5, 2010, the respondents filed a request for reconsideration of the Tribunal’s decision in accordance with the direction provided in the Tribunal’s further Decision in this matter dated January 28, 2010, 2010 HRTO 206.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) provides as follows:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9As a result, I need to determine whether the material filed by the respondents in support of their request for reconsideration satisfies any of the criteria set out in Rule 25.5.

10While not addressing themselves specifically to the criteria in Rule 25.5, the respondents take the position that my findings as set out in paragraph 46 of my Decision are without foundation, either due to a misapprehension of the evidence or due to a lack of evidence to support these findings. In my view, if my findings were without foundation in the manner asserted by the respondents, then this would constitute a factor that would outweigh the public interest in the finality of Tribunal decisions, within the meaning of Rule 25.5(d).

11As a result, I will address each of the findings as set out in paragraph 46 of my Decision as the basis for my finding of a violation of the Code, and consider the objections raised by the respondents to each of these findings.

12My first finding in paragraph 46(a) was that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding. The respondents acknowledge that it is within my function to assess credibility, and concede that there was evidence from the applicant to support this conclusion. However, the respondents contend that the method by which I came to prefer the evidence of the applicant on this point is illustrative of a general failure to properly assess credibility.

13In my Decision, I directed myself to the classic statement in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at pp. 356-357 regarding the proper approach to the assessment of credibility. I noted that both parties (the applicant and Sergeant Ruffino) had 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. Yet in the context of a dynamic and unexpected situation, in which events unfolded quickly and intensely, and even where both parties genuinely tried to record their recollections shortly after the event, I noted that it was not surprising to me that there would be differing accounts as to what transpired. In the end, I expressed my view that neither party’s account of this incident was 100% reliable, and provided detailed reasons for this.

14In the end, specifically with regard to Sergeant Ruffino’s initial approach, the applicant’s evidence was that he said “come here” in a gruff manner while he was still in his patrol car with the window rolled down, to which the applicant said she replied “excuse me”. Her evidence was that Sergeant Ruffino then repeated the direction to “come here”, this time through clenched teeth. In contrast, Sergeant Ruffino’s evidence was 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”.

15My finding was that Sergeant Ruffino was not as polite and even-tempered in the context of this incident as he tried to portray in his evidence, on the basis that he would have been frustrated and somewhat agitated due to the applicant driving away when he says he first tried to speak with her and due to his evidence that the applicant almost hit his patrol car when she drove away. In those circumstances, from the standpoint of what “a practical and informed person would readily recognize as reasonable in that place and in those conditions”, I found that Sergeant Ruffino may not have approached the applicant as politely as he maintains. This in my view supports my finding that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding, and I see no proper basis upon which I ought to change this finding.

16My next finding in paragraph 46(b) was 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 hence she was distracted from hearing and responding to Sergeant Ruffino, and this was apparent to him at the time. The respondents state that there is no evidence that the applicant was distracted from hearing and responding to Sergeant Ruffino. The respondents cite the evidence of Sergeant Ruffino, which was that the applicant started dialling the phone after he had asked for her driver’s licence, permit and registration, and the evidence of the applicant, which was that she responded to Sergeant Ruffino’s requests for her name and was calling her husband while she was on her way to get her licence and registration in response to the officer’s further request.

17The respondents take the position that my misapprehension of this evidence was critical, since, if the applicant didn’t hear the officer’s initial request, then she can’t be faulted for not complying, and if the officer was aware that she had not heard his initial request, then perhaps he can be faulted for allegedly escalating the situation. But the respondents state that the evidence of both parties was that the officer’s initial request was made before the phone was dialled and was heard without distraction, and when seen in that light, the officer was dealing with a blatant refusal by the applicant to comply with the officer’s request, in contravention of the Highway Traffic Act.

18My finding in paragraph 46(b) was not restricted to the very first question asked of the applicant by Sergeant Ruffino, but relates to the period from when he got out of the patrol car and went to speak to the applicant until he placed her under arrest. Sergeant Ruffino’s evidence is that he repeatedly asked the applicant questions which were ignored by her while she continued punching numbers into her cellphone. He testified that he asked three times for her licence, registration and insurance and then he asked a further three times for her name, including providing a warning that she would be placed under arrest if she failed to respond to his third and final request. His evidence was that the applicant did not respond to any of these questions, and “ignored” him while she was dialling her phone.

19The applicant’s evidence is that when Sergeant Ruffino was coming across the road, she decided to call her husband and had her phone in one hand and was dialling with the other (Transcript, p. 115). She testified that all she remembers is Sergeant Ruffino asking for her name twice and then for her licence and registration twice, and she does not recall any warning that she would be arrested.

20In my view, it is clear from the evidence that, when Sergeant Ruffino was asking questions of the applicant, her attention was focused on calling her husband on her cellphone. That she was distracted from hearing and responding to Sergeant Ruffino is, in my view, apparent both from the fact that she was trying to call her husband and her evidence that she did not hear all of the officer’s questions and specifically did not hear the arrest warning. That the applicant’s distraction was known to Sergeant Ruffino at the time is, in my view, apparent from his own evidence that he was not getting a response to any of his questions, including after he gave the arrest warning, and was being ignored by the applicant while she was dialling her phone.

21Sergeant Ruffino’s evidence was that, even with a motorist who is arguing with him about a stop, the arrest warning usually gets their attention and causes them to realize that the situation is serious. That did not happen here, in my view, because the applicant was focused on calling her husband and was distracted, and did not hear the arrest warning. While Sergeant Ruffino would have no way of knowing whether the applicant heard his arrest warning, he did know that she was focused on dialling her phone, she was not responding to his requests, and that her lack of response to the arrest warning was unusual based on his experience with other motorists. In my view, this evidence supports that it was apparent to Sergeant Ruffino that the applicant was distracted at the time he was asking his questions and when he gave the arrest warning. As a result, I find no proper basis upon which to change my finding.

22The respondents next take issue with my finding in paragraph 46(c), in which 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. The respondents submit that there was no evidence that the applicant was confused, and to the contrary, her evidence was that she heard, understood and answered the questions she was asked and was in the process of getting her documents.

23The applicant’s evidence was that she was going to get her documents, but that she just hadn’t said “yes sir” or “I am going to get them” because she was busy doing so many things at one time (Transcript, pp. 113-4). Respondents’ counsel returned to this point in cross-examination, at which time the applicant responded that she had a newspaper under one arm, she was trying to dial her cellphone to call her husband, and the officer was shouting commands at her while she was trying to dial (Transcript, pp. 129-30). It is in this context that I considered her evidence that she hadn’t heard Sergeant Ruffino request her documents three times and hadn’t heard him request her name three times (she only heard these questions twice and in the opposite order) and that she hadn’t heard the arrest warning (Transcript, p. 113). In my view, my consideration of this evidence in its totality supports that the applicant was confused. She was trying to call her husband while the officer was making repeated requests, not all of which she heard, and she most significantly did not hear the arrest warning.

24The respondents next state that the evidence is equivocal as to whether the applicant was fearful, and that she never testified that she was afraid. The respondents further submit that even if one could infer that her perception of a threat would lead to fear, the applicant’s own evidence indicates that if there had been fear, it would have ended by the time the officer began questioning her.

25The applicant testified on two occasions about not feeling “safe”. She testified that when the officer initially spoke to her, which she described as him saying “come here” through clenched teeth, in the back of her mind she was thinking about a lot of things that had been going on that were really unsafe, specifically people posing as police officers which she says had been in the news (Transcript, p. 111). And she also testified that the way the officer approached her, which she described as very unprofessional, and the prior events which she described as “following” her and “lurking”, led to her perception that “it felt unsafe for [her]” (Transcript, p. 131). She also testified, as noted by the respondents, that “there was no real threat until [the officer] approached [her]” (Transcipt, p. 133), which supports that she felt threatened when she was approached by Sergeant Ruffino. She testified repeatedly that the officer was shouting commands and yelling to her. In my view, this evidence supports that the applicant was fearful.

26In this regard, I note that my finding is consistent with the complaint filed by the applicant at the time under the Police Services Act and with the investigating officer’s own report, which record the applicant’s apprehension at being approached by Sergeant Ruffino and the concern for her safety. My finding that the applicant was fearful is also, in my view, supported by the applicant’s evidence about why she was calling her husband at this time, which was that she “felt that something was wrong” and “it just wasn’t right” (Transcript, p. 19). She also testified that she was “wondering what was going to happen here” (Transcript, p. 132), and that she didn’t want to lose her cellphone because it was her only line of communication (Transcript, p. 116).

27The respondents cite the applicant’s evidence that “if [the officer] is 911 he is present, so I should feel safe”. This evidence was given by the applicant in cross-examination in response to questions about why she didn’t call 911 rather than calling her husband. The applicant’s evidence in response to a prior question was that, if the officer was 911 and he was treating her that way, then who was she going to call? In my view, the applicant’s evidence in this context, that she “should” feel safe, does not discount her other evidence that she in fact did not feel safe.

28The respondents submit that, in any event, there was no outward manifestation of fear and confusion, such that this ought reasonably have been known by Sergeant Ruffino. In my view, the applicant was responding in an odd way to being approached and questioned by a police officer, which was to try to call her husband on a cellphone, and she continued to try to punch in numbers while, according to the officer’s evidence, she ignored his repeated questions and his arrest warning. In my view, this provides a reasonable basis upon which Sergeant Ruffino ought to have known that the applicant was confused and, in the surrounding context of the time of night and their relative physical statures, that she was fearful.

29The respondents take issue with the reference to the applicant’s physical stature, gender and race in my finding, which suggests that these were relative elements in the applicant’s fear. The respondents state that there was no evidence before me that the applicant’s physical stature, sex or race played any part in her fear or confusion. As stated in Faryna v. Chorny, supra, my assessment of conflicting evidence needs to take into account “the probabilities that surround the currently existing conditions” and my findings must be in “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” (emphasis added). The applicant’s relatively diminutive stature in comparison to the officer (who testified that he is 5’10” and 180 lbs) was apparent at the hearing, as was her gender and race. These facts, together with the time when the events occurred in the wee hours of the morning on March 26, 2007, form part of the “place” and “conditions” at or under which the relevant events transpired, and were appropriately considered by me in assessing the evidence and making my findings.

30In my view, the fact that the applicant is a woman of diminutive stature being approached by a male police officer of relatively larger size at the time when this event occurred and in all of the surrounding circumstances described in my Decision, is a relevant consideration in support of my finding that the applicant was fearful and that this ought reasonably to have been known to Sergeant Ruffino. Similarly, the applicant’s race, again in the context of all of the surrounding circumstances, is also, in my view, a relevant consideration. Race and gender form the basis for the applicant’s complaint, and are the entire reason for this proceeding. The strain and tension between the police and the Black community is an unfortunate and well-documented reality, and in my view provides a further basis which supports my finding that the applicant was fearful and that this ought reasonably to have been known to Sergeant Ruffino.

31As a result, I see no proper basis in the respondents’ submissions to support changing the finding I made in my Decision at paragraph 46(c).

32The respondents next contest my finding in paragraph 46(d) 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. The respondents submit that there is no evidence of confusion, equivocal or no evidence of fear, and no evidence that race was a factor. The respondents also submit that there is no evidence that the applicant’s use of the phone was a manifestation of fear or that race was a factor in her use of the phone.

33I already have addressed the evidence of confusion and fear above which supports my finding in this regard. The applicant’s evidence was that she called her husband because she “just felt that something was wrong” and because “it wasn’t right” (Transcript, p. 17). She also testified that she decided to call her husband when the officer was coming across the road (Transcript, p. 115), which in my view needs to be assessed in the context of her evidence that “there was no real threat until [the officer] approached me” (Transcript, p. 133). While the applicant doesn’t recall saying this, Sergeant Ruffino’s evidence was that the applicant said that she was not going to speak with him until she had a witness on the phone. For the reasons stated here and above, in my view, the evidence supports that the applicant was fearful and confused, and that Sergeant Ruffino ought reasonably to have known that, especially in the context of the applicant trying to call someone when being approached and questioned by a police officer.

34Issues of distrust between the Black community and the police, particularly in the Toronto area, are social facts or conditions that are known to exist in our society and of which I am entitled to take notice. This forms part of the surrounding context or “conditions” in which the events occurred that, particularly as a Vice-chair of the Human Rights Tribunal of Ontario, I am entitled to and indeed need to consider in making my findings of fact. While Sergeant Ruffino’s evidence was that he did not consider the applicant’s non-responsiveness or her stated desire to have a witness present on her phone to be related to any distrust between the Black community and the police, the fact remains that this distrust exists as a matter of record and, in my view, ought reasonably to have been considered by Sergeant Ruffino in assessing the situation and considering what steps he should take. As a result, I find no proper basis upon which to change my finding as set out in paragraph 46(d) of my Decision.

35The respondents next contest my finding in paragraph 46(e) that 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. The respondents submit that there was no situation to be defused or de-escalated and that I made this finding because I was under the misapprehension that the applicant was distracted from hearing and responding to Sergeant Ruffino. I already have addressed above the respondents’ submission that I misapprehended the evidence in finding that the applicant was fearful and confused at the time Sergeant Ruffino was making his demands of her, and that he ought reasonably to have been aware of this. I also have addressed the fact that the interaction between Sergeant Ruffino and the applicant was taking place in the context of surrounding circumstances which included distrust between the Black community and the police. This is the situation that, in my view, needed to be defused or de-escalated.

36The respondents further submit that it is unclear what steps I would have required the officer to take. I address this point at paragraphs 40 and 41 of my Decision, where I state:

One 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.

When 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. (emphasis added)

37The respondents further submit that there is no basis in law that imposes an obligation on a police officer to attempt to defuse or de-escalate a situation in the context of a person’s non-compliance with the Highway Traffic Act, and that repetition of demands for documentation is consistent with the officer’s evidence as to standard procedure and the requirements of the law.

38The issue before me is not whether the officer complied with the legal requirements to maintain a conviction for an offence under the Highway Traffic Act. That was the issue before the Justice of the Peace. Rather, the issue before me was whether the applicant’s race, colour or gender was a factor in how she was treated by the officer. It is in the context of making this determination under the Code that I considered the manner of the officer’s dealings with the applicant, and his persistence in making demands of her when he knew or ought to have known that she was fearful, confused and distracted. I do not make any determination that a police officer is under some general obligation to take steps to defuse or de-escalate a situation; that is not my jurisdiction. However, it is within my jurisdiction, in determining whether the applicant’s race, colour or sex was a factor in how she was treated, to consider why the officer failed to take such steps in the circumstances I have described.

39The respondents next contest my finding at paragraph 46(f) that Sergeant Ruffino’s actions 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. The respondents state that at the hearing, there was no evidence, expert or otherwise, of this manifestation of racism in general or in this situation in particular. The respondents further submit that the officer was never confronted with this theory of racism, nor was he given an opportunity to refute my conclusion that he was manifesting it.

40The Human Rights Tribunal of Ontario is an expert tribunal, whose members are required to possess experience, knowledge or training with respect to human rights law and issues: see Code, s. 32(3).1. The Tribunal’s expertise is further reinforced by s. 45.8 of the Code, which protects a Tribunal’s decision from judicial review unless the decision is patently unreasonable. Expert evidence is not required by this Tribunal in order to understand how racism is manifested, or how stereotypes about or expectations of behaviour by racialized groups may have played a role in the situations that come before the Tribunal. This is knowledge and understanding that Tribunal members are required to possess and do possess, without the necessity for hearing expert evidence in every case. See Sinclair v. London (City), 2008 HRTO 48 at paras. 15 to 22.

41In this case, the respondent officer is well aware of the power and authority that he exercises as a police officer. He also was well aware that the applicant is a Black woman, who alleged that he discriminated against her because of her race, colour and gender. The officer and the respondent Board, with the assistance of counsel, were afforded full opportunity to present their evidence and submissions in response to the applicant’s allegations, and fully availed themselves of that opportunity. It then became my responsibility to consider the evidence and submissions that I had heard from all parties, and to make findings of fact and law based upon the evidence I heard in the context of the surrounding circumstances, which includes my expertise and understanding of the manifestations of racism.

42In any event, through the reconsideration process, the respondents have been afforded a further opportunity directly to confront my findings, which they have done. While the respondents have taken the position that I misapprehended the evidence, they have not made any submissions, or provided any support for the proposition, that the manifestation of racism that I have noted either does not exist or does not apply in the context of the facts as I have found them.

43The respondents next take issue with my finding in paragraph 46(g) that Sergeant Ruffino’s actions led directly to his decision to place the applicant under arrest, which I found was unjustified and unnecessary in the circumstances. The respondents state that there is no evidence that the arrest was unjustified and unnecessary, and submit that the officer had reasonable grounds and authority to make the arrest. This submission disregards my finding that, despite the fact that the officer knew or should have known that the applicant was fearful, confused and distracted, he persisted in making demands of her rather than taking steps to defuse or de-escalate the situation. My finding was based upon my view from the evidence that, had he taken such steps, he more likely than not would have been able to quell the applicant’s fears and confusion and get her to focus on his requests, with which she more likely than not would have complied. Instead, it was the officer’s failure to take these steps that led to the arrest, which I found would have been unnecessary had he done so.

44The respondents take issue with my finding in paragraph 46(h) that a White woman would not have been treated in the same manner in similar circumstances, stating that there is no evidence to support this conclusion. As I state at paragraphs 43 and 44 of my Decision:

As 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.

In 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.

45The respondents next take issue with my finding in paragraph 46(i) regarding the harsh consequences imposed upon the applicant by Sergeant Ruffino, stating that multiple charges were laid because there were multiple offences and that it is irrelevant that the requested documents were subsequently located, as the offence is failing to provide the documents when requested. This submission disregards the reality that a police officer exercises considerable discretion in the laying of charges, and could have exercised his discretion not to lay as many charges as he did or not to have laid the charges relating to the applicant’s failure to provide documents after he had found them in her car. The fact that the officer nonetheless exercised his discretion to lay all of the charges represented, in my view, the imposition of harsh consequences on the applicant at a time when the officer was aware or should have been aware of the applicant’s state of distraction, confusion and fearfulness.

46Finally, the respondents take issue with my failure to address why the applicant’s evidence should be preferred over the officer’s evidence, when the officer had previously demonstrated his credibility despite the consequences when he admitted that he had not read the applicant her Charter rights and was disciplined for that omission in the context of the applicant’s complaint under the Police Services Act. This submission was made to me by respondents’ counsel in final argument, and I did consider it in weighing the evidence and making my findings.

47The evidence before me was that, immediately after the applicant was released, the officer went back over the route and made detailed notes of the events. His notes do not record that he read the applicant her rights. The evidence does not indicate that the officer was aware of this omission at the time he was making his notes, and consciously and deliberately made a decision not to falsely record that he had read the applicant her rights. Rather, after the applicant had filed her Police Services Act complaint and expressly complained that the officer had taken none of the steps required when a person is arrested, which includes reading the person her rights, the officer was asked to respond to the complaint. In his narrative response, the officer states that he did not follow many of the steps required when placing a person under arrest, including his failure to read the applicant her rights, and provides an explanation for his failure to do so, which is consistent with the evidence he gave before me. In my view, having failed to record in his detailed notes that he had read the applicant her rights, it would have been difficult for the officer to have asserted otherwise in his narrative response to the applicant’s complaint. As a result, I gave little weight to the fact that the officer acknowledged not having read the applicant her rights in the context of the Police Services Act complaint.

48Accordingly, for all of these reasons, the request for reconsideration is denied and the stay of the Tribunal order in its Decision dated November 9, 2009 is lifted.