Fernando v. Toronto Police Services Board, 2010 HRTO 2324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roshan Fernando

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: Kaye Joachim

Date: November 23, 2010

Citation: 2010 HRTO 2324

Indexed as: Fernando v. Toronto Police Services Board

APPEARANCES BY

Roshan Fernando, Applicant ) Self-represented

Toronto Police Services Board, Respondent ) Michele Wright, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated June 5, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on April 25, 2005.

2The applicant self-identifies as a Canadian of Sri Lankan origin and a person with Black/Tan skin. He alleges that the Toronto Police Services Board discriminated against him because of his colour.

3A hearing in this matter was held on September 10, 2010, to address the respondent's request for dismissal of the Application pursuant to s. 45.1 of the Code on the basis that the substance of this Application already had been appropriately dealt with through a proceeding under the Police Services Act, R.S.O. 1990, c. P.15 (the "PSA").

Background

4On June 13, 2004, at 11.30 p.m., the applicant and four of his friends were in a stopped vehicle in front of an apartment building. The applicant alleges that several police cars arrived and police officers shouted at them to get out of the car and lie down on the floor. He alleges he was handcuffed and his driver's licence was checked. The driver was taken away and the three passengers, including the applicant, were released after half an hour. The applicant asserts that there was no reason for this treatment and therefore he believed he was treated this way because of the colour of his skin.

5The applicant filed a complaint relating to these events with the Ontario Civilian Commission on Police Services ("OCCPS"), which was forward to the Toronto Police Services ("TPS") in accordance with the provisions of the PSA. The police complaint also alleged that the applicant and his friends were stopped and arrested for no reason. The narrative set out in the police complaint is virtually identical to the human rights complaint, including the applicant's belief that the police officers treated him this way because of the colour of his skin.

6The complaint was assigned for investigation for potential breach of the PSA, the Code of Conduct, neglect of duty and discreditable conduct. The investigator obtained statements from the applicant, the involved police officers and two of the applicant's friends who were in the car with him on the day. On January 18, 2005, the investigator released his report which reviewed the applicant's allegations and the evidence obtained from witnesses and relevant documents.

7The investigation report confirmed that the incident was initiated by an off-duty police officer who was driving in the area that evening. The off-duty officer stated that he observed the car containing the applicant and the others swerving over the road. The off-duty officer contacted the emergency 911 operator from his cellular phone advising that he believed the car was attempting to follow him and/or drive him off the road. The car eventually moved on and the off-duty officer followed it and continued to update the 911 operator until police officers arrived on the scene. The car drove to an apartment building and stopped. Several police cars arrived at the location and the off-duty officer directed them to the car.

8The investigator reviewed the audiotape of the incoming 911 call and the dispatch audio, which confirmed that the off-duty officer did call in and report he believed he was being followed and run off the road by a "group of Tamils." The situation was noted as an "assist a police constable" and given an emergency priority 1 status (highest level of emergency). The records show that eight officers attended the scene.

9The evidence of the attending officers confirmed that the driver was suspected of and arrested for impaired driving. The driver was taken to 41 Division for a breathalyser test and was charged. The driver subsequently pled guilty.

10The officers concluded that the car had not been following the off-duty officer but had been going in the same direction to the apartment building where they eventually stopped. The officers' evidence confirmed that TPS Person Investigated Cards were completed for the passengers and that the passengers were then released.

11The other passengers of the car also gave statements. They stated that the driver had not been drinking or driving erratically and that they were unaware of why they were stopped. They stated that the applicant and one witness were handcuffed and their identification was checked and the vehicle was searched. They both stated that they asked why they had been stopped and were not told why.

12The investigator concluded that the there was little factual dispute about the applicant's allegations and that the actions of the police officers were justified.

13The applicant requested a review of the investigator's findings by OCCPS. OCCPS directed the TPS to take further investigative steps. A supplementary investigation was conducted and a supplementary report was issued on February 16, 2006. The investigator again concluded that no misconduct had been established.

14The applicant requested that the matter be referred for a hearing. By letter dated October 12, 2006, OCCPS notified the applicant that it had completed its review and concluded the decision not to find misconduct was reasonable. However, OCCPS stated that it had concerns related to maintaining proper notes and ensuring that persons who are the subject of preventative detention are promptly informed of the reasons why. Accordingly, the Panel remitted the matter back to the TPS with a direction that the necessary steps be taken to ensure that the officers involved were made aware of their obligations in both respects. OCCPS advised that its decision was final and the file was now closed.

Section 45.1 of the Code

15Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

16As a result, the issue for this Tribunal is whether the police investigators' reports as reviewed and upheld by the OCCPS have appropriately dealt with the substance of application, such that the Application should be dismissed.

17In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application.

Was there another "proceeding"?

18The Tribunal has held that the police complaints process is a "proceeding" within the meaning of section 45.1 of the Code. I agree with and adopt the description of the police complaints process set out in Qiu v. Nelson, 2009 HRTO 2187, at paragraphs 22 to 31. I also agree with the Tribunal's conclusion at paragraph 31 that the police complaints procedure as followed in this case amounts to a proceeding within the meaning of the Code.

Was the subject-matter of the Police Application appropriately dealt with?

19In determining whether the police complaints proceedings "appropriately dealt with the substance of the Application, I will consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was in pith or essence substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding: Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405, 2005 B.C.H.R.T. 405 at paras. 14 to 19; Rush v. City of Richmond, 2008 BCHRT 62 at paras. 52 and 55.

20In this case, there is no question that the subject-matter of the Application arises from the same facts that provided the basis for the police complaint and investigations under the PSA. The PSA complaint filed by the applicant also arises out of and relates to the incident on June 13, 2004.

21The next question is whether the substance of the issues was in pith or essence essentially the same. In my view, they are. The applicant raised the same issues as raised in the human rights complaint filed with the Commission, namely that there was no reason for the officers to stop, search and detain him, so that the only reasonable inference is that they did so because of his colour.

22As a result, the factual findings made through the police investigations and upheld on review by the OCCPS, that the officers stopped the applicant upon being dispatched to the scene and took reasonable steps to search, handcuff and detain the applicant, effectively dispose of the applicant's assertion in the human rights complaint that he was stopped, handcuffed and detained because of his colour.

23I find that the police investigation and OCCPS review were conducted using a fair process and that the applicant was afforded an opportunity to present his allegations and supporting evidence. A panel of the OCCPS received and reviewed the full investigation file and made a determination as an independent body to uphold the findings of the police investigation.

24As a result, I find that the substance of the Application was appropriately dealt with by the proceeding under the PSA, within the meaning of s. 45.1 of the Code.

25Accordingly, for all of these reasons, the Application is dismissed.