Dungus v. Toronto Police Services Board, 2010 HRTO 2419

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Rabah Dungus

Complainant

-and-

Toronto Police Services Board, Andrew Blunk, Darren Halman,

Jeffrey Treusch, Sean McGuinness, David Roberts,

Karen Chapman and Conrad Rozario

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: December 6, 2010

Citation: 2010 HRTO 2419

Indexed as: Dungus v. Toronto Police Services Board

APPEARANCES

) Self-represented at hearing;

Ahmed Rabah Dungus, Applicant ) Final submissions by

) Osbourne Barnwell, Counsel

Toronto Police Services Board, )

Andrew Blunk, Darren Halman, ) Michele Wright and

Jeffrey Treusch, Sean McGuinness, ) Antonella Ceddia, Counsel

David Roberts, Karen Chapman )

and Conrad Rozario, Respondents )

1On December 18, 2007, part of a Complaint was referred to the Tribunal by the Ontario Human Rights Commission under section 36(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The part of the Complaint referred arises out of an incident on June 21, 2004, in which the complainant was arrested for trafficking in cocaine. The complainant alleges that the police discriminated against him on the basis of race, colour and ethnic origin: (i) by approaching him during an undercover drug operation; (ii) in the manner in which he was initially detained, including allegations that he was physically mistreated; (iii) in the police’s subsequent treatment of him at the police station; (iv) in contacting his then employer advising of the arrest; and (v) in recommending that he report to a particular reporting centre as a condition of bail.

2The respondents deny the allegations and assert that the complainant was approached on a random basis only after he nodded at an undercover officer and that he was subsequently arrested because they believed he had committed the offence of trafficking. The respondents deny any mistreatment during the arrest and subsequent processing of the complainant at the station and state that the complainant was treated in accordance with usual protocols and procedures.

3The issue in this case is whether the complainant experienced discrimination on the basis of race, colour and ethnic origin during these events.

The Complaint and the Proceeding

4The hearing took place over a number of days concluding on October 5, 2009. Some of the history of the proceeding is set out in earlier Interim Decisions of the Tribunal: 2008 HRTO 104 and 2009 HRTO 389. Following the withdrawal of the Commission on September 22, 2008, the complainant was provided with the opportunity to identify his allegations, which framed the issues for the subsequent hearing.

5The complainant testified, as did four of the individually named respondents and two other witnesses, Aaron Dennis and Matt Moyer. The respondents Treusch, McGuinness and Rozario did not testify.

Background and Uncontested Facts

6The basic chronology of events was for the most part not in dispute. The complainant self identifies as African Canadian. He moved to Canada in 1989 from Chad. At the time of the events, he was employed in the supply station at Downsview Airport Central Command with the Department of National Defence (“DND”).

7The complainant was arrested by officers who work in the Order Management Unit in 51 Division. At the time, the Order Management Unit did undercover police work to deal with street level drug enforcement by conducting what was described as “opportunity drug buys”. On a given day, six to eight officers would go out as a team into a designated area of the community, with one undercover officer trying to buy illegal drugs, usually crack cocaine. The other officers are either playing the role of surveillance (keeping the undercover officer in view and radioing his/her movements to a central note-taker) or the role of takedown or arresting officers (being ready to move in and arrest any suspect). The undercover officer does not have a radio and thus the movements of the officer and any suspect are recorded only as observed from a distance by the surveillance officers.

8On June 21, 2004, the respondent Chapman was the undercover officer responsible for trying to buy drugs. The respondent Halman, the officer in charge of the unit in 51 Division, was working as a surveillance officer. The other named respondents were surveillance officers (Treusch and McGuinness), takedown/arresting officers (Blunk and Roberts), or central note-taker (Rozario). All were in plainclothes.

9On the day in question, the complainant was on his way home from work and had gotten off the Yonge Street subway line at College to cash a cheque. He stopped to have a cigarette and Officer Chapman was in a parkette in the vicinity. A conversation ensued which started on Yonge Street and continued while the complainant and Officer Chapman were seated on a retaining wall on Gerrard Street.

10At a certain point, the complainant went home. He went into his building and came out after approximately 15 minutes. He then proceeded to meet up with Officer Chapman again. They talked, and shortly thereafter, Chapman signalled to her team members to arrest the complainant.

11The complainant was then arrested and taken to the ground by Officers Roberts and Blunk. Officer Halman described the complainant as not offering much resistance during the arrest. He described the complainant as acting confused and not understanding why he was under arrest.

12The complainant was booked on the charge of trafficking in cocaine under the Controlled Drugs and Substances Act (“CDSA”). At the station, the complainant was strip searched, questioned and fingerprinted and then held overnight. No drugs were found on the complainant when searched on the street and at the station.

13On June 22, 2004, the complainant was taken to Old City Hall for a bail hearing. The presiding Justice of the Peace released the complainant. Various conditions were imposed, including that he report to a reporting centre at 2440 Lawrence Avenue East, Toronto, a location which is a considerable distance from the complainant’s home.

14Because of the charge, the complainant was suspended from employment pending an investigation. On July 16, 2004, the complainant was terminated from his employment for what was described as the alleged misconduct of the arrest.

15On January 11, 2005, the charge was withdrawn against the complainant.

The Issues

16The applicant alleges that his race, colour and ethnic origin were factors in each aspect of how the police treated him. He argues that he was approached by Officer Chapman, and that she signalled to her colleagues to arrest him, in part because of his race. He alleges that the “take down” was overly aggressive because of his race. He alleges that at the police station, he was strip searched and experienced other mistreatment because of his race. He alleges that the officer taking his fingerprints made comments related to his race and ethnic origin. He alleges that the call made to DND was connected with the prohibited grounds. Finally, he alleges that his race was a factor in the request by the police for a condition on his bail order that he report to a centre far from his house.

Legal Principles

17The relevant provisions of the Code provide as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour and ethnic origin…

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

18To establish prima facie discrimination in circumstances such as these, the complainant must show three things: (1) that he or she is a member of a group protected by the Code; (2) that he or she was subject to adverse treatment; and (3) that a Code-related ground was a factor in the alleged adverse treatment: Dang v. PTPC Corrugated Co., 2007 BCHRT 27, adopted in Shaw v. Phipps, 2010 ONSC 3884 at para. 37. In this case, as in Phipps, the key question is whether the applicant has shown that race, colour, and/or ethnic origin were factors in his treatment by the respondents.

19In cases involving allegations of race or racial profiling, the Tribunal has often referred to the following summary as establishing the applicable principles, which I also adopt in this case.

(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.

20In relation to each allegation, the issue I must determine is whether the complainant’s race, colour, and/or ethnic origin was a factor in the actions of the respondents. It is not my role to evaluate the conduct of the police in general, or to determine whether the complainant was treated fairly.

21Where issues of credibility are involved, I have applied the test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, and in particular whether the evidence presented is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions…”. In addition, I have considered the factors highlighted in Shah v. George Brown College, 2009 HRTO 920, at para 14, including the motives of witnesses, the extent to which witnesses may have an interest in the outcome of the case and whether I should draw an adverse inference from the failure of three respondents to testify.

22In evaluating the evidence and determining if the complainant was discriminated against based on the grounds alleged, counsel for both the complainant and respondents urged me to have regard to the totality of the evidence in my analysis, although to differing results. I have done so, although the incidents of alleged discrimination involve different officers, so the question of whether race was a factor in each officer’s actions who testified must be considered separately, in light of the information that was known to each officer at the relevant time.

23Before beginning my analysis of each incident, I address one final general issue. In this case, the complainant argued that I should draw an adverse inference from the failure of the respondents Treusch, McGuiness and Rozario to testify. The complainant argues that no request was brought to remove them as respondents and therefore I should find that their evidence would not have aided the respondents’ position. The respondents disagree, arguing that there was no evidence presented that any of the officers interacted with the complainant and therefore there is no basis for drawing an adverse inference.

24I do not draw an adverse inference from the decision to not call the three respondents. There were no allegations made by the complainant in his evidence against these specific individuals. While Treusch did have a minor role in the pre-arrest interactions with Officer Chapman, the respondents were not required to call every person who had a part in the events, however minor.

Was Race a Factor in the Complainant’s Arrest?

25I heard two divergent accounts of how the complainant came to be involved with Officer Chapman, the details of their interaction and whether or not that conversation included reference to drugs. While I do not accept either account in its entirety, ultimately I do not find that it is more probable than not that race played a role in Chapman’s decision to approach the complainant or her belief that he was interested in selling her drugs.

26The complainant states while on the street, he heard a woman saying that she had not eaten or slept for two days. He then saw Chapman, who did not look well and was dressed “like a prostitute”. The complainant states that he remembered not having eaten himself for two days and wanted to help her as he is actively involved in community work.

27The complainant states that they started walking together and sat down on a retaining wall. He asked Chapman various questions and she mentioned she had had a fight with her brother. He suggested that they could go to a restaurant and that it would be nice if she could invite her brother to join them, ostensibly to help them reconcile. The complainant states that he wanted to go home first to drop his work computer off and change his clothes. The complainant says that he invited Chapman to come with him, but she declined. The complainant acknowledges that he was not listening to everything Chapman was saying.

28The complainant states that he returned and met up with Chapman. At this point, Chapman was acting differently; she was more energetic. On the way to the restaurant Chapman raised the issue of drugs for the first time – stating she needed drugs – and that she had $20 with her. Chapman then tried to give the complainant the money and told him to take it and when he declined, she tried to put it in his pocket, but could not because he had a zipper on his pocket. He states that she also propositioned him to have sex and he replied that it would be interesting to see. At this point he was taken down and arrested.

29Chapman’s account was significantly different. She states that she was in a parkette when she observed the complainant who looked over, made eye contact and nodded. She states that she then walked over to him and he said, “hey girl”. She says that she immediately asked him if he had any “food” which she explained is street language for crack cocaine. The complainant allegedly replied “shh” and nodded yes and told her to walk south and meet him at the corner. Chapman states that the complainant motioned for her to meet him and she went over to the south side of Gerrard and started walking east and that they ended up sitting together on a retaining wall and talking.

30Chapman describes a conversation that includes a number of references to drugs. She states that the complainant asked her whether or not she was looking for soft or hard (which means powder or crack) and whether she smokes with a pipe or ginseng (the latter is what crack users use). She states that the complainant told her he had cocaine at home and that he just lived around the corner and could go get the drugs and then come back and meet her. She states that the agreement was that the complainant would get cocaine for her and marijuana for himself and that they would then go to her brother’s place to smoke the drugs. Chapman states that she would not have waited for the complainant but for the fact that she understood he was returning with drugs.

31Chapman acknowledges that they engaged in other personal conversation about a fight with her brother and that is why she was out on the street with nothing. She states she did this so she could ease his potential concern that she was a police officer. In fact, she states that the complainant asked her if she was a police officer and explained to her that he had a good job and therefore could not be arrested.

32When the complainant returned, Chapman states that she asked if he had any drugs because she did not “want to waste any more time” as she had invested what she felt was a significant amount of time already. According to Chapman, the complainant told her to be quiet and that he had cooked it up nice for her and then he rolled something that was white from the side to the front of his mouth. Chapman asked the complainant for the drugs stating that they would get wet, but the complainant stated that it was wrapped and did not appear to be willing to give her the drugs. Chapman states that she has no recollection of showing the complainant any money although it is quite likely and possible that she did. She denies that she would have tried to put money in his pocket as this is planting evidence on someone and could be unsafe for her since sometimes drug dealers have something sharp in their pockets. She denies asking the complainant to have sex.

33Officer Chapman’s account of what happened in her evidence is generally, although not entirely, consistent with her notes that she prepared following the arrest of the complainant later that evening.

34I find neither account entirely credible. The complainant’s description of how he became engaged in conversation with Chapman was vague. He stated that he did not listen to everything she was saying and he therefore cannot give a full account of Chapman’s comments to him. Moreover, he maintains that his only interest in agreeing to meet again with Officer Chapman was to help her because she had personal problems. Even accepting that the complainant is as civic-minded as his counsel argued and which was uncontested, I find this assertion unconvincing. Instead, I agree with the submission of respondents’ counsel that the reasonable inference to be drawn from the evidence was that it appeared that the complainant wanted to bond with Chapman.

35Chapman’s evidence was also problematic. I have difficulty accepting that the officer could recall the detailed verbatim dialogue that transpired between her and the complainant, but not whether she tried to give the complainant $20.00, which appears to be a key component of the undercover operation. There were discrepancies between Chapman’s notes and her testimony (such as how the complainant first addressed her). Also, there is an inconsistency between Chapman’s assertion that the complainant stated an intention to sell drugs to her and smoke marijuana and what eventually transpired, including that the complainant did not take any money and there were no drugs found on him.

36However, while I have considered all the evidence I do not find that I need to make a finding of fact about every aspect of the conversation and interactions between the complainant and Chapman. Instead the question is: was race or other grounds a factor in Chapman’s actions in approaching the complainant, waiting for his return and ultimately signalling to her colleagues to arrest the complainant.

37I find there is insufficient evidence to find race was a factor. The evidence was that Chapman both approaches individuals and in some cases they approach her. In this case, the complainant was standing around having a cigarette. It seems apparent from subsequent events that the complainant was interested in Chapman. In light of this, I find it is more probable than not that the complainant nodded at Chapman or otherwise expressed interest in her. However, even if he did not express interest, I am not convinced that approaching the complainant in these circumstances would necessarily amount to profiling him on race given the nature of the officer’s undercover work.

38I also accept that when Officer Chapman approached him she immediately asked the complainant if he had some food and that reference to “food” is street language for drugs; a reference which was uncontested. While the complainant denied that she asked such a question, his own report of the conversation includes reference to food being discussed early on in their interaction. While the complainant may have misunderstood the import of Chapman’s question, it makes sense that Chapman would establish early on that she was interested in drugs, since the entire objective of the exercise was to find sellers of drugs.

39As for the subsequent discussion, I reach a similar conclusion. While I am not convinced that there was a drug-related conversation to the extent testified, I am satisfied that there was some conversation or comment made that led the officer to conclude that the applicant was going to get drugs and bring them back. While it could have been as a result of miscommunication or misunderstanding (as the complainant acknowledged he was not listening to everything), in the absence of any such conversation or comment, it would not have made sense for Chapman to wait for 15 minutes for the applicant’s return. Again, given the objective of the exercise, it seems probable that Chapman would confirm her understanding before waiting around.

40I have considered whether race was a factor in Chapman’s decision to wait since the evidence suggests there was a question in her mind about whether he would be returning with drugs, given her statement that she asked about drugs immediately upon his return because she did not want to “waste any more time”. However, the complainant bears the onus to establish that race was a factor and in the face of the interactions set out above, I am not convinced that the complainant has met his burden.

41When evaluating the final interaction between Chapman and the complainant, I also find it is more probable than not that Chapman observed something in the complainant’s mouth which she understood to be drugs and that is when she signalled to her colleagues to arrest the complainant. While the complainant’s counsel argued that there was an alternative explanation for what was in the complainant’s mouth, I have no evidence before me of an alternative explanation being given by the complainant beyond a denial.

42I also find the subsequent evidence given by the complainant lends support to Chapman’s evidence that she genuinely believed that the complainant had drugs in his mouth – the complainant testified that he heard one of the officers stating “take it out, take it out” during the arrest which appears to be consistent the respondents’ theory of the case. I find that it is more probable than not that Chapman signalled to her colleagues to arrest the complainant because she believed that he had drugs. I find her actions were dictated by this belief, whether correct or not.

The Arrest

43Evidence was given by the complainant, the two arresting officers and the officer in charge regarding the arrest. With a few exceptions, I did not find the respective versions of what transpired to be inconsistent.

44The complainant states that he was thrown on the sidewalk. He states that he was treated like an animal. He states that he hit his head when he was thrown down and that he sustained “internal bleeding”. The complainant describes being pinned down (his legs held) and that one person pressed a finger on his throat and that he could not breathe. The complainant recalls “them” saying, “take it out, take it out”. The complainant states that he was handcuffed and searched: his pockets were checked, he was asked to open his mouth, his ears were checked and his shoes were removed. The complainant also states that his testicles were grabbed during the arrest.

45The complainant states that at a certain point he was picked up and the police started interrogating him. The complainant states that they took his wallet and started asking him questions about his living situation (who he lived with, whose voice was on the answering machine); when he came to Canada; and a number of questions about his work identification. He states that they asked what the DND identification was and when he replied that he worked there, they claimed he did not and asked how he got the job, which he explained. The officer questioning him stated that “if we call that place and you are not working there you know where we are going to send you”.

46Halman testified that he had an independent recollection of “certain parts” of the events. He states that the complainant was “placed on the ground” and that this is standard operating procedure for this type of arrest because often an accused person may have weapons or try to run away so the objective is to get them under control. He confirmed there was a search of the complainant. He denies that he saw any injury to the complainant’s head as he would have made note of it. He states that he does not recall if the complainant was questioned about his identification on the street. However, in cross-examination he acknowledged that that the police would get someone’s identification and ask questions about it. When the complainant described the various questions that were put to him (“about my place of residence, where did I arrive in Canada, where do I live, who do you live with, the house under your name”) Halman conceded that he had no doubt that the complainant was asked such questions because those are all “reasonable” questions police ask people when they arrest them; the only questions he was sceptical about were the questions about his house and phone.

47The respondent Roberts identified himself as one of the arresting officers. Roberts states that he has no recollection of the complainant’s arrest because he has done approximately 1000 arrests. He only recalls looking on the ground for drugs and giving the complainant his right to counsel.

48The other arresting officer, Blunk, states that he had an independent recollection of the events. He states that he approached the complainant, identified himself as a police officer, advised him that he was under arrest for trafficking cocaine and took physical control of him bringing him down to the ground and handcuffing him. Elsewhere he described how the complainant was “push[ed]” to the ground. This method of arrest was for safety as the officers are not uniformed. Blunk states that he got the complainant’s wallet when he was arrested, but did not look in it. He does not recall the details of any conversation with the complainant at the time of the arrest.

49The two arresting officers, Blunk and Roberts, denied grabbing the complainant’s crotch, and pressing on his throat as part of the physical take down, although Blunk did acknowledge that he would have searched the inside of the complainant’s leg area near his crotch.

50I accept the complainant’s evidence of an aggressive physical takedown, in which he hit his head and had pressure applied to various parts of his body. While the complainant also suggested he was injured during his evidence, this point was not pursued in final argument. In any event, I do not find it relevant to the question of whether race was a factor in the manner in which the complainant was arrested.

51Further, I accept that the complainant was searched and questioned at the scene of the arrest. As for the content of the questioning, I am satisfied that questions were put to him about where he lived; it was suggested that he did not work at the DND; he was asked how he got the job; and he was told that if we call that place and you are not working there, you know where we are going to send you. I also find that the applicant was asked when he came to Canada. While none of the respondent witnesses expressly recalled the questioning at the scene of the arrest, it appears that for the most part, Halman did not find the questioning to be out of the ordinary.

52To the extent the respondent Blunk suggests that there was no questioning about the complainant’s identification at the arrest site, I do not find it credible. I do not find it in harmony with the preponderance of the probabilities that a police officer would take someone’s wallet at an arrest scene and not check and question the person about it.

53Even accepting the complainant’s account of the arrest, I do not find that the complainant has proven discriminatory treatment given the aggressive nature of the arrest based on the grounds alleged. I accept that the arresting officers received information that the complainant had drugs and had offered to sell them. I also accept the uncontested evidence that in circumstances such as these police officers conduct arrests in the manner described. Having regard to this evidence, I have difficulty concluding that the complainant was treated differently from others and that race, place or origin and/or colour were factors in his treatment.

Allegations of Mistreatment at the Police Station

54The complainant made various allegations that he was mistreated while he was at the police station. With minor exceptions, no evidence was led about these allegations by the respondents because none of the respondent witnesses recalled the details of the complainant’s detention.

55The complainant states that he was taken to various rooms and that he was strip searched twice. The complainant had great difficulty providing evidence on the strip searches. Initially, he stated that he did not want to “go there” and provided no evidence; after further questioning by me he described that there were two officers present although he could not identify them. He stated that one was laughing and they used “ridicule language” and humiliated him. Again when asked to explain what he meant by “ridicule language” he stated that they used the “f word” and “ass”. He expressed that if he could, he would have died that day. While he alleged that he was strip searched twice, he did not explain the temporal sequence of events nor could he identify which officers did the strip search(es) or whether it was the same officers each time and what happened on each occasion. He stated that he would not be able to identify them as he was closing his eyes and after they humiliated him, he would not look at them.

56When counsel appeared on the complainant’s behalf on the last day of hearing, he asked and I granted a request to recall the complainant on the strip searches. While I permitted the evidence to be called, ultimately, I have decided not to have regard to the evidence unless it is consistent with what was previously given. Again the complainant was reluctant to give any evidence. When he eventually did give evidence, he cried openly and it was necessary to adjourn the proceedings briefly to permit the complainant to regain his composure. In his evidence the complainant did provide slightly more context to the description of the searches.

57Apart from the strip searches, the complainant testified that he was questioned at the police station. He states that he was asked about “drugs”, how many he had in him, where did he put the drugs and how many he had ingested. Again he did not attribute the questioning to anyone in particular. The complainant also states that he was put in a cell where the temperature was freezing and that although he knocked on the door to try to get assistance, no one came.

58There is no evidence that race, colour, or ethnic origin was a factor in any of the above incidents. The complainant argues that I should find that the strip searches were indicative of blatant racism given that no drugs had been found on the complainant there were not reasonable grounds for even conducting a strip search and therefore the only thing that motivated the search was a stereotypical assumption that the complainant must be a drug dealer. This does not accord with the evidence. Roberts testified that a strip search would have been conducted on the complainant because of the nature of the charge and for safety reasons (to ensure the absence of drugs and weapons) for the complainant’s own safety and that of other accused persons given that the complainant would be mingled with other prisoners en route to his bail hearing the next day. This evidence was uncontested. Even accepting that one of the officers laughed and used the language indicated, I find based on the limited evidence given, there is no basis for a finding that prohibited grounds were a factor.

59The complainant was later taken from his cell to be fingerprinted, in a room off the main booking hall. The complainant described that this was the only part of his experience at the station where he felt comfortable. He states that he had been moved to so many places, strip searched and interrogated, that this was the first place where he felt warm and that he could breathe. He states that the officer was reading a book at the time and began by asking him his name. The complainant describes getting irritated by this question, because his name was in front of him and he replied to the officer that the officer could see his name. He states that the officer asked him if he had contacted immigration and when he asked what for, the officer told him that they were going to “deport” him. The complainant states that he responded by referencing the fact that he was a Canadian citizen to which the officer replied that his name would be put in a database for five years.

60Aaron Dennis, the officer who fingerprinted the complainant gave evidence. He states that he has fingerprinted about 4,000-5,000 accused persons and that the process is not videotaped nor does he prepare notes. He states that he had no independent recollection of his involvement with the complainant, although he confirmed that his name is on the documentation confirming that he fingerprinted the complainant. He states that his practice is to exchange pleasantries with a person being fingerprinted since that usually results in a better fingerprint.

61I do find that, while being fingerprinted, Dennis made a comment that the complainant would be deported. In general, I find that the complainant’s account of his experience at the station was credible and I see no reason not to accept that the comment was made. While Dennis suggested that his practice is to exchange pleasantries, I do not find that this provides a complete answer to the evidence that the comment was made particularly given the factual context that the complainant provided in his evidence which I find believable.

62I do find that the comment made to the applicant about being deported constitutes a violation of the Code based on the intersection of colour, race and place of origin. The complainant, a Canadian citizen, was asked if he had called immigration and told that he would be deported. The reasonable inference is that the remarks are directly related to the complainant’s place of origin and colour/race as the assumption being made is that the complainant is not Canadian. No explanation has been provided for the comments being made and in the absence of an explanation, I find that the complainant has established that the comments were discriminatory based on his place or origin and colour or race.

Was the complainant discriminated against by the police calling DND?

63The respondent Halman states that when he became aware that the complainant had work identification for the Department of National Defence he “suspected” the identification was false since he had never encountered anybody that actually works for DND who is a drug dealer or been arrested for trafficking cocaine so he told Officer Blunk to investigate further. Blunk testified that he had noticed a difference in parts of the complainant’s identification in terms of the order of the names and asked Halman if he should check with the Canadian Armed Forces to verify the complainant’s identification “to make sure that he does actually work there, because of the way…the order of the names, and to make sure that we have his name properly on our record of arrest.” On the evening of the arrest, the respondent Blunk contacted the DND directly and advised that the complainant was under arrest and that he was verifying identification. The security person he spoke to was unable to give Blunk any information.

64Halman states that the customary protocol to investigate someone’s identity is to use various computer programs using the name, and if this does not work, fingerprint the individual and run the fingerprint through a computer system called AVIS. Blunk states that fingerprints and pictures from earlier arrests, calls with family members and questioning of the accused can also be used. Blunk could not recall why these avenues were not pursued in the complainant’s situation. No witness suggested that an employer would generally be contacted first.

65It is clear that it is not usual protocol to contact an accused person’s employer to verify identity and that by contacting his employer the complainant, who identifies as an African Canadian, was treated differently from other accused persons. The issue I must determine is what it was about the complainant and the job he had that led to police to question its veracity and whether the complainant’s race, colour or place or origin was a factor in why the police proceeded in the manner that they did.

66In this case there is no direct evidence that the complainant’s race, colour or place of origin was a factor in the decision to contact DND. In fact, the witnesses suggested that they had legitimate reasons for contacting DND. However, in many discrimination cases the Tribunal is required to draw inferences from the findings made. In considering this allegation, I find that the reasonable inference to be drawn is that the complainant was treated differently in this respect at least in part because of his race, colour or place or origin. In reaching this conclusion, I rely on the following:

1. There were no drugs found on the complainant at the arrest scene.

2. The complainant had multiple pieces of identification on him, many of which reflected his name as Ahmed Rabah (with Dungus reflected as a middle name or D. as an initial) with photo identification (driver’s licence, health card, citizenship card).

3. There was significant suspicion from the outset as to the legitimacy of the complainant’s work identification for reasons that were not self-evident and not articulated to the complainant. Based on the complainant’s evidence, which I accept, the respondents disbelieved the complainant from the outset as to his having the job and while the complainant answered all the questions, his explanation appeared to make no difference insofar as the suspicion continued.

4. At the time the complainant was questioned about his work identification, he was also asked when he came to Canada – which would appear to be irrelevant given that the complainant had a citizenship card – but on the face of it is connected to his place of origin.

5. At the police station none of the usual steps were followed to check identification.

6. Two different explanations were provided as to why DND came to be contacted, albeit they both had to do with suspicion regarding the complainant’s identification.

7. The arrest documentation including the Information was completed with the complainant’s name as Ahmed Dungus Rabah or Ahmed Rabah consistent with the identification noted above in 2 (the only reference to Ahmed Dungus appeared in a box entitled “alias or nicknames” on the Record of Arrest).

67I find that in considering all the circumstances, the complainant has established, on a balance of probabilities, a prima facie case of discrimination in the contact made to DND. I find it more probable than not that the complainant’s job status was being viewed suspiciously at least in part because of his physical attributes and what was perceived as the complainant not being from Canada as there was nothing about the identification that raised obvious questions and this suspicion about his employment coincided with questions about his connection to Canada.

68I do not find the explanations provided by the respondents to be credible and rational. First, I did not find the explanations to be entirely consistent. While Blunk articulated a concern with the names being ordered differently, Hallman did not recall this as the operative reason. Second, even assuming there was a concern with the legitimacy of the identification, I have difficulty seeing why the complainant’s employer was contacted, which by all accounts was not the usual protocol, if there was a suspicion that the identification was false. Further, even if in some circumstances an employer may be contacted regarding verification of identification, why did Constable Blunk advise of the complainant’s arrest as this piece of information is not relevant to the question of verification of identification. Finally, I am troubled by the fact that following the telephone call with DND where nothing was confirmed, there appeared to be no ongoing interest in verifying the complainant’s identification and in fact the arrest records continued to show the names as reflected on the other pieces of identification. According to Blunk, after the call he just continued with his paperwork, although exactly what he did, he cannot remember.

69Given the absence of a credible and rational explanation, I am satisfied that the complainant has proven on a balance of probabilities that his race, place of origin or colour was a factor in the respondents’ suspicion of his work identification and at least one of the reasons why they contacted his then employer.

Was the complainant discriminated against by the Terms of Recognizance

70The complainant also argued that the term of his recognizance requiring him to report to a reporting centre far from his home was a condition recommended by the police to the crown and ultimately accepted by the Justice of the Peace. The complainant alleges that such a condition is indicative of racism.

71I find no merit to this allegation. The evidence indicated that the police prepared a Supplementary Record of Arrest that listed various conditions that did not include the contested condition. While the complainant alleged that it was the police who recommended this additional condition, he has provided no particulars in his evidence in support of this allegation. The police witnesses have testified that the Justice of the Peace determines the conditions and that they have no knowledge of how this condition came to be. On the basis of the evidence, I find no basis from which to infer that the imposition of the condition was recommended by the police.

Conclusion

72The complainant was discriminated against by the remarks made to him during fingerprinting and by contacting his then employer Department of National Defence.

Continuation of Hearing

73The respondents requested an opportunity to make submissions on whether or not the Toronto Police Services Board is liable for the conduct of the officers in the event that any finding of discrimination was made. The respondent TPSB is directed to advise the Registrar-Transition within 14 days as to whether or not it wishes to make submissions on liability, and if it does, to file such submissions. In the event that the respondent TPSB files submissions, the other parties may file any submissions in response within 7 days of the receipt of the submissions. In the absence of any submissions being made by TPSB, I will issue a supplementary decision as to which parties are liable for the violations found.

74In addition, I note that the hearing was bifurcated. The parties are encouraged to have discussions with a view to arriving at a settlement without further adjudication. In the event that the parties are unable to agree on remedy, the hearing will be reconvened by teleconference call to determine how to proceed.