HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rivka Herman
Applicant
-and-
Ottawa Police Services Board and Debbie Palmer
Respondents
DECISION
Adjudicator: Leslie Reaume
Date: February 19, 2010
Citation: 2010 HRTO 391
Indexed as: Herman v. Ottawa Police Services Board
APPEARANCES
Rivka Herman, Applicant ) Joshua K. Cohen, Representative
Ottawa Police Services Board ) David Patacairk, Counsel
and Debbie Palmer, Respondents )
[1] In this Application made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination against the respondents in the context of an October 2005 police interview. The applicant, who self-identifies as a Jewish lesbian from Israel, alleges that the prohibited grounds of ancestry, place of origin, citizenship, ethnic origin, creed and sexual orientation are engaged by her allegations.
[2] Counsel for the respondents sought an amendment of the style of cause to reflect the proper respondent as Ottawa Police Services Board. The request was granted and the style of cause has been amended accordingly.
[3] The Tribunal issued an Interim Decision on August 13, 2009, [2009 HRTO 1262](https://www.minicounsel.ca/hrto/2009/1262), directing that certain issues be dealt with at the hearing of this matter, namely, whether there is a prima facie case, whether the Application is timely, and whether the Application should be dismissed pursuant to section 45.1 of the Code.
[4] A hearing took place on January 22, 2009, and lasted approximately one hour. Ms. Herman testified and her representative Mr. Cohen made additional submissions on her behalf. At the conclusion of the evidence, I dismissed the Application pursuant to section 45.1. As a result, it is not necessary to deal with the issues of timeliness or prima facie case. These are my reasons for dismissing the Application.
[5] The basic facts of the case are that in 2005, a woman with whom the applicant was in a relationship (“the witness”) filed a criminal complaint against the applicant. The witness was interviewed by the respondent, Debbie Palmer, an Ottawa Police Officer. There was another person present during the interview who was providing Russian to English translation when required (‘the translator”). The interview was video recorded and the applicant was subsequently charged with a number of criminal offences. The applicant was unaware of the interview or the video recording until she and her counsel were preparing for her criminal trial.
[6] Shortly before the trial, which was scheduled for September 2007, the applicant became aware of the existence of the video recording of the interview. She had Russian-speaking friends assist her in translating it. The content of the video caused her considerable distress. The applicant testified that she observed the translator coaching the woman who accused her of assault and making disparaging, discriminatory statements about the applicant both before and after the officer arrived in the interview room.
[7] Essentially the applicant argues that the criminal charges were laid as a result of discriminatory comments made by the translator and coaching of the witness which took place during the interview. Mr. Cohen argued that as a separate matter, the applicant was deeply affected by the comments and conduct of the translator as well as the police officer, who, it is alleged, should have intervened to stop the translator’s conduct. Mr. Cohen argued that the applicant should have an opportunity to have this experience remedied by a Tribunal empowered to deal with discriminatory practices in the context of the delivery of police services.
[8] The applicant testified that she saw the video for the first time just before her original trial date on or about September 4, 2007. The applicant, through her counsel, then raised concerns about the alleged discriminatory comments made during the interview with the trial judge who adjourned the hearing and ordered an outside agency be contracted to accurately transcribe the video of the interview. This transcript was then placed before the trial judge during the hearing when it resumed and the applicant was nevertheless found guilty of nine charges on April 18, 2008.
[9] In her testimony before the Tribunal, the applicant raised concerns that her lawyer had not properly questioned the witness about the circumstances of the interview with the translator and the police officer. She also alleged that, in her view, the trial judge had not taken the transcript of the interview or her concerns about it into consideration in deciding the case. In the course of explaining the application of section 45.1 to the circumstances of this case, I explained to the applicant that in my view it would not be appropriate for this Tribunal to revisit the decision of the trial judge in circumstances where the alleged discrimination was specifically raised during trial.
[10] Section 45.1 of the Code gives the Tribunal the discretion to dismiss an Application where the Tribunal is “of the opinion that another proceeding has appropriately dealt with the substance of the application.” The applicant’s representative urged me to allow the Application to proceed on the basis that the allegation of discrimination in relation to a service is discrete from the applicant’s concerns about the impact of the interview on the criminal proceeding.
[11] However, in my view, the substance of this Application, which was established by the applicant in her testimony, is that the circumstances of the interview led to criminal charges, a trial, and a conviction. While I appreciate how deeply affected the applicant was by the entire experience, in my view, the substance of this Application has been appropriately dealt with by the trial judge in the criminal proceeding. Whether the applicant should have been convicted was the issue before the Court in the criminal trial. There were no reasons issued for the decision, however the conviction and findings of the judge are inconsistent with the allegations the applicant makes in this proceeding, and I find that the Application was appropriately dealt with by the court.
[12] For those reasons, the Application is dismissed.
Dated at Toronto, this 19th day of February, 2010.
“Signed by”
Leslie Reaume
Vice-chair