HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lucy Beyette
Applicant
-and-
Durham Regional Police Services Board
Respondent
CASE RESOLUTION CONfERENCE DECISION
Adjudicator: Jim Dimovski
Indexed as: Beyette v. Durham Regional Police Services Board
AppearanceS BY
Lucy Beyette, Applicant ) On her own behalf
Durham Regional Police Services Board, ) Visha Sukdeo
Respondent ) Counsel,
1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was subjected to discrimination by the respondent on the basis of disability in the area of services.
2In particular, the applicant alleges the respondent’s police officers failed to consider the applicant’s complaints about her seizures in the course of apprehending her under the Mental Health Act, R.S.O. 1990 c. M. 7., as amended and that the manner in which she was apprehended breached her rights under the Code. The applicant alleges she should have been offered a stretcher as opposed to being hand-cuffed and dragged to an awaiting ambulance. She also alleges she was mocked by one of the respondent’s police officers.
3The respondent denies any discrimination and claims the apprehension was consistent with its practices to ensure everybody’s safety.
4A Case Resolution Conference (“CRC” or “hearing”) was held on September 3, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. At the hearing, I heard testimony from the applicant and Ruth Lawrence (registered nurse), Valerie Binet and John Johnson, the respondent’s police officers. At times, with the consent of the parties, I took the lead in questioning.
FACTS
5Except as otherwise noted, the following facts are not in dispute.
6The applicant acknowledges she is an alcoholic. She also has been diagnosed with other conditions. In this matter, she alleges that the respondent did not appropriately respond to her complaints about experiencing seizures.
7At the hearing, the parties were able to agree that the apprehension occurred on May 4, 2008.
8After receiving some very tragic news the applicant admitted to drinking more than her usual amount of alcohol over a 24 hour period before she fell asleep. She awoke at approximately 3:00 a.m. but noticed she felt distant, as if she was in a different “zone”. She states that she experienced two “mini” seizures and called 911 for an ambulance. She believes her drinking caused the seizures.
9The applicant next heard a knock at her door. Since the door was locked, and she was unable to walk, she crawled to it and opened it. She claims two men were at the door but could not recall if they were the paramedics or her superintendent and another person. She remembers getting angry because they were yelling at her to calm down.
10When police arrived, she alleges they told her she was drunk, to quit acting like she had seizures and to walk to the awaiting ambulance. She remembers talking to the police officers but could not remember much of the conversation. She was adamant that she repeatedly stated she could not walk and required a stretcher. She claims her request was denied and that the police handcuffed and dragged her to the ambulance instead. She suffered injuries to her knees and lacerations when she was dropped in the course of being dragged. The applicant denied she posed any physical threat due to her condition.
11Once at the hospital, the applicant alleges Officer Binet told a physician that she was “faking” and laughed at her. Early that day, the applicant said she experienced a grand mal seizure.
12The respondent claims that after the applicant made her call to 911, Officer Binet arrived to find the applicant’s front door open and the applicant alone in her apartment. Shortly thereafter, paramedics with the Emergency Medical Services (“EMS”) arrived as well as Police Officers Johnson and Baker.
13Officer Binet was familiar with the applicant and had attended at her apartment in the past. Officer Binet described finding the applicant moaning and yelling. Two bottles of vodka were strewn about and her apartment smelled of urine. The applicant did not mention having had seizures at first. Unlike in the past, Officer Binet’s attempt to “calm” the applicant proved unsuccessful. The applicant became uncooperative and refused any treatment from the paramedics. She also specifically refused attending at the hospital on a stretcher that was in the apartment. Officer Binet did not remember any offer of a wheelchair being made.
14Officer Binet testified the applicant became physical, swaying her arms and kicking her legs while shaking her head side-to-side with her eyes closed. In her view, the situation was becoming unsafe and the paramedics retreated deferring to the police presence. This was explained as the usual practice in these situations.
15In her view, the applicant was refusing treatment and it became apparent that the situation was becoming unsafe for everyone. The applicant was warned if she did not “calm down”, she would be apprehended. The applicant did not abide by the request and in the course of helping her up from her seated position to the stretcher, the applicant swung her arms at Officer Binet. At that point she was “grounded” and handcuffed.
16Officer Johnson testified that when he and his partner received the call to proceed to the applicant’s apartment, he thought it would be in response to the applicant’s expression of suicide as had happened several times before. The police call card did not mention anything about seizures. Officer Binet and the two paramedics were present when he arrived. The applicant was reclining in a chair with her eyes closed and her head swaying side-to-side. He confirmed the applicant advised she was having seizures but she refused treatment.
17Since he thought he had a good rapport with the applicant, Officer Johnson began talking to her. He could smell alcohol on her breath as well as other odours. He asked whether she wanted to stay on the stretcher and proceed to the hospital. She swore at him and became more agitated. It became apparent the situation was becoming unsafe and the paramedics retreated. Without co-operation, the decision was made, not by him, to apprehend the applicant under the Mental Health Act. Officer Johnson did not handcuff the applicant nor was he involved in the decision.
18The applicant was then escorted to the ambulance with both Officers Binet and Johnson holding her on either side. Although the applicant walked most of the time, she resisted and dug in her heels which then required the officers to stop since she was rather heavy. Officer Johnson denied the applicant was dragged, fell or was allowed to fall to the ground.
19Officer Binet testified that she attended the hospital and was asked to stay by staff who feared the applicant was too aggressive and violent. Officer Binet denies she mocked the applicant. A few hours passed and the hospital staff advised Officer Binet that she was no longer needed, so she left.
ANALYSIS
20After applying the applicable legislation and weighing the relevant evidence and considering the parties’ submissions, I dismiss this Application for the following reasons.
21The applicant acknowledged her memory of the events in dispute may not have been clear, but she was adamant that if she had been offered a stretcher she would have taken it. Although I found the applicant sincere, in the end, I preferred the respondent’s evidence. This is not to say I was not concerned with Officer Binet’s testimony which in places was inconsistent with her will-say statement and her Occurrence Report dated May 4, 2008.
22In my view, however, despite the discrepancies in Officer Binet’s testimony, I am satisfied on the material issues in dispute the preponderance of evidence supports the respondent’s position. On the date in question, I find the applicant was combative, refused treatment, a stretcher was offered, that concerns for her safety lead to her apprehension under the Mental Health Act; that the treatment she received during the apprehension was appropriate in the circumstances and that she was not intentionally dropped or mistreated while being walked to the ambulance or subjected to ridicule while at the hospital.
23In reaching these conclusions, I give significant weight to the Ambulance Call Report and notes which indicated that the applicant was “threatening”, “violent” and “abusive”, that the paramedic’s attempt to take the applicant’s vital signs was unsuccessful because she was being too “unruly” and that confirm the applicant’s apprehension occurred after she refused treatment. The applicant’s own testimony acknowledged that despite calling for 911 assistance, she did not want to attend the hospital. She also acknowledged that she had similarly refused such assistance in the past.
24Further, I placed significant weight on Officer Johnson’s testimony. He was clearly familiar with the applicant and his testimony persuaded me that the applicant’s conduct, unlike the majority of his past experiences with her, was more aggressive than the applicant remembers. As such, I am satisfied the evidence supports the conclusion that the decision to apprehend the applicant was made in order to facilitate her treatment at hospital and for her own protection and was not contrary to the Code.
25Further, I am satisfied that the decision to restrain the applicant in handcuffs was related to her threats and her movements which were perceived as a threat. Officer Binet was clear; she only resorted to handcuffing the applicant after the applicant swung at her. Officer Binet’s testimony on this point is consistent with the ambulance and hospital notes on file which indicated the applicant was physically and verbally threatening. As such, I am satisfied that the applicant was handcuffed in response to the threat she posed and not for any discriminatory reason. Further in the circumstances I am satisfied the applicant was not dropped or otherwise mistreated while being escorted to the ambulance.
26Officer Johnson acknowledged that the applicant claimed she was having seizures and stated she was unable to walk as a result. There is no medical evidence to substantiate the applicant’s belief she had experienced seizures or that she experienced a “grand mal” seizure following her admission to hospital. A clinical notation from her physician, dated May 7, 2008, indicates she complained of “seizures” on the date in question. However, the hospital progress notes do not make any clinical record of the applicant experiencing a grand mal seizure on either May 4 or 5. I am satisfied that a medical event of such a serious nature would be noted in the applicant’s hospital records. I am not satisfied there is evidence to support finding the applicant had experienced seizures on the day in question and, in any event, I am satisfied the applicant was offered the use of a stretcher which she refused.
27With respect to the allegation Officer Binet and others laughed at the applicant and accusing her of “faking”, it is not disputed that discriminatory actions are often, by their very nature, actions which can not be incapable of direct proof. Thus, it often becomes necessary to infer discrimination from the conduct of the individual or individuals whose conduct is in issue.
28While I do have concerns with some of Officer’s Binet’s testimony, in light of the applicant’s poor recollection regarding the events in question, which she readily admitted was not entirely accurate, I am not satisfied on a balance of probabilities, that Officer Binet made the comments attributed to her. The applicant was likely still very intoxicated at the time and her recollection of the incident was, on her own admission, not clear.
29In all the circumstances, I dismiss this Application.
Dated at Toronto this 3rd day of March, 2010.
“Signed by”
Jim Dimovski
Member