Pamula v. Ontario Provincial Police, 2010 HRTO 73

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helen Pamula

Applicant

-and-

Ontario Provincial Police, Dean Pfaff and Katherine Souillier

Respondents

DECISION

Adjudicator: Dale Hewat

Date: January 15, 2010

Citation: 2010 HRTO 73

Indexed as: Pamula v. Ontario Provincial Police

WRITTEN SUBMISSIONS BY

Helen Pamula, Applicant ) On her own behalf

Ontario Provincial Police, Dean Pfaff and Katherine Souillier, Respondents ) Chris Donszelmann, Counsel

1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") claiming discrimination contrary to sections 1 and 9 of the Code. The underlying human rights complaint was filed with the Ontario Human Rights Commission on February 27, 2006 and abandoned upon filing this Application with the Tribunal.

2This Decision deals with the respondents' request that the Tribunal dismiss this Application without a hearing pursuant to section 45.1 on the basis that proceedings and decisions by the Ontario Civilian Commission on Police Services ("OCCPS") under the Police Services Act, R.S.O. 1990, c.P.15 (the "PSA") as it existed at the relevant time, and by the Criminal Injury Compensation Board (the "CICB") have appropriately dealt with the subject matter of the Application.

3The applicant's original human rights complaint was filed with respect to an incident and subsequent investigations that occurred involving the personal respondents, Police Officers Dean Pffaf and Katherine Souillier, and the respondent, Ontario Provincial Police (the "OPP"). In submissions filed July 15, 2009 and October 1, 2009, the applicant includes allegations of discrimination with respect to a separate police investigation of Officer Fleming. The applicant also states that she and her husband have been subject to on-going discrimination and harassment by the OPP, Tecumseh Division.

4Pursuant to section 53(5) of the Code, the Tribunal will only consider applications dealing with the subject-matter of the abandoned complaint. Accordingly, this Decision will only deal with the subject-matter of the applicant's original complaint filed with the Commission and abandoned upon filing of this Application, namely the complaint against the OPP and the two personal respondents, Pfaff and Souillier.

5The applicant's human rights complaint deals with the same facts and allegations that were before the OCCPS and CICB. The applicant maintains that she is entitled to a hearing before the Tribunal because she believes that she has not been afforded a hearing by an institution independent from the OPP and that her submissions were not taken into account at any of the stages of the investigation or review. The applicant also maintains that the CICB decision was tainted by a conflict of interest because she believes the decision was based on submissions by Counsel for the OPP.

6The Tribunal directed the parties to provide written submissions with respect to the preliminary issue raised by the respondents. The applicant advised the Tribunal by letter, dated September 10, 2009 that she agreed to have the preliminary issue determined based solely written submissions. By letter dated September 15, 2009, the Tribunal confirmed the applicant's request to have the preliminary issue dealt with by written submissions.

Decision

7The respondents' Request for early dismissal pursuant to s.45.1 is upheld on the basis that the substance of the Application has been appropriately dealt with in proceedings by the Police Services Bureau (the "PSB") and OCCPS. Given this conclusion, I do not need to consider the outcome of the applicant's complaint to the CICB. For the reasons that follow, the Application is dismissed.

Section 45.1 of the Code

8Section 45.1 of the Code provides that:

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.

9The issue for this Tribunal to determine is whether the OCCPS decision to uphold the PSB report meets the two-fold test under section 45.1: (1) whether there was another proceeding and (2) if so, whether it appropriately dealt with the substance of the application: Campbell v. Toronto District School Board, 2008 HRTO 62.

The Police Incident and Complaints

10On August 2, 2005, the applicant was involved in an incident with the OPP Tecumseh Detachment in which OPP Officers, including the personal respondents, attended at the applicant's home and detained the applicant for assaulting her husband. Ultimately, charges against the applicant were not laid but the applicant was instead taken to the hospital by the police due to their concern for the applicant's safety due to her mental state at the time.

11Following this incident, the applicant made a complaint under Part V of the PSA concerning the conduct of the Officers. In her complaint under the PSA the applicant stated, in part:

....as a person of the public, I was brutally attacked and violated in my own home....In addition, I was discriminated against and humiliated for being from another country.

12The applicant self-identifies as a disabled woman from Czechoslovakia who does not speak English fluently. The applicant notes that she suffers from hand and neck pain. In her complaint under the PSA, the applicant argued that, in the process of arresting her, the respondent Pfaff, who was the arresting OPP Officer, physically assaulted and mistreated her on the basis of disability and ethnic origin causing injury and making the applicant feel degraded and humiliated. In the complaint, she alleged that she told the arresting officer that she is disabled and begged him to stop trying to restrain and handcuff her. Despite her pleas, the applicant alleged that the Officer continued to use excessive force and called her a "stupid foreigner".

13The applicant also claimed that the other Officer on scene, the respondent Souillier, mistreated the applicant and violated her human rights by forcing her into the police cruiser barefoot and by locking the applicant in the cruiser without fresh air despite an outside temperature of 33 degrees Celsius. The applicant further stated that the respondent Souillier smoked in the cruiser causing the applicant to have difficulty breathing.

14The applicant's Part V PSA complaint was investigated by the OPP Professional Standards Bureau (the "PSB") and an investigation report was prepared. The investigation report concluded that the actions of the Police Officers in arresting the applicant were justified, that no excessive force was used and that no inappropriate comments were made to the applicant. The PSB Bureau Commander advised the applicant that her PSA Complaint was found to be unsubstantiated and also advised her of her right to seek a review of the decision by the OCCPS, which she did.

15On July 14, 2006, the applicant received a letter from the OCCPS confirming that her file was presented before a review panel of the OCCPS who determined that there was insufficient evidence to substantiate the allegations of misconduct. In reaching this decision, the OCCPS panel considered the applicant's original PSA complaint, the investigator's report including statements of the applicant and witness statements, the PSB decision letter and the applicant's written submissions. Pursuant to Part V of the PSA, s. 72 (12) the applicant was informed that the decision of the OCCPS was final.

The Police Complaint Process

16Pursuant to s. 56(1), Part V of the PSA, a member of the public can make a complaint about the conduct of a police officer. In considering a complaint under Part V of the PSA, the Commissioner or his delegate can charge an officer with a disciplinary offence under the Code of Conduct. The Code of Conduct, prescribed by O. Reg. 123/98 includes discipline for a failure to treat or protect a person equally without discrimination with respect to police services because of that person's race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or handicap.

17Section 64(1) provides that the chief of police, subject to certain exceptions, is required to have the complaint investigated and have a written report of the investigation prepared. If upon review of the investigation and the written report, the chief of police is of the opinion that the complaint is unsubstantiated, then no action is to be taken in response to the complaint and the complainant is to be notified of the right to ask OCCPS to review the decision. According to s. 64(7), where the chief of police is of the opinion that the police officer's conduct may constitute misconduct under the Code of Conduct, then a hearing is required to be held in accordance with the Statutory Powers Procedure Act: PSA, s.69(1).

18When a complainant seeks a review of the decision under s. 72(5) of the PSA, OCCPS is required to review the decision taking into account any material provided by the complainant and the police. The OCCPS is not required to hold a hearing. Upon completion of its review, the OCCPS may confirm the decision or may assign the review or investigation of the complaint or conduct of the hearing to another police service, s. 72(8). A decision by OCCPS is final and binding with no right of appeal, s. 72(12).

19The standard to be applied by a chief of police and OCCPS in determining whether to hold a hearing into a complaint of police misconduct is a low threshold, Qiui v. Neilson, 2009 HRTO 2187 referring to Canadian Civil Liberties Assn. v. Ontario Civilian on Police Services (2002) 2002 CanLII 45090 (ON CA), 61 O.R. (3d) 649 (O.C.A.). At paragraph 67 of the Canadian Civil Liberties Assn. decision, the Ontario Court of Appeal states that if one of the permissible inferences to be drawn from all of the circumstances surrounding the complaint is that misconduct has occurred, then the statutory requirement has been met for a hearing to be held. It is sufficient for a hearing to be required on the basis of a fairly low threshold of whether there is a reasonable basis or air of reality on the evidence that the misconduct may have been committed.

Does the PSB Investigation and OCCPS Review constitute a Proceeding?

20The respondents argue that the PSB investigation and the OCCPS Review Panel constituted adjudicative decisions determined under a statutory process. Furthermore, the respondents state that the OCCPS is an independent civilian agency that operates as a review body separate and apart from police services to ensure impartiality and independence in assessing public complaints about police conduct.

21I agree that the process undertaken by the PSB and the subsequent review by the OCCPS constitute a "proceeding" within the meaning of s. 45.1 of the Code. The fact that a hearing was not held is not requisite, in this case, for the process to fall within the meaning of "proceeding" in section 45.1. Under the statutory process outlined above with respect to the Police Complaint process, the applicant's complaint was subject to a full investigation process in which she participated by providing detailed written submissions in support of her complaint. Although the applicant was not afforded the opportunity for a hearing at the PSB stage or based on the decision of the OCCPS review panel, the adjudicative provisions of the PSA were met. Both the chief of police under s. 64(7) of the PSA and the OCCPS Review Panel, under s.72(8), have the discretionary power to decide whether a hearing is appropriate to determine a complaint of police misconduct. In the applicant's case, it was determined, based on a review of both the applicant's submissions and the decision rendered by the PSB, that there was insufficient evidence to establish misconduct at both the investigation stage and review of the complaint to require a hearing. I find that the exercise of that discretion under the PSA to not hold a hearing is part of a "proceeding" established under the statutory provisions of the PSA.

Was the Substance of the Application Appropriately Dealt With in the Proceeding?

22The Application alleges that the applicant was mistreated by the OPP Officers because of her ethnic origin or place of origin and that she was discriminated against because of her disability. The allegations raised in the Application are the same as the issues raised in the applicant's police complaints and involve the same incident that occurred on August 2, 2005. In both her Application and her police complaints, the applicant alleged that the entry into her home was illegal. She also alleged that Officer Pfaff used excessive force in arresting her despite her disability and that he acted aggressively because she is from a foreign country. She also specifically stated in both forums that Officer Souillier's conduct violated her human rights.

23The applicant, in her police complaint, also specifically raised her complaints of ethnic discrimination and mistreatment by the Officers despite a physical disability. It is clear, therefore, that the subject-matter of the police complaint that was processed under Part V of the PSA is the same as the substance of this Application.

24Having concluded that the substance of the Application was before the PSB and the OCCPS Review Panel, it is necessary to determine whether it was "appropriately dealt with" within the context of s. 45.1 of the Code. While it is not within the Tribunal's jurisdiction to review the correctness of a decision of the PSB or the OCCPS, the Tribunal has the authority to decide if the substance of an Application has been dealt with appropriately by assessing whether the substance of the applicant's human rights complaint was meaningfully considered during the police investigation and report and by the OCCPS under Part V of the PSA. At paragraph 40 in Qui, supra the Tribunal noted:

This leaves the question of whether the allegations raised in the human rights complaint were "appropriately dealt with": This question does not require me to make a finding as to whether or not I agree with the findings of the police investigation and OCCPS review. Rather, the question for me is whether the police investigation and OCCPS review were conducted using a fair process in which the applicant was afforded an opportunity to present his allegations and supporting evidence and where there is nothing on the face of the police investigation report or OCCPS review to indicate that these bodies failed to recognize human rights principles in reaching the determinations that they did.

25The OCCPS Review Panel agreed with the findings of the PSB that the both the entry into the applicant's home and her arrest was legal, that no excessive force was used and that there was no improper conduct. I agree with the respondents' submissions that the actions taken by the Officers would not have been considered lawful had it been determined that they occurred as a result of the applicant's ethnic origin or place of origin or even if there was evidence of discriminatory conduct being a factor in the applicant's treatment by the OPP. Given that the applicant specifically raised allegations that she was subjected to excessive force by Officer Pfaff despite her disability and that Officer Pfaff called her a "stupid foreigner" and raised allegations about Officer Souillier violating her human rights, I find that the issue of discriminatory conduct would have been considered by the OCCPS Review Panel in deciding whether there was a violation of the Code of Conduct including misconduct based on the failure to uphold the protected grounds under the Code.

26I also find that the applicant was afforded a full opportunity to participate, through written submissions, in both the PSB investigation and during the OCCPS review process and that the OCCPS decision to dismiss her complaint was made based on a review of all of the evidence and submissions and the PSB report. Furthermore, the OCCPS is an independent civilian agency which operates as an oversight body separate and apart from Ontario police services. In that capacity OCCPS is required to review evidence from a complainant and the police and any witnesses. Simply because other OPP officers were involved in investigating or reporting on the applicant's police complaints does not affect the independence of the OCCPS Review Panel's decision.

27I find that the substance of the human rights allegations and principles raised in the Application were appropriately dealt with by the PSB and the OCCPS in proceedings under the PSA within the meaning of s. 45.1 of the Code.

28The Application is dismissed.