HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charmaine Marshall Applicant
-and-
Durham Regional Police Service and Glen Turpin Respondents
AND BETWEEN:
Charmaine Marshall Applicant
-and-
Lakeridge Health Corporation and Erik Paidra Respondents
INTERIM DECISION
Adjudicator: David Shannon Date: January 28, 2011 Citation: 2011 HRTO 201 Indexed as: Marshall v. Durham Regional Police Service
1These are two Applications dated June 26, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), filed against the Durham Regional Police Service ("DRPS") and Glen Turpin ("individual police respondent") and Lakeridge Health Corporation ("Lakeridge") and Dr. Erik Paidra.
2The Tribunal ordered that the two Applications should proceed together by an Interim Decision dated December 18, 2009, 2009 HRTO 2206. Pursuant to a Decision of this Tribunal dated June 15, 2010, 2010 HRTO 1359, the Application as against Lakeridge was dismissed for no prima facie case. However, that Decision was reversed under the Tribunal's reconsideration process by subsequent Interim Decision dated October 19, 2010, 2010 HRTO 2107. Accordingly, these two Applications are once again proceeding together. The underlying complaints were both filed with the Ontario Human Rights Commission on June 16, 2007.
3The Applications relate to the applicant's arrest by the police respondents in July 2006 and subsequent transfer to the Lakeridge facility. The applicant asserts that all the respondents discriminated against her on the basis of disability during the course of the arrest, and upon transfer, at the Lakeridge facility. She was advised by the respondent police officer that he would assist the paramedics pursuant to the Mental Health Act R.S.O. 1990, c. M. 7, as amended. The respondents, DRPS and Police Constable Glenn Turpin deny that they discriminated against the applicant.
4The purpose of this Interim Decision is to address a Request for Order dated April 30, 2010 filed by the DRPS and the individual police respondent seeking dismissal of the Application against them pursuant to s. 45.1 of the Code on the basis of the investigation of the complaint filed by the applicant under the Police Services Act, R.S.O. 1990, c. P.15 ("PSA").
5The dismissal of an application pursuant to s. 45.1 of the Code is not an indication that the application was not within this Tribunal's jurisdiction, but rather is a determination that, though within this Tribunal's jurisdiction, the substance of the application nonetheless was appropriately dealt with in another proceeding.
6Section 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.
In 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.
7The issue on the second part of the test under s. 45.1 of the Code is 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. See Qiu v. Neilson 2009 HRTO 2187 at para. 21 and 33.
8The conduct of all police officers in Ontario is regulated by the PSA. Part V of this Act establishes a disciplinary scheme and requires all officers to abide by a Code of Conduct. The Police Services Act allows a member of the public to file a complaint with a Chief of Police concerning a policy, service, or the conduct of an officer. A Public Complaint may concern a breach of the Code of Conduct by an officer. The Chief of Police is statutorily obligated to review all Public Complaints and if the allegations are serious is required to investigate the matter.
9For the reasons that follow, the respondents' request is denied. I find that the PSA matter did not appropriately deal with the substance of the Application.
10I find that the Application before this Tribunal and the PSA investigation both arose from the same facts. They began with the same incident at the applicant's home. The officers in question responded to a call that there was a problem at the applicant's home. The applicant was ultimately detained and taken to the hospital by the police.
11The respondents note that they have a directive which prohibits harassment and discrimination. This policy requires all officers to recognize and respect the inherent dignity of all persons, and to provide equal rights and treatment to all persons within the Durham region. They also provide training and education to its members on interacting with persons who have a psychiatric disability. While these may all be both appropriate and even laudable activities, none of this goes to the question before me at this stage of the proceeding, which is whether another proceeding has appropriately dealt with the substance of the Application.
12On January 19, 2007, the complainant filed a Public Complaint with the DRPS alleging that Officer Turpin and Police Constable Jeff Lockwood ("Officer Lockwood") used unnecessary force and inappropriate language toward the applicant during an apprehension under the Mental Health Act, on July 20, 2006. The respondent submits that the complaint under the PSA, in substance, "mirrors" the allegations in this Application. As will be discussed, I disagree.
13In the Application, the applicant alleges discrimination on the basis of disability. The factual basis of these allegations are similar to the facts alleged in support of the PSA complaint. Although the facts are similar, for the reason set out below, I find that the nature of the allegations are different in each context.
14The respondent indicated that investigator under the PSA dismissed the complaint on the basis it was unfounded. The respondent asserts that the Professional Standards investigation of the applicant's Public Complaint was thorough and appropriate as the Professional Standards investigators reviewed the relevant police incident reports, listened to 911 audio tapes, met with the applicant, received and reviewed comprehensive incident accounts from Officers Lockwood and Turpin and sought evidence from civilian witnesses.
15That may be an accurate description of the investigation. However, it is not sufficient that the other matter be fair and thorough. The question is whether "the substance of the issues raised in each forum was in pith or essence substantially the same" and "whether the allegations raised in the human rights complaint were 'appropriately dealt with'". On both points, I find in the negative.
16The investigator considered whether "on July 20-21st, 2006 Constables Jeff Lockwood #3222 and Glenn Turpin #722 used unnecessary/excessive force and inappropriate language towards the complainant during apprehension of the complainant under the Mental Health Act." That does not ask whether the applicant was discriminated against based on disability, which is the substance of the allegations made in the Application filed with the Tribunal. The PSA analysis and conclusion also do not indicate that matters related to the Code were considered at all. The conclusion reads in part:
...The investigation of the complaint has not disclosed the existence of proof to a degree or sufficiency that might lead to a finding of officer misconduct. I do not feel that the involved officer's conduct on July 20/21st amounted to Unnecessary or Excessive Use of Force nor Discreditable Conduct and I therefore find that the complainant's allegation in respect to these issues are unfounded.
I find that, while it is conceivable that in some situations an officer motivated by discrimination might use excessive force or that a finding related to alleged misconduct might have involved a consideration of whether the alleged conduct involved actions that would have amounted to a breach of the Code, these were not considerations linked to the findings under the PSA in this case.
17The respondent also submits that section 1 of the PSA requires that police services be provided throughout Ontario in accordance with enumerated principles, including "the importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code." Accordingly, they submit, the Code must have been considered in the investigation carried out under the PSA. There must however be a clear nexus between the alleged breach of the Code and the issues given consideration by the proceeding in order to determine whether it "appropriately dealt with" the substance of the application. The PSA investigation and report did not provide any analysis of the Code or Charter of Rights principles that underlie the substance of the application before me.
18In the specific circumstances of this case, I find that the substance of the issues raised in the complaint under the PSA are not in pith or essence the same as the issues raised in this Application. Based upon the material before me, I am also not satisfied that the police investigation considered or resolved the entire factual underpinning of the applicant's allegations of disability based discrimination and or harassment in the provision of police services. As a result, I find that the police investigation did not appropriately deal with the substance of the allegations in this proceeding.
19Because I have reached this conclusion, it is not necessary for me to consider whether or not the PSA matter constitutes a proceeding for the purposes of the Code.
20Consequently, the respondents' request for dismissal of the Application against the police respondents pursuant to s. 45.1 of the Code is denied.
Dated at Toronto, this 28th day of January, 2011.
"Signed by"
_________________________________
David Shannon Member