Maynard v. Toronto Police Services Board, 2012 HRTO 1220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rawle Maynard

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto Police Services Board, Ryan Baker, Brendan Stevenson,

Michael Limsiaco, David Russell

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: June 21, 2012

Citation: 2012 HRTO 1220

Indexed as: Maynard v. Toronto Police Services Board

APPEARANCES

Rawle Maynard, Applicant ) Royland Moriah, Counsel

) Sunil Gurmukh, Counsel

Ontario Human Rights ) Kikee Malik, Counsel

Commission )

Toronto Police Services ) Glenn Chu, Counsel

Board, Respondent )

Ryan Baker, Brendan Stevenson, ) Melanie Franklin, Counsel

Michael Limsiaco, David Russell, )

Respondents )

Introduction

1Rawle Maynard (the “complainant”) filed a Complaint with the Ontario Human Rights Commission (the “Commission”) against the Toronto Police Services Board (the “TPSB”) and individually named officers pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), prior to the substantial amendments to the Code which came into force on June 30, 2008. Mr. Maynard alleges discrimination on the basis of colour, ethnic origin, and race in respect of policing services.

2The parties were all represented by counsel and I am grateful for their assistance throughout the hearing of this matter. An order excluding witnesses was made on consent at the commencement of the hearing. Following the conclusion of the evidence the parties filed final arguments in written form and then had an opportunity to participate in oral argument to complete the hearing.

3The respondent TPSB initially took the position that it was not a proper party to the proceeding on the basis that it could not be held liable for the actions of individual police officers. While the hearing was still in progress the Ontario Superior Court, Divisional Court released its decision in Shaw v Phipps, 2010 ONSC 3994 (“Phipps”) and as a result, the TPSB withdrew its objection and agreed to be bound by that Decision. The TPSB filed an Agreed Statement of Fact on consent of the parties and called no further evidence in the proceeding.

4At the commencement of the hearing, Mr. Maynard sought to amend his original Complaint to advance the prohibited ground of age as a factor in his treatment by the respondents. I did not see the necessity to formally amend the Complaint. The original Complaint made reference to Mr. Maynard’s belief that his age was a factor in the treatment he experienced. I agreed with Mr. Maynard that he should testify to the totality of his experience and that his Complaint should be treated as intersectional in nature to capture his self-identification as a young black man.

Decision

5For the reasons that follow, I have determined that the Complaint against Officer Baker and TPSB is substantiated. There was insufficient evidence to find a breach of the Code in relation to the other individually named officers and as a result, the Complaint against those officers is dismissed.

Summary of the Factual Background

6On the morning of Saturday November 25, 2005, the Toronto Police were investigating a gun call at the Malvern Town Centre involving a black male suspect driving a black sports car. Officer Baker was on the road finishing another call, received the information about the suspect over the radio and then saw Mr. Maynard.

7Mr. Maynard was coming home from his office that morning in a 1995 two-door black BMW which was registered to his father. He was living at the time with his parents and his brother at 21 Kengate Drive in Scarborough.

8Although the exact location of their intersection is in dispute, Officer Baker made a decision to follow and investigate Mr. Maynard from the point at which he first observed him to his residence at 21 Kengate Drive. Officer Baker never turned on his siren or requested that Mr. Maynard stop his car. Mr. Maynard was not speeding or driving in a manner which would arouse the suspicion of a police officer. When Mr. Maynard pulled into his driveway and parked his car he noticed that Officer Baker had parked in close proximity to his driveway. Mr. Maynard exited his vehicle and approached Officer Baker to find out what was going on. An exchange ensued between them which quickly escalated into Officer Baker drawing his firearm and pointing it at Mr. Maynard.

9After the firearm was drawn, several other officers arrived on the scene who took up various positions around Mr. Maynard and Officer Baker. At least two other officers had their firearms drawn – one with a pump shotgun which the officer “racked” loudly as he exited his vehicle and moved into position. Mr. Maynard was then instructed to turn, walk backward, kneel on the ground and was physically picked up by two officers, searched and placed into the back of a police vehicle. Despite being detained and searched he was never cautioned about his rights.

10Very shortly after he was placed into the back of a police vehicle, Mr. Maynard was released as new information was received over the radio that confirmed that he was not a suspect. Mr. Maynard testified he was terrified by what he had experienced and very upset by the conduct of the police. He indicated at the scene that he intended to file a complaint. The officers left the scene shortly after releasing Mr. Maynard.

11None of the parties disputed the lasting emotional impact of this traumatic experience on Mr. Maynard. He was humiliated on his front lawn in front of a number people who were long-time friends and neighbours. Mr. Maynard’s wife Judith Sukhdeo (his fiancée at the time), who was on the cell phone with him during the ride home and when he approached Officer Baker, heard Mr. Maynard say in an alarming way “call my parents - call my parents” and was deeply concerned about him.

12Mr. Maynard testified that Officer Baker was visibly shaking while he had his firearm pointed at Mr. Maynard. Officer Baker testified that as a relatively inexperienced officer he was very shaken by the events of that day and I do not believe that it diminishes Mr. Maynard’s suffering to acknowledge that fact. All of the parties agreed that this was an unfortunate situation which had the potential for an even more tragic outcome.

13The question before me is not whether the respondents acted reasonably in these difficult circumstances, but whether Mr. Maynard’s race was a factor in their treatment of him.

Transcript of 911 Call

14The transcript of the police dispatch of the 911 call from the Malvern Town Centre that morning (Exhibit 10) along with the “I/CAD” Event Details Report (Tab 7, Exhibit 4) establish, as close as possible, the timeline of the incident. As I understand the 911 process, a call is received, a call-taker types out the message, a dispatcher broadcasts the information from the call-taker over the police radio and the same information is sent in written form to the computer in an officer’s car. I note that the caller was referenced as both “he” and “she” throughout the transcript which I have left in original form.

15The events involving Mr. Maynard commence at the point at which Officer Baker sees Mr. Maynard and decides to investigate him. One of the most important questions to be answered in resolving this matter is what information Officer Baker was working with when he decided to commence his investigation. Officer Baker acknowledged that he relied only on the fact that Mr. Maynard was a black man, alone in a black car which some might consider a sports car, travelling in a direction away from the Malvern Town Centre. By the time Officer Baker saw Mr. Maynard the following information about the incident at the Malvern Town Centre had been broadcast to the officers:

a) at approximately 11:06 a.m. the 911 Dispatcher radios units to “attend person with a gun at the Malvern Town Centre” – the dispatcher indicates that the original complaint was called in as a “disorderlies” not a gun complaint – the suspect at that time was a black male who was yelling at the complainant and bothering her while she was trying to do her laundry – the call was made from the Laundromat;

b) A second call was made by the same person who was now at the Taco Bell – the complainant alleges that she was threatened with a gun - the suspect is described as a black male in a black sports car near the Laundromat – no further description of the male or the gun;

c) more details of the description come in and are broadcast by the Dispatcher: male, black, 6 feet, skinny build, wearing all dark clothing, black and red hat. The gun is described as small, black and in the vehicle;

d) Just before 11:10, approximately 4 minutes into the call, the dispatcher identifies the caller as possibly EDP (emotionally disturbed person) – the dispatcher repeats the description and adds that the suspect is by himself, repeats that the caller originally reported this as a disorderly and that the male is in front of the laundromat;

e) Just before 11:11, the dispatcher says: “Call-taker said it is difficult to get information from the caller. Caller just keeps saying the suspect is going to kill them.”

f) At 11:11 the dispatcher puts out the description again: “male black in a sports car. 6 feet. Skinny build wearing all dark clothing including a black and red hat. Caller says that he did see the gun. It’s small and black in colour and the suspect has it in the vehicle. Don’t have a location within the vehicle, though.”

g) P.C. Baker answers the call at 11:13 although he confirmed in his evidence that he had been listening to the details of the call prior to signing in.

h) Shortly after 11:13 the dispatcher indicates that the caller reports the vehicle having left the scene, speeding away but the direction of travel and plate are unknown;

i) Officer Kerr is with the complainant and at 11:16 he radios as follows: “Yeah. What she’s saying is …aahhh. The 2-door black vehicle but she was looking at one out the window when she said that…I am not sure if that’s what we’re looking for or not. I’ll get back to you in a second. She is definitely…:”

j) At that point Officer Baker has already started following Mr. Maynard and radios: “Jay. Is it a 2-door BMW?” and Officer Kerr responds: “There is no way she’s gonna know what kind of car it is. She is just saying a black vehicle. And it is a male black about my height…which would be about 5’11” and he’s gonna have…ahhh. I guess he put the gun in the car but he pulled it out of his pocket apparently. She doesn’t know what kind of gun and she doesn’t know what colour it is. And it was over a dispute over a laundry machine.”

k) Officer Baker radios: “I am behind a 2-door black BMW at Sewells and Littles Road. Car comes back to a male, born 1939, looks like a younger male driving”.

l) Then Officer Baker indicates that the car has pulled into 21 Kengate and he asks Officer Kerr: “Jay, is this guy light or dark?” and Officer Kerr responds: “We’re not sure on that”.

m) The dispatcher radios that the car has pulled into 21 Kengate and that the car is also registered to that address.

n) The dispatcher then notes the time at 11:20 and other Officers respond to the call and make their way to 21 Kengate Drive.

o) Finally, at 11:25 Officer Baker radios: “”We’re just investigating the male now”.

16Officer Baker testified that at 11:25 when he radioed that message Mr. Maynard had been brought under the physical control of the officers at the scene and placed in the back of a police vehicle. Within the next minute or two, the police had a new description of the suspect that he was on foot and wearing red and Mr. Maynard was released.

17The transcript does not provide evidence of what was said between Officer Baker and Mr. Maynard, what they were thinking and what caused them to take the various actions that they did before the other officers arrived on the scene. Mr. Maynard and Officer Baker both testified in relation to those issues.

Mr. Maynard

18Mr. Maynard was living at 21 Kengate Drive with his parents and his brother at the time of the incident where he had lived for approximately 18 years. He described his neighbourhood as family-oriented and his neighbours as long-time friends. He was making preparations to get married and was scheduled to meet with a wedding planner at noon that day. Mr. Maynard described the weather as slushy and recalled that it was chilly enough for him to be wearing a jacket. He was dressed casually and could not remember the colour of his clothing but testified that it was probably dark. During the drive home Mr. Maynard spoke with Ms. Sukhdeo on his cell phone. Cell phone records were produced which substantiated the calls.

19Mr. Maynard testified that he encountered Officer Baker coming home from his office that morning at the corner of Sewells and Morningside. Mr. Maynard testified that Officer Baker passed him coming toward him through the intersection at Sewells and Morningside and that he looked in his rear view mirror and saw the “tail end” of a U-turn, after which, the officer was following behind him. Mr. Maynard testified that he was not sure how he felt at the time but he was growing concerned. He thought something might be going on in the Malvern area or that there might be something wrong with his parents who were in their seventies at the time.

20Officer Baker kept his distance from Mr. Maynard fairly consistent. Mr. Maynard testified that he was especially careful to monitor his speed because an officer was behind him. There was nothing about Mr. Maynard’s driving which would have raised any suspicion. Officer Baker did nothing to indicate to Mr. Maynard that he was a suspect in an investigation. Mr. Maynard testified that he was not completely sure that the officer was following him until he made the turn onto Kengate Drive. He was talking on the cell phone with Ms. Sukhdeo at the time and mentioned to her that he thought he was being followed. He testified that he was getting nervous and was relieved to finally turn into his driveway.

21When Mr. Maynard pulled into his driveway he parked his car in the top right corner close to the garage door. He testified that he was worried and wondering what was going on. He testified that Officer Baker parked on the south corner of his driveway with the front of the car about three feet across but not blocking the driveway.

22Mr. Maynard was still on the phone with Ms. Sukhdeo when he exited his vehicle and he told her that the Officer was parked at the foot of his house. Mr. Maynard told Ms. Sukhdeo that he was going to get out of the car and see what the officer wanted. Mr. Maynard testified that he had no apprehension about approaching Officer Baker because he had nothing but positive interactions with police officers in the past.

23Mr. Maynard testified that he approached Officer Baker and the following exchange took place:

a. Mr. Maynard asked if there was a problem or if Officer Baker was following him;

b. Officer Baker responded aggressively asking Mr. Maynard where he was coming from;

c. Mr. Maynard responded that he did not have to tell Officer Baker anything without an explanation;

d. Officer Baker became more aggressive and repeated his question about where Mr. Maynard was coming from;

e. Mr. Maynard said, sarcastically, “fuck you, I don’t have to tell you anything”;

f. Officer Baker said “this is the last time I’m going to ask - where are you coming from?”

g. Mr. Maynard again refused to answer and Officer Baker drew his firearm and pointed it at Mr. Maynard.

24Mr. Maynard testified that when Officer Baker drew his firearm the two of them were approximately 6 feet apart.

25Mr. Maynard testified to other details about the short encounter. He testified that he approached Officer Baker from the passenger side of the police vehicle and crouched down to speak to him through the partially opened passenger side window. He testified that Officer Baker remained facing forward and that the two of them did not make eye contact until Officer Baker exited his vehicle. He testified that he did not want to “freak” the Officer out and that his hands were in clear view, his cell phone in his right hand and his car keys on the finger of his left hand. Mr. Maynard denied that his hands were ever in his pockets and he testified that he approached the car at a normal pace.

26Officer Baker disputes Mr. Maynard’s version of the events. Officer Baker testified that he exited his vehicle at the same time as Mr. Maynard, that he spoke first and attempted to explain to Mr. Maynard the nature of his investigation and that it was not until Mr. Maynard refused to answer his questions and comply with other directions that the firearm was drawn.

27Mr. Maynard testified that Officer Baker gave him “absolutely” no information about why he was being followed or why he was being asked where he was coming from. He testified that he had never had an interaction of this kind with the police before and that his experiences with the police had always been positive ones. Mr. Maynard testified that whenever he was pulled over by an officer there was always conversation and communication and that was his expectation of this interaction with Officer Baker.

28Mr. Maynard described the pulling of the gun as “fast and furious” and estimated that it took under a minute for that to happen from the time that he approached Officer Baker’s car.

29Mr. Maynard testified that once the gun was drawn, Officer Baker yelled at him to get his hands up and get off his cell phone. Mr. Maynard began to shake and he noticed that Officer Baker was also visibly shaking. Mr. Maynard spoke into his cell phone to Ms. Sukhdeo and told her to call his parents, which was extremely alarming for Ms. Sukhdeo. While his hands were in the air Mr. Maynard reached his left hand over to his right hand and shut off his cell phone. Mr. Maynard was terrified that he would be shot and described himself as devastated, frozen, like he was having an out of body experience.

30Mr. Maynard testified that Officer Baker was yelling at him to turn around, walk backward toward the sound of Officer Baker’s voice and get on his knees. Mr. Maynard testified that in that moment he was unable to follow the commands that Officer Baker was “blurting out”. Mr. Maynard testified that when he froze, Officer Baker yelled at him “do you want to get shot? Do you want to get shot?”

31Seconds after that, Mr. Maynard saw his neighbour Ian Waite coming out of his garage. Mr. Maynard described himself as frantic and yelled at Mr. Waite to call his father. Mr. Maynard testified that at this point, Officer Baker stopped yelling at him or attempting to give him instructions and he could hear the sirens of the other officers who were responding to the call.

32Mr. Maynard recalled three police vehicles pulling up in front of his house and hearing car brakes squealing. He testified that one officer ran from his vehicle carrying a pump shotgun and posted himself by the garage door of another house with the shotgun pointed at Mr. Maynard. He testified that he recalled two more officers pointing their guns at him from other locations for a total of four guns pointed at him.

33Mr. Maynard testified that he was then told to get his hands up higher, turn around and walk backward toward the sound of an officer’s voice. Mr. Maynard complied although he was very afraid he would trip and a sudden movement on his part would cause him to get shot. He heard an officer say: “get on your knees, get on your damn knees”.

34Mr. Maynard had no recollection of how long it took him to walk backwards but he recalled that when he got on his knees he was in the road and two officers, one on either side of him “yanked” him up and put him into the back of the police car. Mr. Maynard testified that he told the officers at that time that he had never been in trouble, and that he was an educated man.

35Mr. Maynard testified that one of the officers asked for the keys to his car and Mr. Maynard handed them over and told the officers to search his car. And then he heard over the radio something to the effect of the suspect being on foot and wearing red. Mr. Maynard testified that the officers spoke among themselves and then let Mr. Maynard out of the car, handing his keys back to him.

36Mr. Maynard testified that he walked to the back of the police car and Officer Baker put his hand out and said “sorry man, we’re looking for someone who fits your description, 6 feet black and slim” and I said “the only part of that I fit was I was black”, meaning that the only part Officer Baker could have seen while he was driving was Mr. Maynard’s race. Mr. Maynard testified that he asked Officer Baker for his badge number and then the officers all left at once leaving him standing in the street.

37The proposed testimony of other officers who arrived after Officer Baker at the scene was put to Mr. Maynard during his cross-examination. He admitted that it was possible that he was yelling to the officers that he did not have a criminal record, that “this” (meaning this situation) was “crazy” and that he was just coming from work. He denied saying at any time that the police would be “fucked” if he was shot unarmed. He denied that his neighbours were trying to reason with him to follow Officer Baker’s instructions. He denied that he was argumentative and non-cooperative and kept bringing his hands down when he was instructed to keep them in the air. He denied that he was laughing and making comments such as “this is ridiculous”. He denied telling the officers to “come over here and search me and my car” or “I’ll show you I don’t have a gun”. He denied that Officer Baker ever said “follow my instructions so that I can confirm you don’t have a gun”. He denied saying “fuck you – you don’t have any respect for me”. He denied that he was told by Officer Baker that it was a “gun point arrest”. He denied the possibility that Officer Baker said “I don’t want to shoot you” and maintained that Officer Baker had said “do you want to get shot?”

38After the incident Mr. Maynard phoned a person who had been a mentor to him and was advised to write everything down that he could remember. Those notes became the basis for a public complaint which he initiated the same day as the incident. This is the narrative from Mr. Maynard’s complaint to the Toronto Police Service:

At approximately 10:45 hrs I exited the 401 on my way home from work. When I got to Morningside Avenue and Sewells Road, I noticed a police officer following me. He was later identified as Officer Ryan Baker badge #5964. I parked in the driveway of my home at 21 Kengate Drive. I noticed that the officer parked on my street directly at the bottom of my driveway. Exiting my car I asked the officer if there was a problem. Right away he responded to me in an aggressive manner, “where are you coming from?”, I replied “I don’t have to answer that question with out an explanation”. After asking the same question 3 times, the above named officer pulled out his gun, pointed it at my face and ordered me to put my hands up. I did as ordered. He then shouted put your hands higher above your head and walk towards the sound of my voice. At this point, I was unable to move, stiff with fear. He then shouted, “do you want to get shot?” Simultaneously, my neighbour Mr. Ian Waite came outside. I then yelled to him to phone my father whom I thought was in the house but was out shopping with my mother. Seconds later 3 more officers arrived. The first officer exited his vehicle with a pump shotgun the other with a regular hand gun. I then was order to walk backwards between the parked police cars, which I did. One of the officers shouted get on your damn knees. I got on my knees and I also advised the officer behind me to check my back pocket for identification and that I have never been in trouble with the police. At this point, I was picked up from behind and placed in the back of the squad car. While I was in the car, the officers took my car keys. At that moment over the radio in the police car came a dispatch voice saying “suspect is on foot and wearing all red”. I was then let out of the car and given my car keys. Upon my release officer Baker approached me saying there was a shooting suspect 6’ slim and black that fit your description. I then replied to him I could only fit one aspect of that description from the seat of a car, that aspect being that I am black.

39Mr. Maynard’s testimony was largely consistent with his police complaint, with a few exceptions. He makes no mention in the complaint of seeing Officer Baker make a u-turn when the investigation was commenced. In his complaint he reported seeing 3 firearms rather than 4, one shotgun and another handgun which is consistent with the evidence of the other officers at the scene who testified about having their firearms drawn. Mr. Maynard does not mention in the police complaint that the other guns were pointed at him. He testified that when he approached Officer Baker he asked “are you following me” rather than “is there a problem?”. He also makes no mention in the complaint of crouching down to speak to Officer Baker through a partially opened passenger door.

40There were also some inconsistencies when Mr. Maynard’s testimony and his police complaint were compared with the Complaint he filed with the Commission. In the Commission Complaint he described the police car as “appearing” to have done a u-turn rather than having seen the tail-end of the u-turn in his rear view mirror as he had explained in his testimony. He described himself approaching Officer Baker by stepping out of his car and taking 2 steps toward the police car, but remaining well on his driveway. He testified that when Officer Baker pulled his firearm, the two of them were approximately 6 feet apart. When he was cross-examined he said that he honestly could not recall how far away from his vehicle he was on his driveway and guessed that he was about 8 or 9 feet away. In addition, he testified that while he was facing Officer Baker he could see the officer with the shotgun positioned at a garage door to his left which is somewhat more consistent with him being a short distance away from his vehicle. The testimony of Mr. Maynard’s neighbour Ian Waite, which is discussed below, also supported the description in Mr. Maynard’s Commission Complaint that he likely remained close to the back of his vehicle in the driveway.

41In the Commission Complaint, Mr. Maynard described himself as speaking towards an open window and asking Officer Baker if he was following him but does not mention crouching down. He does not mention Officer Baker speaking to him from the car but rather “jumping” out of the car and shouting at him. In his testimony he stated that it was not possible that Officer Baker had not heard him while he was seated in the car and that Officer Baker had spoken to him from that position. He also noted in his Commission Complaint that he recalled 3 guns rather than 4.

42In the police complaint, Mr. Maynard did not indicate that other guns were pointing at him. He explained this in his testimony by saying that the advice he got just after the incident was to get down the “meat and potatoes” of his experience, that the other officers were just following instructions and as a result, he left out the detail.

43Mr. Maynard also used various words to describe the manner in which he was put into the back of a police vehicle including “placed”, “tossed in” and “thrown in”.

44Mr. Maynard also testified that at one point he immediately complied with the direction to get on his knees and then a second time that he hesitated.

45These discrepancies are relatively minor given the harrowing nature of the incident and they were not ultimately relevant to my findings. The important elements were consistent: Mr. Maynard’s non-threatening approach to Officer Baker; the aggressiveness in Officer Baker’s questioning; Officer Baker’s first statement “where are you coming from” which, with the exception of the word “sir” is consistent with Officer Baker’s recollection and notes; the lack of any explanation for the investigation; the short time line between when the communication commenced and when Officer Baker drew his firearm; Mr. Maynard’s inability to initially follow commands because of his fear; the interaction with his neighbour Ian Waite; the arrival of the other police officers; the manner in which he was taken into physical custody and the new information about the suspect which led quickly to his release.

46Mr. Maynard was cross-examined on his failure to fully disclose his interaction with Officer Baker in his complaint to the Toronto Police Service as well as in his Complaint to the Commission. While he disclosed that he had refused to answer Officer Baker’s questions, he did not disclose that he had sworn at the Officer. He also did not deal directly with that allegation by way of reply when it was made in the response of the individual respondents. This did suggest a tendency on Mr. Maynard’s part to paint himself in a better light than Officer Baker at the point before the firearm was drawn. However, in his examination in chief he admitted to swearing at Officer Baker once before the firearm was drawn, but not at any other time, and made no attempt to minimize his conduct. As a result, I have not considered this issue as a factor which undermines Mr. Maynard’s credibility as it relates to his primary allegations.

Officer Baker

47At the time of the incident Officer Baker was 25 years of age. He was hired at the age of 21 and had been with 42 Division since graduating from Police College.

48For obvious reasons, including the time delay between the incident and the hearing of this Complaint and the nature of his work, Officer Baker relied heavily on the notes he prepared shortly after the incident in giving his testimony. In this case the notes were made in the ordinary course of Officer Baker’s work but also in contemplation of a complaint which Mr. Maynard indicated he intended to pursue when he was released at the scene. Officer Baker testified that he also retained some independent recollection of the events.

49When he was cross-examined Officer Baker acknowledged that he essentially read from his notes in answering questions from his counsel and that he had some difficulty remembering what happened on the day in question. He agreed that his notes represented his best recollection of the incident but that he did have some recollection which had been refreshed by his notes.

50Officer Baker also acknowledged that he had discussions with other officers at the scene before he prepared his notes. He testified that he discussed with the other officers the fact that he could not believe that the situation had escalated and that he was “kind of” in shock that it had come to that. He also recalled the officers speaking with him about his commands.

51Where I use the phrase “Officer Baker notes”, I am referring to the information contained in his notes which I have reproduced from the exhibit. Officer Baker also read portions of his notes throughout his testimony in answering questions about the incident.

52Officer Baker was investigating an overdose call at Mclevin and John Tabor Trail when he heard the dispatch information about the gun call at the Malvern Town Centre. His notes begin with a recital of the dispatch information from the call including a description of the suspect as male, black, 6 feet, skinny wearing all dark clothes, black and red hat and driving a black sports car. His notes also include the allegation that the gun is in the vehicle. Officer Baker notes that the complainant sounds “EDP”, that it is very hard to get information and that the caller sees the sports car speeding away. I note here that although some of what is recorded in an officer’s notes is drawn from memory after the event, none of the officers disputed that they also rely on the information contained on the computer in their vehicles to reconstruct the events for their notes.

53Officer Baker notes that between 11:18 and 11:19 the suspect car is a two-door and that Officer Baker is sitting at the corner of Mclevin and Sewells facing westbound when he observes a black two-door BMW sportscar travelling eastbound on Sewells road from the direction of the Malvern Town Centre. He notes the license plate number and that the car has a single occupant, male black, travelling the speed limit, and that he is now following the vehicle across Morningside.

54The reference to a two-door vehicle makes an appearance on the transcript of the 911 radio dispatch for the first time when Officer Kerr, who is with the caller at the Malvern Town Centre, radios after 11:16 (11:18:25 on the I/CAD) “Yeah. What she’s saying is …aahhh. The 2-door black vehicle but she was looking at one out the window when she said that…I am not sure if that’s what we’re looking for or not. I’ll get back to you in a second. She is definitely…:” (Officer Kerr testified that at the end of this sentence he said “She is definitely EDP.”)

55Officer Baker admitted during his testimony that he saw Mr. Maynard and commenced following him before Officer Kerr mentioned that the car might be a two-door. The car was never actually confirmed to be a two-door vehicle and Officer Kerr was clearly having difficulty getting a reliable description from the caller at the point at which Officer Baker started to follow Mr. Maynard. The last statement from Officer Kerr about the description of the vehicle occurs just before Officer Baker indicates that he is behind a two-door black BMW when Officer Kerr says: “She is just saying black vehicle”.

56Officer Baker then notes that the occupant of the vehicle appears to be younger than the registered owner. The notes confirm that Mr. Maynard is on his cell phone and that he turns left onto Kengate drive and pulls into the driveway at 21 Kengate where the vehicle is registered. Officer Baker notes that he parked his vehicle on the west curb of Kengate Drive (which he testified was across from Mr. Maynard’s driveway) and that the male occupant with a similar description exits the vehicle at the same time that he exits his own vehicle. Officer Baker notes that he is standing behind the engine block of his vehicle and the male has “hands” in one pocket and the other on a cellphone.

57Officer Baker testified that when he parked his car his plan had been to wait for backup but because Mr. Maynard had exited his vehicle, Officer Baker decided to exit his vehicle as well. He also testified that he stood behind the engine block of his car because that it is the only part of the vehicle that will provide him with protection from bullets. He testified that at this point he concluded that Mr. Maynard fit other parts of the description including height and “skinny build”.

58Up to this point in Officer Baker’s testimony, he and Mr. Maynard disagree on the point at which they encountered one another, the claim that Officer Baker exited his vehicle at the same time as Mr. Maynard and the description of Mr. Maynard as having his “hands” in one pocket, the use of the plural clearly being an error since Officer Baker also indicates that Mr. Maynard’s right hand is on his cell phone. Mr. Maynard testified that he held his car keys in his left hand.

59Officer Baker then notes that he asked Mr. Maynard “Sir, where are you coming from?” He testified that he spoke those words in a loud, clear voice because Mr. Maynard was approximately 30 feet from him. Officer Baker originally testified that they were 30 yards apart but corrected his testimony to 30 feet. With the exception of the use of the word “Sir”, Mr. Maynard agreed that these were the first words spoken by Officer Baker. However, Mr. Maynard testified that he started the conversation with the question “are you following me”.

60Officer Baker notes that Mr. Maynard responds with “What. I don’t have to tell you that. Are you following me?”. Officer Baker was asked by his counsel to describe Mr. Maynard’s tone at this point in their exchange. Officer Baker testified that Mr. Maynard appeared to want to ask him questions which he interpreted as an effort to take control of the dialogue. He did not describe Mr. Maynard as aggressive or threatening in any way - just someone wanting to ask questions.

61Officer Baker notes that he responds as follows:

“Yes sir I have followed you from the Malvern Town Centre area we received a radio call for a person with a gun who fled the area in a similar vehicle as yours. The male has a similar description to you” which is then followed with the question “where are you coming from?”

In his testimony Officer Baker described this as “tactical communication” which he is trained to engage in with a suspect who may have a weapon. He also made the notation “tactical communication” in the margin of his note book. He testified that he wanted Mr. Maynard to know that he was investigating a serious matter.

62As I indicated earlier, Mr. Maynard disputes the fact that Officer Baker ever called him “sir” or that he said anything other than repeatedly asking him the same question “where are you coming from” and saying “this is the last time I’m going to ask you”.

63Officer Baker’s next notation is that Mr. Maynard says “fuck you, I don’t have to tell you nothing”. Officer Baker responds with “Sir, put your hands up, take them out of your pockets and get off your cellphone. I’m investigating a person with a gun call.” Officer Baker testified that Mr. Maynard did not comply with his direction which he described as “passive resistance”. He then notes that the male tells the other person on the cell phone “I can’t believe this” and has still not complied with instructions which Officer Baker testified was “active resistance”.

64Again Mr. Maynard disputes that he received any explanation about why Officer Baker was investigating him. In addition both Mr. Maynard and Ms. Sukhdeo who was on the other end of the cell phone deny that Mr. Maynard said “I can’t believe this.” They both testified that he said only “call my parents” into the phone in an alarming way after Officer Baker drew his firearm.

65Officer Baker then notes that he said to Mr. Maynard “Sir please put your hands where I can see them and get off your cell phone.” He notes that Mr. Maynard responded with “Why don’t you come over here and search me, search my car?” Officer Baker then says: “Sir put your hands up I would like to do those things to verify that you don’t have a gun, but get your hands up.”

66Mr. Maynard denies inviting Officer Baker to search him and search his car at that moment. He testified that when he was taken into physical custody by the other officers at the scene he did not oppose the officers searching him and searching his car. Nevertheless, Officer Baker testified that he interpreted any offer by Mr. Maynard at that point to search his car as an effort to “bate” him from behind the cover of his engine block.

67Officer Baker describes Mr. Maynard in his notes as “agitated, moving around” and then notes “pull my firearm point at male. Sir put your hands up where I can see them and get off your phone.” Officer Baker testified that Mr. Maynard’s behaviour was irrational and as a result he could possibly be the kind of person who would threaten someone with a gun over a dispute at a Laundromat. He also testified that Mr. Maynard was agitated and moving around as if he was “pissed’, one hand on his cell phone and the other in and out of his pocket, he was yelling and making a scene, was near the trunk of the car where the gun could have been hidden and that Officer Baker feared for his life when he drew the firearm. Officer Baker testified that he announced to Mr. Maynard that this was a “gun point arrest”.

68When he was asked to address what he perceived to be Mr. Maynard’s irrational behaviour in cross-examination he testified that Mr. Maynard appeared angry, he was not complying, not raising his hands, turning around and yelling, looking around and moving around. At one point Officer Baker testified that Mr. Maynard was yelling at him and then testified that “we” were not yelling but that their voices were loud. He testified that Mr. Maynard was moving around, moving his hands up and down, in and out of his pockets, he was pivoting at the waist, and that he appeared excited, but he did not actually change his location and never approached any closer to Officer Baker.

69Officer Baker notes Mr. Maynard speaking into his cell phone and saying: “oh he’s got his gun pointed at me now - call my dad let him know what is going on”. When he was cross-examined on this statement, Officer Baker described Mr. Maynard as “mocking” him. Again, both Mr. Maynard and Ms. Sukhdeo testified that Mr. Maynard did not say anything but “call my parents”. Ms. Sukhdeo testified that she was alarmed but had no idea what Mr. Maynard was experiencing until she arrived at his home shortly after the police released him and left the scene. In addition, Mr. Maynard denies that he was agitated and moving around or that Officer Baker called him “sir” when he directed him to get his hands up.

70Officer Baker notes that at this point a neighbour from several doors down has come out and Mr. Maynard tells the neighbour something but has still not put his hands up. Officer Baker notes that he said to Mr. Maynard “Sir, this is a gun point arrest please put your hands up so I can confirm that you don’t have a gun” at which point Mr. Maynard put his hands up and closed his cell phone. Officer Baker notes that Mr. Maynard says to him “fuck you man, you don’t have any respect for me. I’ve told you to come over here and search me, search my car. I work at St. Joseph’s Hospital and I’m just coming from work.” Officer Baker notes his next comment to Mr. Maynard “Sir why couldn’t you have told me that in the first place?” He notes Mr. Maynard’s response “because you don’t respect me, I’ve never been in trouble”. Mr. Maynard denied swearing at Officer Baker or accusing him of having no respect for him or inviting him to conduct a search. Ian Waite denied ever hearing Mr. Maynard swear and testified that he appeared frightened and was asking for an explanation as to why he had been stopped.

71Officer Baker then notes that he said “I don’t know you and have never met you before”. He also notes that “male lowers right hand to pocket again. Sir keep your hands up, up high.” The notes continue: “Other officers are now on scene assisting. Sir I want you to keep your hands up high and turn around from the sound of my voice I want to be able to see your waist in case there is a gun. Male turns around but continually looks back. Sir I want you to walk backwards towards the sound of my voice.”

72Officer Baker notes Mr. Maynard’s response “I ain’t got nothing come here and see. If you shoot me you’re going to get it. I’ve got a university degree.” Officer Baker notes his response as “Sir I don’t want to have to shoot you please follow my instructions so that we can confirm that you don’t have a gun.”

73At this point Officer Baker notes that Mr. Maynard says “I’ll show you I don’t have a gun” and that he begins to quickly walk backwards while looking over his shoulder. Officer Baker notes himself as saying: “Sir I want you to slow down and walk backwards to the front of my scout car. Walk towards the middle of the cruisers. Keep your hands up. Male complies.” Then Officer Baker notes that Mr. Maynard is asked to get down on his knees, initially he refuses, says once again “I got no gun” and then complies. Officer Baker testified to having a sense of relief at that point and that he could not believe what had just happened.

74Officer Baker notes that PC Stevenson handcuffs Mr. Maynard and that he is placed in the rear of PC Stevenson’s car. He testified that Mr. Maynard was in the roadway when he was handcuffed. Officer Stevenson testified to the contrary that Mr. Maynard was not handcuffed and that it was not necessary to handcuff him when he was placed in the back of the car.

75At this point Mr. Maynard is being searched and spoken to by other officers who confirm that he is not in possession of a gun. His car is also searched, although before that can be completed the officers hear the new description of the vehicle over the radio.

76Officer Baker notes that Mr. Maynard continues to accuse him of having no respect for him. He notes that he attempts to inform Mr. Maynard of the circumstances surrounding the gun call but Mr. Maynard refuses to listen. Officer Baker notes Mr. Maynard saying “you got no respect man. You’re probably not even as old as I am” and Officer Baker notes his response as “Sir no I’m not as old as you but put yourself in my shoes. I don’t know you, never met you before.” At which point Mr. Maynard is noted as saying “I want your badge number. You’re gonna hear about this.”

77Officer Baker’s notes record Mr. Maynard’s name, the fact that he is male, black, wearing a dark brown jacket and dark pants and where he works. He notes that he gave loud clear instructions to Mr. Maynard who was approximately 30 yards (corrected to 30 feet) from the front of his vehicle. He notes the later information received about the suspect. He also notes that he is advised by Sgt. Raney to put in a “Use of Force” report and “Record of Arrest” as Mr. Maynard will probably lodge a complaint. Both documents were created by Officer Baker shortly after the incident.

78Officer Baker testified that he was the arresting officer despite the fact that other officers took physical control of Mr. Maynard. He testified that he did not advise Mr. Maynard what he was being arrested for. At another point Officer Baker testified that he was not the arresting officer, he did not know who arrested Mr. Maynard but in any event, he was the person who filled out a Record of Arrest. He also testified a second time that Mr. Maynard was in handcuffs and that was what caused him to believe that Mr. Maynard had been arrested.

79Officer Baker denied that Mr. Maynard’s race played any role in the decisions he made that day. He testified that he was not aware of Mr. Maynard’s age but that he appeared to be about 35 years of age. He considered Mr. Maynard’s apparent age as a factor because he wondered if he could handle someone larger, older and likely more knowledgeable than he was.

80Officer Baker completed a Supplementary Record of Arrest in relation to the incident with Mr. Maynard. In that document he indicates that he positioned his car on the west curb of Kengate Drive, approximately 30 yards back from the vehicle and male driver. He notes that he exited his vehicle at the same time as Mr. Maynard. At this point he notes that “the driver of the vehicle was at this time engaged in a conversation by the officer, and the driver was found to be in an agitated state. He describes Mr. Maynard as refusing to comply with his instructions and that he had one hand concealed in his pocket and holding a cellphone in the other hand. Officer Baker notes that he advised Mr. Maynard that he was investigating a gun call in the Malvern Town Centre area and that the description of the vehicle and the suspect was similar to Mr. Maynard’s. Officer Baker notes that he instructed Mr. Maynard to hang up his cell phone and put both hands in the air and that despite repeated instructions Mr. Maynard refused to comply with his demands. He also notes that Mr. Maynard attempted to “bait the officer from behind cover several times” and it was at this point that Officer Baker felt fearful for his own safety and the safety of those residents who had come out to see what was happening. He notes that he drew his firearm, pointed it at Mr. Maynard and advised him that this was a gun point arrest. Officer Baker notes that Mr. Maynard continues to disobey instructions and became “belligerent”.

Ian Waite

81Ian Waite testified that he was the neighbour who came out from his garage and spoke with Mr. Maynard as reported in Officer Baker’s notes. Mr. Waite was living at 25 Kengate Drive at the time, two houses to the left of Mr. Maynard’s if one was facing Mr. Maynard’s house. He testified that he woke up that morning, got himself a cup of coffee and went into the garage to have a cigarette and drink his coffee. When he opened his garage door he looked outside toward Mr. Maynard’s house. Mr. Waite testified that he saw Mr. Maynard standing beside his vehicle, two police vehicles and four officers with their firearms drawn and pointed at Mr. Maynard. He described three of the firearms as handguns and the fourth as a shotgun. He described three of the officers as Caucasian and the fourth as Asian.

82Mr. Waite testified that from his initial position in front of his car on his own driveway he could not hear the exchange between Mr. Maynard and the officers. Mr. Waite testified that he walked down his driveway and along the street to about the middle of the driveway of the house immediately next door to Mr. Maynard’s. I note from Exhibit 5 that the driveway of that house is right next to the driveway of Mr. Maynard’s house with a narrow strip of grass between them.

83Mr. Waite testified that the two police vehicles he recalled were parked in front of 21 Kengate. He also testified that the officer with the shotgun positioned himself in front of the garage door at the house to the right of Mr. Maynard’s and that the shotgun was being held at about chest height and was pointed towards Mr. Maynard’s position. He testified that three officers were standing behind cruisers with their arms straight out holding their firearms.

84Mr. Waite testified that Mr. Maynard was repeatedly asking why he had been stopped and that Mr. Maynard was speaking loudly because he was far back from the street. This is the evidence I referred to earlier in the Decision which was supportive of Officer Baker’s evidence that there was some distance between himself and Mr. Maynard and that Mr. Maynard remained relatively close to his vehicle.

85Mr. Waite described the officers as direct and, aggressive with their firearms drawn and pointed at Mr. Maynard. He heard Officer Baker give Mr. Maynard a direction to get his hands up and recalled seeing Mr. Maynard comply. He also recalled seeing Mr. Maynard with the cell phone in his hands but denied that Mr. Maynard talked on the cell phone after Mr. Waite’s arrival. Mr. Waite testified that he never saw Mr. Maynard lower his hands.

86Mr. Waite testified that Mr. Maynard asked him to see if anyone was home and Mr. Waite proceeded to walk across and up Mr. Maynard’s driveway to the front door of Mr. Maynard’s house crossing between Mr. Maynard and the officers who, according to Mr. Waite, were pointing their firearms at Mr. Maynard. Mr. Waite testified that he went up to the doorway, rang the bell, waited for a response and when no one answered the door, he walked back along the same path. He testified that he stopped in front of Mr. Maynard approximately twenty feet from him and told Mr. Maynard that there was no one at home. Mr. Waite testified that he walked to the edge of the house next door to the left of Mr. Maynard’s house. Mr. Waite testified that from that position he observed Mr. Maynard being told to put his hands on his head and walk down the driveway, after which he observed Mr. Maynard getting down on his knees.

87Mr. Waite testified that one officer was giving instructions to Mr. Maynard and he described the officer as very direct, loud and aggressive. He described Mr. Maynard as confused, panicky, and scared.

88Mr. Waite testified that not long after that he could hear the police radio and heard the report that the suspect was wearing red. Mr. Waite testified that he could see Mr. Maynard speaking with the officer who gave him direction but could not hear what they were saying to one another. Mr. Waite testified that the officers left the scene five or ten minutes after the new information about the suspect was received. Mr. Waite testified that he did not attempt to speak with Mr. Maynard when the officers left, that Mr. Maynard looked very stressed and Mr. Waite did not think Mr. Maynard wanted to talk. Mr. Waite testified that he asked Mr. Maynard about the incident later that week. Mr. Waite testified that he discussed the incident with Mr. Maynard but not in detail.

89Mr. Waite testified that he never heard any officer attempt to explain to Mr. Maynard why he was being held at gun point on his front lawn. He also did not hear Mr. Maynard swear at any of the officers and was surprised to learn that Mr. Maynard had sworn at Officer Baker before Mr. Waite arrived on the scene. Mr. Waite described Mr. Maynard as obviously frightened by what was happening but he recalled Mr. Maynard being compliant and asking questions about why he was being treated in this manner.

90Mr. Waite testified that he recalled seeing his sister, Simone Henville, standing on their property at 25 Kengate when he walked back to the house. On cross-examination Mr. Waite testified that he did not recall seeing other neighbours, or seeing the officer with the shotgun behind a tree nor could he remember the exact position of the officers who were behind their cars or which direction Mr. Maynard was facing when he walked down the driveway. He also denied encouraging Mr. Maynard to cooperate with the police which had been alleged by some of the other officers.

91Simone Henville, who is Mr. Waite’s sister, testified that she looked out her bedroom window and saw Mr. Maynard, a number of police vehicles, a “couple” of weapons and police officers. Ms. Henville testified that by the time she got outside the officers were “packing up their weapons” and she heard a bit of an exchange between Mr. Maynard and one of the officers.

92Ms. Henville, like Sgt. Raney, was not in a position to testify as to what occurred before Mr. Maynard was taken into physical custody. Similarly, Officer Kerr was with the 911 caller at the Malvern Town Centre and did not attend at 21 Kengate.

Judith Sukhdeo

93Ms. Sukhdeo was engaged to Mr. Maynard at the time of the incident. She is the only other person who had any involvement in the events which were occurring between Mr. Maynard and Officer Baker.

94Ms. Sukhdeo testified that she was on the phone with Mr. Maynard discussing their wedding plans while he was driving home from work the morning of November 25, 2006. She testified that Mr. Maynard told her that a police officer had made a u-turn and was driving directly behind him. Ms. Sukhdeo asked Mr. Maynard if he was speeding. Mr. Maynard confirmed that he was not speeding and was crossing Morningside. She stayed on the phone with him.

95Ms. Sukhdeo testified that Mr. Maynard’s voice was normal and he seemed calm. She did not notice any change in his tone. She testified that she stayed on the phone and that it was probably for comfort.

96Ms. Sukhdeo testified that after Mr. Maynard pulled into the driveway they spoke for a few more seconds and Mr. Maynard said he was going to see what the officer wanted.

97The next thing that Ms. Sukhdeo heard was Mr. Maynard saying “call my parents. call my parents.” She was extremely alarmed by the sense of urgency in Mr. Maynard’s voice and then the phone disconnected abruptly. She felt panicked and scared. She called Mr. Maynard’s parents several times and left a message for them to go outside thinking that they may be home and screening their calls.

98Ms. Sukhdeo testified that her heart was racing and she was extremely concerned about what was going on and decided to drive to Mr. Maynard’s home. The time between when her cell phone disconnected and when she arrived at Mr. Maynard’s house would have been ten to fifteen minutes.

99She testified that when she arrived everything outside Mr. Maynard’s house appeared normal. She went inside the house and found Mr. Maynard who appeared to her to be in shock and was not very responsive. She got him something to drink and noticed that his hands were shaking.

100Ms. Sukhdeo testified that Mr. Maynard began to tell her what happened. He told her that he approached the officer and the officer asked him where he was coming from. He told the officer that he did not have to tell him where he was coming from. The officer told him to put his hands up and pulled out a gun. Other officers arrived, one had a shotgun and they all had their guns out, and then they told him to turn around, walk backwards toward a voice and then at some point told him to kneel down. Ms. Sukhdeo testified that Mr. Maynard told her that two other officers picked him up and put him in the back of a police car. The next thing that he heard was something on the radio about suspect on foot and in red. The officers had taken his car keys at some point and they released him and said to him that he should have listened. Ms. Sukhdeo acknowledged that she had discussed the events of that day with Mr. Maynard many times.

Other Officers Who Arrived at 21 Kengate

101Officers Limsiaco and Stevenson arrived at 21 Kengate together in the same vehicle as did Officers Russell and Swan. Officer Doupe and Sgt. Raney arrived solo. While the officers arrived shortly after Officer Baker indicated that he was following Mr. Maynard to 21 Kengate, none of the other officers arrived before Officer Baker drew his firearm.

102The officers who testified at the hearing relied largely on their notes. In each case, the notes set out some of the basic information about the 911 call which was drawn from the information available on the screens in their vehicles. Each of the officers recorded some other aspects of the incident with varying degrees of detail. The officers who travelled together prepared their notes together although they testified that their notes contained their own independent observations of the events. The officers were aware that Mr. Maynard was very upset and intended to make a complaint about the incident. Given the importance of the notes to the recollections of the officers, I have set out the details from their notes which were relevant to my findings.

103Officer Limsiaco recorded that when he arrived on scene he observed a black male, six feet tall, standing outside a black BMW yelling: “what are you stopping me for?”. The statement is in quotations. Officer Limsiaco confirmed that the use of quotations in his notes signified a verbatim statement from Mr. Maynard. Further notations indicate that Mr. Maynard was “advised but still not listening to instructions” and that Mr. Maynard was “yelling” statements such as “I don’t have a criminal record”…”I have a degree from York University”, making those statements “over and over” and “refusing to listen to instructions”. Officer Limsiaco recorded that Mr. Maynard was brought back to the car for investigation, he continued to repeat the same statements. Officer Limsiaco notes that he tried to explain the circumstances of the investigation but Mr. Maynard continued to yell and refused to listen. There is a notation that Mr. Maynard was “irate” and asked for Officer Limsiaco’s badge number.

104Officer Stevenson who travelled with Officer Limsiaco noted that he stood behind his car on the driver’s side to assist when Mr. Maynard was told to turn around and back up. He notes that Mr. Maynard was “not complying with verbal comment to put hands up and turn round” and that Mr. Maynard stated that “he is coming from work and that we can search his vehicle”. Officer Stevenson notes that Mr. Maynard was talking to a neighbour and saying “this is crazy”, that he has no criminal record and is coming from work. Officer Stevenson describes Mr. Maynard in his notes as “refusing repeated requests to comply with commands”, and that eventually he listens and Officer Baker is able to get Mr. Maynard to back up to the car. Officer Stevenson notes that Mr. Maynard refused to go down on his knees but complied after “repeated requests”. He adds a note out of sequence that while he was still on the driveway Mr. Maynard said that “we would be fucked if we shot him when he was unarmed” and that a neighbour was “reasoning” with Mr. Maynard. Officer Stevenson then notes that he checked Mr. Maynard’s vehicle with his consent and that the search was discontinued when new information was received exonerating Mr. Maynard.

105Officer Doupe noted that when he arrived on scene Officer Baker was giving Mr. Maynard “loud/clear verbal instructions” and that Mr. Maynard was yelling “fuck you”, “I did do anything” (meant to be “did not”) dropping his hands and reluctantly complying with Officer Baker’s commands to raise his hands. His notes are quite short and record only that Mr. Maynard was investigated, found not to be a suspect and that Mr. Maynard was upset and refused to accept the explanations offered to him.

106Officer Russell’s notes are also brief. In addition to the detail about the call, the notes record that upon arrival at the scene Officer Baker has a black male at “gunpoint arrest” and that the male is “arguing and belligerent but eventually complies with instructions”. His notes also include a reference to “shotgun port arms”.

Positions of the Officers and Cars

107When the officers were asked to testify about issues not contained in their notes some significant variation arose. For example, with respect to the location of the vehicles at the scene, Officer Stevenson testified that Officer Baker’s car was located in the “proper lane” closest to Mr. Maynard’s house and that his own car was parked to the left of Officer Baker’s in the opposing traffic lane. Officer Stevenson drew a diagram of the location of the cars depicting his car in the opposing traffic lane to the left of Officer Baker’s and both cars to the right of 19 Kengate, one house away from 21 Kengate. Officer Stevenson testified that it would have been impossible for traffic to pass by the two cars in either direction. Officer Baker testified to the contrary that he was parked in the opposite lane farthest away from Mr. Maynard’s house and did not dispute that he was located at the base of Mr. Maynard’s house rather than as described by Officer Stevenson, to the right of the house next door at 19 Kengate.

108Officer Limsiaco who was the passenger in the car with Officer Stevenson also testified that they pulled up off to the right of Mr. Maynard’s house. He testified that his car was not in front of Mr. Maynard’s house nor was it parallel to Officer Baker’s. He drew a diagram which is broadly consistent with Officer Stevenson’s but which is missing any reference to the house located at 19 Kengate.

109Officer Doupe testified that Officer Baker was parked in the roadway facing Mr. Maynard’s house and that Officer Doupe parked to the right at least one to two houses away. The diagram he drew shows Officer Baker’s car in the lane farthest from Mr. Maynard’s house (contrary to the recollections of Officers Stevenson and Limsiaco as well as Mr. Maynard but consistent with Officer Baker’s evidence) and he could not recall seeing the car driven by Officer Stevenson.

110While the variation in the testimony goes to the strength of the Officer’s independent recollections in general, I have determined that the exact position of each of the cars is not important to my decision. The parties agree that Officer Baker parked in full view and in close proximity to Mr. Maynard’s driveway which was an important consideration in Mr. Maynard’s decision to approach him.

111With respect to the timing of the arrival of the Officers at the scene, Officer Doupe testified that he recalled arriving first after Officer Baker while Officer Stevenson testified to the contrary that he and Officer Limsiaco arrived first. Officer Limsiaco testified that while he remembered arriving at the scene and seeing Officer Baker he could not remember the other officers at all. Officer Russell testified that he recalled a number of other cars on scene by the time of his arrival.

112It was not disputed that Officers Russell and Swan arrived after Stevenson, Limsiaco and Doupe and that the officers arrived in short proximity to one another. It was also not disputed that Sgt. Raney arrived on the scene when Mr. Maynard was already under the physical control of the other officers and his car was being searched.

113The officers took up various positions at the scene. Officer Limsiaco testified that he moved immediately to the right portion of his vehicle car on the passenger side behind the back wheel well because he had been trained to move directly to cover and concealment. Officer Limsiaco could not recall Officer Baker’s position, whether Officer Baker had his firearm drawn or the positions of the other officers apart from Officer Stevenson. Officer Limsiaco recalled that Officer Stevenson positioned himself behind the back bumper of their vehicle on the passenger side although this description was inconsistent with his drawing which showed Officer Stevenson near the back bumper of the vehicle on the driver’s side. Officer Stevenson also testified that he positioned himself on the rear driver’s side quarter panel of his vehicle. Officer Stevenson could not recall where Officer Limsiaco was during the incident despite the fact that they were close to one another near the back of their vehicle. He did recall Officer Baker’s position on the driver’s side of his car and that Officer Baker’s firearm was drawn.

114Officer Doupe testified that he positioned himself to the right of 21 Kengate behind a tree and that he did not come closer than one or two houses from Mr. Maynard’s residence. Officer Doupe testified that he could not tell exactly where Officer Baker was and he also did not recall seeing Officer Baker with his firearm drawn. He also did not recall Officers Stevenson and Limsiaco.

115Officer Stevenson recalled seeing Officer Russell briefly during the incident just off to the right of 21 Kengate. He had observed Officer Russell running by the side of the houses with his shotgun. Officer Baker testified to the same description of Officer Russell.

116Officer Russell recalled that he parked to the right of the other officers, but could not testify as to the position of the other officers at the scene other than observing that Officer Baker had his firearm drawn and was pointing it at Mr. Maynard. Officer Russell testified that he was not in a position to do anything effective but when he exited his vehicle he moved into a position where he could help if he was needed. He testified that he moved over to the right side of the car and then made his way over to a tree in front of the houses where people were standing. Officer Russell testified that the tree was near his vehicle approximately three to four houses away from 21 Kengate. Officer Russell testified that he and Officer Swan stayed where they were to focus on getting people who were watching the incident to the right of 21 Kengate to return to their homes. This evidence was inconsistent with the evidence of Mr. Maynard and Ian Waite who testified that the officer with the shotgun was posted at the garage door of the house to the right of 21 Kengate. It is also inconsistent with the evidence of Officers Stevenson and Baker who testified that he observed Officer Russell running along the side of the houses to his right.

117The exact position of the other officers is not critical to my findings although it is relevant to the strength of their recollections. There was insufficient evidence from the other officers to establish in any definitive way how far apart Mr. Maynard and Officer Baker were and, with the exception of Officer Russell, the impact of distance on the ability of the officers to see and hear what Mr. Maynard and Officer Baker were saying. Officer Russell admitted that he could not hear what Mr. Maynard was saying.

Firearms

118The officers also testified in relation to Mr. Maynard’s allegation that a number of firearms were drawn and pointed at him during the incident. Officers Limsiaco and Stevenson testified that they did not draw their firearms during the incident. Both testified they were positioned in such way that Officer Baker could be hit accidentally if they had to return fire. Officer Stevenson testified that the goal was to take Mr. Maynard into custody and in his view Officer Baker had control of the situation. He testified that if he could do anything differently, he would have attempted to find a more effective position at the scene. Officer Stevenson also testified that he recalled seeing Officer Russell with a shotgun but he could not recall how Officer Russell was holding the firearm.

119Officer Doupe who positioned himself behind a tree to the right of 21 Kengate, testified that he had his firearm drawn at what he described as the “tactical ready position” which is pointed at the ground at 45 degrees. He denied pointing the firearm directly at Mr. Maynard. Officer Doupe testified that he was concerned about other people exiting their houses and getting between Mr. Maynard and the other officers. Officer Doupe was required to file a Use of Force report because he had drawn his firearm in view of the public. The respondent was unable to retrieve a copy of the report for use at the hearing and given the efforts of the respondent to obtain the document there appeared to be no reason to draw any inferences from the fact that the document was missing.

120Officer Russell testified that when he arrived a crowd was starting to gather and people were starting to exit their homes. He testified that he could see people to the left of 21 Kengate who were in the distance but that he was most concerned with the neighbours who were near him and to the right of 21 Kengate. Officer Russell testified that other officers had withdrawn their firearms although when he was cross-examined he said that he could not see from the angle of the cars whether the other officers had their guns drawn, but he assumed that was the case.

121Officer Russell testified that when he exited his vehicle he immediately brought his shotgun out and “made it ready” by loudly pumping or “racking the action” which immediately brought the shotgun to the attention of those involved in or observing the incident. When he was asked why he wanted Mr. Maynard to see him with a shotgun he testified that he hoped Mr. Maynard would see that the situation was serious. He testified that people tend to listen when he is holding the shotgun. At the same time Officer Russell acknowledged that Mr. Maynard was already being held at gunpoint and that he was too far away to discharge the shotgun.

122Officer Russell denied pointing the shotgun directly at Mr. Maynard and described himself as holding the shotgun in the “port arms” position which is across his chest and pointed to the sky at a slight angle. Officer Russell testified that his goal was to get everyone out of the area and inside their homes while the officers ahead of him dealt with Mr. Maynard.

123Officer Russell testified that he did not file a use of force report. He testified that unlike the firearms withdrawn by Officers Baker and Doupe, Officer Russell was only required to file a report if the shotgun was pointed at someone.

124Mr. Maynard testified that he saw more than just Officer Baker’s firearm pointed at him as did Ian Waite. The evidence establishes that there were at least three firearms visible to Mr. Maynard. Even if it were true that in the heat of the moment Mr. Maynard and Mr. Waite mistakenly thought they saw more than three firearms and more firearms pointed at Mr. Maynard, I would not consider this a factor in assessing Mr. Maynard’s credibility or his level of fear. I note that Officer Russell testified that he intentionally tried to get Mr. Maynard’s attention and send a message to him about the seriousness of the situation by loudly pumping his shotgun. As a result, I find that it was reasonable for Mr. Maynard to feel threatened whether or not the firearms were pointed directly at him.

Observations About Officer Baker and Mr. Maynard

125Officer Limsiaco testified that when he and Officer Stevenson arrived Officer Baker was calling out instructions to Mr. Maynard to get out of his car and show his hands. This is clearly incorrect since both Mr. Maynard and Officer Baker agree that Mr. Maynard was out of his car by the time the other officers arrived and Officer Baker had his firearm pointed at Mr. Maynard. Officer Limsiaco testified that Mr. Maynard was yelling back at Officer Baker, over and over in an excited tone that he didn’t have a criminal record and that he had a university degree. He was questioned about the reference in his notes to York University and specifically why Mr. Maynard would be shouting that he had a degree from York University when he apparently did not attend that particular university.

126Officer Limsiaco testified that he did not move from his position until Mr. Maynard came to him and was taken into physical custody but that he had a clear visual of Mr. Maynard and could specifically see his hands. He testified that Mr. Maynard was very excited and yelling and that his hands were waiving or moving “angrily” in the air. Officer Limsiaco remembered Mr. Maynard asking “why are you stopping me” and also recalled that Officer Baker advised Mr. Maynard that the officers were on a gun call. Officer Limsiaco testified that he probably yelled out to Mr. Maynard to listen to Officer Baker.

127Officer Limsiaco testified that Mr. Maynard eventually complied with Officer Baker’s instructions to walk backward. He also testified that when he took cover behind the wheel of his car he could hear Officer Baker and Mr. Maynard “yelling at each other” and that at one point Mr. Maynard called out to a neighbour to call his father. Officer Limsiaco also testified that once he was under their physical control, Mr. Maynard continued to yell about the fact that he had a university degree and did not have a criminal record.

128Officer Limsiaco testified that he attempted to explain to Mr. Maynard why the officers had taken the steps they did. He testified that he spoke to Mr. Maynard about the nature of the gun call; the fact that the officers and Mr. Maynard did not know each other; the similarities between the description of the suspect and Mr. Maynard; the necessity to take precautions to ensure that everyone got home safely to their families. When he was asked how he could know that he said all of those things to Mr. Maynard at that time, Officer Limsiaco testified that he routinely tries to convey that information whenever he is dealing with someone who is argumentative. He testified that it has been his experience that they often understand and appreciate that he is taking the time to explain the situation to them. Officer Limsiaco testified that he attempted to explain to Mr. Maynard the seriousness of the gun call but Mr. Maynard said he was going to file a complaint and asked for his badge number.

129Officer Limsiaco testified that he did not consider Mr. Maynard belligerent. He did not recall Mr. Maynard swearing at any time. He had a strong recollection of opening the back of the car and telling Mr. Maynard the reason for the stop and the necessity for the precautions the officers had taken.

130Officer Stevenson, like Officer Limsiaco also heard Mr. Maynard asking why he was being stopped. Officer Stevenson testified that Mr. Maynard was not following Officer Baker’s repeated commands. He testified that Mr. Maynard did not have his hands up and was saying “this is crazy”, that he was just coming from work, he did not have a criminal record and if “we” shot him and he was unarmed “we would be fucked”. The statement “we would be fucked” is listed as a late entry on page 86 of his notes as is the comment about the neighbour reasoning with Mr. Maynard. Officer Stevenson testified that Mr. Maynard did not have his hands up initially but that he complied right after Officer Baker and a neighbour engaged him in conversation. Officer Stevenson described seeing Ian Waite trying to reason with Mr. Maynard and encouraging Mr. Maynard to listen to Officer Baker. Ian Waite denied that he was the neighbour who was allegedly reasoning with Mr. Maynard and he denied hearing Mr. Maynard swear at any time or seeing him without his hands in the air.

131I note here that given their testimony about the neighbour, Officers Limsiaco and Stevenson must have been at 21 Kengate when Ian Waite crossed between Mr. Maynard and the other officers to ring the doorbell of Mr. Maynard’s house. That would also be consistent with Ian Waite’s testimony that there were officers other than Officer Baker on the scene at that time. None of the officers addressed this event.

132Officer Stevenson testified that he and Officer Limsiaco took physical control of Mr. Maynard and performed a pat down search. He recalled Mr. Maynard saying something like “you can go ahead and check my car, I don’t have a gun, I don’t have anything on me”. Officer Stevenson took Mr. Maynard’s keys and started a search of his vehicle. Officer Stevenson accepted that Mr. Maynard may have been confused but also described him as confrontational.

133Officer Doupe testified that he observed Officer Baker speaking loudly and precisely in giving instructions while he described Mr. Maynard was yelling at Officer Baker. At the same time Officer Doupe acknowledged that he could not remember what Officer Baker and Mr. Maynard said but for the comments attributed to Mr. Maynard that he made note of at the time: “fuck you” and “I didn’t do anything”. Officer Doupe testified that he personally tried to explain the situation to Mr. Maynard but eventually backed away to prevent him from getting more upset. In his testimony he described Mr. Maynard as very upset, swearing at Officer Baker, agitated, not listening and not cooperating.

134Officer Doupe was concerned about Mr. Maynard not showing his hands. He testified that until Mr. Maynard finally complied with Officer Baker he did not recall seeing Mr. Maynard’s hands above his shoulders.

135In his brief notes Officer Russell described Mr. Maynard as arguing and belligerent but eventually complying with instructions. In his testimony he said that when he arrived Mr. Maynard had his hands in the air and was yelling back at the officers although from his position he could not hear what Mr. Maynard was saying. He also testified that he was so far back that he would not have been able to recognize Mr. Maynard if he met him in the street after the incident. Despite those admissions, Officer Russell testified that Mr. Maynard was belligerent with Officer Baker and the other officers. He also testified that Mr. Maynard did not appear to be taking the situation seriously and seemed unconcerned about what was happening. He described Mr. Maynard as having his hands up in a “lackadaisical” manner and arguing back at the officers while Officer Baker was giving commands. Officer Russell testified that in the context of Mr. Maynard’s police complaint, Officer Russell had gone further to say that Mr. Maynard had been laughing during the incident. None of the officers described Mr. Maynard in this way nor were these additional observations recorded in Officer Russell’s notes.

136With respect to what the other officers observed about Mr. Maynard’s demeanour and behaviour when they arrived at 21 Kengate, Mr. Maynard acknowledged that he was very upset and I accept that he may have given the appearance of being agitated and having difficulty complying with Officer Baker’s commands. Mr. Maynard’s evidence that he was asking why he was stopped was supported by Ian Waite, Officers Limsiaco and Stevenson and indirectly by the number of Officers who attempted to explain to Mr. Maynard what had happened when he was in the process of being released. I do not accept Officer Russell’s testimony that Mr. Maynard was not taking the situation seriously enough, that he was laughing or in any way making light of the circumstances.

137By the time the other officers arrived on the scene Mr. Maynard was clearly angry, confused and afraid but there was no evidence that he was aggressive or threatening in any way. There was mixed evidence related to Mr. Maynard’s conduct. The issue of his hands appears to be about the distinction between hands at shoulder height versus hands above the shoulders as opposed to Mr. Maynard failing to put his hands up at all. Mr. Maynard’s testimony that he did not swear at anyone after the other officers arrived on the scene was supported by Ian Waite and Officer Limsiaco who both testified that they did not recall Mr. Maynard swearing. Officers Stevenson and Doupe testified that they heard Mr. Maynard swearing. On the other hand, Officer Limsiaco testified that he would not have described Mr. Maynard as belligerent.

138In my view these issues do not require a definitive resolution. Mr. Maynard’s behaviour at the scene was not a factor in my decision to dismiss the Complaint against the other officers. In addition, given the critical difference in circumstances, I am not prepared to rely on evidence of Mr. Maynard’s behaviour after Officer Baker drew his firearm to support any inferences about his behaviour before the firearm was pointed at him. I had ample direct evidence on this point from Mr. Maynard and Officer Baker.

Expert Testimony

139I heard from two expert witnesses during the course of the hearing. Professor Scott Wortley was qualified as an expert to provide the Tribunal with evidence regarding the implications of racial discrimination in the surveillance and use of force by white male officers against black male suspects. The research he relied upon was drawn largely from jurisdictions outside Canada but also from his own research. Much of the research is derived from examples of use of violent force in cases involving people who were injured or killed. Sgt. Greg Thorpe was qualified on the consent of the parties as an expert in use of force training. Sgt. Thorpe testified about his lengthy history in developing and delivering training to police officers on use of force and particularly the use of force model that was adopted in Ontario in 2004.

140The use of force model currently in force is a non-legislative tool for officers to assist them in understanding the convergence of events which can lead them to escalate their use of force against a suspect. Sgt. Thorpe testified about ongoing nature of the assessment officers engage in as an incident is unfolding and how they use those observations to formulate a plan of action.

141Officer Thorpe described the lowest level of force as officer presence. He gave the example of kids drinking in parks whose behaviour changes as a result of the officer simply showing up. Pointing a gun at a subject was described as lethal force which Sgt. Thorpe testified is used in a context where the subject is exhibiting serious bodily harm or death behaviour.

142Although both experts were qualified to give evidence before the Tribunal, I ultimately found it unnecessary to rely on their testimony. In both cases, the experts provided an analysis of the factors which might explain the interaction of Mr. Maynard and Officer Baker, why they were reacting to one another the way they did and what Officer Baker may have been thinking when he escalated his use of force. Having reviewed all of the evidence in this case, I preferred to draw my conclusions from the direct testimony of Mr. Maynard, Officer Baker and those who witnessed the incident.

143Officer Baker gave detailed evidence on his understanding of the use of force model as an interpretative aid. He had gone so far as to assess his own actions in relation to the model and he made notations in the margins of his notebook to show where certain events in the incident with Mr. Maynard corresponded with certain impact factors. Officer Baker testified that at the moment he drew his firearm he feared for his life. He also testified about how he perceived Mr. Maynard’s demeanour and his refusal to cooperate and what role those perceptions played in his use of force. The question before me is whether that perception was fuelled in whole or in part by racial discrimination. Sgt. Thorpe’s evidence about what he or another officer might do in the same circumstances was not of assistance to me. In some cases, the act of deviating from established policy can support an inference that a person’s conduct is motivated by racial bias. I did not find it possible, in this case, to come to such a conclusion given the complexity of the use of force model, the endless list of factors that an officer might consider in the ongoing process of assessing a dangerous situation and the inherent subjectivity involved in applying the model.

144With respect to Professor Wortley’s evidence, and with the proviso that this was not determinative, Mr. Maynard testified that he had never had any negative interactions with the police and that he did not consider himself to have life experiences which compared with the young black male subjects of the research cited by Professor Wortley on racial profiling and discrimination. The explanation that black youth might not behave appropriately with police officers because of a lack of trust, the impact of multiple unjustified stops, or stories from family and friends about their negative interactions with the police did not resonate for Mr. Maynard. I also did not consider it necessary to rely on Professor Wortley’s evidence to assess Officer Baker’s testimony about his escalation in the use of force in the face of Mr. Maynard’s non-compliance.

Analysis

Applicable Legal Principles

145It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.

146The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”) confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”.

147There is no dispute that the provision of policing services is a service within the meaning of the Code.

148In Shaw v. Phipps, 2012 ONCA 155 the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, that the onus rests on the complainant to establish a “prima facie” case of discrimination which is described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of answer from the respondent.”

149Discrimination is not defined in the Code, however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment, or a distinction which creates a disadvantage, on the basis of a prohibited ground (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143.

150The Tribunal in Phipps v. Toronto Police Services Board, 2009 HRTO 877 (upheld in Phipps and in Shaw ) endorsed a set of important principles from previous decisions which should be considered in cases engaging allegations of racial discrimination in the policing context. For example, the grounds alleged by Mr. Maynard do not need to be the sole or the major factor in the actions taken by the respondents - it is sufficient for him to prove that one or more of the prohibited grounds was a factor. There is no need to prove intention - the focus is on the effect of the respondent’s actions on Mr. Maynard. The evidence supporting the explanation must be credible on all the evidence. Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. When assessing the respondent’s explanation, the ultimate question is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

151The parties also raised the decision in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. The respondents allege that in addition to the traditional elements of the human rights analysis, Mr. Maynard is required to prove that the adverse treatment he experienced perpetuates stereotypes and prejudice. The Court of Appeal determined that this was not a free-standing requirement and that in most human rights cases the inference of stereotyping or prejudice will generally arise. In a case such as this, if Mr. Maynard is able to prove that he experienced adverse treatment by the respondents in part because he is a young black man, then that would clearly give rise to an inference of stereotyping and prejudice. In my view, no further nuanced approach is required in this case.

152In this case, Mr. Maynard satisfies the first part of his burden because he self-identifies with the prohibited grounds of race, colour and gender and with respect to age, describes himself as a young man but also as a person who looks younger than his years. The second part of his burden is satisfied through proof of adverse treatment. The adverse treatment is the manner in which he was singled out for investigation and treated by Officer Baker and the other officers at the scene. It is irrelevant whether the conduct is ultimately found to be defensible. There can be no doubt that what Mr. Maynard experienced was adverse. However, he must also demonstrate that there is some nexus between the adverse treatment and the prohibited grounds alleged. In this case, like most human rights cases, this is the primary focus of the analysis in determining whether the applicant has met his burden to prove discrimination. The question of the nexus was a very difficult issue to resolve in this case. I have been careful not to presume that every interaction between a white officer and a black citizen gives rise to an inference of racial bias or the necessity for an explanation.

153The respondent has the onus of demonstrating, on the balance of probabilities, a credible, non-discriminatory justification for its actions. If the respondent is unable or unwilling to establish such a justification, or the complainant proves that the justification is pre-textual, the Tribunal will find a breach of the Code and order an appropriate remedy. In this case, Officer Baker’s explanation is that Mr. Maynard fit certain aspects of the description he was working with and that as the investigation progressed, Mr. Maynard’s physical appearance and conduct was found to be consistent with other aspects of the description of the suspect and the circumstances of the 911 call.

154The Commission also requested, pursuant to section 45.5 of the Code that I consider the Commission’s Policy and Guidelines on Racism and Racial Discrimination, approved in June 2005 and specifically the paragraphs which are noted the Commission’s final submissions. The policy specifically addresses the fact that racial discrimination may occur in “intersection” with other grounds of the Code as well as Mr. Maynard’s reaction to Officer Baker:

Racialized persons who reasonably believe that they are being racially profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner. A person’s use of abusive language requires reasonable tolerance and tact and cannot form the basis of further differential treatment.

155To the extent that this case requires me to assess the credibility of the witnesses who testified before me, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 356-357:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

156I am also guided by factors considered by the Tribunal in assessing credibility in the case of Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

157A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence incredible or unreliable. See McDougall and Shah v. George Brown College, 2009 HRTO 920. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence.

158With respect to the potential liability of the respondent TPSB the parties agree that this issue has been settled by the decision of the Divisional Court in Phipps and that the deemed liability provisions of the Code are applicable to police services and boards by virtue of section 46.3(1). If a finding is made against the individual officers, the TPSB is deemed liable for their discriminatory conduct.

Findings in Relation to Officers Stevenson, Limsiaco and Russell

159The onus is on Mr. Maynard to establish that Officers Stevenson, Limsiaco and Russell conducted themselves in a manner which was discriminatory.

160I want to begin by saying that while my analysis about the conduct of the officers who arrived on the scene after Officer Baker is brief, this is no reflection on the quality of the preparation by counsel and the testimony of witnesses. I have carefully reviewed all of the evidence which relates to this part of the incident. Given the nature of my findings, I did not consider it necessary or useful to recount every aspect of the evidence given by each officer about what actions they took when they arrived on the scene.

161The allegations against Officers Stevenson, Limsiaco, and Russell are that they arrived on the scene, took up positions around Mr. Maynard and Officer Baker, some with guns drawn and pointed at Mr. Maynard, participated in making him walk backward toward them, directed him to get down on his knees and put him in the back of a police car.

162Again, no one argued that this was anything but the most humiliating of experiences for Mr. Maynard who was aware that some of his neighbours were watching this incident unfold on his front lawn. However, the question before me is whether there is sufficient evidence to support a finding that the conduct of these officers was based in whole or in part on the prohibited grounds cited by Mr. Maynard.

163When the other officers arrived on the scene they were aware that Officer Baker had followed Mr. Maynard to 21 Kengate because he considered him to be a potential suspect in the gun call. When they arrived, Officer Baker’s firearm was drawn and pointed at Mr. Maynard. The officers each played a role in bringing Mr. Maynard under their physical control, searching him and placing him in the police vehicle.

164Once Officer Baker drew his firearm, he set a course of events in motion which the other officers were required to respond to. Their conduct in bringing Mr. Maynard from his driveway to the police vehicle and ultimately releasing him did not give rise to evidence from which I could draw a reasonable inference that the prohibited grounds alleged by Mr. Maynard were a factor in their conduct. For example, there was insufficient evidence to establish that the officers behaved differently because Officer Baker had his firearm pointed at a young black man as opposed to a Caucasian man.

165I was concerned about the lack of training these officers received in racial profiling and how racial bias can manifest in the difficult work that they are called upon to do in their communities. There was also significant confusion about whether Mr. Maynard was ever properly cautioned or arrested and by whom which is a very serious concern. Mr. Maynard was also left on his front lawn to deal with the after effects of this crisis completely on his own. However, my role is not to evaluate the conduct of the police in a general sense, but to determine whether their conduct gives rise to an inference of discrimination. This evidence was insufficient to support a reasonable inference that the conduct of the officers, other than Officer Baker, was related to anything but the exigencies of the moment when they arrived on the scene.

166For those reasons, the allegations against Officers Stevenson, Limsiaco and Russell are dismissed.

Findings in Relation to Officer Baker

167While there is insufficient evidence to find a breach of the Code in relation to the other officers, I find that the Complaint is substantiated against Officer Baker for the reasons that follow. In coming to this decision, I have taken into careful consideration the dangers associated with a gun call as well as the inherent problems associated with attempting to deconstruct events which unfolded as quickly as the events of November 25, 2005.

168Officer Baker made the decision to follow Mr. Maynard on the basis that he was a black man driving alone in a black sports car near the Malvern Town Centre. There was mixed evidence on whether the ten-year old BMW Mr. Maynard was driving could reasonably be described as a sports car but I do not believe it would be fair to Officer Baker to take that into consideration. Officer Baker acknowledged that he was unable to make out any of the other elements of the description of the suspect while Mr. Maynard was sitting in his car.

169Officer Baker was also missing critical information. Notably, he had no information about the possible age of the suspect and the direction of travel of the vehicle except that it had left the Malvern Town Centre. The suspect vehicle was also described as speeding away from the scene.

170Officer Baker also had reason to question the information he was working with. He had information from both the call-taker and Officer Kerr that they were having difficulty getting an accurate description from the caller. For example, the caller had initially given a description of the gun as small and black and then later could not describe the colour at all. Officer Kerr also indicated that he was not completely sure about the vehicle description because the caller was staring out the window looking at a two-door black vehicle at the time that he was taking her statement. Officer Kerr was never able to confirm anything more than the colour of the vehicle. The suspect vehicle was described initially as a sports car and then later by Officer Kerr who was with the caller and reported that “she is just saying a black vehicle”.

171While the respondents argued that it would be a breach of the Code to treat the caller as unreliable because of the observation that she was likely to be an “emotionally disturbed person”, the issue was not whether the caller was EDP, but whether there were any concerns about the accuracy and sufficiency of the information being conveyed. Officer Baker made the decision to subject Mr. Maynard to an intrusive investigation while his colleagues were having a difficult time clarifying the allegations and description of the suspect and vehicle.

172With respect to the fact that Mr. Maynard was travelling in a direction away from the Malvern Town Centre, even if I accepted Officer Baker’s evidence that the intersection between himself and Mr. Maynard took place at Mclevin and Sewells Roads, between that point and the Malvern Town Centre there are many routes that a person could take which would lead them in a direction away from the mall. There are four main roads that border the mall each with smaller arteries any one of which a suspect could have turned onto as he exited the mall. Fundamentally, Mr. Maynard was a black man driving a black sports car when he was seen by Officer Baker and that is, in my view, what aroused the officer’s suspicions.

173At the point at which the investigation commenced there was also nothing about Mr. Maynard’s driving which would have caused Officer Baker any concern. He was not speeding or taking any evasive action when Officer Baker was following him. A search of the license plate turned up nothing but the fact that the driver of the car appeared younger than the registered owner. Mr. Maynard drove the car to the home at which the car was registered all of which gave Officer Baker an opportunity to re-evaluate the course of action he had chosen and ask himself if he really had enough information to pursue Mr. Maynard any further.

174Mr. Maynard aroused Officer Baker’s suspicions despite the fact that the caller gave no indication of the suspect’s age. I understand that Officer Baker testified that he perceived Mr. Maynard to be in his mid-30’s, but he did not say at what point he formed this impression and I did not take that statement to constitute a serious challenge to Mr. Maynard’s self-identification as a young or young-looking black man.

175In my view, the focus by Officer Baker on Mr. Maynard was premature and cannot be fully explained by the nature of the call and the description he received of the suspect and the suspect vehicle. No one disputed the fact that the Malvern Town Centre area was regarded as a place with the potential for gun crimes. Considering the entire context, the most reasonable explanation for Officer Baker’s decision to follow Mr. Maynard is that he was a black man, and specifically a young black man, driving a black vehicle near the Malvern Town Centre and as a result, he was stereotyped as a person with some probability of being involved in a gun-related incident.

176The problem for Mr. Maynard is not that he was in the wrong place at the wrong time. One can easily empathize with both an officer and a victim in circumstances of mistaken identity where the officer has sufficient information to act upon. The problem is that Officer Baker cast his investigative net so wide that Mr. Maynard’s race was the predominant factor that put him at risk of being investigated that day. I do not believe that if the suspect had been a Caucasian man in the same circumstances, with no other defining characteristics, particularly age, and with as little information available about the car and direction of travel, that Officer Baker would have chosen to investigate the first Caucasian man he saw driving the same car at the same intersection. It is consistent with a finding of racial profiling that all black men or all black men of a certain age, driving alone in the area in a black car were possible suspects at the moment that Officer Baker decided to commence his investigation of Mr. Maynard.

177In my view, having commenced an investigation in whole or in part on the basis of racial bias, the events that ensued at 21 Kengate cannot be disentangled from that initial act. Virtually everything that Mr. Maynard did from the point at which he parked his car in his driveway was interpreted in a manner which was consistent with Officer Baker’s initial perception that Mr. Maynard was a viable suspect in the gun call.

178Officer Baker testified that his plan was to wait for backup and that he felt compelled to exit his vehicle because Mr. Maynard had exited his. However, this plan appeared at odds with the act of parking his vehicle, in full view, in the opposing traffic lane across from Mr. Maynard’s house. In my view it was reasonable for Mr. Maynard to be nervous and concerned and interpret that as the act of an officer who was making his presence known to a suspect.

179I recognize that Officer Baker was attempting to assess whether or not Mr. Maynard’s build and clothing matched the description he was working with. And while it may be the case that at this point in the incident Mr. Maynard’s build and clothing were arguably similar to the description of the suspect, that fact does validate the initial decision to investigate Mr. Maynard. No one suggested that racial bias was the only factor in the escalation of the use of force against Mr. Maynard.

180Officer Baker testified that he wanted to engage Mr. Maynard in conversation. However his approach, even if I accept Officer Baker’s testimony on this issue, was to ask Mr. Maynard: “sir, where are you coming from”. Mr. Maynard’s interpretation of that approach as aggressive and confrontational was reasonable given the fact that he had been followed home by Officer Baker who had then parked at the base of his driveway without giving Mr. Maynard any indication as to why he was being followed. Mr. Maynard’s response was to be immediately defensive and to refuse to answer Officer Baker’s question.

181Officer Baker and Mr. Maynard both agree that Officer Baker asked Mr. Maynard again where he was coming from and that Mr. Maynard continued to refuse and swore at Officer Baker. In Mr. Maynard’s version, Officer Baker is confrontational and aggressive and provides him with absolutely no information about why he is being questioned. In Officer Baker’s version he provides Mr. Maynard with the background of the gun call and the description of the suspect as part of a plan to engage Mr. Maynard in “tactical communication”.

182While Mr. Maynard denies that Officer Baker offered him an explanation of any kind, both agree that Mr. Maynard refused to answer questions and told the officer to “fuck off” almost immediately after they began to interact with one another. The version advanced by Officer Baker that he was using the word “sir”, trying to explain to Mr. Maynard the nature of his investigation and speaking loudly but not aggressively, is incongruent with the description of Mr. Maynard as immediately reactive and defensive. Some of that may be explained by the fact that Mr. Maynard was concerned and nervous about having been followed home and he may have been in a state of agitation when he approached Officer Baker. However, there was no evidence to contradict Mr. Maynard’s testimony that he had nothing but good experiences with the police before this incident. He trusted the police and on other occasions when he had been stopped he had received explanations and those events ended without incident. It simply made more sense when the entire context was considered that it was Officer Baker’s demeanour and his failure to provide information which caused Mr. Maynard to be so immediately reactive.

183In addition to Mr. Maynard’s own testimony on this point, Ian Waite and Officers Limsiaco and Stevenson, testified that Mr. Maynard asked for an explanation of what was happening to him long after the other officers arrived on the scene which supports Mr. Maynard’s testimony that he did not receive an explanation from Officer Baker.

184When he was given the opportunity to describe Mr. Maynard’s demeanour, Officer Baker did not describe Mr. Maynard as aggressive or threatening or confrontational. He described Mr. Maynard as a person who was asking questions about what was happening. Officer Baker’s interpretation of that behaviour was not that Mr. Maynard might have legitimate questions about why a police officer would quietly follow him home and park in front of his house. Officer Baker testified that he viewed Mr. Maynard as someone who was using questions in an attempt to take control of the dialogue. Officer Baker also testified that Mr. Maynard invited him to search his car, which Mr. Maynard denies, but which nevertheless was interpreted by Officer Baker as an attempt by Mr. Maynard to “bait” him from behind the cover of his vehicle. Mr. Maynard’s hand movements and pivoting at the waist, which he also denies, were also interpreted by Officer Baker as signs that his life was in danger.

185Given this attitude toward Mr. Maynard, and the fact that Officer Baker viewed him with each passing moment as becoming more of a suspect, I find that it is more likely that Officer Baker was confrontational and did not engage in a dialogue which involved the sharing of information with Mr. Maynard about the circumstances of the investigation. I also find that his interpretation of Mr. Maynard’s behaviour and his efforts to bring Mr. Maynard into compliance with his demands was linked to his initial act of singling Mr. Maynard out for investigation because of his race.

186There were a number of contradictions in Officer Baker’s testimony which I have already addressed. I also found Officer Baker’s testimony lacking in reliability with respect to the elements of the dialogue that he and Mr. Maynard engaged in. Officer Baker claimed to have written down some verbatim statements in his notes. When he was asked to clarify which statements were verbatim and which were not, he undertook that exercise without regard to the fact that he had not indicated at the time of his note taking which statements were in fact verbatim. In order to confirm that these statements were verbatim at the time of his testimony he would have had to have an independent recollection of which statements were verbatim and which were not. Given his heavy reliance on his notes, it would have been impossible for Officer Baker to reconstruct during his testimony which of those statements were verbatim and which were not. In addition, Officer Baker testified that Mr. Maynard made the statement “if you shoot me, you’re going to get it” which he identified as verbatim, while Officer Stevenson testified that he heard something like “you will be fucked if you shoot me”. Despite having no contemporaneous reference to verbatim statements in his notes and the fact that he had also been very shaken by the whole incident, Officer Baker testified that he was certain that at least his own statements were verbatim. I drew the inference from that testimony that Officer Baker was advancing the version of the events which most favoured him.

187I also found Officer Baker’s testimony that after he withdrew his firearm, Mr. Maynard mocked him by casually speaking into his cell phone that Officer Baker was now pointing his gun at him, completely incongruent with the gravity of the situation.

188I recognize that the work of a police officer like Officer Baker is tremendously difficult, particularly when he is confronted with the most dangerous kinds of investigations, including gun calls. Officer Baker testified that he was very shaken by the incident and “shocked” that it happened at all. I do not rule out the possibility that given the nature of the incident, the speed with which it unfolded, Officer Baker’s inexperience in general and his admission that this was the first time he took the lead in a high-risk “take down” of this kind, that Officer Baker may have been confused about exactly what point in the incident he provided Mr. Maynard with information about his investigation.

189Officer Baker no doubt found himself in a very difficult situation when Mr. Maynard reacted the way he did. I can understand why Officer Baker found Mr. Maynard’s conduct toward him troubling. Mr. Maynard claimed to be seeking a dialogue with the officer but escalated very quickly into profanity and defensive behaviour. However, the person responsible for taking control of this dialogue, de-escalating the growing tension and ensuring a safe outcome was Officer Baker. The decision to commence an investigation of Mr. Maynard was made with little reliable information and it set in motion a course of events which could have had much more tragic consequences for either or both of them.

190I find that the explanations offered by Officer Baker do not fully address his conduct toward Mr. Maynard and that this incident happened to Mr. Maynard in part because he was a young black man.

191Having found a breach of the Code I now turn to the question of the appropriate remedy.

REMEDY

192The Tribunal is empowered under the Code to make remedial orders addressing compensation, restitution and anything else which, in the opinion of the Tribunal, would promote future compliance with the Code. The parties are seeking both monetary compensation and public interest remedies directed at promoting future compliance with the Code.

Injury to Dignity, Feelings and Self-Respect

193The Commission and Mr. Maynard are seeking $40,000.00 in compensation for injury to dignity, feelings and self-respect.

194There are a number of factors which the Tribunal has considered in determining the quantum of compensation for injury to dignity, feelings, and self-respect which I have considered in this case. Those factors include: the over-riding consideration that an award of compensation on these grounds recognizes the inherent value of the right to be free from discrimination and the experience of victimization; the complainant’s sense of vulnerability, humiliation, hurt feelings, loss of self-respect, dignity and confidence; the dual considerations of the objective seriousness of the conduct and the effect on the particular complainant who experienced discrimination.

195Mr. Maynard testified that he was terrified by the experience, humiliated in front of his friends and neighbours, and experienced a profound sense of shame at the thought of his parents learning about his experience. He testified that he has changed his driving habits and avoids activities which might bring him into the presence of the police in his community. Mr. Maynard testified that he finds it difficult at work when he sees members of the police service escorting people to the emergency room of the hospital. He remains uncomfortable visiting the home of his parents where this incident took place.

196There was no dispute that Mr. Maynard carries with him to this day a lasting sense of anxiety and fear whenever he sees a police officer or relives the confrontation with Officer Baker. On any objective standard, what Mr. Maynard experienced would be considered extremely serious and it comes as no surprise that he finds himself unable to completely recover his sense of the man he was before the incident.

197Mr. Maynard testified about this as a watershed experience in his life. There is now a dissonance for him between the man he once perceived himself to be and the man he believes he is perceived to be by the police. His belief in himself as a hard-working, educated, law-abiding man who would not hesitate to call on the police at any time for help has been replaced with the fear that he could once again be singled out as a potential suspect in a serious crime. While Professor Wortley touched on this issue in his testimony, I found Mr. Maynard’s evidence on this point to be compelling on its own.

198There were no other cases that the parties could point me to which involved substantiated allegations of racial discrimination in circumstances where the complainant had been held at gun-point by a police officer. In Phipps, the Tribunal awarded $10,000.00 for inappropriate comments and conduct in the course of an unwarranted investigation. In Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14, the Tribunal ordered $20,000.00 compensation in circumstances where a woman was humiliated during the course of an investigation into accusations of theft by her at a retail store.

199Although the incident between Mr. Maynard and the respondents lasted only a few moments, I agree that there is sufficient evidence related to the seriousness of the conduct and the impact on Mr. Maynard to make an award of $40,000.00.

200I therefore find that the respondents Officer Baker and the TPSB are jointly and severally liable for the payment of damages for injury to dignity, feelings and self-respect in the amount of $40,000.00.

Policy Initiatives to Promote Future Compliance with the Code

201The Commission is seeking an Order that the TPSB bring the circumstances of this Complaint and the Tribunal’s decision to the attention of the Project Charter Learning Sub-Committee to specifically consider the development of a written directive and/or protocol dealing with non-discriminatory responses to “gun calls”.

202In my view it is not necessary to make this Order. The Commission, whose mandate is the promotion, protection and advancement of human rights, is a signatory to Project Charter and is in the best position to urge the TPSB to undertaking initiatives which would address the findings in this Decision.

203Both the Commission and the complainant are seeking an Order that the TPSB remove or expunge the complainant’s record of arrest. The TPSB consented to taking this action during the course of the hearing. I will remain seized of this issue in the event that there are any issues arising from non-compliance with this agreement.

204The complainant is seeking an apology for the manner in which he was treated. In these particular circumstances, I agree with counsel for Officer Baker that although Mr. Maynard perceives an apology as remedial, it would be perceived by the respondents as a punishment. In my view, a forced apology is not a useful tool for remedying the effects of discrimination.

205The complainant is also seeking broad public interest remedies which go beyond those requested by the Commission. Those requests include the retention of independent experts to develop an Anti-Racial Profiling Policy or Directive, review existing policies and procedures on use of force with respect to the impact on racialized groups and to provide training to the members of the police service. The complainant is also seeking to ensure that complaints against officers relating to racial bias and/or unnecessary use of force are factored into the assessment of an officer’s performance review and/or promotion. The complainant is also requesting that the TPSB be directed to collect data disaggregated by race and gender for all incidents involving the drawing of or use of guns by the police officers for a period of one year and the retention of an expert in data collection to assist them with this process and make the results publicly available.

206I note that these remedies are requested by the complainant and not the Commission. The complainant argues that his experience arises not from the individual actions of one officer, but a culture within the police force which has yet to recognize and deal with the impact of racial profiling in policing.

207Although I appreciate the seriousness of the conduct experienced by Mr. Maynard and the potential for that conduct to arise from systemic racial bias, I decline to exercise my discretion to order the public interest remedies sought by Mr. Maynard on the basis of the evidence before me. To do so could cause interference with the collaborative work of the Commission and the TPSB. There was insufficient evidence that the work of the Commission and the TPSB together is incapable of bringing about the changes that Mr. Maynard is hoping to see in policing in Toronto. Mr. Maynard has made a considerable contribution to those efforts by coming forward and enduring the process of having his allegations adjudicated. As a result, I have determined that it is appropriate to follow the decision in Phipps. In that case, which involved the same respondent, the Tribunal recognized that since 2005, the TPSB has been involved in a series of actions to reduce the occurrence of racial discrimination in policing. As was the case in Phipps, those efforts are contained in the uncontested statement of facts filed by the TPSB in this proceeding.

208Having found that the respondents Officer Baker and TPSB breached the Code, the Tribunal makes the following order:

1. Within 30 days of the date of this Decision, the respondents shall pay Mr. Maynard $40,000 for his losses arising from the infringement of his rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C. 43, as amended, from the date of the Application;

2. The respondent shall pay the complainant post-judgement interest on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act.

3. I remain seized to deal with any outstanding issues associated with the agreement to expunge Mr. Maynard’s record of arrest.