HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Naser Soufan
Applicant
-and-
The Regional Municipality of Peel Police Services Board,
Pawel Pepis and Justin Wall
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Soufan v. Regional Municipality of Peel Police Services Board
APPEARANCES
Naser Soufan, Applicant ) Self-represented
The Regional Municipality of Peel )
Police Services Board, Pawel Pepis, ) Patty Murray, Counsel
and Justin Wall, Respondents )
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, colour, place of origin, citizenship and creed in relation to an arrest which occurred on October 21, 2010.
2By Case Assessment Direction dated February 3, 2012, the Tribunal granted the respondents’ Request to schedule this matter for a Summary Hearing pursuant to the Tribunal’s Rules of Procedure. The hearing took place by teleconference on April 19, 2012.
3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could form the basis for a violation of the Code. In other cases, the focus will be on whether the applicant can point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized in Dabic the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant’s allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent’s witnesses.
5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
6I have concluded that the Application must be dismissed for the following reasons.
ANALYSIS
7The two individual respondents in this matter are police officers, employed at all relevant times by respondent, the Regional Municipality of Peel Police Services Board.
8The applicant alleges that he was the subject of an improper investigation by the individual respondents which lead to his arrest for uttering a death threat to a neighbour in his apartment building. He states in his Application that the individual respondents treated him unfairly by not considering a video tape of the interaction in the lobby of his building, or taking witness statements from a number of people who observed the interaction including the applicant’s wife. The applicant alleges that he was not the aggressor in the incident but that he was defending his four-year old child, who was being attacked by the neighbour’s dog. The applicant is seeking compensation for the legal fees he expended in relation to the criminal charge which he pled guilty to. He is also seeking to have his conviction “cleared” and for a criminal charge to be laid instead against his neighbour.
9In coming to the conclusion that he experienced discrimination, the applicant relies on his allegation that the individual respondents arrested him after asking him questions about his religion, ethnicity, place of origin and his status in Canada. The applicant also alleges that the individual respondents asked his wife if he was Muslim. He believes that once the police confirmed that he was Muslim they relied on this as the basis for his arrest.
10The individual respondents deny that they asked either the applicant or his wife about the applicant’s religious beliefs but that the applicant’s wife volunteered that her husband was Muslim. The individual respondent’s also argue that information related to the other prohibited grounds was obtained for identification purposes only since the victim could provide only a description of the applicant and not his name.
11The applicant pled guilty before Justice P.H. Wilkie on March 23, 2011. During the course of the plea the applicant agreed that he had uttered a death threat toward a neighbour in the same apartment building. His counsel added to the record the fact that the neighbour had two dogs in the elevator with him at the time and that the dogs were jumping up and down on the applicant’s children. However, the applicant agreed to the basic fact that he was the aggressor and repeatedly told the neighbour that he was going to kill him.
12I agree with the respondent that the judgment of the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, is determinative of the issue in this Application. The Supreme Court clearly held in Toronto (City) v. C.U.P.E. that it is improper to attempt to impeach a judicial finding by re-litigating the matter in a different forum. The Tribunal is required to give full effect to the findings of a criminal court in this matter.
13This is not to suggest that the Code does not apply to the conduct of officers in the course of their investigation, whether or not an applicant ultimately pleads guilty to a charge. However, in this case, the applicant alleges that he was unfairly arrested because of discrimination and he is seeking to have this Tribunal reverse the outcome of the criminal proceeding. His guilty plea undermines his submission that the neighbour was in fact the aggressor and that the individual respondents arrested the wrong person because of discrimination.
14Accordingly, the Application is dismissed on the basis of my finding that there is no reasonable prospect of success.
Dated at Toronto, this 30th day of April, 2012.
“Signed by”
Leslie Reaume
Vice-chair```