HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Howell
Applicant
-and-
York Regional Police and the Regional Municipality of York Police Services Board
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Howell v. York Regional Police
APPEARANCES
Elizabeth Howell, Applicant
Self-represented
York Regional Police and The Regional Municipality of York Police Services Board, Respondents
Stephen Maio, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to police services because of disability and sex.
2The Application arises from events on February 6, 2012 when the applicant was arrested at her home and taken to a police station where she was held and then released.
3The Application was delivered to the respondents. The respondents filed a Response and requested that the Application be dismissed as having no reasonable prospect of success. In a Case Assessment Direction dated March 21, 2013, the Tribunal directed a summary hearing to determine if the Application should be dismissed as having no reasonable prospect of success. The hearing was held on June 18, 2013 by telephone conference call.
4The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue 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 a part thereof will succeed.
5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
6The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether there is no reasonable prospect that the evidence that the applicant proposes to call will establish that the alleged discrimination occurred.
7In some cases, the evidence that the applicant proposes to call is her own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s proposed evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis. However, at the summary hearing stage the Tribunal does not generally assess whether the applicant’s testimony at a hearing will be found to be credible. Assessment of credibility is generally only done when evidence is heard and is subject to cross-examination by the respondent and questioning by the Tribunal. This does not occur in a summary hearing.
Background
8The applicant alleges that she was discriminated on the basis of disability when she was handcuffed. The applicant states that she informed the officers that she has osteoarthritis and that she was concerned that the handcuffs would aggravate this condition. She alleges that the officers told her that it might not be necessary to handcuff her if she was co-operative. She says that she was co-operative and that she was not handcuffed during the walk to the patrol car from her house. However, she then was handcuffed before she was put in the car. She states that the handcuffs aggravated the pain in her wrists and arms. She alleges that she asked the officers if she could take her pain medication with her from the house but she was not allowed to.
9The applicant alleges that when she got to the police station she was placed in a large holding cell. She alleges that the cell had a strong smell of ammonia. The applicant states that she has asthma and that this condition was aggravated by the ammonia. She did not have her puffer medication with her and experienced difficulty breathing. She was taken to a room with a telephone and allowed to speak to duty counsel. Her symptoms improved when she was in the room and she asked to be allowed to stay in the room which was secure rather than returning to the holding cell. She states that this request was refused.
10The applicant also alleges that she was discriminated against on the basis of sex. She states that two officers came to her house to make the arrest and each came in a different patrol car. One of the officers was male and the other was female. She was told that the male officer was the arresting officer and that she would have to go with him. The applicant stated that she asked to go with the female officer and was refused. She believes that this was discriminatory.
11The complaint that led to the applicant's arrest involved a male person who complained to the police that the applicant had uttered a threat. The applicant states that she had earlier complained to the police about him and that nothing was done. She alleges that this was discriminatory on the basis of sex.
12The respondents assert that the Application is really an expression of the applicant’s belief that the arrest was unjust and unfair. The respondents state that standard protocol is to handcuff a suspect who is arrested. This is for the protection of the officers and others who may be involved. Generally a suspect is handcuffed with the suspect’s hands behind the back. In this case, the officers accommodated the applicant by handcuffing her with her hands in front.
13The respondents acknowledge that there was likely a smell from cleaning products in the holding cell. Cleaning products are essential for hygiene reasons. The respondents state that the applicant did not indicate that she has asthma or that she was having trouble breathing and that the applicant did not ask for medical attention in relation to her asthma in the time she was at the police station. The respondents further state that the applicant was not held for very long and that she was processed and released within a few hours of her arrest.
Conclusions
14In my view, it is clear that the applicant’s allegation that she experienced discrimination on the basis of sex has no reasonable prospect of success. A suspect who is arrested may be arrested by an officer who is male or female. The fact that the applicant was taken in the car of the male officer rather than the female officer is not evidence of discrimination. The mere fact that the applicant’s request that she go with the female officer was rejected is not evidence of discrimination.
15The applicant’s allegation of discrimination related to the prohibited ground of sex that she had earlier complained about the male person whose complaint about her led to her arrest and that nothing was done when she complained is not, again, in itself evidence of discrimination. It may be evidence that the police acted differently in regard to the applicant’s complaint than they did in regard to the male person’s complaint about her. However, the applicant does not allege that her complaint was of the same nature as the complaint that was made about her. In my view, even if it is true that police did not follow up after she made a complaint this is not evidence of discrimination on the basis of the Code-protected ground of sex.
16The situation with regard to the applicant's allegations about discrimination on the basis of disability is less clear. In some circumstances, the events described by the applicant could be evidence of discrimination. There are situations where it is appropriate, and necessary, for the police to consider a person’s disability in their interactions with a suspect and to determine if appropriate accommodation can be provided without endangering the health and safety of those involved. In this case, the applicant told the officers that she has osteoarthritis and that she was concerned about the handcuffs. The arresting officers’ notes support this and indicate that for this reason, the handcuffs were applied so that the applicant’s hands were in front rather than in back, which is the standard protocol.
17The officers therefore took steps to accommodate the applicant’s osteoarthritis condition. However, the applicant alleges that this was not sufficient. She suggests that she should not have been handcuffed at all. She also alleges that her request that she be allowed to take pain medications or take the medications along with her was rejected.
18The applicant alleges that the police discriminated against her by forcing her to stay in the holding cell where she was exposed to ammonia fumes that aggravated her asthma.
19The respondents note that hygiene requires that cells be cleaned and disinfected. As a result, the cells will typically have some residual smell.
20The applicant believes that she should have placed in a different cell or allowed to stay in the telephone room rather than the holding cell. The applicant alleges that she told the officers that she was suffering from an asthma attack because of the fumes and that it should have been obvious that she was having problems breathing.
21The applicant says that she required medical attention some days later and she thinks that the records from the hospital might show that this attention was necessary because of the exposure in the holding cell.
22The respondents have provided detailed notes of the officers who were involved in processing the applicant on the day in question. These notes confirm some of the applicant’s history, for example, the fact that she indicated that she has arthritis. They do not indicate that the applicant said that she had asthma or that she was noted to be having problems breathing.
23As noted earlier, I must determine if there is no reasonable prospect that the applicant will be able to prove that she experienced discrimination in the way she alleges. At this stage, I am not deciding if the applicant has been able to prove that she experienced discrimination, but only if the applicant has been able to point to evidence that she will bring out at a hearing that, if accepted as true, will support her allegations.
24In my view, the issues of whether the respondents discriminated against the applicant because of disability, either with respect to the alleged events when the applicant was first arrested, or with respect to the allegations relating to ammonia exposure, are issues that can only be determined on the basis of evidence. I am satisfied that these allegations cannot be dismissed at this time on the basis that there is no reasonable prospect of success.
DECISION
25The Application is dismissed in part.
26The allegations that the applicant experienced discrimination because of sex are dismissed because there is no reasonable prospect that the applicant could successfully prove those allegations.
27The Tribunal will continue to process the Application with respect to the allegations of discrimination on the basis of disability.
28The parties are directed to advise the Tribunal within two weeks of the date of this Interim Decision if they would like to try mediation to settle the Application. If both parties do not agree to try mediation, the Tribunal will continue to process the Application and the scheduling of a hearing.
Dated at Toronto, this 20^th^ day of June, 2013.
”signed by”
Brian Cook
Vice-chair