Bahramzadeh-Germi v. Toronto Police Services Board, 2013 HRTO 1137

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reza Bahramzadeh-Germi

Applicant

-and-

Toronto Police Services Board and Chief William Blair

Respondents

DECISION

Adjudicator: Catherine Bickley

Date: June 27, 2013

Citation: 2013 HRTO 1137

Indexed as: Bahramzadeh-Germi v. Toronto Police Services Board

APPEARANCES

Reza Bahramzadeh-Germi, Applicant

Self-represented

Toronto Police Services Board, Respondent

David A. Gourlay, Counsel

Chief William Blair, Respondent

Lisa C. Cabal, Counsel

introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race and ethnic origin. The applicant describes himself as “Iranian (west Asian) by birth” and a Canadian citizen. The Application also alleges reprisal.

2On August 23, 2012, the Tribunal issued an Interim Decision incorporating a July 18, 2012 oral ruling dismissing part of the Application: Bahramzadeh-Germi v. Toronto Police Services Board, 2012 HRTO 1615. The only remaining portion of the Application concerns an alleged encounter between the applicant and Officer Norman Smart at Toronto Police Headquarters on July 20, 2009.

3On September 19, 2012, I heard oral testimony from the applicant and from Officer Smart.

procedural issues

Adjournment Request

4On September 19, 2012, at the start of the second day of hearing, the applicant requested an adjournment “for two weeks or three weeks or for a month”. He stated that he continued to experience chronic pain, that he had not slept the night before the hearing and that he found it hard to focus. He stated that it was okay for the hearing to go ahead but he would prefer to reschedule. Both respondents opposed the request for the adjournment, noting that a witness had come from out of town and that the hearing would likely run for less than the full day.

5I was not persuaded by the applicant’s submissions that an adjournment for a period of two weeks or a month would see a change in his health situation. The applicant did not suggest that he would no longer be experiencing chronic pain or would be able to sleep better after an adjournment of two weeks or three weeks or a month. He said that he was able to proceed with the hearing but it was his preference to have an adjournment. It also appeared that the remainder of the hearing would be relatively brief.

6In the circumstances, I denied the adjournment while noting that there would be some breaks during the hearing and that the applicant could request additional breaks at any time if he needed some time to rest, review documents or gather his thoughts. The hearing was finished by mid-day despite a number of breaks ranging in length from 15 to 50 minutes.

Request To Re-Open The Applicant’s Case

7At the end of Officer Smart’s examination in chief, the applicant asked to re-open his case, proposing to give additional evidence. It appeared that he wanted to further explain his encounter with Officer Smart. This request was opposed by respondents’ counsel. The applicant did not provide any reason why he had not been able to provide the proposed additional evidence at the time of his earlier testimony. I denied the applicant’s request to re-open his case.

Submission Of New Evidence

8The applicant stated that he would be more comfortable making his final submissions in writing and that request was granted.

9The applicant submitted, with his reply to the respondents’ final submissions, two documents that had not been entered into evidence at the hearing. He did not explain why those documents had not been entered into evidence during the hearing nor did he offer any explanation why they should be accepted at this late stage of the process. The submission of these documents seemed to be an effort by the applicant to repair weaknesses in his evidence that had been pointed out in the respondents’ final submissions. It would not be appropriate to accept additional evidence at this stage of the proceedings. Accordingly, I have not considered these documents in reaching my decision. I have also disregarded the extensive portions of the applicant’s final submissions which deal with the part of the Application that was previously dismissed.

evidence

10The applicant testified that he went to Police Headquarters on July 20, 2009 to file a complaint about a police officer. When he asked for a complaint form from a police officer with the nametag N. Smart, that officer asked him where he was from. He answered “Iran”. Then the police officer said:

Look, I was in Iraq. I was beaten, tortured and decided to come back to Canada. Why you not go back to Iraq?

11He also testified that Officer Smart’s “appearance was very, even if he doesn’t say anything, his manner discriminatory, hateful”. The applicant said that he tried to stand back so that Officer Smart would speak more loudly and others would hear him if he repeated “Iraq”.

12He further testified:

I tried to take badge number. He show his chest to me. Show “who the hell you are”. Didn’t say “get lost” but manner discriminatory. Very discriminatory. This country not safe.

From that day I thought police officer saying “guy going to shoot you, if this country not safe, go your country”. Feel not safe.

13The applicant testified that he then went to visit his lawyer and discussed taking action against Officer Smart. He entered into evidence a letter dated July 20, 2009 from his lawyer addressed “To whom it may concern”. The letter stated that the lawyer had been retained by the applicant through legal aid to deal with certain criminal charges. The letter went on to note the applicant’s housing issues and some concerns of the applicant with the Toronto Police Service. It further notes that the applicant “alleges he was told by a Toronto Police Service representative to return to Iraq if he has a complaint”. The letter concludes by stating that as the lawyer has only a limited retainer from legal aid, he cannot assist the applicant with his complaint.

14When asked what time he visited police headquarters, the applicant first testified that it was “between 10 to 2 p.m. or 10 to 11:30 a.m.,” then that it was between 10 and 11:30 a.m. “but if not could be between 10 and 3” and then “probably 10 to 11:30”. He was adamant that his visit was “100% no doubt” on July 20, 2009.

15Officer Smart’s schedule was entered into evidence. It showed that he worked at the duty desk on July 20, 2009 from 13:30 to 23:30 (i.e., 1:30 p.m. to 11:30 p.m.). He testified that he had no recollection of meeting the applicant and that he did not recognize the applicant when he saw him at the hearing. He does not recall anything out of the ordinary about his shift on July 20, 2009. He further testified that he would not have made the comments that the applicant alleged he made. Officer Smart also testified that he had never been to Iraq or to any other area of the Middle East and had never been in the armed forces.

16Officer Smart testified that the duty desk is located on the ground floor of Police Headquarters. It is a busy place, acting as “the hub” of the police station and anything that goes on in the police force goes through the duty desk. At any given time, there are members of the public present as well as civilian employees of the police force and a variety of members of the police force, including senior officers, passing through the area.

17Officer Smart explained that when a member of the public came to file a complaint, they would usually first see a clerk and then be directed to an officer at the duty desk. When he was on the duty desk and someone approached him with a complaint, he would stop them “right then” and get them a copy of the complaint form contained in a booklet (“talk to us: step-by step how to make a complaint against the police”) that explains how to file a complaint.

18Officer Smart said he would not have any discussion with someone who wanted to file a complaint other than providing them with the complaint form and booklet and briefly explaining the process to file a complaint. He had been trained not to discuss complaints in order to avoid influencing someone who wants to file a complaint. He would simply give the person the booklet, explain that the back section of the booklet is where they can fill out their complaint and that they can either fill it out at the desk or take it home and bring it to any police station or back to Police Headquarters. If the person was upset, Officer Smart would explain the process once, let the person “cool down” and then explain the process again. If the person persisted in trying to discuss his or her complaint, Officer Smart said he would “always put my hands down and say it’s time to leave now.” The impression Officer Smart gave in his testimony was that he would make this gesture and statement calmly but forcefully while leaning toward the person.

19The only exception to the process described above would be if an individual arrived with torn clothing or injuries. In that case, Officer Smart would immediately call an investigator and the complaint would be taken then and there. Also, Officer Smart would take notes when someone arrived with torn clothing or injuries. His practice, however, was not to take notes about his interaction with each and every person who came to the duty desk. It would not be feasible to do so as he deals with so many people in the course of a day. He does not have any notes of an encounter with the applicant.

issues

20This Application raises two factual issues:

1. Did the applicant have an interaction with Officer Norman Smart at Police Headquarters on July 20, 2009?

2. If so, did Officer Smart treat the applicant in a discriminatory manner based on his race or ethnic origin or as a reprisal for attempting to claim his rights under the Code?

21The relevant Code provisions are:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. Every person has the right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.

analysis

22The respondents acknowledge that if all of the applicant’s allegations are proven, there should be a finding of discrimination. They submit, however, that significant inconsistencies in the applicant’s evidence and differences from Officer Smart’s evidence should result in a finding of no discrimination.

23It is well established that an applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation occurred. Clear, convincing and cogent evidence is required in order to satisfy this onus. See: F. H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. Thus, to succeed in this case, the applicant must show that he had an interaction with Officer Smart during which Officer Smart treated him in a discriminatory manner based on his race or ethnic origin or as a reprisal for pursuing his rights under the Code.

24In considering issues of credibility I am guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 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 carries 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 a 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 [emphasis added].

25I have also found helpful the Ontario Court of Appeal’s comments in R. v. Morrissey, 1995 CanLII 3498 (ON CA), (1995), 97 C.C.C. (3d) 193, at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

26Having considered all the evidence, both oral and documentary, I have concluded that while the applicant did have an encounter with Officer Smart the nature of that encounter is not as described by the applicant. In my view, while the applicant did his best to recount his experiences as he remembered them, his memory is unreliable and his recounting of his encounter with Officer Smart is not consistent with the preponderance of probabilities. In other words, he is sincere but mistaken.

27I find that the applicant has established that he visited Police Headquarters on July 20, 2009 and spoke with Officer Smart. The applicant’s testimony was confused and inconsistent regarding the time of day that he visited Police Headquarters. However, there is other evidence which persuades me that he did indeed visit Police Headquarters on that date and did encounter Officer Smart.

28An important piece of evidence in this regard is the July 20, 2009 letter from the applicant’s lawyer “To whom it may concern”. The respondents suggest in their final submissions that the letter was suspect because it was not on the lawyer’s letterhead and the lawyer was not called as a witness at the hearing. I note that the letter was entered into evidence at the hearing without any objection from either respondent. Moreover, they did not put to the applicant during cross-examination any challenge to the authenticity of the letter. The letter is written in a style consistent with having been written by a lawyer. Further, the letter’s wording is not in any way comparable to the style of those documents in evidence written by the applicant. There is no persuasive evidence that the letter is fabricated.

29The letter is supportive of the applicant’s testimony that after his encounter with Officer Smart, he visited his lawyer seeking assistance. The letter is dated on the day that the applicant testified he visited Police Headquarters, encountered Officer Smart and then went to his lawyer’s office. The relevant portion of the letter states:

Mr. Bahramzadeh is attempting to file a formal public complaint at the Toronto Police Service Headquarters but his matter it seems is being trivialized and he alleges he was told by a Toronto Police Service representative to return to Iraq if he has a complaint.

30In addition, while the applicant was confused in his testimony as to what time of day he visited Police Headquarters, I do not find this fatal to his assertion that he did visit there. He was consistent in his assertion that he visited Police Headquarters on July 20, 2009. That was a day on which Officer Smart was working during the afternoon. Further, the applicant was able to identify Officer Smart by name. I find the respondents’ suggestion that perhaps the applicant discovered Officer Smart’s name during another visit to Police Headquarters somewhat tenuous. Although there was evidence that the applicant had visited Police Headquarters more than once, the only other visit given a specific date was July 23, 2009. According to his schedule, Officer Smart did not work on July 23, 2009. I conclude that the applicant observed the nametag “N. Smart” during an encounter with Officer Smart on July 20, 2009.

31However, I am unable to conclude that Officer Smart made discriminatory comments to the applicant or otherwise treated him in a discriminatory manner. The applicant’s testimony regarding what was said by Officer Smart was inconsistent from moment to moment. For example, he testified that Officer Smart made comments about Iraq and told him he should return to Iraq, then a short time later testified that even if Officer Smart did not say anything, his manner was discriminatory and hateful. In his application and in his final submissions his allegations about Officer Smart’s comments are more detailed than in his actual testimony, with additional comments about the safety of Iraq alleged as well as a comment from Officer Smart that “I remember you”. I find that the applicant’s confusion about what was actually said by Officer Smart compared to what the applicant felt was implied by Officer Smart’s body language leaves considerable doubt as to the content of the conversation.

32In addition, it seems extremely unlikely that a police officer would start making derogatory references to an individual’s race and ethnic origin (or perceived place or origin) in an environment busy with not only other police officers but also members of the public. This is particularly so when a regular and routine part of his job was to provide people who wished to file complaints with the necessary booklet and form and a brief overview of the process. In the course of his job, Officer Smart interacted with many people who were upset and had a standard process for doing so. I am not convinced that he departed from that process in this case.

33The applicant has not met his onus of proving on a balance of probabilities that Officer Smart treated him in a discriminatory manner during their encounter on July 20, 2009. The evidence he provided about their encounter was not clear, convincing and cogent as required to meet that onus.

34It is possible that the applicant interpreted Officer Smart’s refusal to discuss his complaint to be dismissive and that in his mind he attributed statements to Officer Smart that were not actually made. As noted above, in paragraphs 12 and 32, in some instances the applicant has interpreted body language or “manner” as equivalent to the uttering of words.

35In conclusion, I find that while the applicant holds a sincere belief that Officer Smart treated him in a discriminatory manner, his evidence in that respect is not reliable and he has not met his onus of establishing that Officer Smart did so.

Decision

36For all of the reasons set out above, this Application is dismissed.