HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amalesh Chakraborty
Applicant
-and-
The Regional Municipality of Peel Police Services Board
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Chakraborty v. Peel (Police Services Board)
APPEARANCES
Amalesh Chakraborty, Applicant
Atulya Sharman, Counsel
The Regional Municipality of Peel Police Services Board, Respondent
Patricia G. Murray, 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 goods and services because of colour, ethnic origin, place of origin and race.
2In his Application the applicant alleges that for discriminatory reasons he was targeted and issued a Provincial Offences Notice (“traffic ticket”) for speeding. The applicant also alleges that he was not speeding and when he asked for proof that he was speeding the officer refused to provide any. In essence the applicant alleges that he was given the traffic ticket because of his colour, ethnic origin, place of origin and race.
3This case was initially scheduled for a preliminary hearing to hear oral submissions on two issues raised by the respondent. The respondent sought the early dismissal of the Application pursuant to section 45.1 of the Code because it had been appropriately dealt with in another proceeding and because it was untimely. The Tribunal ordered that it the case be held in abeyance pending the release of the Tribunal’s decision in Claybourn v. Toronto Police Service, 2011 HRTO 1406, Leong v. Peel Regional Police Services Board, 2011 HRTO 1741 and de Lottinville v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1742 which raised the same issues.
4The applicant also challenged the traffic ticket. A trial was held in the Ontario Court of Justice on July 6, 2012. The applicant was convicted of the offence he was charged with and certain findings of fact were made in the course of the trial. Although the applicant attempted to do so, he was prevented by the court from raising his allegations of racial profiling in his defence.
5The respondent filed a Request for Order During Proceeding (“Request”) seeking the dismissal of the Application on the basis that the substance of the Application was determined in the trial. The request was denied on the basis that the applicant had been prevented from raising his allegations of racial profiling at trial. I also observed as argued by the applicant that the fact that a traffic ticket is upheld might not be a complete answer to a claim of racial profiling as argued by the applicant.
6It was also observed that the court had made certain findings of fact bearing on the issues in dispute in the Application. For example the court determined that the applicant’s vehicle was identified as speeding 200 meters from the police officer. Similarly the court concluded that there is no obligation on the part of an officer to show proof of a potential offence notice before issuing it. In light of these and other factual determinations made by the court and the allegations in the Application it was determined that it was appropriate that a summary hearing be held to determine whether this Application should be dismissed because it has no reasonable prospect of success.
7A summary hearing was held be teleconference pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
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.
9At the hearing the question was whether the applicant could point to any evidence that would, in light of the court’s conclusions, tend to establish discrimination. That is in light of the court’s conclusion that the applicant’s vehicle was identified as speeding some 200 meters from where the officer was located, what evidence the applicant had to support his claim of racial profiling. The applicant could point to no such evidence, rather the applicant argued that he should have the right to cross-examine the police officer who issued him the ticket and test the respondent’s assertion that the ticket was issued in good faith.
10The applicant is correct in pointing out that even if his vehicle was identified as speeding the police officer still has a discretion to issue the ticket or not. However before engaging the hearing process of the Tribunal, and the public and private costs associated with that process, there must be some evidence which would tend to support either directly or by inference that a protected ground might have been a factor in that decision, or exercise of discretion. In this case the applicant could point to none that was reasonably available to him or might be forthcoming from the respondent. In essence, the applicant’s case is based on mere speculation. In all of the circumstances I find that this Application has no reasonable prospect of success because there is no evidence which may be available to the applicant which would tend to establish a violation of the Code.
11The Application is dismissed.
Dated at Toronto, this 8th day of July, 2013.
“Signed by” __________________
David Muir
Vice-chair