HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
S.M.S.
Applicant
-and-
Toronto Police Services Board and Children’s Aid Society of Toronto
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: SMS v Toronto Police Services Board
APPEARANCES
S.M.S., Applicant
Self-represented
Toronto Police Services Board, Respondent
David Gourlay, Counsel
Children’s Aid Society of Toronto, Respondent
Carole G. Jenkins, Counsel
Introduction
1This is an Application filed on March 17, 2011, under s. 34 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, colour, citizenship, ethnic origin, creed, sex, family status and age.
2Both respondents, the Toronto Police Services Board (TPSB) and the Children’s Aid Society of Toronto (CAS) filed responses, denying discrimination contrary to the Code. Further, the CAS submitted that the matter as against it should be dismissed as the subject of the Application as against the CAS has been dealt with in another proceeding, namely a Child Protection Hearing in the Ontario Court of Justice.
3On March 12, 2013, the Tribunal issued a Case Assessment Direction (CAD) in this matter, directing, on its own initiative, that a summary hearing take place. A summary hearing was held by conference call and all parties participated.
4In the CAD, the Tribunal directed that at the summary hearing, the applicant would make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence upon which she will prove a link between the respondents’ actions and the grounds cited.
5In the CAD, the Tribunal also noted that the substance of the Application may have been appropriately dealt with, in whole or in part, by Child Protection Proceedings in the Ontario Court of Justice and/or court proceedings regarding criminal charges. The Tribunal directed that the parties also be prepared to make argument about whether or not the Application should be dismissed, in whole or in part, pursuant to s. 45.1 of the Code; on the basis that it would constitute an abuse of process for the Application, or part of the Application, to proceed; or, on the basis of issue estoppel.
6The summary hearing took place and all parties participated.
DECISION
7For the reasons that follow I find to allow this matter to proceed as against the CAS would be an abuse of process and it is dismissed as against the respondent CAS. I also find that portions of the Application as against the TPSB have no reasonable prospect of success and are dismissed on that basis. The remaining allegation in the Application as against the TPSB may be the subject of video evidence and a determination regarding that allegation is deferred in accordance with the directions provided in this Interim Decision.
ANALYSIS
Summary Hearings
8In 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. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:
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.
9In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, 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.
Application to the Facts
10The applicant alleges that the TPSB and the CAS “wrongfully accused [her] of schizophrenia on September 23, 2013 and arrested [her] under the Mental Health Act.” She identifies herself as a mother, as a Muslim and as a Canadian citizen.
11She alleges that she was detained from September 23, 2010 to October 1, 2010 at the “College Street Toronto jail” and the Vanier Detention Centre and that being separated from her son during this time was torture and discrimination on the basis of family status. She also alleges that there were “continuous honour crimes” committed against her while she was detained there, and that these were a violation of her rights on the basis of creed, sex, family status, age and citizenship.
12By way of background, she alleges that when she and her son returned to their basement apartment after an outing on September 22, 2010, they found that a fire had broken out and called the fire department. She alleges that the following day when she returned home with her son from his school, they found that a second fire had broken out. She states that she again called the fire department. She alleges that the police arrested her and put her in a police car, shutting the door on her finger, and that they did not permit her to enter her apartment in order to retrieve her proof of Canadian citizenship. She alleges that the space in the car was cramped and she found it difficult to breathe and that the police officer laughed all the way to the police station. She alleges that she “read the report on the computer screen in the police car and it said that I was innocent. Clearly a false arrest had been made”. She alleges that her life was being threatened and that the police would not listen to her when she said that she was innocent and had not caused the fire.
13She alleges that at the police station, two female police officers forced her to remove her hijab and all of her clothes. She alleged that the two female police officers threatened to molest her if she did not remove her clothes herself. She alleges that this was discrimination on the basis of creed and sex. She also alleges that “one officer began laughing before I removed my clothes and went into my pocket and scratched her finger in my pocket to harass me”.
14She alleges that at the police station she was forced to stay in a yellow room with a large heavy cell door, and that when she wanted to say her obligatory afternoon prayers, she was forced to do so in the prison room without having the opportunity to first do her necessary ablutions. She alleges she had no prayer rug, hijab, rosary beads or Holy Quran to read and that this was discrimination on the basis of creed.
15She alleges that the police questioned her about fire and that this was done “to conclude I have a mental illness”. She states that she does not suffer from depression, manic depression, schizophrenia or any mental illness, but that the defendants are discriminating against her by stating that she has schizophrenia and by denying her full custody rights to her son, the right to move and the right to live in good health “instead of a wrongful diagnosis”.
16She alleges that her rights were further violated when she was transported from the police station “to a North Ontario Police Station” by a white male officer and that she was still in handcuffs and without her hijab. She alleges that she was put in a dark truck, did not know where she was going, and that it was hot and suffocating. She alleges that the police officer was driving quickly and she felt that her life was being threatened.
17She also alleges that the officer forced her under these conditions to “another prison” where she told the two female and two male officers that she is not mentally ill. She alleges that she had to say her prayers without soap or fresh water to perform the necessary ablutions. Again, she alleges that she had no prayer rug, “prayer veil or praying needs”, nor did she have the Holy Quran. She alleges that the male Pakistani Urdu speaking officer and the Persian speaking officer were cruel to her, and refused to listen to her account regarding what had happened on the day of the fire and how she was innocent. She also alleges that the Pakistani officer and a white female officer “took [her] thumbprints” and wrote “WRITER”. She alleges that this was insulting and discriminatory as she was being arrested and penalized for being a writer.
18She alleges that a picture of her without “proper Islamic covering for police records” is not permitted according to Islamic law and practice, but that she was denied her hijab “throughout this prison experience”.
19Further, she alleges that when she was detained September 23, 201 she was not allowed to speak to a lawyer or to her family, and was told she would have a trial in the morning. She alleges that not being able to communicate with her son or her mother was torture and that it was discrimination on the basis of creed, family status and Canadian citizenship status.
20She alleges she had to take another uncomfortable ride in a TPSB vehicle on September 24, 2010 and that this was a violation of her rights as a citizen.
21She alleges that on September 25, 2010, she was at Vanier detention centre and describes further allegations of discriminatory treatment and also of abuse by guards there.
22She alleges that when she was in a prison cell, there was no privacy for using the toilet and that it was very embarrassing. She alleges that she was not able to use the washroom because it was so unhygienic and that this was discrimination on the basis of sex and there were both male and female officers who could invade her privacy.
23She alleges that every night during the 9 days of her detention she was “transported cruelly in the prisoners and court police trucks”.
24She alleges that after the period of her detention, she was released on bail to the surety of her oldest sister. She alleges that her sister is abusive and “infringes on my rights for full custody of my child and my right to move”. She alleges that the CAS violated her and her son’s human rights by not permitting them to “travel freely to our mosque, friend’s houses, the library and other outdoor activities” and that as a result they cannot go to various places and missed some “very significant religious events at our holy mosque”. She also alleges that due to the TPSB false charge and the CAS decision, she cannot move and live with her son free from abuse and harassment by her sister and by the CAS. She alleges that not being granted full custody of her son is a “violation of [her] family status”. She alleges that the CAS has “accused” her of suffering from schizophrenia and she is forced to take medication which she states she does not require.
25Among other things, by way of remedy, she requests that the Tribunal order that she not be required to take medications, medical treatment, or hospital admission, as well as an order that she be permitted to “live exclusively with [her son] without loss of dignity, for example, without requiring supervision, help, and inappropriate supports as recommended by Children’s Aid Association”.
26Further, she alleges that after her detention, she was forcefully taken by two white male police officers and her sister to the hospital for hospitalization. She alleges that there, she was given a “wrong dosage of medicine” and she fell asleep. She alleges that she is in good health and suffers from no mental illness.
27At the summary hearing, she essentially repeated the allegations made in her Application.
28In its Response, the TPSB asserts that it investigated the fire after the Toronto Fire Department advised that it looked “suspicious”. It asserts that the charges were subsequently laid against the applicant for arson and mischief, and were eventually resolved by means of a diversion program. At the summary hearing it submitted that the applicant pointed to no evidence to indicate that the charges were improper in the circumstances where it was the second fire in two days at her residence.
29The TPSB submits that it made contact with the CAS over concern for her son’s welfare when she was detained.
30The TPSB asserts that the applicant was held overnight and that before being placed in the prison population, she was searched by two female officers. It asserts that the search included removal of her hijab and that it was returned to her when she assured the officers she would not hurt herself with it. At the summary hearing, counsel submitted that he understands there is video surveillance showing that the applicant’s hijab was returned to her. The TPSB asserts that the police had received information indicating that the applicant may have been suicidal and that that was the reason for the “potential removal of her hijab”.
31At the summary hearing, with respect to the search conducted the evening of September 23, 2010, when she was required to remove her clothing, the TPSB submitted that it was only conducted once it was clear that the applicant would be detained overnight and that in such circumstances, such a search is always performed as a safety precaution. It submitted that this search was conducted in a private room, with only female officers in attendance. The applicant did not dispute this account.
32At the summary hearing, with respect to her claim that she was discriminated against on the basis of citizenship because she was not permitted to enter her apartment for her proof of citizenship, the TPSB submitted that the applicant has pointed to no evidence to establish that she was treated differently on the basis of citizenship and also noted that at the time, the apartment was the scene of a fire.
33With respect to the fact that a photograph was taken of the applicant without her hijab, the TPSB submits that the Identification of Criminals Act, R.S.C., 1985, c. I-1 (ICA), authorizes police officers to photograph and take fingerprints of individuals charged with an indictable offence under the Criminal Code, R.S.C., 1985, c. C-46. It submits that the applicant was charged with an indictable offence and that under the ICA, no criminal or civil liability can be found against a person who is authorized to photograph and fingerprint an individual.
34The TPSB asserts that the applicant’s photograph was stored in a Toronto Police Services database, which is accessible only to select staff who require access to do their jobs. The TPSB asserts that it is not accessible to the public and that it is “kept secure and used for police purposes”. It also asserts that the RCMP requires the Toronto Police Services to send it fingerprints and photographs for inclusion in its records. The TPSB asserts that the images must be accurate, reliable and a true representation of the individual’s appearance, and that the Toronto Police Services requested that the applicant remove her hijab for the photograph.
35At the summary hearing, the TPSB submitted that there is no evidence that the applicant requested clean water to perform her ablutions before prayer. It submitted that if the applicant required special facilities, she would have had to make a request for them, and then the respondent could have considered her request for accommodation.
36In its Response, the CAS submitted that this matter should be dismissed pursuant to s. 45.1 of the Code because another proceeding has in whole or in part dealt with the substance of the Application. In particular, it submits that the complaint as against the CAS has been dealt with in a Child Protection Proceeding in the Ontario Court of Justice. It submits that she alleges that the CAS discriminated against her by: wrongfully “accusing” her of schizophrenia; denying her full custody rights to her child; denying her the right “to live with good health instead of a wrongful diagnosis”; restricting her movement and activities with her child. It submits that all of those issues were the subject of a Child Protection Proceeding, which was resolved by way of a Court Order and Statement of Agreed Facts.
37The respondent CAS denies that it discriminated against the Applicant contrary to the Code. It submits that it had no involvement in the arrest or incarceration of the applicant and that once it was made aware she was in custody, it was required to make arrangements for the care of her son.
38The CAS submits that it was provided with information by the police, then conducted its own investigation to determine whether her child was in need of protection. It submits that once it determined her child was in need of protection, a Child Protection Application was commenced. It submits that on September 28, 2010, while the applicant was still being detained, Justice Zuker ordered that the applicant’s son be placed in the temporary care and custody of his maternal aunt, and the CAS included a copy of the Court Order of that date, along with the Child Protection Application and statement from the social worker involved. It also notes that Justice Zuker further ordered that the applicant attend as required to see her psychiatrist and to comply with treatment as recommended.
39The CAS submits that there were further court appearances regarding the Child Protection Application and that ultimately on July 26, 2011, it filed an Amended Protection Application. It submits that on October 25, 2011, the Amended Protection Application was resolved by way of Order of Justice Zuker, on consent, and notes that the Applicant executed a Statement of Agreed Facts. It provided a copy of the Statement of Agreed Facts and Justice Zuker’s October 25, 2011 endorsement. The CAS submits that given the content of the Statement of Agreed Facts and the Orders of Justice Zuker, all of the Applicant’s allegations against it have been resolved in the Child Protection Proceedings, and asked that the matter as against it be dismissed by this Tribunal.
40The Statement of Agreed Facts related a history of the applicant and the CAS, as well as an account of her detention following the fire, and indicated, among other things, that she had been diagnosed by two doctors as suffering from schizophrenia. It also indicated that she had never accepted her diagnosis. The Statement of Agreed Facts notes that the applicant is a caring mother, but indicated that she was not able at that point to provide the necessary care and supervision and structure to her son and requested that he be placed in custody of his maternal aunt, with the applicant having access to her son. It noted that the custody arrangement had been agreed to at a Family Group Conference, where all members of the family had agreed to and presented the plan.
41The applicant has not disputed any of the history or documentation provided by the CAS with regard to the Child Protection Proceedings.
Application as against the CAS
42The Application against the CAS is dismissed. The applicant alleges that the CAS “wrongfully accused” her of suffering from schizophrenia and that it violated her rights by not permitting her and her son to move and live with her son apart from her family, and has deprived them of the opportunity to go to their mosque, and to attend at various social and leisure activities. She has alleged that because she has not been given full custody of her son, the CAS is guilty of a “violation” of her family status.
43The applicant’s allegations against the CAS centre around the fact that her sister has been granted custody of her son, and that though she lives with her sister and son, she is not able to make decisions about her son without her sister’s approval. The issue before the court in the Child Protection Proceedings involved the determination of the applicant’s custodial rights. During that process the applicant ultimately consented to the custodial arrangement and to the factual background which was endorsed by the Court.
44In seeking to proceed with this Application, the applicant seeks to resile from her consent and seeks to have the Tribunal award her custody of her son. The Tribunal does not have the jurisdiction to interfere with a Court order or otherwise review the custodial order. In essence, she seeks to make a collateral attack on the Court’s determination of this issue and to relitigate the custodial order in these proceedings.
45The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”.
46In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at paragraph 55):
The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.
47In light of the fact that this is in essence an attempt to make a collateral attack on the determination by the court, and in light of the fact that the applicant had ultimately provided her agreement and consent to background facts which she now seeks to dispute and to a custody determination which she now seeks to overturn, and in light of the fact that this Tribunal does not have the jurisdiction to interfere with or oversee the Court’s determination, I find that to allow this matter to proceed as against the CAS would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice. Accordingly, the Application as against the CAS is dismissed as an abuse of process.
Application as against the TPSB
48It is clear that the applicant has found her interaction with the police to be a distressing experience. In her Application, she speaks passionately about an experience of feeling disrespected, and indicates that her dignity as a trained school teacher and as someone learned in the Quran, has been violated. She asserts that she is an intelligent woman who has completed post-secondary education and disputes that it is possible that she could suffer from mental illness. She also speaks of her love for her son. She speaks of freedoms in Canadian society and feels that certain of her freedoms have been violated. The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, however, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. It is perhaps useful at this point to clarify that nothing in this Interim Decision derogates from the applicant’s assertions that she is an intelligent and well educated woman who holds her religion dear to her and who is a loving mother.
49The applicant alleges discrimination due to citizenship. The only evidence she has pointed to in this regard is the fact that the arresting police officers did not permit her to obtain her proof of citizenship from the fire scene at her apartment. She has pointed to no evidence to indicate that this refusal to permit her to retrieve her proof of citizenship was because she was a Canadian citizen, or because of any of the other grounds cited in this Application. Without such evidence, her Application in respect of an allegation of discrimination on the basis of citizenship cannot succeed.
50The applicant also alleges that the car in which she was transported from the fire scene was cramped and that the officer laughed all the way to the station. She also alleges that her ride in a TPSB vehicle on September 24, 2010 was similarly uncomfortable. She has pointed to no evidence upon which she could rely to prove that the respondent made these rides unpleasant for her because of any of the Code grounds cited. Without such evidence, these allegations have no reasonable prospect of success and they are dismissed on that basis.
51The applicant alleges that the computer in the police car said she was innocent, and that a false arrest was made. She alleges that she felt her life was being threatened and that the police would not listen to her protestations of innocence. Though she said that the police later questioned her about the fire “to conclude that I have a mental illness”, she has not pointed to evidence upon which she would rely to link the allegation that she was arrested with the grounds cited. Without evidence that she was arrested because of any of the grounds cited, this allegation in the Application has no reasonable prospect of success and is dismissed.
52The applicant alleges that while she was in custody, before she removed her clothes, one female officer “went into my pocket and scratched her finger in my pocket to harass me”. The applicant has not pointed to any evidence she would rely upon to indicate that the officer’s alleged actions were linked to any of the grounds cited. Without such evidence, this allegation has no reasonable prospect of success and is dismissed.
53The applicant alleges that the respondents are discriminating against her by saying that she has schizophrenia and by denying her full custody rights and the right to move and the right to live in good health “instead of a wrongful diagnosis”. She has not pointed to evidence to establish how the TPSB would be responsible for the custody decision or the diagnosis of schizophrenia, nor has she pointed to any evidence linking the alleged actions of the TPSB to the grounds cited. Without such evidence, this allegation has no reasonable prospect of success and is dismissed.
54She alleges that the police officer who took her fingerprints wrote “Writer”, which the applicant believes is an indication that she was arrested and penalized for being a writer. The applicant has not pointed to any evidence linking this alleged action of the TPSB to the grounds cited. Without such evidence, this allegation has no reasonable prospect of success and is dismissed.
55The applicant alleges that she informed the two women police officers who searched her that her creed dictated that she could not be unclothed in front of women. The respondent TPSB has submitted that the search was necessary for reasons of safety when it was determined that the applicant would be detained overnight. The applicant has not disputed the necessity of the search, nor has she disputed that the search was conducted by female officers, in a private room. She has not indicated what further accommodation she required or could have been offered to her by the TPSB in these circumstances. Accordingly, there is no reasonable prospect of success for her allegation that this was discrimination on the grounds cited and it is dismissed on that basis.
56The applicant also alleges that while she was detained, she had to pray without doing her necessary ablutions first, and that she had no prayer rug, hijab, rosary beads or Holy Quran to read. She has not indicated that she made any objection at the time to the officers regarding the facilities available to her for her prayers. She did not indicate that she made any request for accommodation. Accordingly, she has not pointed to evidence she could rely upon to establish that the TPSB’s failure to provide these facilities was discrimination on the basis of creed or on the basis of any other of the grounds she cited. Accordingly, in these circumstances, these allegations have no reasonable prospect of success and are dismissed.
57Similarly, she submits that it is contrary to her creed to have a photograph taken without her hijab, but has pointed to no evidence to indicate that she informed the individual taking the photograph that this was the case, nor has she pointed to any evidence to indicate the gender of the officer taking the photograph. Again, if there was a religious proscription against having her photograph taken without her hijab, it was incumbent on her to make this known. In the absence of such information, she has not been able to point to evidence to establish a link between the respondent’s alleged actions and the grounds cited. Accordingly, this allegation is similarly dismissed.
58The applicant also alleges that two female police officers forced her to remove her hijab and that her hijab was not returned to her. Consequently, she alleges, she was subsequently seen by males and females without her hijab. The respondent TPSB asserts that there is video evidence to indicate that her hijab was returned to her. When I asked the applicant what her response was to the TPSB’s assertion regarding the existence of a video, she reiterated that her hijab was not returned to her. In these circumstances, I find that it is appropriate to order the TPSB, if it possesses video evidence of the return of the applicant’s hijab, to provide that video evidence only. It is directed to provide such video evidence within 7 days of this Interim Decision. If it does not possess such evidence, it will so inform the Tribunal and the applicant within 7 days of this Interim Decision. If the TPSB does provide such video evidence, the applicant and the TPSB will have a further 7 days to make submissions regarding in what way, if any, the Tribunal should consider this evidence in making a determination regarding the allegation that the applicant’s hijab was not returned to her.
Other
59The applicant has made numerous allegations regarding her treatment while she was detained at the Vanier Centre for Women. In particular, she makes allegations relating to the actions of correctional officers there. The Vanier Centre for Women is not named as a respondent in this Application. Accordingly, the allegations relating to the alleged actions of employees at the Vanier Centre for Women are dismissed, as the Application has no reasonable prospect of success in respect of her allegations against employees at the Vanier Centre for Women.
60In her Application, the applicant indicated that she had been discriminated against on numerous grounds, including race, colour, ethnic origin, and age, but has not made any particularized allegations or pointed to any evidence upon which she could rely to establish discrimination on those grounds. Accordingly, the Application is dismissed to the extent that it alleges discrimination on the basis of race, colour, ethnic origin, and age, as in these circumstances, it has no reasonable prospect of success on those named grounds.
ORDERS
61The allegations against the CAS are dismissed on the basis of abuse of process.
62The allegations against employees at the Vanier Centre for Women are dismissed as there is no reasonable prospect of success for those allegations with respect to this Application.
63The Application as it relates to discrimination on the basis of race, colour, ethnic origin, and age, is dismissed as having no reasonable prospect of success.
64With the exception of the allegation that the applicant’s hijab was not returned to her by, I find that there is no reasonable prospect that the other allegations in this Application as against the TPSB will succeed and they are dismissed.
65Within 7 days of this Interim Decision, the TPSB will advise as to whether it possesses video evidence of the return of the applicant’s hijab, and if it does, it will provide video evidence of the return of the applicant’s hijab only, to the Tribunal and to the applicant. The applicant and the TPSB will then have a further 7 days to make submissions regarding in what way, if any, the Tribunal should consider this evidence in making a determination regarding whether or not this last remaining allegation in the Application has no reasonable prospect of success.
Dated at Toronto, this 13th day of September, 2013
“Signed by”
Maureen Doyle
Vice-chair