Millien v. Toronto Police Services Board, 2013 HRTO 364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felix Millien

Applicant

-and-

Toronto Police Services Board and William Blair

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: March 4, 2013

Citation: 2013 HRTO 364

Indexed as: Millien v. Toronto Police Services Board

APPEARANCES

Felix Millien, Applicant ) Self-represented

Toronto Police Services ) David Gourlay, Counsel Board, Respondent ) )

William Blair, Respondent ) Lisa Cabel and Adam Guy, ) Counsel

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, place of origin, citizenship, and ethnic origin. The respondents filed Responses, which denied the allegations of discrimination.

2The parties attended a hearing of the merits of the Application where they had the opportunity to call witnesses, present documents, and make submissions. I have decided after hearing the applicant’s evidence to dismiss his Application on the basis that it has no reasonable prospect of success. The following are my reasons for the dismissal.

BACKGROUND

3On May 25, 2010, the applicant, who self-identifies as a Black male from the Caribbean, filed his Application with the Tribunal. The applicant listed a number of alleged incidents of racial discrimination that occurred between 2005 and May 12, 2010. On May 24, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1034, which decided that the only alleged incidents of discrimination that would proceed to a hearing were the ones that occurred on November 30, 2009, February 6, 2010, and May 12, 2010. The Tribunal dismissed the remaining allegations in the Application as untimely and outside the Tribunal’s jurisdiction. On May 29, 2012, at the outset of the hearing, the applicant stated that he was only pursuing the allegation of discrimination with respect to what occurred on May 12, 2010.

4In his Application, the applicant alleged that on May 12, 2010, Toronto Police Service (“TPS”) officers, who were acting on a false tip from an informant that he had a gun, forcibly entered his apartment while he was asleep and physical assaulted him, and that one of the officers made a discriminatory comment (“These fucking people come to this country and bring their bad habits with them.”). At the hearing, the applicant stated that he was not pursuing his allegation that the TPS’s decision to act on a false tip was discriminatory, and that his allegations of discrimination were limited to how the officers treated him after they entered his apartment.

5In their Responses, the respondents stated that TPS officers received a tip from a confidential informant about illegal firearms in the applicant’s apartment, obtained a search warrant from a justice of the peace, and executed the search warrant, which involved a forcible entry into the applicant’s apartment, and handcuffing and detaining him while they conducted a search of his apartment. The respondents stated that upon entry the applicant did not comply with the officers’ orders and resisted and struggled, which resulted in some injuries to his head. The respondents denied that any of the officers made a discriminatory comment. The respondents stated that no firearms were found and the applicant was released unconditionally.

6On May 14, 2010, prior to filing his Application with the Tribunal, the applicant sent a detailed, two-page letter of complaint about the incident to the Chief of the TPS, William Blair, which described what had happened and alleged that the TPS treated Black people with contempt, but did not allege that one of the officers had made a discriminatory comment.

7The hearing took place over two days. At the outset of the hearing, I removed two of the officers who were named as individual respondents from the Application because the applicant was unable to explain how they violated the Code. I also admitted into evidence a significant number of documents filed by the parties. The applicant testified and called one witness, Savitra Pallai, who saw him shortly after the officers left his apartment.

8After the applicant closed his case, the respondents requested that the Tribunal dismiss the Application, without hearing the respondents’ evidence, on the basis that the Application had no reasonable prospect of success. I directed the respondents to call two officers as witnesses (Police Constable (“PC”) Riccardo Brunato and Detective Constable (“DC”) Jeffrey Winter) and provided the applicant with an opportunity to cross-examine them, which he undertook. I then heard oral submissions from the parties on the respondents’ motion.

EVIDENCE

9Some of the facts are not in dispute. Where the applicant’s and the officers’ accounts of what happened differ, I have pointed this out below. The applicant’s testimony about what happened was consistent with the narrative of his Application, except in one key respect. In his Application, he alleged that he heard one discriminatory comment, while in his testimony, he alleged that he heard two discriminatory comments.

10On May 12, 2010, the applicant dropped his daughter off at school, went grocery shopping, came back home, and took a shower. The applicant has a pain-related disability, and did not sleep the night before. He decided to take an oxycontin pill and take a nap. He fell asleep on his bed at about 2:00 PM. The applicant described himself as being in a deep, medically-induced sleep.

11At about the same time, two TPS units were outside the applicant’s apartment building preparing to execute a search warrant based on a tip from an informant about illegal firearms in the applicant’s apartment. The first was a six-member Emergency Task Force (“ETF”) unit. The ETF is a tactical unit which is mandated to deal with high risk situations. The second was a five-member Guns and Gangs Task Force (“GGTF”) unit. The GGTF is a specialized unit which is mandated to investigate matters involving guns, gangs and organized crime.

12At approximately 2:51 PM, the ETF unit used a battering ram to break open the door to the applicant’s apartment. Several officers entered the apartment yelling, “Police, search warrant.” PC Brunato entered the applicant’s bedroom and yelled, “Police, get down.” PC Brunato testified that it is standard procedure to yell these statements so that the occupants of the premises understand that the police are entering the house and it is not a home invasion. The applicant admitted that he did not hear his door being broken open or the officers yelling because he was in a deep, medically-induced sleep.

13What happened next is a matter of dispute. The applicant testified that he woke up because someone hit him on the head. He stated that he tried to get up, but because of the medication he had taken, he was only able to raise his head. He stated that he then felt a knee in his back and someone holding his ankles, and received several punches to the head. He stated that the person holding his ankles started twisting them, and he heard someone saying, “Don’t move, don’t move.” He also stated he heard one of the officers say, “You people come to this country and bring your bad habits,” but he could not identify which officer made the comment because he was face down on the bed.

14In cross-examination, the applicant denied that he started sitting up in his bed when PC Brunato entered his bedroom, and denied that he resisted when PC Brunato and other officers attempted to secure him. Rather, he stated that because of the medication he had taken and the fact that he was in a deep sleep, he was unable to react.

15PC Brunato testified that when he entered the applicant’s bedroom, the applicant started to get up out of his bed. He stated that he yelled at the applicant, “Police, get down,” but the applicant continued to rise out of his bed, so he went on the bed to try to secure him. He stated that the applicant’s momentum in rising knocked him off the side of the bed, so he called the other officers, who came and assisted him in securing the applicant. He stated that he yelled, “Stop resisting,” but the applicant continued to struggle until he was placed in handcuffs. He denied that any of the officers made the discriminatory comment alleged by the applicant. He stated that after the applicant was secured, the GGTF unit entered the apartment and he and the other members of the ETF unit left.

16The GGTF unit placed the applicant on a chair in his living room, and searched his apartment. During the search, the applicant asked what was happening, and was told that the TPS had received a tip that he had a gun. He also asked to see the search warrant and call his lawyer, and was told that he would be provided with the warrant and be allowed to call his lawyer after the search. The GGTF unit did not find any firearms, but seized a camera memory card and several DVD discs for further investigation. The GGTF unit released the applicant unconditionally, gave him a copy of the search warrant, and left his apartment at approximately 4:15 PM.

17The applicant testified that during the search of his apartment, one of the officers stated, “So, you are Trinidadian,” but he could not identify which officer made the comment because there were so many officers in his apartment. He also stated that the officers ransacked his apartment, and damaged his camera and his computer. He stated that he had to pay $600 to repair his electronic equipment and $200 to repair his door.

18In cross-examination, when asked why he did not mention the discriminatory comments in his letter to Chief Blair, he stated that he was not thinking along the lines of filing a human rights complaint. When it was pointed out to the applicant that he had, in fact, alleged in the letter that the TPS treated Black people with contempt, he stated that he cannot explain why he did not mention the comments. When asked why he raised the comment, “So, you are Trinidadian,” for the first time at the hearing, he stated that he did not know.

19The applicant testified that the officers’ assault badly injured him. He stated that both his left eye and his jaw were swollen. Ms. Pallai testified that she saw the applicant shortly after the police left the apartment building, and she observed that he was bleeding by his eye and his face was swollen and bruised. The Tribunal admitted into evidence several photographs that appear to show scrapes on the applicant’s head and around his left eye. In his Application, the applicant stated that he visited a hospital emergency room and a medical specialist, but he did not file any medical documents from those visits with the Tribunal.

20DC Winter, who was a member of the GGTF unit, testified that he interacted with the applicant during the search of his apartment. He denied he or any of the other officers asked the applicant if he was Trinidadian. The respondents admitted that an officer struck the applicant with his palm during the attempt to secure him in his bedroom, which would have caused some injury. DC Winter testified that he observed that the applicant had slight swelling and redness at left eye, and asked him whether he required any medical attention, to which he replied, no.

ANALYSIS

21Rule 19A of the Tribunal’s Rules of Procedures provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard after the applicant closes his case at the hearing, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 18.

22The approach to deciding whether an application has a reasonable prospect of success was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:

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.

23The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

24I am cognizant of the fact that where there are allegations of racial profiling or discrimination, the Tribunal should be cautious in dismissing an application at this stage because racial stereotyping is often the result of subtle, unconscious beliefs, biases and prejudices, and can only be proven by circumstantial evidence and inference. See Sinclair v. London (City), 2008 HRTO 48 at para. 18 and Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430 (B.C.H.R.T.) at para. 482.

25I am also cognizant of the fact that the respondents may have information about the reasons for their actions, including evidence of discrimination, which is not accessible to the applicant. For that reason, I directed the respondents to call two officers as witnesses and provided the applicant with an opportunity to cross-examine them.

26After hearing the applicant’s evidence, the cross-examination of the two police officers, and the parties’ oral submissions, I am not satisfied that that the applicant established that his Application has a reasonable prospect of success. In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated

27The applicant alleged that the TPS officers physically assaulted him because he is a Black. I accept that the applicant was assaulted, but, in my view, there is no reasonable prospect that the applicant can show a link between the assault and his race. The officers entered the applicant’s apartment with a belief, which was based on a tip by a third party, that he may possess a gun. In view of the fact that the applicant was asleep and sedated with oxycontin when they entered, I find that it is more likely than not that he did not comply with their orders not to get out of bed, and had to be forcibly secured. The applicant did not present or point to any evidence, except for two allegedly discriminatory comments, which I have dealt with below, that would show that the assault was related to his race.

28The applicant also suggested that the TPS officers ransacked his apartment, refused to allow him to see the search warrant or call his lawyer during the search, and seized his camera memory card and several DVD discs because he is Black. Again, the applicant did not present or point to any evidence, except for two allegedly discriminatory comments, which I have dealt with below, that would show that these actions were related to his race. The Tribunal does not have the power to deal with general allegations of unfairness.

29The applicant alleged that two unidentified TPS officers made discriminatory comments (“You people come to this country and bring your bad habits,” and “So, you are Trinidadian.”) because he is Black and from the Caribbean. The respondents denied that any such comments were made. As such, there is a credibility issue as to whether the alleged comments were made. In assessing credibility, the Tribunal applies the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

…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 demeanor of the particular witness carried 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 the 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]

30The Tribunal also considers the following non-exhaustive factors:

• The motives of a witness, including the extent to which a witness may have an interest in the outcome of the case.
• The relationship of a witness to the parties, including the extent to which a witness may have a self-interest in testifying for one of the parties.
• The internal consistency of a witness’s evidence.
• Consistencies or inconsistencies in a witness’s evidence in relation to the evidence of other witnesses and the documentary evidence.

See Cugliari v. Telefficiency Corporation, 2006 HRTO 7 at para. 26, and Shah v. George Brown College, 2009 HRTO 920 at para. 14.

31I did not find the applicant’s testimony about these comments to be credible. The applicant did not mention either comment in his letter of complaint to the Chief Blair, and did not even raise the second comment until the hearing. When asked about these omissions, he was unable to provide a rational explanation. Initially, he stated that he was not thinking along the lines of filing a human rights complaint when he wrote his letter to Chief Blair. Then, when it was pointed out to him that he had, in fact, raised racial discrimination in his letter, he stated that he could explain why he did not mention the comments. He also stated that he did not know why he waited until the hearing to raise the second comment. Furthermore, PC Brunato and DC Winter denied that any such comments were made. Although they had a self-interest in denying that any such comments were made, their testimony was not shaken in cross-examination. In these circumstances, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that these comments were made.

ORDER

32The Application is dismissed.