Williams v. Regional Municipality of York Police Services Board, 2013 HRTO 454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denise Williams

Applicant

-and-

The Regional Municipality of York Police Services Board, Kevin Partridge, Bryan Ball and Daniel Moore

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 18, 2013

Citation: 2013 HRTO 454

Indexed as: Williams v. Regional Municipality of York Police Services Board

APPEARANCES

Denise Williams, Applicant

Self-represented

The Regional Municipality of York Police Services Board, Kevin Partridge, Bryan Ball and Daniel Moore, Respondents

Stephen Maio, Counsel and Hilary Page, Student-at-Law

1This is an Application dated October 18, 2010 and 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 services because of race, colour, place of origin, ethnic origin and disability.

2The hearing in this matter was held on October 2 and 3, 2012. I heard from the applicant and the three respondent police officers. As the applicant was self-represented, I took the lead in questioning her in order to elicit her evidence. I also took an active role in questioning the respondent police officers in order to clarify their evidence.

3The Application is quite lengthy and provides a long history of the applicant’s interaction with the police, and primarily with officers of the Toronto Police Service. The Application however was filed only against the respondent Regional Municipality of York Region Police Service (“YRPS”), and not against the Toronto Police Service. In their Response, the respondents identified only one alleged incident that involved YRPS officers – namely an incident that had occurred on September 3, 2010. The applicant did not contest this.

4At the outset of the hearing, I confirmed with the applicant that the September 3, 2010 incident was the only incident at issue in this proceeding pertaining to the respondents. The applicant agreed that it was, and stated that the remainder of her Application was simply to provide background and context. As the other matters raised in the Application pertain to a different police service and as there was no indication in the materials before me that the respondents had any involvement in these other matters, I ruled that I did not need to hear evidence about anything other than the September 3, 2010 incident.

5The case before me arises out of a traffic stop by the respondents on September 3, 2010 at a time when the applicant was subject to bail conditions. The applicant self-identifies as a Canadian Jamaican Black female and alleges that she experienced discrimination because of her race, colour, place of origin and ethnic origin arising out of the manner in which she was treated by the respondent officers, including not listening to her explanation about her bail conditions, placing her under arrest, and subjecting her to a physical beating. The applicant also alleges that one of the respondents uttered racial slurs towards her. Finally, with regard to her allegation of discrimination because of disability, the applicant alleges that she was ignored when she raised an injury from a recent car accident when she was being aggressively handcuffed.

The incident on September 3, 2010

6On September 3, 2010, DC Partridge was working the night shift in plain clothes and in an unmarked police vehicle in the area of Keele Street and Highway 7 in Vaughan. At about 7 p.m., he entered the parking lot of a local motel which he describes as an area of complaint and well known for drug and prostitution activity. He proceeded to conduct random licence plate searches of vehicles parked in the motel’s parking lot.

7The applicant’s car was parked to the rear of the motel. When DC Partridge checked the plate, he discovered that the owner of the vehicle (the applicant) was facing a number of criminal charges and had been released on certain bail conditions. According to the information available to DC Partridge from CPIC, the applicant’s bail conditions included an order to be at her place of residence on “house arrest”.

8DC Partridge decided that further investigation was required and radioed for a support team to follow the vehicle. He states that his intention was to investigate whoever happened to be in control of the vehicle, and to determine if it might be the owner who might be breaching her bail conditions. He parked near the entrance to the motel parking lot.

9Just before 8 p.m., before the support team arrived, DC Partridge observed the applicant’s vehicle driving out of the motel parking lot. He states that he observed a female driver and a male passenger. He notified the dispatch centre that the vehicle was on the move and requested a uniformed officer to effect a traffic stop in order to determine the identity of the driver and, if she turned out to be the applicant, whether she was in breach of her bail conditions. DC Partridge followed the applicant in his unmarked vehicle while he waited for a uniformed officer to arrive.

10Two officers were dispatched to assist DC Partridge, namely PC Ball and PC Moore. Each officer was in his own marked police cruiser. PC Ball was the first to arrive, and a traffic stop was effected as the applicant was driving southbound on Keele Street just south of the Toronto – York Region border. The applicant testified that the traffic stop was effected by the unmarked vehicle being driven by DC Partridge, which she says flashed its lights to get her to pull over. DC Partridge testified that the unmarked vehicle did not have any light display, which is why he requested a marked police cruiser to effect the traffic stop. The evidence of both DC Partridge and PC Ball is that PC Ball effected the traffic stop in his marked police cruiser, and DC Partridge pulled his unmarked vehicle in behind PC Ball’s cruiser.

11There is no dispute that PC Ball approached the driver’s side of the applicant’s vehicle, and DC Partridge approached the passenger side. The applicant was driving the vehicle and provided her identification to PC Ball. DC Partridge obtained identification from the male passenger.

12There is no dispute that the applicant provided her bail papers and a letter from her surety to PC Ball. The handwritten letter from the applicant’s surety is dated September 3, 2010 and states, in its entirety:

Denise is allowed to attend Albion Mall to go to the bank and doctors appointment for 3:00 pm

13The bail papers provided to PC Ball included a Recognizance of Bail dated May 20, 2010 and a Bail Variation dated August 10, 2010. The Recognizance of Bail included a provision for house arrest. The applicant’s evidence is that this provision is incorrect and does not reflect what was ordered at her bail hearing. The Bail Variation was sought after an incident with the Toronto Police Service that occurred on July 23, 2010, where the applicant was arrested for being in breach of her bail conditions when she was stopped in her vehicle in a park near her surety’s home. The applicant testified that this arrest resulted in her spending nine days in detention before she was released.

14The Bail Variation form states that the defence is seeking removal of the house arrest provision in the Recognizance of Bail, and the substitution of a curfew from 11 pm to 6 am during which time the applicant is to be in her surety’s home subject to certain specified exceptions. The reason for this request is stated to be that no order for house arrest was made at the bail hearing, and the clerk’s office incorrectly typed the bail conditions. The Bail Variation form is signed by a Crown Attorney to signify her consent, and is also signed by the applicant and her sureties.

15The practical difference between the house arrest provision of the original Recognizance of Bail and the amended provision as set out in the Bail Variation is as follows. Under the original house arrest provision, the applicant was only entitled to be out of her surety’s home either in the company of her surety, to attend work or church, or with a letter signed by her surety for a particular purpose, date and time. In contrast, under the terms of the Bail Variation, the applicant was free to do as she pleased between the hours of 6 am and 11 pm. It was only during the curfew from 11 pm to 6 am that the applicant needed to be at her surety’s home (subject to the identified exceptions).

16The applicant testified that, at the time, she believed that the terms of the Bail Variation were in effect and that she could do as she pleased between 6 am and 11 pm. She states that she obtained a letter from her surety for September 3, 2010 as an extra precaution, given that she previously had been stopped by the police on several occasions. It appears from the documents before me that the applicant’s stated belief may not have been correct, as a Bail Variation Order on Consent was obtained from a Justice of the Peace on October 6, 2010 to remove the house arrest provision and replace it with a curfew. The applicant states that this was done because there was something wrong with the signatures on the Bail Variation form completed in August 2010. It is not necessary for the purpose of this proceeding for me to make any ruling as to the effectiveness of the August 2010 Bail Variation document. Suffice to say that there was some uncertainty and confusion caused by this document and the fact that the applicant was in possession of a letter from her surety, which would not have been required if the varied bail conditions were in effect.

17The applicant’s evidence is that she explained to PC Ball and DC Partridge that her bail conditions had been varied and that she was entitled to be out at that time. She further states that she invited them to call her lawyer if they had any questions. This is disputed by PC Ball and DC Partridge, who state that the applicant simply handed them her bail papers without explanation. PC Ball’s evidence in particular is that, when the applicant was handing him her bail papers, she was emphasizing the letter from her surety which she said entitled her to be out. Both PC Ball and DC Partridge testified that they believed it to be suspicious that the applicant’s surety letter entitled her to be out to attend a doctor’s appointment at 3 pm and that she had been in a motel and was still out driving around at 8 pm. The applicant’s evidence is that the surety’s letter refers to “doctors” in the plural, and that she had a physiotherapy appointment at 5:30 or 6 pm.

18There also is a dispute about an exchange between the parties regarding where the applicant was coming from and what she had been doing there. There is no dispute that the applicant was asked by DC Partridge where she was coming from, and the applicant replied that she was coming from Highway 7. DC Partridge told the applicant not to lie to him and that he knew she was coming from a motel. While the applicant acknowledged that she had come from this motel, she testified that she did not regard her earlier response as lying, because the motel was located at Keele and Highway 7. DC Partridge’s evidence is that he asked the applicant what she had been doing at the motel, and the applicant replied that she had been having sex with her boyfriend. This is hotly disputed by the applicant, who states that this is not true and that she never said this. She states that the male passenger was not her boyfriend, and they had not been having sex at this motel. Rather, she states that the male passenger had taken her to this motel as part of an effort to protect her from her sureties, who the applicant says were abusing her, and to show her some clothes that he had purchased in New York for re-sale in Canada.

19At this point, DC Partridge retrieved the paperwork from PC Ball and returned to his vehicle to review it. He testified that he had never seen a Bail Variation in the form provided to him by the applicant, and was uncertain as to its effect. He also was concerned about his perception that the applicant had lied to him about where she was coming from, and that the letter from the surety did not appear to authorize the applicant to be where she was and had been. PC Ball remained with the applicant’s vehicle, and the applicant and the male passenger remained seated inside the vehicle.

20PC Moore’s evidence is that he arrived on the scene while DC Partridge was checking the applicant’s paperwork. PC Moore testified that he spoke briefly with DC Partridge, and they made a joint decision to ask the applicant to step out of her vehicle in order to review the paperwork she had provided. Both PC Moore and DC Partridge were clear in their evidence that no decision was made at this point to place the applicant under arrest, as it was unclear whether she was in breach of her bail conditions.

21PC Moore’s evidence is that he approached the applicant’s vehicle on the driver’s side and asked her to step out of the vehicle. This is disputed by the applicant in two respects. First, she says that it was PC Ball who spoke to her and that he told her she was under arrest. PC Ball denies that he was the one who asked the applicant to exit her vehicle, and both PC Ball and PC Moore deny that the applicant was told at this time that she was under arrest. Second, the applicant’s evidence is that PC Moore was not even on the scene at this point in time and that PC Ball was the only one standing outside her vehicle. Further, the applicant testified that PC Moore had no involvement in the ensuing struggle and was not involved until the applicant subsequently was escorted to PC Moore’s police cruiser after the struggle. Her evidence is that a third unidentified officer, whom she described as being muscular and as “a very big thick officer with very light brown hair”, was the third officer involved in the struggle and not PC Moore. The evidence of all respondent witnesses is that the three officers involved in the struggle were PC Moore, PC Ball and DC Partridge, and that no police officer matching the applicant’s description was on the scene.

22The applicant’s evidence is that she exited her vehicle calmly and respectfully. She states that as she was exiting her vehicle, she actually turned around and placed her hands behind her back. She states that she was begging for PC Ball to call her lawyer so that he could verify that she was not in breach of her bail conditions.

23In contrast, PC Moore’s evidence is that the applicant said, “you can’t fucking arrest me” once when she was still in the car, and again when she opened the driver’s side door. PC Moore testified that as the applicant was exiting the car and saying “you can’t fucking arrest me”, she swung her right hand upwards and towards him in a pushing motion. He states that he intercepted her right arm before she could touch him, pulled her right hand behind her back, pushed her into the side of the car, and told her she was under arrest. This is supported by the evidence of PC Ball. The applicant denies that she said “you can’t fucking arrest me” or that she tried to push PC Moore.

24The applicant’s evidence is that it was PC Ball who grabbed her right arm and pulled it behind her back to place her under arrest and apply handcuffs. She testified that PC Ball was pulling her right arm upwards in a way that was causing her lots of pain due to injuries from a recent motor vehicle accident. She states that she was crying and told PC Ball that there was no need for that kind of aggressiveness, and that she had been in a car accident three days earlier and had back injuries. Both PC Ball and PC Moore deny that the applicant made any mention of having been in a recent car accident or having sustained any injuries.

25The evidence of PC Ball and PC Moore is that, while the applicant was against the car, she was pulling her arms close into her body in order to resist being handcuffed. DC Partridge observed the struggle from his vehicle, and came to assist the other two officers.

26There is no dispute that during the course of this struggle, the applicant and the officers fell to the ground beside the applicant’s vehicle. It is important to note that the applicant’s vehicle was stopped in the right southbound lane on Keele St. At that location, there are two live southbound lanes on Keele St. with a hard curb to the side and no shoulder. The applicant’s vehicle and the police vehicles were blocking the right lane of traffic, and there was one live lane of southbound traffic immediately beside them. As a result, the struggle with the applicant and the officers falling to the ground was occurring right next to a live lane of traffic.

27The applicant’s evidence about the struggle is that PC Ball twisted her right arm high up behind her back and placed one of the cuffs on, and then shoved her so that she lost her footing and fell to the ground and PC Ball fell on top of her. She states that PC Ball then began twisting her left arm. She states that she heard voices on her left side, which she identified as DC Partridge, and on her right side, which she says was the unidentified muscular officer.

28The applicant states that she was being kneed by all three officers, and was being told to keep still by DC Partridge. She says that PC Ball was telling her to let him put the cuffs on. She states that she said “why are you beating me?” like someone who was upset. The applicant states that the three officers were more focused on beating her than putting on the cuffs. She says that she was screaming out to the male passenger to help her, and saying that they were going to kill her. The applicant states that DC Partridge was hitting her with some kind of hard object on her left side, and that he lifted up her head and smashed it on the ground.

29The applicant states that DC Partridge told the other officers to pick her up and put her in between the vehicles because of how close the passing cars were. The applicant states that the beating got more severe after she was moved in between the cars. The applicant states that this was when DC Partridge made racial slurs towards her, saying “you fucking Black bitch, keep still” while he was beating her. The applicant states that she was cursing at this time because she was fighting for her life, and was calling the officers racist pigs, Klansmen and whatever words she could find to fit their behaviour. She states that DC Partridge told her to “go back to fucking Jamaica”. She also states that one time, DC Partridge got up and actually kicked her on back of her upper left shoulder and in ribs on her left side, and then he got back down on his knees and was hitting her with something hard.

30The applicant states that this was when things started to get really aggressive. She states that PC Ball and the unidentified third officer were moving around to her back and were kicking or kneeing her. She states that this was when she bit PC Ball’s leg, due to the constant kneeing and punching her in the head. She believes that this was when the cuffs finally went on. After the handcuffs were on, the applicant states that the unidentified third officer said that he was going to kick her teeth in.

31The three officers tell a very different version of what happened. As noted above, they state that the applicant was resisting having the cuffs put on by holding her arms in close to her body. DC Partridge acknowledges that he did knee the applicant for the purpose of trying to obtain compliance. He states that this attempt failed to control the applicant, and he then put her in a headlock and moved her to the area in between the back of the applicant’s vehicle and the front end of PC Ball’s cruiser, in order to get away from the live lane of traffic. The group fell to the ground when they moved to this area, as the officers say that the applicant was still non-compliant and actively resisting their attempts to control her. Both DC Partridge and PC Ball recall that DC Partridge ended up at the bottom of the pile when they fell in between the two vehicles.

32The officers do not dispute that they were applying force to the applicant in their efforts to control her, but state that the amount of force used was appropriate to the circumstances. DC Partridge denies making the racial slurs attributed to him, and both PC Ball and PC Moore testified that they did not hear DC Partridge or anyone else utter any racial slurs or use the word “bitch”. While DC Partridge acknowledges that he used knee strikes to try to control the applicant and that, when she was biting PC Ball, he used an open hand to the right side of the applicant’s head to push the left side of her head into the ground to try to get her to release the bite, he denies gratuitously kicking or beating the applicant or picking up her head and smashing it into the ground. While DC Partridge was wearing his use of force equipment on the night in question, he states that he did not use any of this equipment in the altercation with the applicant.

33PC Ball states that he was kneeling on the ground to the applicant’s right side and near her head area when she bit his right leg. He was wearing uniform pants, but the applicant’s bite was so strong that it pierced the skin underneath his pants. In evidence before me are photos of the injury sustained by PC Ball. PC Ball states that when the applicant bit his leg, he said “ahhh, she bit my leg” and struck her head with his right hand to try to get her to release the bite. He states that DC Partridge’s hand was already on the applicant’s head when he struck her, and so he hit DC Partridge’s hand as he tried to strike the applicant.

34PC Moore’s evidence is that he was still trying to apply handcuffs to the applicant while the struggle was ensuing in between the cars. He states that during this struggle, the applicant reached back and scratched him on the left arm. I have photos in evidence before me that show scratches to PC Moore’s left forearm, primarily in the wrist area. The applicant’s evidence is that she did not scratch PC Moore during the struggle, as she says that PC Moore was not involved at this point, but afterwards when she was being escorted to the police cruiser.

35After being handcuffed, the applicant was escorted by PC Ball and PC Moore and placed in the back of PC Moore’s police cruiser. The applicant resisted being placed in the back of the cruiser by kicking her legs. PC Ball and PC Moore had to put the applicant into the back through the back door on the passenger side while a fourth YRPS officer who had arrived on the scene, PC Monk, went around to the back door on the driver side and pulled the applicant in. Once the applicant was in his cruiser, PC Moore took her to the police station. PC Moore made an audio recording of the discussion between himself and the applicant during the drive to the police station, which was in evidence before me and which I have reviewed. PC Ball went to the hospital to have his leg treated.

36In evidence before me are also photos of the applicant taken following the September 3, 2010 incident. These photos show a bruise above the applicant’s left eye, a bruise and abrasion near her scalp just to right of centre, puffiness around her right eye, and some light bruising and an abrasion on the right side of her nose.

37The applicant initially testified that the injury at the top of her forehead near her scalp was from the time that DC Partridge picked up her head and banged it against the ground. She initially stated that this is why there is an abrasion, because DC Partridge kind of scraped her head against the ground. The applicant also initially stated that the injury on the left side of her forehead was from when she was being beaten and was trying to move around.

38The applicant then immediately corrected her testimony to say that the bruise on the left side above her eye was from when DC Partridge slammed her head into the pavement and moved it around. In this regard, the applicant made reference in her testimony to scrapes evident in the photos. From my review of the photos, there appear to be faint marks on the left side of the applicant’s head within the bruising, although it is unclear whether these are abrasions. The applicant now said that she thinks that the bruise and scrape at the top of her forehead and the injuries to her nose area were from being punched or from being picked up and dropped in between the vehicles.

39The applicant also noted the puffiness and swelling on the side of her right eye, which she says was from all the punching from the unidentified muscular officer who was on the right side on her body. The applicant states that this injury resulted in a continuing medical problem because that eye started to water and it had a blood clot that took several months to clear up.

40The applicant saw her doctor about her injuries on September 7, 2010, at which time it was noted that her right eye was swollen and she was tender over her right eye, she had a bruise over her forehead that was also tender, nose was tender, lumbosacral spine was tender with decreased range of movement, and she was also tender over her left shoulder. The injury to the applicant’s right eye further required her to attend at an emergency department on October 12, 2010, following which she was sent to see an eye specialist.

Analysis and Decision

41The applicant bears the onus of establishing a prima facie case of discrimination: Ontario (Human Rights Commission v. Simpsons-Sears Ltd. (O’Malley”) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough) 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

42This case calls upon me to assess the credibility and reliability of the testimony I heard. In making this assessment, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 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 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.

43I also have been assisted by the observations on credibility assessment made recently in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 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.

Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.

44Applying these considerations, I have several concerns about the credibility and reliability of the applicant’s evidence, some relatively minor and some more significant.

45She testified that she was pulled over by an unmarked police vehicle that flashed its lights, and not by a marked police cruiser. Yet DC Partridge’s evidence is that the unmarked vehicle that he was driving that night did not have a light display, and both DC Partridge and PC Ball testified that she was pulled over by PC Ball’s marked police cruiser. I do not see any plausible explanation for why these two officers would lie about that point, particularly as DC Partridge had called for a marked cruiser in order to effect the traffic stop. I find that the applicant was pulled over by PC Ball’s marked police cruiser, and that she is mistaken in her recollection that it was DC Partridge’s unmarked vehicle.

46The applicant testified that when she was told to get out of her vehicle and that she was under arrest, she was being spoken to by PC Ball and there was no other officer present. Apart from the dispute as to whether she was told she was under arrest or merely told to step out of the vehicle, PC Ball and PC Moore testified that they were both present when the applicant exited her vehicle and that PC Moore was the one who had asked her to do so. This is supported by their notes made on the day in question. Once again, I can see no plausible reason why they would lie about this point. I find that PC Moore was present when the applicant exited her vehicle and that he was the one who had asked her to do so.

47Of perhaps greater concern, the applicant insisted in her evidence that PC Moore was not involved in the physical altercation, and instead there was a third unidentified officer with a muscular build. Initially in her testimony, the applicant had even gone so far as to state that PC Moore was not the officer who had escorted her to the cruiser or taken her to the police station. After raising with her the audio recording that PC Moore had made while she was in his police cruiser, the applicant then conceded that PC Moore in fact had driven her to the station. Given the scratches to PC Moore’s forearm, the applicant acknowledged that PC Moore was involved, but only to the extent that this had occurred while he was escorting her to the cruiser. Throughout the hearing, the applicant continued to insist that it was not PC Moore but some unidentified third officer who was involved in the physical altercation.

48This simply does not make sense to me. All of the officer’s notes record that PC Moore was the next officer to arrive on the scene after DC Partridge and PC Ball. The notes for PC Ball and PC Moore both show them being dispatched in response to DC Partridge’s request at 19:57. PC Moore’s notes record him arriving on scene at 20:04. By the time PC Monk arrives on scene at 20:13, the physical altercation has concluded and PC Monk assists with getting the applicant into the back of the police cruiser. There is no note or record of any other police officer being on scene at the time of the physical altercation. If another police officer in fact was involved in the physical altercation, why is there no reference to this in any of these officer’s notes? If PC Moore was not in fact involved in the altercation, why would he say that he was? If PC Moore in fact was scratched while escorting the applicant to his police cruiser and not during the physical altercation, why do the notes of all three officers refer to him being scratched during the physical altercation? While I appreciate that the applicant’s contention is that the officers are all lying about the events, what plausible reason is there for them to lie about who was involved in the physical altercation? Once again, I find that the applicant is mistaken, and that in fact PC Moore was involved in the physical altercation, that PC Moore was scratched by the applicant during the course of that altercation, and that there was no other unidentified officer involved.

49I also note the applicant’s changing testimony about how she sustained her injuries. Rather than being an actual recollection of how she sustained these injuries, it seems to me that what the applicant was doing was constructing her belief as to the cause of these injuries in a way that would be consistent with her version of events. I further note that the injuries sustained by the applicant are equally consistent with the respondents’ version of events, and that she just as easily could have sustained these injuries while resisting being handcuffed, when she fell to the ground when the group moved in between the vehicles, and when DC Partridge and PC Ball responded to her biting PC Ball’s leg by striking the right side of her head and pressing the left side into the ground.

50I also had difficulty with some of the evidence given by the respondent officers. In the written witness statement filed for DC Partridge, he stated that he observed the applicant exiting the vehicle and the start of the physical altercation between the applicant and PC Moore. In his testimony before me, I had DC Partridge affirm the truth of his witness statement, which he did, before going on to give evidence regarding the events. While giving his testimony, it was clear that DC Partridge was in his unmarked vehicle at the time the applicant was asked to exit her vehicle, and so did not observe the start of the physical altercation or hear what had been said. When it was brought to his attention that this testimony was not consistent with his written witness statement, DC Partridge took responsibility for not having read his written statement with sufficient care and acknowledged that certain statements made in his written statement were not true. In this regard, I note that the content of this portion of DC Partridge’s written statement does not reflect what is contained in his memo book notes.

51I also had difficulty with the evidence of the respondent officers regarding the language they used, or more pointedly that they said they did not use, during the physical altercation. I understand that it is part of police training for officers to repeatedly say “stop resisting” when engaged in an altercation of this nature, both in order to create “positive witnesses” (i.e. passersby who will be able to say this is what they heard the police saying) and to assist with their breathing. But it strains credulity for me to believe that in the course of what can only be described as a brawl on the side of a busy street, these officers claimed not to have uttered any curses or swear words, with the sole exception of DC Partridge who allowed that he may have used the word “fuck”. In particular, PC Ball’s evidence is that when he was being bitten by the applicant, so hard that it broke the skin underneath his uniform pants, all he said was “ahhh she’s biting me”. Nor, I was told, were swear or curse words uttered when the officers were trying to dislodge the applicant’s teeth from PC Ball’s leg or when the applicant scratched PC Moore seriously enough to draw blood.

52Further, I had difficulty with DC Partridge’s testimony that he would not have told the applicant to go back to Jamaica because he did not even know that she was Jamaican. In the CPIC report obtained by DC Partridge at the time, the applicant’s “POB” (point of birth) is clearly shown as “Jamaica”. DC Partridge testified that he did not focus on this, because he was more focused on the “score” given to the applicant (which informs police about how potentially dangerous a person may be). Yet the applicant’s “score” is immediately above her name and physical description, which includes reference to Jamaica on the second line. Given that DC Partridge was waiting at the motel for the express purpose of seeing who was driving the applicant’s vehicle in order to determine if the applicant was breaching her bail conditions, it seems to me that he would want to look at her physical description. And there is no way of doing that without seeing that she is from Jamaica.

53Having said all of that, my concerns about the respondent officers’ testimony are not proof that DC Partridge said the things he is alleged to have said or that the applicant’s race was a factor in how she was treated. At the end of the day, it falls to me to assess which of two competing scenarios I find to be more probable on a balance of probabilities. The applicant would have me believe that three police officers with whom she had had no previous interaction decided to arrest her and beat her on the side of a busy street, when she had done nothing to provoke them apart from being Black and a person “on charges”. I simply find that hard to accept.

54In contrast, the respondents’ version of events appears more plausible to me. The applicant very recently had been arrested and spent time in jail because of a “house arrest” provision that was never imposed on her. She thought that this problem had been rectified. But the “house arrest” condition was still on CPIC and the applicant was carrying a Bail Variation form with which the officers were unfamiliar and which may not have been effective to change her original bail conditions. It may be that, when asked to exit her vehicle, the applicant believed that she once again was being wrongly arrested. It seems to me more probable than not that the applicant would be upset, frustrated and angry in such circumstances, and may have indicated her displeasure by saying something like “you can’t fucking arrest me” and motioning her arm towards the officer. It makes sense to me that such a reaction would have caused PC Moore to intercede and place the applicant under arrest, which only served to escalate the applicant’s upset, frustration and anger and cause her to resist being handcuffed. In my view, it is more probable than not that the physical altercation ensued from there, with the resulting injuries to the applicant, PC Ball and PC Moore.

55I also am concerned that the male passenger was not called by the applicant to testify as a witness at the hearing. The applicant filed with the Tribunal a written statement dated October 15, 2010. There is a signature at the bottom of the page which the applicant states is the signature of the male passenger. The applicant further states that this statement was given to her criminal defence lawyer. I excluded this statement from evidence on the basis that the male passenger was not being called as a witness before me, and so the respondents would have no opportunity to cross-examine him on this statement. The applicant provided no explanation for her failure to call this individual, other than saying that she had fallen out of touch with him.

56In all of these circumstances, I am mindful of the fact that it is the applicant’s legal onus to prove that her rights under the Code have been violated. Given my concerns about the credibility and reliability of her evidence and about the implausibility of her version of events, I find that the applicant has not discharged this burden. I am not satisfied on a balance of probabilities that the applicant’s race, colour, place of origin or ethnic origin was a factor in how she was treated by the respondents on September 3, 2010. Further, given my concerns about the credibility and reliability of the applicant’s evidence and her failure to call the male passenger as a witness, who says in his statement that he heard DC Partridge utter the alleged slurs, I find that I have insufficient credible and reliable evidence to support a finding that DC Partridge made the racial slurs as alleged. Finally, with regard to the applicant’s allegation of discrimination because of disability, I find that I have insufficient reliable evidence to support that the applicant raised her car accident and injuries with the respondent officers as alleged, in light of my concerns about the credibility and reliability of the applicant’s evidence and her failure to call the male passenger as a witness, who says in his statement that he heard the applicant say this.

57For all of the above reasons, the Application is dismissed.