Popat v. London Police Services Board, 2014 HRTO 1239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karim Popat Applicant

-and-

London Police Services Board Respondent

DECISION

Adjudicator: Paul Aterman
Date: August 21, 2014
Citation: 2014 HRTO 1239
Indexed as: Popat v. London Police Services Board

APPEARANCES

Karim Popat, Applicant Self-represented

London Police Services Board, Respondent Cheryl Rovis, Counsel

Background

1This Decision explains why this Application, which alleges discrimination with respect to police services because of race, colour, ancestry and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), has no reasonable prospect of success and must be dismissed.

2The Tribunal conducted a summary hearing by teleconference on August 20, 2014.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The Tribunal cannot address general allegations of unfairness unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of unfair treatment because of one or more of the grounds listed in the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

5The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

6The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with the applicant’s personal characteristics. Support for that connection may come in a variety of forms: comments alleged to have been made by the respondent, the timing of certain events, or comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to an application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or beliefs, the application may be found to have no reasonable prospect of success.

7In a summary hearing, the parties are given an opportunity to make submissions. These submissions are often helpful in clarifying the nature of the allegations and the evidence that the parties intend to bring forward if the application were to proceed to a hearing on the merits.

8The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

10The applicant was arrested by officers of the respondent on November 14, 2013. The respondent had been contacted by a third party who had witnessed what they believed to be an altercation between the applicant and his spouse in the family car when the applicant was dropping his spouse off at work. Over the course of that afternoon the applicant and his spouse were interviewed separately by the respondent’s officers. The officers also interviewed the third party who had witnessed the incident.

11The applicant maintains that one of the investigating officers called him around 6:45 p.m. and advised him that there would probably be no charges laid, but that this would have to be determined by her supervisor. He describes the call as friendly and reassuring.

12However, at around 8:30 p.m. that evening the applicant was arrested at home. He describes the behaviour of the arresting officers as intimidating in that they placed him in handcuffs in front of his son. When he told his son to take a picture of him being handcuffed, one of the officers approached his son and demanded to know who lived in the house.

13The applicant was taken to a police station and was released some three hours later. The conditions of his release included that he not reside at the family home and that he not be in contact with his spouse. He alleges that, contrary to the terms of his release, which stated that the police would accompany him home to take his belongings so that he could live somewhere else, he was simply let go on the steps of the police station. He was forced to find temporary accommodation for 35 days.

14The applicant was charged with assault. Then, at a meeting which the applicant and his spouse attended with Crown counsel in December of 2013, the charges were withdrawn.

15The applicant maintains that the whole experience has had a terrible effect on him. He feels stigmatised in his neighbourhood, as he was seen being arrested by the police. He was barred from the family home, humiliated in front of his family and he now worries about crossing the border into the United States for work because he has been arrested.

16The applicant acknowledges that there is no direct evidence of discrimination in this case. However he maintains that an inference of discrimination should be drawn from the circumstances of his arrest. Specifically, he maintains that the officers failed to take the time to properly investigate the circumstances of the altercation with his spouse. Had they done so, he says, they would have found out that he is a law-abiding member of society and would not have arrested him. The fact that the applicant is a member of a visible minority community made the officers think that they could conduct an improper investigation and act with impunity in ignoring his right to be treated like any other citizen.

analysis

17By the applicant’s own account, the involvement of the police was triggered by a report of an altercation made by a third party. The respondent’s officers then interviewed the person who made the report, the applicant himself and his spouse. There is nothing in this sequence of events that suggests that the officers’ actions were tainted by discrimination. Rather, that is what I would expect police officers to do when a third party reports a domestic assault.

18The applicant maintains that the investigation conducted by the officers was slipshod, and that had they taken more time they would not have decided to charge him. Given the nature of the report – an eyewitness account of a brief altercation in a car – it does not appear to me that the officers ought to have done any more than what they did, which was to interview the eyewitness and the participants in the altercation. The applicant’s spouse had no visible injuries and the applicant had a small scratch on his face. In light of the fact that no physical injury resulted from this brief altercation, I cannot see that the officers ought to have done any more than speak to the complainant and the participants in the altercation.

19The applicant suggests that had they taken the time to inquire into his background and character the officers would have concluded that he should not be charged. However, he can point to no evidence that their failure to do so was tainted by discriminatory considerations. The applicant believes that his race, colour, ancestry and the fact that he is male were factors in the officers’ decision not to look into his background, but in the absence of any evidence to support his theory, his belief is speculative.

20By the applicant’s own account of events, it appears that the respondent’s officers had reasonable and probable grounds to lay a charge of assault. The applicant emphasised that one of the investigating officers initially told him that she would have to check with her supervisor, but that charges would probably not be laid. Yet later the applicant was arrested. In my view nothing turns on this apparent change in the respondent’s position. First, the investigating officer put the applicant on notice that no final decision regarding the laying of a charge would be made until she consulted her supervisor. Second, there is nothing unusual or inappropriate in a more junior officer consulting a senior officer. Again, the applicant has not identified any evidence that he might bring forward that could support a conclusion that the decision to consult a senior officer was coloured by discriminatory considerations.

21The applicant holds a sincere view that he was treated unfairly. He believes discrimination to be at the root of that treatment. However, his belief is not supported by any evidence that he has or could obtain. For these reasons his Application has no reasonable prospect of success and must be dismissed.

order

22The Application is dismissed.