Surh v. Toronto Police Services Board, 2014 HRTO 261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doug Surh Applicant

-and-

Toronto Police Services Board and Bradley Verspeeten Respondents

A N D B E T W E E N:

Doug Surh Applicant

-and-

Toronto Police Services Board and Chris Dobbs Respondents

A N D B E T W E E N:

Doug Surh Applicant

-and-

Toronto Police Services Board Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: February 25, 2014 Citation: 2014 HRTO 261 Indexed as: Surh v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Doug Surh, Applicant Self-represented

Toronto Police Services Board (2010-04964-I), Respondent Antonella Ceddia, Counsel

Toronto Police Services Board and Chris Dobbs (2010-06416-I), Respondents David A. Gourlay, Counsel

Toronto Police Services Board (2010-07698-I) and Bradley Verspeeten (2010-04964-I), Respondents Lisa C. Cabel, Counsel

1The applicant filed these three Applications between February and December 2010, alleging discrimination in services on the basis of race, colour, ethnic origin, reprisal and sex, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Tribunal issued a Case Assessment Direction on July 19, 2012 directing that a summary hearing would be held under Rule 19A of the Tribunal's Rules of Procedure to determine whether these Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that they would succeed.

3Unlike most summary hearings, at the request of the applicant, this matter proceeded by way of written submissions. This somewhat complicated and delayed the proceedings. This delay was further compounded by administrative errors in the processing of certain documents and the parties' confusion about what steps they should be taking.

factual background

4The applicant alleges that he was stopped by the police on three separate occasions in 2009. As these are discrete allegations, I will deal with them in chronological order.

March 12, 2009 (Application No. 2010-04964-I)

5The applicant states that he was driving in the City of Toronto at 1:30 a.m. on March 12, 2009. He states that there was a police car behind him. He was required to stop when the officer driving it put on the car lights and honked its horn. He alleges that he was required to stop in the middle of the road, rather than being allowed to pull into the nearby parking lot.

6Once stopped, the applicant states that he was asked "personal" questions by the police, such as whether he had been drinking, where he was coming from, where he was going to and why he was going there. He also alleges that the officer, P.C. Verspeeten, took both his driver's license and insurance papers, which he states were valid, and then towed his car away.

7It is the applicant's position that white males and females would not have been asked these personal questions. He also states that the police took his documents (personal property) because he was a visible minority, stating: "Police will take there personal property from visible minorities to make it impossible to replace personal papers, to punish the visible minoritys, more wrongful tickets."

8In his Response, P.C. Verspeeten states that he was travelling behind the applicant's car at 2:08 a.m. on Ellesmere Road, heading in an east-bound direction. Both vehicles were in the middle lane. He further states that he observed that the vehicle had a loud exhaust and that one of the windows had a plastic bag/sheet covering it, which led him to conduct, among other things, a vehicle search with the Ministry of Transportation. This search apparently revealed that the owner of the vehicle was not licensed.

9P.C. Verspeeten further states that based on this information he activated his emergency equipment in order to pull the vehicle over. He states that rather than pulling over, the applicant stopped the vehicle in the middle lane where they had been driving, which he regarded as unsafe. It was not until he walked up to the car that he was able to see the driver, who was the applicant. Until that point, he states he was unable to ascertain even the gender of the driver.

10Given the manner in which the car had been stopped and the time of night, P.C. Verspeeten states that he was concerned about whether the applicant had been drinking, and asked him questions in order to determine whether that may have been the case.

11When he asked the applicant for his driver's license, P.C. Verspeeten discovered that it had expired the previous month, which meant the applicant was not legally entitled to drive. He made arrangements for the vehicle to be towed to a location of the applicant's choosing and issued a ticket for the violation.

12In his Reply, the applicant states that the respondent would not have been able to hear his exhaust as it was winter weather and P.C. Verspeeten had his windows closed. He states further that he stopped in the centre median lane as he was turning left into a shopping centre. He did not stop in a "live traffic lane" as suggested in the Response. He stopped at that particular location because P.C. Verspeeten did not want him to turn into the mall parking lot.

13The applicant further alleges that P.C. Verspeeten yelled at him, accusing him "maliciously" of drinking, and repeating the accusation. He notes that P.C. Verspeeten took his insurance papers, so that he could subsequently ticket him for not having insurance.

April 15, 2009 (Application No. 2010-7698-I)

14The applicant states that he was again driving at night approximately one month after the first incident, when PC Verspeeten and another officer "raced" in behind his vehicle, after the applicant drove passed the donut shop in which they were parked. He states that after he was pulled over, PC Verspeeten aggressively asked for his papers, and then boasted that the applicant would not have his insurance certificate because he had taken it from the applicant the last time and not returned it to him.

15In addition to yelling at him for his lack of insurance, the applicant alleges that PC Verspeeten and his partner harassed him over and over telling the applicant that he had been drinking and shining bright lights in his eyes. After taking the papers from the applicant, PC Verspeeten also gave the applicant a ticket for an offence which he does not identify.

16In its Response, the respondent advises that PC Verspeeten was on traffic duty at the time of the incident. He recognized the applicant's car from the stop the previous month due to its distinguishing features. Given that this was the second time PC Verspeeten had seen the car in a one-month period, he suspected the applicant was living in Toronto. The applicant's car was registered to an address in Sudbury.

17PC Verspeeten acknowledges stopping the applicant on this occasion, but denies that he harassed the applicant, accused him of drinking or shone a bright light in the applicant's eyes. He states that he did not have a partner that night, and no-one else accompanied him when he questioned the applicant about his current address (which the applicant confirmed was now in Toronto) and spoke to him about the failure to up-date the address on record with the Ministry of Transportation. The applicant was ticketed for failing to advise the Ministry of the change with respect to his driver's license, and cautioned for failing to advise the Ministry of his address with respect to his vehicle permit. He was not charged/cautioned for failing to have his insurance papers.

18The applicant does not address the respondent's factual allegations in his Reply, but states that his Application was filed in a timely manner, contrary to the assertion in the Response.

August 29-30, 2009 (Application No. 2010-06416-I)

19On the night of August 29-30, 2009, the applicant was approached by police by his parked car in the downtown core of Toronto. The applicant alleges that he was approached by PC Dobbs, who was in plainclothes and who failed to identify himself as a police officer. It was only after the applicant asked why he should answer questions to a stranger that PC Dobbs showed him identification, which the applicant alleges was purposefully shown to him upside down.

20PC Dobbs was accompanied by a female officer who the applicant did not get the identification for. He alleges that both officers asked him demeaning questions such as "who, what, where, why, when etc." Although he was not driving his car at the time, they demanded to see his driver's identification.

21They were joined by another two male officers, who were in another car. The applicant alleges that they searched his car, pulling everything apart and dumping his property all over. The applicant was ordered to stand away from his car so he could not see what they took from his car.

22In addition, the applicant alleges that one of the unidentified male officers in the second car asked him personal questions and demanded to know where he was born. The other unidentified male officer threatened to handcuff him if he did not answer the questions. A light was shined into his eyes that affected his vision afterwards.

23With respect to PC Dobbs, the applicant alleges that he was yelling and swearing at him, and then told him: "I am banned from Toronto, and that if I am ever found in Toronto I would be killed. My name is going to be entered into the computer, and I will be harassed for the rest of my life!!."

24In their Response, the respondents state that PC Dobbs was on bicycle patrol that evening and had no interaction with the applicant. However, four other officers did have an encounter. They allege that two officers (DC Crawford and DC Comeau) observed the applicant loading large items into his car, and were concerned that they might be witnessing a robbery in progress. When they approached the car, they noticed it was filled with many household items, a bicycle and other items.

25In contrast to the applicant's allegations, they allege they identified themselves as police officers (they were in plainclothes) and asked the applicant questions including who he was and what he was doing. The applicant's answer to their question about what he was doing made them suspicious, and so they did a limited search of his vehicle, which revealed the items in it were of little value.

26They called for a marked "scout" car to come to the scene so that they could perform a "unified search" which revealed no concerns. They asked the applicant a series of personal questions in order to complete their record of contact and then left the scene.

27In his Reply, the applicant accepts that DC Dobbs was not involved in the incident and does not dispute the respondents' position about the identity of the individuals involved.

28The applicant's Reply repeats and augments many of his original allegations in his Application. For example, he alleges that he was verbally attacked by the two male officers for two hours, and that DC Comeau told him that he would kill any person the applicant was with if he ever came back to downtown because those individuals would be witnesses to the applicant's killing. He also alleges that DC Comeau bragged about how the Toronto Police are the "worst in what they do to victims."

29The applicant denies many of the respondent's allegations – in particular that his car and trunk were filled with items.

Decision and Analysis

30Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

31The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Applications continue to proceed through the Tribunal's procedure.

32In Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal stated:

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.

33The applicant's role in the summary hearing is to describe to the Tribunal the evidence he proposes to call to support his belief that he experienced discrimination.

34While the primary focus in the summary hearing is on the applicant's evidence, the respondent's explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal does not dismiss an application at a summary hearing simply because the respondent has an alternative explanation of the events.

35I would note that the applicant's submissions with respect to all three Applications suggest that he intends to present social fact evidence (the nature of which is not clear) about the existence of racism and its presence in policing. Given his refusal to participate by telephone, it was not possible to question him on the precise nature of his evidence, and so I am left to infer that he intends to introduce this evidence by way of media articles and possibly cases. This, on its own, would be insufficient to establish that he experienced discrimination with respect to his own interactions with the police, although it is not always improper to rely on judicial notice of social science matters: See Peel Law Association v. Pieters, 2013 ONCA 396.

36The question is whether the evidence the applicant presumably would lead of the encounters themselves is sufficient to proceed to a hearing on the merits. That is, I must determine whether the applicant has "no reasonable prospect of success" if relying only on his own testimony. In determining this I have had regard to the pleadings (Application, Response and Reply) and the submissions of the parties.

March 12 2009 (Application No. 2010-04964-I)

37The respondents argue that the applicant has not disputed much of what they set out in their Response concerning what transpired. They say the applicant does not dispute that he was driving a car on which a window was covered by a bag or sheet, that he did not have a license and that he stopped in the middle of the road. However, the applicant also states that he was directed to stop in the middle of the road, disputes that the respondent officer could hear his exhaust and does not resile from his position that the respondent officer took his insurance papers away from him, so that he would not have them the next time he was stopped. It appears also that there is a dispute about the manner in which the respondent officer questioned the applicant, which will have to be determined after hearing the evidence from the respective parties to the interaction.

April 15, 2009 (Application No. 2010-7698-I)

38As with the incident above, the applicant disputes the manner in which he was questioned, and also takes the position that the officer in question was aware that he had previously taken the applicant's insurance papers and so was able to charge him with something on which the applicant apparently takes the position he was innocent. I am aware that the respondent's position is that it will call contrary evidence concerning why the applicant was pulled over and charged. However, it is not appropriate at a summary hearing to reach factual conclusions on contrary positions for which there has been no evidence led.

39While the respondent initially took the position that this Application was untimely, it was unaware that the applicant had filed a timely Application concerning this matter that was closed in error. It now takes the position that dismissing this Application on the basis of delay would be unfair.

August 29-30, 2009 (Application No. 2010-06416-I)

40The parties are in agreement that this incident took place late at night while the applicant was loading his car. There is no agreement about the other material facts in dispute, such as whether the applicant's car was filled with household items or whether the applicant was the victim of numerous threats by the officers involved.

41Accepting the applicant's allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code. His allegations with respect to the three encounters are sufficiently out of the ordinary that they require an explanation from the respondents – even if that explanation is merely that the events did not occur as alleged.

42The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons.

next steps

43The applicant is opposed to consolidation of these three Applications, but has not provided any submissions about why these matters should be heard separately. Given the common facts between the first two incidents, and the common caselaw between the three incidents (indeed, the applicant's summary hearing submissions on the three Applications were identical), I am of the view that it would be fair, just and expeditious to hear the three Applications together pursuant to Rule 1.7 of the Tribunal's Rules of Procedure.

44The hearing will proceed by way of a one-day, in-person hearing. I am concerned that the applicant has, thus far, not been willing to engage in even a teleconference with respect to his Applications. He is, accordingly, directed to advise the Tribunal and the parties by March 6, 2014 that he is prepared to participate in an in-person hearing.

45If the applicant does not contact the Tribunal and respondents by that date, the Tribunal may dismiss his Applications as abandoned. In the event that the applicant advises the Tribunal that he is not prepared to attend an in-person hearing, the Tribunal may dismiss the Applications on the basis that the applicant has not met his burden of proof.

Order

46In sum, I have made the following orders and directions:

a. The Applications are not dismissed as having no reasonable prospect of success;

b. The Applications will be heard together at a one-day, in-person hearing;

c. The applicant is directed to advise the Tribunal and respondents by March 6, 2014 whether he is willing to participate in an in-person hearing ;

d. In the event that the applicant does not contact the Tribunal and respondents by that date, the Tribunal may dismiss his Applications as abandoned; and

e. In the event that the applicant advises the Tribunal and respondents that he is not prepared to participate in such a hearing, the Tribunal may dismiss his Applications on the basis that the applicant has not met his burden of proof.