Mohamed Nemmour v. Toronto Police Services Board, 2014 HRTO 645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Nemmour

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: David Muir

Date: May 6, 2014

Citation: 2014 HRTO 645

Indexed as: Nemmour v. Toronto Police Services Board

APPEARANCES

Mohamed Nemmour, Applicant

Self-represented

Toronto Police Services Board, Respondent

Brennagh Smith, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of ethnic origin.

Background

2In 2013 HRTO 357 this Application was dismissed as abandoned. The circumstances leading to the dismissal of the Application were described by the Tribunal in a Case Assessment Direction (“CAD”) issued on June 18, 2013:

On January 10, 2013, the Tribunal delivered the Response to the applicant. The letter directed the applicant to file a Reply, addressing the respondents’ requests to dismiss, by January 24, 2013. The applicant did not do so. It appears that this letter may not have reached the applicant because his residential address was no longer valid. The applicant had indicated that he preferred to receive communications by e-mail. The Tribunal’s policy, however, is that it may send important documents by regular mail, even where a party’s preferred method of communication is different (see the Practice Direction on Communicating with the Human Rights Tribunal of Ontario)

The Tribunal issued a Case Assessment Direction (“CAD”) on February 7, 2013, directing the applicant to file his reply within two weeks, by February 21, 2013. This CAD was sent to the applicant by e-mail.

The applicant made a walk-in inquiry to the Tribunal about his case, and on February 27, 2013, the CPO team lead sent the applicant a letter that reads as follows:

Further to your inquiry walk-in inquiry [sic] at Human Rights Tribunal of Ontario (HRTO) offices at 655 Bay Street, please find attached a copy of the HRTO’s letter dated January 10, 2013 and the Respondents’ Responses (Form 2).

I also wish to confirm you have indicated that you currently do not have a valid mailing address and are requesting all correspondence via email in the interim. Please provide a new mailing address as soon as possible. If you are requesting an extension to reply to the Case Assessment Direction (CAD) dated February 7, 2013, you must write to the Registrar (hrto.registrar@ontario.ca) and copy the other parties’ representatives (brsmith@toronto.ca and kim.twohig@ontario.ca) immediately.

On March 1, 2013, the applicant wrote to the Tribunal by e-mail to request an extension of time. It appears this e-mail was not placed before the Vice-chair who dismissed the Application as abandoned by Decision dated March 4, 2013: 2013 HRTO 357.

On March 6, 2013, the Registrar granted the applicant an extension of time to file his Reply until March 18, 2013. It appears that the Registrar was unaware of the Decision dismissing the Application that had been issued on March 4, 2013. The applicant filed his Reply on March 13, 2013. The Tribunal took no action upon receiving this document.

On June 10, 2013, the applicant filed a Request for Reconsideration, which was delivered to the respondents on June 11, 2013.

3In the same CAD the Tribunal directed that an oral hearing by telephone conference call be scheduled to hear submissions on the Request for Reconsideration, and whether, assuming reconsideration is granted, the Application should be dismissed for any or all of the reasons requested by the respondent in its responses, including delay and the assertion that the Application has no reasonable prospect of success.

4A telephone hearing was held on September 9, 2013 to consider the issues raised above. In 2013 HRTO 1554 I granted the reconsideration request for reasons set out in that Decision. I also dismissed several aspects of the Application as originally framed for reasons set out in that Decision.

5Following these determinations of the Tribunal the remaining issues to be considered are allegations that in August 2011 and December 2011 the respondent failed to investigate and prosecute assaults of him by others. The applicant also alleges that he was lied to and denied information by unidentified members of the Toronto Police Service on January 3, 2012.

6At the outset of the hearing held on March 12, 2014 I clarified with the applicant the nature of the claim he has made. In particular I explored with the parties whether or not a perceived disability was an issue in the case. The applicant was clear that he was not alleging that a factor in his alleged mistreatment was a perceived mental health disability. Despite this clear articulation of his position near the end of the hearing day the applicant took exception to my ruling that questions with respect to a perceived mental disability were not relevant. The applicant then stated that this was what the case was all about – that he had been defamed by one or more of the officers. I ruled that it would be inappropriate at that stage, cross-examination of the respondent’s final witness, to allow a significant amendment of the Application. The applicant continued to assert in submissions that he had been defamed and that this was a significant issue in the case. Despite my ruling at the hearing I observe that based on all of the evidence there is no basis to conclude that a perceived mental disability was a factor in any of the decisions made by the various police officers involved in this case.

7I also note that during his testimony the applicant repeatedly asserted that his treatment by the police was connected to his application for a permit to engage in a protest in Queen’s Park and to his arrest and detention during the G20 event in 2008. Even if the applicant had established some link between these things and the police conduct in issue in this matter (and before me he did not), I find that any such link is irrelevant to the merits of this Application and the question of any infringement of the applicant’s Code rights.

8I heard the evidence of the applicant as well as that of Joseph Comeau, Kevin Cummings, Jessica McInnis, Jeff Wesley, Debbie Harris and Mark Pischedda, all members of the respondent police service. An Order excluding witnesses was made and explained to the applicant.

9The respondent indicated an intention to bring a Rule 19A motion in respect of all of the allegations made by the applicant. This motion was put aside in order to hear the evidence with respect to the December 29, 2013 and January 3, 2014 allegations. In the end it was agreed that it would be most practical if I would hear all of the evidence and the respondent could argue that some or all of the allegations should be dismissed as having no reasonable prospect of success in final submissions.

10At the conclusion of the evidence the parties agreed to make final submissions in writing. Those submissions have been received.

11The Application is dismissed for the following reasons.

12The applicant has no direct evidence of discrimination which is not unusual in these kinds of cases, but the applicant asks that an inference be drawn from a number of circumstances.

13Although the applicant would not disclose his ethnic origin in the hearing, in his Application he self-identifies as being North African in origin. At the hearing he argued that his first name was the reason for his alleged mistreatment. Although there are limitations on the ability to draw the inference of ethnic origin from the name Mohamed, in all of the circumstances I have assumed for purposes of this case that his name can stand as a proxy for his ethnic origin.

14This case arises out of what the applicant alleges were three assaults of him on the streets of Toronto. Even on the applicant’s version of events two of three events were very minor assaults. I observe at this point that for the most part the applicant’s claims of discrimination are, with the possible exception of the December 29 incident, nothing more than complaints of inadequate service delivery by the respondent. It also became clear over the course of the day that the applicant believed that if he asked for a criminal charge to be laid it must be laid. In other words the applicant appears to believe that the police have no discretion not to lay a charge if in a technical sense the acts described might meet the Criminal Code definition of, in this case, an assault. However given that a police officer has such discretion the question before me is whether or not there is an evidentiary basis to conclude that a Code ground was a factor in the decisions not to proceed further with an investigation and/or prosecution of these alleged assaults.

15By way of further background none of the police witnesses had had any prior contact with the applicant before the incident in which they became directly involved and none have had any contact with him since. Each testified that they had no particular reaction to his name.

16A general comment about credibility. The applicant related his narrative in a coherent way and appeared to believe that what he was saying was true. However he was also vague about certain important points when pressed by the respondent and dodged more than a few questions. More importantly his version of events is often at odds with the contemporaneous records created by the various police officers involved with him. These discrepancies are in some ways consistent in that the applicant’s current allegations of what happened to him in these three incidents of assault are consistently more serious than what is recorded by the police.

17The applicant argues that all of the respondent’s witnesses were lying. He goes further and alleges that they conspired together to concoct an alternative version of events. Notwithstanding this belief, as will be seen below, one of the respondent witnesses is recorded as saying that he believed that the applicant had been assaulted on August 8, 2011. He subsequently caused an investigation to begin. Perhaps most significantly, in respect of the December 29 incident, there are at least two occasions where the applicant is recorded as saying that he fell on the ice while feeding birds. These versions of the December 29 incident are recorded at different times by different officers. There is no indication that these contemporaneous notes were “cooked” by the officers involved and no other indication that the various records are not a reasonably accurate record of what the applicant told the officers at the time. Finally the applicant disputes the view of the officers involved in the December 29 incident investigation below, that he did not appear to have suffered any injuries. Despite being advised of the requirement to file any medical evidence in advance of the hearing the applicant chose not to do so and accordingly there is no independent evidence to contradict the officer’s testimony in that regard. For these reasons where there is a conflict in the evidence, the evidence of the respondent will be preferred in the absence of any other indication that the applicant’s version of events should be preferred.

August 8, 2011

18The applicant alleges that he was assaulted by an unknown assailant on August 8, 2011. It is agreed that the applicant reported this event to the police and it was investigated. The applicant argues that the investigation was inadequate and that he was subsequently mislead about it by the police. The applicant testified that his assailant told him that he lived at 195 Wellesley Street. He also testified that this individual fled to an automobile in front of 195 Wellesley Street and that he took the licence number of the vehicle. The applicant alleges that he provided these two pieces of information to the police but that they never found the individual.

19Contrary to the applicant’s apparent belief, an investigation was undertaken. The officer initially investigating the event, Police Constable Wesley, testified. The respondent submitted audio recordings of telephone and radio calls in relation to this allegation. It is clear from this evidence that PC Wesley took the applicant’s allegations of an assault, albeit a minor one, seriously and undertook to investigate his allegation. Following the initial investigation by PC Wesley a Detective was assigned. The Detective assigned, Debbie Harris, testified that based on the limited information she had been provided there was little she could do. She testified that the description of the alleged assailant was very general. She further testified that she was not given a licence number for the automobile the applicant claims to have seen his assailant sitting in but agreed that this information would have been useful in identifying the assailant. Detective Harris testified that the investigation file remained open but that given the limited information she did not follow up, which is consistent with police practice. In particular she testified that she did not attend the scene of the alleged event because she knew it well and knew there were no surveillance cameras in the area that might assist in identifying the assailant. She also testified that she did not contact the applicant directly because she assumed that PC Wesley had got the important information. In more serious cases this might have been appropriate but the incident was a very minor one and in Det. Harris’ view it was not appropriate to follow up with the applicant in the circumstances.

20Based on the evidence before me there is no indication that any of the procedures followed or the decisions made by the officers involved in this incident were affected in any way by the applicant’s ethnic origin.

21The applicant alleges that when he attended the police station on August 20, 2011 in relation to another alleged assault he enquired about the investigation with respect to the August 8 incident and was told it was ongoing. Assuming that this allegation is proven, which is not clear on the evidence, it establishes nothing more than inadequate service in not being provided with a file number. Assuming that the applicant was not provided with the investigation file number I am unable to conclude that a factor in his not getting this information was his ethnic origin.

August 20, 2011

22The applicant alleges that he was assaulted again by another individual while waiting with others for work at a day labour agency. Even on his description the event was a minor one. In any event the applicant alleges that he was assaulted, on his version he was pushed or hit once with the assailant’s knapsack after a verbal altercation. The applicant attended at the police station and was told to return to the scene and an officer would attend. PC Pischedda did attend the scene and interviewed the applicant as well as the alleged assailant. He concluded that there was no basis for a criminal charge and told both individuals to stay away from each other.

23The applicant disputes the version of the dispute and assault that PC Pischedda testified was relayed to him, but I accept the officer’s testimony that even if he had understood as the applicant claims, that the other individual had pushed or hit him with his knapsack, he would not have done anything different. The applicant took significant exception to PC Pischedda’s evidence on this point confirming the impression, noted above, that the applicant believed that the police had no discretion when presented with an allegation of assault or other minor crime. On the basis of the evidence presented there is no basis to question that the exercise of discretion by this police officer was unrelated to any Code concerns.

December 29, 2011 and January 2 or 3, 2012

24The applicant alleges that he was assaulted in front of or near to a Food Basics Store on Wellesley Street sometime in the afternoon, likely shortly before 5 p.m. on December 29, 2011 by three or four men one of whom he at one point identified as the manager of the food store. The applicant later asserted that it was not the manager but an employee of the store.

25The applicant testified that he suffered significant injuries as a consequence of this assault. He testified that he was kicked and his head stomped on such that it was completely misshapen. He reported the incident at one point that day as an attempted murder. The applicant called 911 from 555 Sherbourne Street a location some distance from where he alleged the assault took place and requested assistance. He then apparently walked to a library and community centre some distance away from 555 Sherbourne where someone called 911 again on his behalf and reported that the applicant had a cut lip and there was some blood in or on his ear. An ambulance was dispatched and the applicant was taken to hospital. The applicant was transported to the hospital at 5:42 p.m. I asked him if he was able to walk to the ambulance or required transport by stretcher. He did not respond directly but stated that he could not walk straight because of his injuries.

26The applicant testified that an MRI or some other scan was taken of his head. When asked about medical records to support this claim the applicant indicated that while he had medical records he declined to produce them as they were private.

27Officers Comeau and Cummings attended at the hospital and spoke with the applicant at approximately 7:30 p.m. The Officers noted no visible injuries and no bleeding at the time they arrived at the hospital. The Officers both testified that the applicant indicated that he did not want to pursue the matter but wanted the police to be aware of it. Both Officers believed that there had been an altercation with one or more individuals and the applicant had fallen on ice. He also told them he had been attacked by one or more males. One of the Officers got the impression that this was an ongoing dispute about the applicant feeding birds.

28The applicant testified that he continued to have obvious injuries including bleeding from one ear when the police arrived. He testified that he told them he had been assaulted and that he wanted them to pursue charges. He testified that the police officers told him that they would follow up with him the following week.

29The applicant also alleges that he attended at 51 Division on January 2, 2012 because he believed that on or about that date one of the two officers who attended him on December 29, 2011 was to have called him to follow up with him regarding that earlier incident. The applicant alleges that the respondent refused to inform the officers who had attended him on December 29 that he was there, although he believes that at least one of them was on duty that day. He also alleges that the respondent refused to provide him with the names of his alleged assailants which he required in order to commence a prosecution of the individuals.

30Sergeant McInnis testified that she spoke with the applicant on January 3, 2012 and not January 2 and that the applicant told her he had been in an altercation with a number of individuals and had fallen on the ice. She testified that he wanted the names of those he alleged were involved so that he could sue them. She advised him that the service does not normally provide that information pursuant to privacy legislation. Sgt McInnis testified that the applicant became belligerent at that point. She testified that she explained how he could make a freedom of information request. She also pointed out that he could make a complaint about any police officer and attempted to explain that process to him. The applicant declined to cross-examine this witness and stated that her evidence had nothing to do with the case.

31I find that the applicant was sometimes evasive and forgetful in his testimony about these interactions. On the other hand, I find the evidence of the respondent’s witnesses, both those involved in this incident as well as all of the others with whom the applicant had contact, was given in a forthright and straightforward way.

32The applicant argues that the police officers were lying at the hearing. He makes the same assertion about all of those who testified for the respondent. Beyond assertions that they did so, and the further assertion that they “cooked” their notebooks to create a consistent alternative narrative to his, the applicant provides no facts which would tend to support this claim.

33I prefer the evidence of Officers Comeau and Cummings about their interactions with the applicant on December 29, 2011. In addition to the general credibility issues identified above, the witnesses involved in these incidents relate a largely consistent, but not perfectly identical, version of what was said to them by the applicant about the alleged assault. What they each say they were told and recorded in their note books is generally consistent with each other while being inconsistent with the applicant’s version of what he said to each of them. There is no basis to conclude that the three Officers conspired together to “cook” their evidence. I have also considered the likelihood that the police service would leave a serious assault open for a few days and then undertake to follow up with the applicant the following week; which is a central element of the applicant’s narrative of this incident. Both Officers Comeau and Cummings testified that this could not be the case. They each testified that as Primary Response Unit officers they are responsible only for the initial investigation and must be available to respond to events while on shift. If there is to be any further investigation it would fall to the Detective Unit to follow up as required, as occurred in respect of the August 8, 2011 incident. There is no reason to question this evidence. Accordingly I find that the applicant’s version of his interactions with the officers on December 29, 2011 is entirely inaccurate on this key point.

34In terms of the January 3, 2012 incident, as indicated above, Sgt McInnis recorded this interaction in her note book and it is largely consistent in terms of how the applicant described the December 29 incident with what Officers Comeau and Cummings recorded and inconsistent with how he has described it at other times. I prefer Sgt McInnis’ version of the interaction that day. In any event even if Sgt McInnis incorrectly recorded what was said to her there is no reason to conclude that the reason she would not provide the applicant with contact information for his alleged assailants was because of his ethnic origin as opposed to the reason offered - privacy legislation.

Conclusion

35As indicated the respondent had indicated that it intended to bring a request pursuant to Rule 19A.1 to dismiss the Application after the applicant’s evidence. For purely practical reasons the Tribunal heard all of the evidence with written submissions to follow.

36The respondent renewed its request in its written submissions. I agree that the allegations in relation to the first two complaints had no reasonable prospect of success. As indicated in respect of the first allegation of a failure to investigate, in fact the respondent did investigate his complaint and in fact it remains open. As regards the second complaint it similarly could have been dismissed as having no reasonable prospect of success and amounts to nothing more than a complaint that because he was the victim of a technical assault the assailant should have been charged. This allegation has no reasonable prospect of success both because the applicant continues to ignore the fact the Officer had a discretion and also because he has pointed to no evidence of any link between the officer’s exercise of that discretion and a Code factor. Based on the nature of the complaint there is also nothing from which I could infer the officer’s exercise of discretion was in any way unusual or might have arisen from any inappropriate consideration such as a Code factor.

37I would not have granted the request in respect of the December 29, 2011 incident primarily because of the central factual dispute at the heart of this incident – whether or not the applicant told the Officers to press charges or not. Although there were some evident problems with the credibility of the applicant it was only after assessing the relative credibility and reliability of the competing versions of events provided by the applicant and the respondent’s witnesses that determinations could be made about some of the factual issues.

38However for the reasons set out above I have found that the respondent’s version of events must be preferred and accordingly I find that the applicant did not ask the respondent to investigate and lay charges in response to an alleged assault. I also have concluded that there is no reason to question Officers Comeau’s and Cummings’ observations that there did not appear to be any injuries suffered by the applicant that would require them to pursue the matter irrespective of his wishes.

39For all of these reasons the Application is dismissed.