Perumal v. Toronto Police Services Board, 2015 HRTO 1499

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suresh Perumal

Applicant

-and-

Toronto Police Services Board, William Blair, Simon Fraser, Walid Osman, and Amy Patterson

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 6, 2015

Citation: 2015 HRTO 1499

Indexed as: Perumal v. Toronto Police Services Board

APPEARANCES

Suresh Perumal, Applicant

Munyonzwe Hamalengwa, Counsel

Toronto Police Services Board, William Blair, Simon Fraser, Walid Osman, and Amy Patterson, Respondents

Michelle S. Henry, Counsel

Introduction

1On September 12, 2010, the applicant, who is Indian (South Asian), called 911 to complain about the behaviour of dog owners close to his home. When the police officers arrived on the scene, they spoke first with the dog owners and a security guard, and then with the applicant. The officers then arrested and charged the applicant with criminal offences, but did not arrest or charge any of the dog owners.

2The purpose of this Decision is to decide whether the respondents discriminated against the applicant because he is Indian. The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the respondents discriminated against him. The following are my reasons.

BACKGROUND

3On September 13, 2011, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, place of origin, and ethnic origin. Specifically, he alleged that after having problems with dog owners, upon his request, the City of Toronto installed a sign which detailed the municipal by-laws requiring that dogs be kept on leashes and picked up after. He alleged that a few days later, a group of White dog owners surrounded his property to protest against the sign. He alleged that after he called 911 for police assistance, the police came and arrested and charged him with criminal offences. He alleged that he was arrested and charged because he is Indian.

4On February 13, 2012, the respondents filed a Response, which denied the allegation of discrimination. The respondents stated that the police officers arrested and charged the applicant because some dog owners and a security guard had informed them that the applicant had threatened them and their dogs, including threats to kill or injure their dogs, and the applicant admitted to the officers that he had threatened to “eat” a dog. The respondents stated that they did not arrest and charge any of the dog owners because the applicant did not inform them that the dog owners had made any specific threat towards him or his family.

5On April 20, 2012, the applicant filed a Reply, which maintained the allegation of discrimination.

6The hearing of the merits of the Application took place on January 27 and 28, 2015. I heard the oral testimony of five witnesses: the applicant; Jennifer Duczmal, who was his fiancée at the time; Sergeant Simon Fraser; Police Constable (“PC”) Walid Osman; and PC Amy Patterson. I also admitted into evidence a number of documents and things tendered by the parties, including the 911 call, the dispatch call, memo books notes, event/incident reports, and written complaints.

7At the outset of the hearing, the applicant’s counsel alleged that the respondents had also discriminated against the applicant with respect to services because of his disability. I understood this allegation to be with respect to alleged incidents that occurred after the applicant was handcuffed at his home, on the way to the police station, and at a hospital. The respondents’ counsel objected to the late addition of a new ground of discrimination, and the applicant’s counsel then conceded that the objection was valid. However, he stated, the applicant’s disability was relevant to issue of damages.

8In his testimony, the applicant self-identified as “Indian”, and identified everyone else on the scene as “White”. In their testimony, Sergeant Fraser and Patterson did not self-identify by race, but the respondents did not dispute the applicant’s characterization of them as “White”. In his testimony, PC Osman self-identified as being of Egyptian descent.

EVIDENCE

9In 2010, the applicant and Ms. Duczmal were living together in a unit in a townhouse complex in Toronto. They do not like dogs, and had ongoing disputes with dog owners in the complex about dogs being off-leash, defecating on their property, charging at them, and biting or near-biting incidents. They used a video camera to film dog owners who, in their view, were breaching municipal animal by-laws.

10In her testimony, Ms. Duczmal admitted that she had threatened to kill a dog. She stated that in June 2010, a dog charged at and was snapping at her, and in response, she told the owner that she would kill, gut, and barbecue the dog, and put its remains in a doggy bag.

11In his testimony, the applicant also admitted that he had threatened to kill a dog. On August 16, 2010, a dog owner contacted the police and complained that the applicant had threatened to kill her dog. Police officers spoke with the applicant, and he told them that the dog had charged him, and he had told the owner he would “eat” the dog if it happened again.

12On August 17, 2010, the same dog owner contacted the police again, and when the police officers spoke with the applicant, they asked him not to videotape or photograph the dog owner.

13On September 5, 2010, the applicant sent a letter to Animal Services at the City of Toronto which alleged that about 13 dog owners in the townhouse complex were breaching municipal animal by-laws and terrorizing him and his family. He concluded by stating:

[T]hese tenants have formed a lynch mob, trying to get me to do something I may regret…. Sadly, I have come to the point that I will do ANYTHING AND EVERYTHING to ensure the safety and well being of my family…. We are at the breaking point and something extreme is going to happen, and due to the mental stress that we are under, we may be forced to do something, under normal circumstances, what we know to be unimaginable and unthinkable because we have been driven past the breaking point.

14On September 9, 2010, in response to the applicant and Ms. Duczmal’s request, the City of Toronto installed a sign which set out the municipal by-laws on keeping dogs on leashes and removing their excrement.

15On September 10, 2010, the townhouse complex’s security guard told the applicant that the parents of a teenage girl had complained that the applicant had followed her into a ravine and videotaped her. The applicant denied that he had videotaped the teenage girl. He stated that he and Ms. Duczmal had simply told the girl to pick up after her dog.

16On September 12, 2010, the incidents that are at issue in this Application occurred. Ms. Duczmal testified that she opened the door to let in fresh air, and saw 40 dog owners who were coming out of the ravine behind the townhouse complex. She stated that when they saw her, they “sort of” charged, and were screaming things, such as, “there she is.” She stated that she told the applicant, who was in the bathroom, that the dog owners were surrounding their townhouse.

17Ms. Duczmal wrote a same-day account of what happened which was entered into evidence. In that written account, she stated that there were 20 to 30 dog owners, and that they surrounded the townhouse which prevented her and the applicant from leaving. She also stated that she and the applicant caught 13 of the dog owners on video. She did not mention that the dog owners charged. In cross-examination, when asked about the discrepancy between her testimony and her written account with respect to the number of dog owners, she changed her testimony and stated that there were 30 dog owners.

18The applicant testified that he saw 40 White dog owners around his townhouse, who were saying: “She is afraid of dogs, she is afraid of dogs.” In cross-examination, when it was pointed out that his Application stated that there were 30 to 40 dog owners, the applicant changed his testimony and stated that there were 30 to 40 dog owners. He also stated that he has 20 of the dog owners on film.

19The applicant had not disclosed this videotape to the respondents or filed it with the Tribunal. When asked to produce the videotape, the applicant stated that he would bring it to the next hearing day. On the following hearing day, the applicant’s counsel stated that the videotape could not be produced because the applicant gave a copy of it to the Crown and the Office of the Independent Police Review Director (“OPIRD”), and did not keep a copy for himself.

20The applicant testified that he called the police because 40 people had “attacked” Ms. Duczmal with dogs, and he and Ms. Duczmal were in fear for their lives. An audio recording and a written transcript of the applicant’s 911 call were entered into evidence. The applicant called at 5:48 p.m. and told the dispatcher that there were 30 to 40 dog owners surrounding his house and scaring his wife. He stated that the dog owners were peering into his house, and that it was a protest against the sign that the City of Toronto had put up. When asked by the dispatcher if the dog owners were on his property, he responded that they were “pretty much” on his property. He admitted that the dogs were on leashes, but stated that the dog owners were terrorizing his family by coming so close to his home. The applicant did not mention in the call that dog owners had “attacked” Ms. Duczmal.

21The dispatcher told the applicant to stay in his house, and sent out the following verbal dispatch to police officers along with the applicant’s home address:

Complainant been having some problems with the dog owners in the area. He has been complaining to them and about them. There are about 30 to 40 people outside of his house with their dogs. Appears that they are picketing his house.

22Sergeant Fraser, PC Osman, PC Patterson, and several other police officers were dispatched to the scene. PC Osman and PC Patterson arrived together at 5:57 p.m. They testified that as they were walking through the townhouse complex, they saw a group of dog owners in the courtyard. PC Osman stated that there were about 10 dog owners. PC Patterson stated that there were 15 to 20 dog owners. Sergeant Fraser, who arrived after them, testified that he did a head count, and there were 15 dog owners. Sergeant Fraser denied that the group of dog owners were all White. He stated that he saw people of Southeast Asian and South Asian descent. PC Osman and PC Patterson stated that they do not recall the racial composition of the group of dog owners, but that if the group had been all-White, that would have stood out because the area of Toronto where the townhouse complex is located is extremely diverse.

23Sergeant Fraser testified that, for safety reasons, he scanned the group of dog owners for trouble as he approached it. He stated that the dog owners were friendly, and no one was yelling or screaming. He stated that the dogs were also friendly. He described the group as “normal”.

24Sergeant Fraser, PC Osman and PC Patterson all testified that several dog owners complained to them that the applicant had made threats of bodily harm, and threatened to kill their dogs. PC Osman and Sergeant Fraser then proceeded to the applicant’s townhouse, while PC Patterson remained with the group of dog owners to take statements. PC Patterson’s memo book notes indicate that she took a statement from a dog owner who stated that the applicant had threatened to cut her dog’s head off because it was off-leash. PC Patterson testified that she also spoke with a security guard, who emailed two incidents report dated September 4, 2010 and September 7, 2010 to her. The reports state that the applicant told the security guard that he had threatened to assault dog owners and kill their dogs, he had weapons which he was prepared to use in self-defence, he would kill the security guard’s dog if he felt threatened, and he had tampered with a dog owner’s door.

25The applicant testified that when Sergeant Fraser and PC Osman came to his townhouse, and Ms. Duczmal attempted to speak, Sergeant Fraser told her to “shut the fuck up”, and stated that he was going to be charged with something. Ms. Duczmal testified that when Sergeant Fraser and PC Osman came to their townhouse, Sergeant Fraser stated that the applicant was going to be charged with something. She did not corroborate the applicant’s testimony that the first thing that Sergeant Fraser said to her was to “shut the fuck up”. In cross-examination, when it was pointed out to the applicant that his complaint to the OPIRD did not allege that Sergeant Fraser made this remark to Ms. Duczmal, the applicant stated that it was in one of the letters that he submitted. The applicant did not produce any such letter before this Tribunal.

26The applicant testified that he tried to show Sergeant Fraser the letters that he had sent to various municipal agencies about his problems with the dog owners. He stated that Sergeant Fraser then told him that he was being arrested for threatening a dog, and put handcuffs on him. He stated that he was not read his rights. In cross-examination, the applicant admitted that prior to being arrested, he had told PC Osman that he had threatened a dog owner that he would “eat” the dog. He testified that this was not a literal threat to eat the dog.

27The applicant testified that Ms. Duczmal told the police officers that she had also threatened to kill a dog, but she was not arrested. Ms. Duczmal also testified that when the applicant was told that he was being arrested for threatening a dog, she told the police officers that she had also threatened a dog, specifically, she had told a dog owner that she would kill, gut, and barbecue the dog, and put its remains in a doggy bag. She stated that she believes that the police officers did not arrest her because she is White. This alleged statement by Ms. Duczmal to the police officers was not mentioned in her same-day written account of what happened or the human rights Application.

28Sergeant Fraser and PC Osman’s account of what happened at the applicant’s townhouse is somewhat different. They both testified that PC Osman was the main point of contact with the applicant. PC Osman stated that he asked the applicant what was going on, and the applicant responded that he had complained to the city about dogs being off-leash, that a sign was then put up by the city, and that the dog owners were protesting outside his townhouse because of the sign. PC Osman’s memo book notes also indicate that the applicant told him that he found the dog owners’ actions “intimidating”. Sergeant Fraser stated that the applicant then tried to talk to him by pointing to the sign that had by-laws covering dogs, and showing him complaint letters about by-laws covering dogs. He also stated that the applicant told him that that the dog owners were protesting outside his townhouse because of the sign. PC Osman stated that he asked the applicant about the alleged threats that he had made to dog owners and their dogs, and the applicant responded that he had only told an owner that he would “eat” her dog. PC Osman stated that he then arrested the applicant and read him a caution.

29PC Osman and Sergeant Fraser both testified that the applicant was arrested because several people had told them that the applicant had threatened them and their dogs with violence, and the applicant admitted that he had threatened to commit a violent act against a dog. They also both stated that none of the dog owners were arrested because the applicant did not allege that any of them had committed criminal acts. Rather, they stated, the applicant was complaining about municipal by-laws being breached, which was not within their jurisdiction, and a protest outside his townhouse. Sergeant Fraser stated that the applicant was complaining about dogs being off-leash, but did not allege that dog owners were trying to get into his home, which would have been a different situation. He stated that if the applicant had alleged that any of the dog owners had committed criminal acts, he may have arrested some of the dog owners, as well.

30In cross-examination, when the applicant was asked why he called the police and whether he expected charges to be laid against the dog owners, he responded that he called because he was trapped in his home and wanted the dog owners to be removed. When asked whether he felt threatened, he responded that he called the police because he felt threatened.

31The applicant testified that he had a heart attack in 2009, and after he was handcuffed, he told Sergeant Fraser and PC Osman that he had a medical condition. There is no dispute that PC Osman collected the applicant’s medications from his townhouse, but neither he nor Sergeant Fraser dispensed them to him. Sergeant Fraser testified that police officers cannot administer medication on scene because they do not have the training to do so. He stated that medication has to be administered at the hospital or at the police station by a booking officer on camera. The applicant also testified that Sergeant Fraser called him a faker, a liar, and a drug addict. In his testimony, Sergeant Fraser denied that he ever called the applicant a drug addict, but admitted that he called the applicant a faker at the hospital. This is discussed in more detail below.

32The applicant testified that PC Osman brought him to a police car and began driving. He stated that he began having massive chest pains, but PC Osman refused to bring him to the hospital. He stated that it was only when he was unable to breathe and his chest felt like it was exploding that he was brought there. In his testimony, PC Osman denied that he refused to bring the applicant to the hospital. He stated that the applicant was breathing heavily and told him that he had a heart attack before, so he brought him to the hospital. According to the Toronto Police Service’s Event Details Report, PC Osman radioed dispatch at 6:44 p.m. that he was bringing the applicant to the police station, radioed dispatch again at 6:47 p.m. that he was bringing the applicant to the hospital, and arrived at the hospital at 6:50 p.m.

33The applicant testified that he was handcuffed to a wheelchair in the hospital waiting area. He stated that PC Osman, and Sergeant Fraser and PC Patterson, who came later, screamed at him, spat on him, and threw him on to the ground. He stated that a nurse was brave enough to intervene, and gave him a nitro spray for his heart, which saved his life. He stated that it was determined that he was having an anxiety attack, and once he had access to his medication, he discharged himself from the hospital.

34PC Osman, Sergeant Fraser and PC Patterson denied that they screamed at, spat on, and threw the applicant on the ground. PC Osman and Sergeant Fraser testified that the hospital was crowded with doctors, nurses and patients, and there are video cameras pointed at the registration and waiting areas. PC Osman testified that upon arrival at the hospital, the applicant was triaged to see if there were any life-threatening issues, and an electrocardiogram test was done on this heart, which revealed that there were no such issues. He stated that when he was sitting with the applicant in the waiting area, the applicant made a lot of noise and threw himself on the ground and tried to crawl under the nurse’s registration desk. Sergeant Fraser testified that when he arrived at the hospital, he heard the applicant yelling and screaming, and saw him trying to throw himself on to the ground. Sergeant Fraser admitted that at this point, he told the applicant that he was a “faker”. He stated that he believed that the applicant was putting on a theatrical act to try to delay the process of being brought to the police station. PC Osman stated that after the applicant was examined by a nurse and twice by a doctor, he was cleared to be released from the hospital.

35The applicant was brought to the police station, booked, charged with several criminal offences, and held overnight. He was released on bail the following morning. The applicant faced five charges, including threatening bodily harm to a person, threatening to kill or injure an animal that is the property of a person, and committing mischief by willfully damaging property under $5,000 contrary to sections 264.1(1) and 430(1) of the Criminal Code, R.S.C. 1985, c. C-46. Four of the charges were later withdrawn by the Crown. The fifth charge went to trial, and the applicant was acquitted.

ANALYSIS

Applicable Law and Issues

36The Application relates to ss. 1 and 9 of the Code, which provide:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

37The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

38The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario at para. 17. Accordingly, with respect to allegations of police misconduct, this Tribunal has no role in addressing such misconduct unless it can be connected to a prohibited ground of discrimination. See C.G. v. Timmins Police Service at para. 14.

39In order to establish a case of discrimination, the applicant must prove that (1) he is a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155.

40In the case at hand, there is no dispute that the applicant is an Indian man, and that he was subjected to adverse treatment by the respondents because he was arrested and charged with criminal offences, but none of the dog owners were arrested and charged with criminal offences. The main dispute is whether the applicant’s race, colour, ancestry, place of origin, and ethnic origin were a factor in the adverse treatment.

41In assessing allegations of racial discrimination, the following principles are applicable:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.

See Peel Law Association v. Pieters, 2013 ONCA 396, 116 OR (3d) 81 (Ont. C.A.) at paras. 111-114.

42A number of the key facts in the case at hand are in dispute. In assessing the credibility and reliability of the testimonies of the parties’ witnesses, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A):

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

43I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 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.

44In this case, the main issue to be decided is whether the respondents subjected the applicant to racial discrimination when they arrested and charged him.

Did the respondents subject the applicant to racial discrimination when they arrested and charged him?

45I did not find the applicant and Ms. Duczmal to be credible witnesses. They both wrote detailed statements about what happened around the time that the applicant was arrested and charged, but when the human rights Application was filed approximately one year later, there were new factual allegations which were not in their original statements, and when they testified at the hearing, there were even more new factual allegations which were not in their original statements or the Application. They did not explain why these new factual allegations were not in their original statements or the Application, and my impression at the hearing was that they were embellishing the facts and even making things up to bolster the applicant’s case.

46The applicant also claimed that he possessed a video recording of the group of dog owners, and when asked to produce it, he promised that he would bring it to the next hearing day, and then failed to do so. The respondents requested that I draw an adverse inference from the applicant’s failure to produce the video recording. I am prepared to draw such an inference because I find it unbelievable that the applicant would not have retained or obtained a copy of the video for the hearing of his human rights Application if it would have helped his case. Specifically, I am drawing the inference that he did not produce the video recording at the hearing because it would have undermined his factual allegations.

47By contrast, I found Sergeant Fraser, PC Osman and PC Patterson to be credible witnesses. They provided forthright, clear, and detailed oral testimony about the events, which withstood cross-examination.

48For these reasons, where there are differences between the testimony of the applicant and Ms. Duczmal and the testimony of the police officers about the facts of what occurred, I prefer the testimony of the police officers.

49The applicant presented uncontradicted evidence about the events leading up to September 12, 2010, which I accept. Specifically, I find that the applicant and Ms. Duczmal do not like dogs, and had ongoing disputes with dog owners in their townhouse complex about dogs being off-leash, defecating on their property, charging at them, and biting or near-biting incidents. I also find that both of them had threatened to kill dogs in response to a couple of these incidents, that they began videotaping dog owners, that a dog owner had called the police twice on the applicant, and that a security guard told the applicant that the parents of a teenage girl had complained that he had followed her into a ravine and videotaped her, when, in fact, he had only told her to pick up after her dog. I also find that the City of Toronto installed a sign, upon their request, which set out the municipal by-laws on keeping dogs on leashes and removing their excrement.

50I find that on September 12, 2010, a group of dog owners were in the vicinity of the applicant and Ms. Duczmal’s townhouse discussing the installation of the sign. I do not accept the applicant and Ms. Duczmal’s testimony about the number of dog owners that were present because their numbers constantly shifted in their written statements and testimony. I found the testimony of Sergeant Fraser, who was the only person who testified that he did a specific head count, to be more credible and reliable with respect to the number of dog owners. He testified that there were 15 dog owners. I have also drawn an adverse inference from the applicant’s failure to produce the video recording that he made of the dog owners. In my view, he did not produce it because it would have contradicted his testimony about the number of dog owners.

51I also do not accept the applicant’s testimony that the dog owners were all White. I found the testimony of Sergeant Fraser, who, again, was the only person who testified that he did a specific head count, to be more credible and reliable with respect to the dog owners’ racial and ethnic backgrounds. He testified that some of them were Southeast Asian and South Asian. I have also drawn an adverse inference from the applicant’s failure to produce the video recording that he made of the dog owners. In my view, he did not produce it because it would have contradicted his testimony that the dog owners were all White.

52I do not accept Ms. Duczmal’s testimony that the dog owners charged toward her, or the applicant’s allegation that the dog owners attacked her with their dogs. This allegation was not in Ms. Duczmal’s same-day written account of what occurred or the applicant’s 911 call, and I cannot accept that they would have omitted such an important part of the incident if it had occurred. I also accept Sergeant Fraser’s testimony that the dog owners and their dogs were friendly and normal. Given that aggressive dog owners and dogs would obviously be a safety concern for the police officers, who were strangers to the situation, Sergeant Fraser had no motive to lie about the behaviour of the dog owners and their dogs. I also cannot believe that a group of dog owners and dogs would have gone from being aggressive to being friendly within 10 minutes, which, according to the Toronto Police Service’s Events Details Report is how long it took the police officers to arrive on the scene after the applicant called 911. I have also drawn an adverse inference from the applicant’s failure to produce the video recording that he made of the dog owners and their dogs. In my view, he did not produce it because it would have contradicted his evidence about the behaviour of the dog owners and their dogs.

53I find that the applicant did not clearly allege that the dog owners had committed a criminal offence when he called 911. He complained about the dog owners, surrounding his house, scaring Ms. Duczmal, peering into his house, protesting against the sign that the City of Toronto had put up, and terrorizing his family by coming so close to his home. None of these alleged acts by the dog owners clearly constitute a criminal offence. Furthermore, in cross-examination, when asked why he called 911 and whether he expected charges to be laid against the dog owners, he responded that he wanted the dog owners to be removed because he felt threatened. Again, this is not a clear allegation that the dog owners had committed a criminal offence. In any case, the dispatcher’s verbal dispatch to the police officers only provided a summary of the applicant’s 911 call, and that summary did not contain an allegation that the dog owners were committing a criminal offence.

54By contrast, I find that PC Osman, PC Patterson and Sergeant Fraser did hear clear allegations about criminal offences committed by the applicant when they spoke with the dog owners. Specifically, I accept their uncontradicted evidence that when they arrived on the scene, they encountered a group of dog owners and a security guard, some of whom alleged that the applicant had threatened bodily harm to them and/or threatened to kill their dogs. PC Patterson’s memo book notes contain a statement from a dog owner, and a security guard sent incident reports to her. I admitted these documents into evidence not for the truth of their contents, but for the fact that they show that the police officers received clear complaints about criminal acts allegedly committed by the applicant.

55I also find that when PC Osman and Sergeant Fraser went and spoke to the applicant at his townhouse, he did not clearly allege that the dog owners had committed a criminal offence. The applicant testified that he tried to show Sergeant Fraser the letters that he had sent to various municipal agencies about his problems with the dog owners. PC Osman and Sergeant Fraser also provided testimony, which I accept, that the applicant complained that the dog owners were breaching municipal by-laws, and that they were protesting outside his townhouse because of a sign that the city had put up, upon his request, which detailed the by-laws. PC Osman’s memo book notes also indicate that the applicant told him that he found the dog owners’ actions “intimidating”. I agree with the respondents that an allegation that a group of dog owners were protesting outside the applicant’s townhouse about a sign, and the applicant felt intimidated by the protest, is not a clear allegation that the dog owners had committed a criminal offence.

56There is no dispute that the applicant then admitted that he had threatened to “eat” a dog owner’s dog, and he was arrested and later charged with several criminal offences.

57I do not accept the applicant and Ms. Duczmal’s testimony that after the applicant was told he was being arrested, Ms. Duczmal told PC Osman and Sergeant Fraser that she had also threatened to kill a dog, but she was not arrested. This alleged statement by Ms. Duczmal to the police officers was not mentioned in her same-day written account of what happened or the human rights Application, and, because she followed up this statement in her testimony by stating that she believed that she was not arrested because she is White, I believe this was concocted at the last minute to bolster the applicant’s discrimination allegation.

58In my view, the applicant has not proven, on a balance of probabilities, that the police officers arrested and charged him with criminal offences because he is an Indian man. The evidence demonstrates that, although the applicant had called 911, the officers encountered a situation where several dog owners and a security guard clearly alleged that the applicant had committed criminal offences, but the applicant did not clearly allege to the officers that the dog owners had committed any criminal offences, and he corroborated the allegations made against him by admitting that he had threatened to “eat” a dog. In these circumstances, the fact that the applicant was Indian and many or most of the dog owners were White is insufficient to establish that his race, colour, ancestry, place of origin, and ethnic origin were a factor in the decisions to arrest and charge him.

59The applicant also alleged that the police officers mistreated him after he was handcuffed at his townhouse, on the way to the police station, and at the hospital, but it was not clear to me whether he was alleging that this mistreatment was connected to his race, colour, ancestry, place of origin, and ethnic origin (see para. 7 above). In any case, I did not find most of the applicant’s evidence about these incidents to be credible.

60The applicant alleged that the police officers refused to dispense his medications to him at his townhouse, but Sergeant Fraser provided uncontradicted testimony, which I accept, that police officers cannot administer medication on scene because they do not have the training to do so.

61The applicant also alleged that PC Osman initially refused to bring him to the hospital, but, even if that is true, any such refusal would have been extremely brief because the Toronto Police Service’s Events Details Report shows that they arrived at the hospital six minutes after they left the applicant’s townhouse.

62The applicant also alleged that PC Osman, Sergeant Fraser and PC Patterson screamed at him, spat on him, and threw him on to the ground in the hospital. However, given PC Osman and Sergeant Fraser’s uncontradicted testimony, which I accept, that the hospital was crowded with doctors, nurses and patients, and there were video cameras pointed at the registration and waiting areas, I find it implausible that they screamed at, spat on, and threw the applicant to the ground.

63The applicant also alleged that Sergeant Fraser called him a faker, a liar, and a drug addict. Sergeant Fraser admitted that he called the applicant a faker, but denied that he called him a liar or a drug addict. In contrast to the applicant, I found Sergeant Fraser to be a very honest witness. Therefore, I accept his testimony on this matter over the applicant’s. That said, in view of the fact that the applicant was having an anxiety attack, I find that calling him a faker constituted adverse treatment. However, the mere fact that the applicant is Indian and Sergeant Fraser is White is insufficient to establish that the applicant’s race, colour, ancestry, place of origin, and ethnic origin were a factor in the adverse treatment.

ORDER

64The Application is dismissed.