Joshi v. The Regional Municipality of Peel Police Services Board and Grant Gervais, 2016 HRTO 1398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jay Joshi

Applicant

-and-

The Regional Municipality of Peel Police Services Board and Grant Gervais

Respondents

DECISION

Adjudicator: Laurie Letheren Date: October 28, 2016 Citation: 2016 HRTO 1398 Indexed as: Joshi v. The Regional Municipality of Peel Police Services Board and Grant Gervais

APPEARANCES

Jay Joshi, Applicant Self-represented

The Regional Municipality of Peel Police Services Board and Grant Gervais, Respondent Patty G. Murray, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges he experienced discrimination with respect to services because of race, colour, ancestry, ethnic origin, sex and age.

2The applicant self-identifies as a young man of South Asian heritage. He alleges that he was subjected to racial bias in policing by the personal respondent, a police officer who is employed by the organizational respondent. This Application is based on incidents that occurred during the late evening of May 18, 2015 and early morning of May 19, 2015. The applicant was followed into his neighbourhood as he drove home by the personal respondent who was driving a low profile police cruiser. A short while after he observed the police cruiser leave his neighbourhood, the applicant attended at one of the organizational respondent’s police stations where he alleges he experienced further breach of his Code rights when comments were made by the Staff Sergeant.

3The respondents submit that the screening and following of the applicant was routine procedure for officers, like the individual respondent, who are engaged in road safety and are observing drivers for signs of possible intoxication. The respondents further submit that they did not breach any of the applicant’s Code rights during his interactions with officers at the police station.

4Prior to the commencement of the hearing on the merits, the Tribunal agreed to allow the respondents to have a court reporter present at the hearing. The respondents provided copies of the transcript to the applicant and the Tribunal at the respondents’ own expense.

5The applicant testified at the merits hearing. The personal respondent testified on his own behalf. The respondents called Staff Sergeant Gonsalves, who is employed by the organizational respondent, also provided testimony.

ISSUES

6In order to establish a breach of the Code, the applicant must establish that he is a member of a group protected by the Code; he was subject to adverse treatment, and there is a connection between the adverse treatment and the ground of discrimination. See, Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and Peel Law Association v. Pieters, 2013 ONCA 396, at paras 55-59.

7In this Application, a finding of discrimination turns on whether the applicant experienced adverse treatment on May 18 and 19, 2015 when he was followed in his car by the personal respondent or in his interactions with the personal respondent and Staff Sergeant Gonsalves at the police station. The applicant must also establish, on a balance of probabilities, that the adverse treatment was connected to his race, colour, ancestry, ethnic origin, sex or age.

8I have determined that the applicant’s Code rights were not breached, and as such, the Application is dismissed. My reasons follow.

Evidence

Travel from Hurontario to Applicant’s Driveway and Around the Crescent

Applicant’s Evidence

9There is some dispute between the parties about what occurred between approximately 10:50 p.m. to 11:05 p.m. on May 18, 2015 in the area of Hurontario Street north of Highway 407. I have noted where the parties differ in their evidence; however, much of the difference in evidence is not greatly material to my findings.

10The applicant testified that he was travelling north on Hurontario Street in Brampton in the middle of 3 lanes. He passed through the intersection with Highway 407 and his vehicle was decelerating. At this point, a vehicle driven by the personal respondent, Grant Gervais (“Gervais”) approached from behind. It was a well-lit area. Gervais moved his car to be parallel with the applicant’s vehicle. In cross examination, the applicant confirmed that he was in the middle lane and Gervais was in the right lane when they were side by side and that he did not recall if he had been stopped at a light when they two cars met.

11The applicant testified that their vehicles remained parallel for some time. As they were driving, Gervais looked to his left and he made eye contact with the applicant. The applicant stated this happened just as they passed the intersection of 407 and Hurontario. The applicant stated that it was at this point, when they made eye contact, that Gervais would have been able to identify the applicant as a youngish, male of South Asian heritage who was travelling alone.

12The applicant said that at this point, he was planning to get into the right lane to make a right-hand turn. Gervais had dropped back behind his vehicle. He testified that there was a city bus in the right-hand lane and positioned ahead of his vehicle. The applicant testified that he had to speed up to get past the bus in order to get into the right lane to turn right onto Turtlecreek Boulevard. He testified that he thought it would raise less suspicion if he accelerated to get past the bus rather than going through the intersection and having to do a U-turn and then make the turn from the other direction. In cross-examination, he also stated that he had to speed up because if he slowed down to let the bus pass before he moved into the right lane to turn right, Gervais would have rear-ended him. He agreed that if he was driving at 70km per hour at the point where he sped up to turn right, then he was travelling above the posted 60 km per hour speed limit.

13He then turned right onto Turtlecreek Boulevard. He stated that he was surprised to see that Gervais’ vehicle followed him onto Turtlecreek. He thought for sure he was going to be pulled over at this point; however, he was not pulled over.

14He then turned onto the street where he lives and into the area of the community that is marked, “Private Property”. He pulled into his driveway and positioned his car facing the garage. He got out of the driver’s side and noticed Gervais’ car at the end of his driveway. He testified that Gervais had his driver’s window down, he was staring, “in a menacing way” at the applicant and his lips were moving like he was whispering. In cross-examination, he said that Gervais was seated in the driver’s seat and was looking at him through the passenger side window. He testified that he asked calmly and with a light happy tone, “Hey, man, what's going on?". He said that when Gervais was whispering he told him he would have to speak up and that before going in his house, he said, “alright”.

15He removed some articles from the back passenger’s side door and went into his house. Once inside his house, he looked out the window and saw the police vehicle remained at the end of his driveway. After about 3 minutes, he went back outside to his car. He noticed Gervais’ car sitting at the end of the crescent just past the entrance to the applicant’s street. He testified that he stepped out into the street and raised his hands in the air and mouthed the words, "What's up, man?" which he states was for two purposes: One was to ask, "What is going on?" and the second was to indicate, "I'm not a threat to you. My hands are in the air."

16When he went back into his home he was quite concerned. He stated that he decided to do something and he went on the internet to research what to do about a situation like this. He testified that he realized he needed more information so he decided to go to the police station.

Respondent Gervais’ Evidence

17Sergeant Grant Gervais has worked at Peel Regional Police for 17 years. He identifies as status Metis. At the time of the events, he was head of impaired countermeasures, which targets, investigates, and watches traffic in specific areas within the Region of Peel with regards to impaired driving.

18He described his experience with patterns and prevalence of impaired driving and explained how historically there are increased incidents of impaired driving on long weekends. At the time, he was driving a low profile dark vehicle which he described as a police vehicle with dark tinted windows, lights on the grill of the vehicle and with florescent markings. He was in his full police uniform with a full vest. May 18, 2015 was the Monday of the Victoria Day long-weekend. He testified that it was a warm evening so he had the air-conditioning on in the car.

19He testified that he was driving north on Hurontario in the right hand lane. He could see a vehicle approaching quickly from behind in the centre lane. He stated that this car had to break rapidly when it came to the light that had turned red at the intersection of Hurontario and County Court South. He testified that he found this to be aggressive driving. He stated that as is his habit, he looked left at the car beside him and then looked at other cars around him. He testified that he did not notice that the applicant, who was the driver of this car that had approached from behind, was South Asian. He stated that he “only noticed him as a person.” He stated that when he is stopped at an intersection, he is trained to look at the cars around him to check for seatbelts. He also looks for things like cell phone use; signs of impairment; and kids in the vehicle not wearing seatbelts. At that point in time, he observed no signs of impairment for the applicant, such as slumping over the wheel or any other signs.

20The light turned green and he and the applicant, proceeded northbound. The applicant was in the centre lane and on his left. He testified that they accelerated to 60 km. per hour and then at this point in time, the applicant accelerated faster. He stated that it is his habit when he notices a vehicle that could be travelling above the speed limit to get behind a vehicle to follow and match its speed.

21He testified that he then observed the applicant make an aggressive lane-change into his lane, cutting in front of him, and then cutting over another lane into the turning-lane to turn right on County Court North.

22When asked if he recalled the presence of a bus, Gervais testified that he did recall a bus in the bus lane south of where the applicant made the right turn. They had passed the bus when the applicant made the lane-changes.

23In response to the applicant’s account of having to accelerate to get in front of the bus to turn right, Gervais stated that there is no way the applicant could have done that because he was in the lane to the right of Gervais. He testified that he was behind the applicant, and if the applicant had tried to beat the bus to make his lane-change, Gervais would not have been able to beat the bus and would have had to continue straight on through the intersection. He would not have been able to follow the applicant onto County Court.

24He testified that there was an accumulation of factors: aggressive driving; the unsafe lane-change; the speed of 70 km. per hour in a 60 km. zone. All of these things made him decide to follow the applicant to see if there was any evidence of impairment. He stated that these are the types of driving behaviours that he has observed to show possible impairment by drug or alcohol.

25He followed the applicant and did a licence plate check. He observed the applicant making quick turns and that he pulled into the driveway. Through the plate check on the Mobile Data Unit (“MDU”), Gervais could confirm the driveway was for the address of the person who was the registered owner of the car the applicant had been driving. He stated that in his experience, it’s very common for people who are impaired to pull into a random driveway to try to evade police and to make it look like they live at the home where they have pulled in.

26He stated that he positioned the cruiser at the end of the driveway. He stated that given that the applicant was standing on the driver’s side of his vehicle, and given the length of the vehicle and distance from the end of the applicant’s vehicle to the end of the driveway, he estimated that he was about 15 metres from the applicant. He testified that his windows were up.

27He was observing the applicant to look for signs of impairment. He stated that as with other drivers, he observes how they get out of the motor vehicle. Do they stagger out? Do they fall out? Once they’re out, do they stagger around? Are there any signs of any kind of impairment by alcohol or drugs? There were no signs of impairment from the applicant.

28When Gervais was asked if he whispered at the applicant, he responded that he had not. He stated that he is not the kind of guy who whispers. He stated that he is an investigator so if he needs to say something, he says it. There was no need to speak to the applicant at that time. He said nothing to him.

29He testified that the applicant appeared very angry. He was flailing his arms in the air. He was not sure what the applicant was saying but he thought he was saying something like, “What do you want?” or “What are you doing?”

30He testified that he decided to de-escalate the situation and he drove away. He stated that while circled around the crescent, he was thinking that there was a male, the applicant, who appeared angry and agitated and wondered if he should leave a situation like that. He decided to check further on the situation. He drove back past the applicant’s home. He stated that the applicant began to flail his arms again and at that point, he decided to leave the area. He drove to the end of the complex, turned into a driveway to turn around. In cross-examination, he stated that he may have parked his car after backing out of this driveway in order to clear the MDU screen in the cruiser. He then left the area. A GPS tracking log that was entered into evidence shows that seven minutes passed between the time Gervais turned off Hurontario to County Court and when he exited back onto Hurontario.

Attendance at 22 Division Station

31The applicant testified that after Gervais left the area and he went back into his home he decided to research how to address such a situation. He decided that he needed more information so he headed over to the station of 22 Division of the organizational respondent which is a very short distance from his home. When he arrived at 22 Division, he tried to identify Gervais’ vehicle in the parking lot but could not. He entered the station and approached people at the desk. He testified that he spoke to a female cadet who told him it would be impossible to identify who it was who had followed him as the cruiser could be from a number of divisions. The cadet ran his name and licence plate through a computer system and after about 30 minutes was able to determine who it was and said, “he is here right now actually”. The female cadet went through some doors to the right of the desk and then in the area behind the desk after she told him that she was going to speak to the Staff Sergeant. The cadet came back out and told the applicant that Gervais would be out to speak to him.

32The applicant testified that he was seated and waiting when he noticed Gervais come out to the desk and “he shrugged and huffed and huffed. He did a long exhale, and a staring, angry look.” The applicant believes that Gervais looked at him in order to identify him and then went back in the area behind the desk.

33According to the applicant, Staff Sergeant Gonsalves (“Gonsalves”) then came out to speak to him in the lobby. He testified that he was telling Gonsalves why he was there and he could see Gervais hiding in the gap to the right of the desk and between the desk and the door. He testified that maybe a minute and a half, two minutes later Gervais walked right up to him in a very aggressive forthright, angry and manner and he got right in his face, about 7 inches away. In cross-examination, the applicant described himself as agitated at this point.

34The applicant stated that he thought perhaps Gervais was trying to smell his breath. He asked Gervais why he had followed him and Gervais responded that he was just doing his job. He then asked Gervais why he had rolled down the window and whispered. He testified that Gervais denied doing this and told the applicant that he had been talking to his wife on the phone. He testified that he said to Gervais, “Do you think I would make something up, it's 11:45, a work night, if there wasn't something to this?” At this point, Gonsalves suggested they go into a back room. He stated that he felt “psychologically forced” to enter the room with his harasser and was concerned for his safety. In cross-examination, the applicant agreed that he could have said no to the invitation to go in the back and he could have left the station at that point.

35He sat at a table with Gonsalves and gave him his version of events. He testified that he thought Gervais was listening outside the room before he entered. Gervais then came in the room and sat on the opposite side of the table. Gervais gave his version of the events and he indicated that he was just doing his job; that the applicant was speeding; that he wanted to see if the applicant was drunk. The applicant testified that he then asked Gervais, "Well then, why did you come back around the second time?”. Gervais responded that this was because he wanted to see if the applicant was stumbling or not.

36The applicant testified that he said to Gonsalves that he thought there was more to it than what Gervais was saying. Gonsalves asked him what he thought it could be. The applicant testified that he responded, “I do not know”. He testified that Sergeant Gonsalves then said, “"Well, it can't be racial? Because you're not black, and you're not a minority." The applicant testified that he responded, "Well, yes I am a minority." Gonsalves then asked, "Well, what are you?" to which the applicant responded, "I'm South Asian." The applicant testified that Gonsalves then pointed to his own skin, and pointed to the applicant’s skin, and said, "Well, I'm South Asian and you don't look Indian to me." The applicant testified that he then said to Gonsalves, “well that is not for you to judge”. Gonsalves then said, “Ok, if you want to make a complaint” and stood to get the paperwork.

37The applicant testified that he advised Gonsalves that he would file the complaint online. He then left the police station.

Sergeant Gervais at 22 Division

38Gervais testified that he was in the cruiser when he got a call from a cadet at 22 Division who advised him that there was a man at the desk who was quite angry and wanted to speak to him. He stated that he went right to 22 Division, parked out front and then entered the front doors into the lobby. Once he entered, he saw the applicant standing in the lobby. He approached the applicant and asked him if he wished to speak with him. He testified that the applicant appeared very upset and agitated and he kept asking Gervais why he had been following him. According to Gervais’ testimony, Gonsalves was not in the lobby at that time.

39Gervais testified that he tried to explain that he had followed him because of his aggressive driving and speed and that this was what police do. He stated that the applicant then asked him why he had been whispering at him and Gervais testified that he told the applicant his windows were rolled up, his air conditioning was on and he wasn't whispering to anything. He testified that he advised the applicant that as far as the applicant knew, Gervais may have been speaking to his wife on speaker phone. He explained that he had not actually been speaking to his wife on the phone, but it was a statement that he had made to the applicant at the time.

40Gervais testified that he then said to the applicant, "Don't fabricate this story here. I simply followed you because I was doing my job as a police officer. Simple as that. Nothing more.”

41Gervais testified that about 3 minutes into his discussion with the applicant, Gonsalves came to them and suggested they move into the back room. He denied ever having been behind the desk and listening to the applicant and Gonsalves speaking.

42Gervais testified that he, the applicant and Gonsalves all entered the meeting room together; the applicant and Gonsalves were not in the room alone and he had not stood outside the room to listen.

43He testified that once in the room he, the applicant and Gonsalves had a discussion in which the applicant expressed his concerns to Gonsalves. Gonsalves and Gervias tried to explain to the applicant simple police procedures and how police function and what they do to investigate Highway Traffic Act offences, and possible impaired driving offences. He stated that the applicant “would not hear any of this.”

44He testified that he did recall the applicant and Gonsalves speaking about race. He did not know how this topic arose but indicated that he had no part of this conversation. He recalled that the conversation ended with the applicant saying, “Well, we're just going to have to agree to disagree." He testified that Gonsalves explained the complaint process to the applicant and offered to give him the proper documentation to file a complaint but the applicant indicated that he would deal with it on his own.

45He stated that this conversation took about 15 minutes.

46Gervais’ handwritten notes were submitted into evidence. He stated that he prepared the notes after the applicant left 22 Division. The notes reflect Gervais’ evidence that he had encountered the applicant in his vehicle as he came up behind him very fast at the light at Hurontario and County Court and that he had paced the applicant’s vehicle to be traveling at 70 km. per hour in a 60 km. zone. The notes also align with his testimony about what transpired after he followed the applicant as he turned off Hurontario and into his driveway. The notes also correspond with Gervais’ testimony about the conversations between the applicant, Gonsalves and him at 22 Division.

47When Gervais was asked whether he had made notes about following the applicant and the events of that evening before the applicant came to 22 Division, Gervais stated that since there was no offence and it was a routine investigation, there was no reason for him to make notes so he had not made any notes prior to the discussion with the applicant at 22 Division.

Staff Sergeant Nigel Gonsalves

48Gonsalves testified that he has worked with Peel Regional Police for about 28 years. He is currently a staff sergeant. His duties in this role include being officer in charge of the police station; prisoner care and control; dealing with any offences being committed; and deciding on whether or not charges are being laid in consultation with officers; and just general dealings with the police station and 22 Division as a whole.

49He testified that he had significant training in human rights and race relations and has handled public complaints about police.

50During his oral testimony, he referred to his notes which had been submitted as evidence.

51He testified that at 4:50 p.m. on May 18, 2015 he arrived at 22 Division and it was 28 degrees Celsius that evening.

52He stated that at about 12:10 a.m. on May 19, 2015 a cadet advised him that there was a gentleman in the lobby that wanted to make a complaint about Gervais. He left his office, which is behind the front desk in the lobby of 22 Division, to come out into the lobby. As he did that, he saw Gervais already in the lobby in conversation with the applicant. In cross examination, he confirmed that he had not spoken to the applicant prior to coming into the lobby and seeing the applicant and Gervais speaking. He stated that the applicant seemed a little upset. The applicant wanted to speak to Gervais about an incident that happened earlier in that evening. He listened to them for a moment before he suggested they meet in the conference room inside the station for a little bit more privacy, as there were other patrons in the lobby at the time.

53He testified that normally he would speak to a complainant by themselves, but the applicant wanted Gervais to be spoken to as well so the three of them went into the conference room. He stated that the door to the conference room was left open on purpose. He sat beside the applicant and Gervais sat on the other side of the table. He stated that he sat beside the applicant as he did not want him to feel like he and Gervais were ganging up on him. He didn't want the mood to be confrontational whatsoever. The applicant explained to Gonsalves his point of view. The applicant explained to him that he was upset because Gervais followed him home in an unmarked police car, and as a result he felt he was being harassed.

54He testified towards the end of their discussion, the applicant said that he believed that he was being targeted or racially profiled by Gervais. He testified that the applicant told them he self-identified as South Asian; however, prior to self-identifying, Gonsalves was surprised when the applicant said he felt he was racially profiled because, just looking at him, he didn't think he was South Asian. Gonsalves testified that he is South Asian. He stated that he couldn't make the connection because to him the applicant doesn't look like a visible minority. He testified that he did not doubt that the applicant was South Asian but that he would think that his complexion would be a little bit darker and someone looking at him may be surprised that he self-identified as South Asian. He testified that he told the applicant that he was South Asian as well. In cross examination, he stated that he had told the applicant that he was South Asian in order to share his experiences with the applicant.

55He testified that they discussed the applicant’s allegation that Gervais had his window down and was whispering to him. He recalled Gervais saying that he might have been talking to his wife but he had not been whispering to the applicant.

56Gonsalves testified that he explained to the applicant that following a driver who was driving in a manner that would raise concerns about intoxication, observing the driver leave his car and running a licence check were all normal steps that Gervais would have to undertake in the circumstances. He stated that when he explained this to the applicant, the applicant has stated that they would just have to agree to disagree. He asked that applicant if he wished to make a complaint and if he wanted the paperwork and the applicant had stated that he was familiar with the Office of the Independent Police Review Director and would take care of it on his own.

57He stated that he felt he had treated the applicant with respect and dignity that evening.

Use of Propensity Evidence

58During the course of cross-examining the applicant, respondents’ counsel attempted to question the applicant about any past incidents in which the applicant became so angry that his behaviour was shocking. She then attempted to question the applicant and introduce a document about an alleged incident involving the applicant. When asked, counsel stated that she was not calling any of the witnesses to this alleged incident.

59I asked her to make submissions on the relevance of this evidence and appropriateness of this line of questioning. Respondents’ counsel submitted that counsel, who had previously been representing the applicant, had insisted that previous complaints of similar nature that had been made against Gervais were relevant. She stated that although the applicant had not included these documents as part of the documents he intended to rely on, she had complied with the disclosure request made by the applicant’s previous counsel.

60The disclosure requested by the applicant’s previous counsel could be arguably relevant to the issues in this Application as it could be used as propensity evidence. However, the fact that applicant’s previous counsel had made a request for such information through disclosure does not make potential propensity evidence about the applicant automatically admissible.

61The document the respondents were attempting to admit and question the applicant on was inadmissible for two reasons.

62First, the respondent did not call any witnesses who could speak to the incident that was allegedly detailed in this document.

63Second, the test for admitting propensity evidence is high. It must demonstrate that a witness did something in the past that is so strikingly similar to the conduct in issue in this proceeding, that this would allow a trier of fact to conclude that he or she did it again. There must be a finding that the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56. The document the respondent sought to admit did not meet this test.

64The line of questioning was discontinued.

Analysis and Decision

Applicant’s Submissions

65The applicant argued that he was a victim of over-policing in that he was a target of pro-active community policing because of his race, age and sex. He argues that his race impacted the way Gervais handled the traffic investigation. He argued that he was profiled as being somebody who does not appear like they belong in the neighbourhood where he lives. He submitted that had he been older and in the car with his spouse and children, he would not have been followed. He also argued that his demeanor and his appearance of being angry should not impact the finding of whether he experienced discrimination.

66The applicant submits that the nature of racial discrimination as it is understood today is that it will often be the product of learned attitudes and biases and often operates on an unconscious level. He argues that is it impossible for Gervais to “just see a person” when he looked into the applicant’s car as they were positioned parallel to one another.

67The applicant made an analogy between the situation examined in his Application and the circumstances that arose in Phipps v. Toronto Police Services Board, 2009 HRTO 877 (“Phipps”) (judicial review dismissed: Shaw v. Phipps, 2010 ONSC 3884; aff'd. 2012 ONCA 155). In Phipps, racial profiling was found to have occurred. Mr. Phipps, who is African Canadian, was a Canada Post employee. He was wearing a Canada Post jacket as he was delivering mail in an affluent area of Toronto. Police stopped him, questioned him and asked for his identification and then followed him in the police cruiser as he finished his mail delivery.

68The applicant submits that like in Phipps, he was also in the position of being somebody who doesn't look like they belong in a certain place and so was surveilled and racially profiled.

69He also argues that I must consider the entire chronology of events and view the events as a combination and not in their singularity. He submits that I must draw on inference of discrimination from a number of different pieces of evidence

70He submits that being a male, his age, and the fact that he was driving alone as opposed to driving with a wife and children, are all important in terms making a finding of discrimination on a balance of probabilities and inferring from the circumstances that things would have happened differently on the evening of May 18, 2015 if there were a different person sitting in his vehicle. He further submits that racialized persons who reasonably believe that they are being racially profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner.

Respondents’ Submissions

71The respondents argue that the analogy that the applicant draws between the circumstances of this Application and Phipps is not supportable. The applicant was not in the wrong place at the wrong time. He was noticed by Gervais on a road away from his home. He sped up and cut across in front of another vehicle to make a quick right hand turn. Gervais chose to pursue the situation further and see if he could get evidence that would suggest that there was an impaired driver behind the wheel.

72The respondents submit that the applicant was upset in his driveway but Gervais did not punish him. He didn't suggest that the applicant was being confrontational. He did exactly what he was supposed to do. He de-escalated and drove away. The respondents submit that Gervais exercised his professional discretion to investigate a driver who was potentially impaired.

73The respondents submit that it is not for Tribunal to review the police conduct as long as this conduct was not breach of Code.

Analysis

Credibility Considerations

74Much of the evidence that is relevant to a determination on whether the applicant was a victim of racial profiling and experienced a breach of his Code rights on the basis of his race, sex or age is not in dispute.

75There is a dispute about who came up from behind whom and where the applicant and Gervais were when they encountered one another.

76There is also some dispute about whether there was a bus nearing the corner of Hurontario and County Court when the applicant was turning off Hurontario at that intersection; whether Gervais had rolled his window down and whispered to the applicant while he was at the end of the driveway; whether Gervais entered directly into the lobby of 22 Division station or whether he approached the applicant from behind the desk; and there is dispute in the evidence about whether Gervais, Gonsalves and the applicant entered the conference room together or whether Gervais waited outside and entered after a couple of minutes.

77The discrepancies have little relevance to the determination of whether the applicant has established that he experienced a Code violation. There is therefore, no need to make findings of credibility in these areas where the evidence is in dispute.

Prima Facie Case

78The applicant alleges that his rights as protected by the Code where breached when Gervais began to follow him and again when he was in conversation with Gonsalves and Gervais at the 22 Division station.

79The success of this Application rests on whether the applicant has proven, on a balance of probabilities that he experienced adverse treatment when Gervais began to follow him on May 18, 2015 and that the adverse treatment was connected to his race, age and sex. Or, that he experienced adverse treatment or harassment that is connected to his race when Gonsalves made comments about the fact that he did not look like he was South Asian.

80If the applicant proves on a balance of probabilities this adverse treatment and the connection and the respondent is unable to provide an appropriate justification or non-discriminatory explanation, a finding that the applicant’s rights as protected by the Code will be made. See, Moore v. British Columbia (Education), 2012 SCC 61.

81In Phipps, above, the Tribunal set out important principles which should be considered in cases engaging allegations of racial discrimination in the police services:

• The grounds alleged by the applicant do not need to be the sole or the major factor in the actions taken by the respondents; it is sufficient for him to prove that one or more of the prohibited grounds was a factor; (Bombardier SCC)

• There is no need to prove intention - the focus is on the effect of the respondent’s actions on the applicant;

• The evidence supporting the explanation must be credible on all the evidence;

• Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices;

• When assessing the respondent’s explanation, the ultimate question is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent; and

• Discrimination will more often be proven by circumstantial evidence inference rather than direct evidence.

82I have applied the factors set out in Phipps, above, in this decision. There is no direct evidence that Gervais based his decision to follow the applicant as he drove on the applicant’s race, sex or age. I must therefore determine whether, based on all the evidence, it is more probable that race, sex or age were a factor in Gervais decision to follow the applicant than the explanations given by the respondents.

83In making my determination on what is more probable, I am mindful that stereotyping is often the result of subtle unconscious beliefs biases and prejudices.

Travel from Hurontario to Applicant’s Driveway and Around the Crescent

84The applicant submits that the fact that he was a fairly young, South Asian, male travelling alone in his car were factors that influenced Gervais’ decision to follow him on May 18, 2015.

85The applicant informed the Tribunal that as a young, South Asian, male he has experienced past discrimination in various contexts. Given these past experiences, it may be understandable that the applicant has the belief that he was the victim of racial profiling when he was followed by Gervais. I find however, that there is not sufficient evidence to support a finding that race, sex or age were factors in Gervais decision to follow and observe the applicant.

86The evidence of the applicant and Gervais differs on the question of whether there was a bus in the immediate area. However, the applicant and Gervais both testified that as they approached the intersection of Hurontario and the northern section of County Court Boulevard, the applicant increased his speed, moved across two lanes to the right and then turned right onto County Court Boulevard. The applicant agreed that his speed at this point was above the posted speed limit.

87Gervais testified that the applicant’s driving attracted his attention as he was patrolling for vehicles that showed possible signs of impaired drivers. He testified that in his experience this type of what he viewed as aggressive driving could be indicators that the driver was impaired. He testified that historically there had been increases in instances of impaired driving during holiday weekends. These incidents occurred on the Monday of the Victoria Day weekend.

88Gervais testified that once he noticed the applicant’s driving, he decided to follow him to determine his speed. He also gave evidence that impaired drivers will often pull into a driveway to make it look like they live there to avoid detection. He stated that it is common practice for officers on traffic patrol, for whom one of the duties is to observe drivers for signs of impairment, to take steps to further investigate if they witness some signs of potential impairment. He stated that it was the accumulation of what he witnessed in the applicant’s driving that made him want to follow the applicant to see if there were any signs of impairment. He also testified that in investigations for impaired drivers, police will follow the driver and stop to watch them exit their vehicle such as observing if they stagger out of the vehicle or stagger around after they are out. He followed the applicant and stopped at the end of the driveway to watch him as he left his vehicle.

89Gervais’ notes, which he testified were written after the applicant left the station at 22 Division, are in line with his evidence at the hearing. The notes state, “darted ahead and cut in front of me. I paced him doing 70 km in a 60 zone…Follow mtv check on possible impaired matter. Vehicle turned into…address of car. Male out of car. Stop look at male – insure no signs of impairment with stance/walk.”

90Gonsalves’ notes also corroborate Gervais testimony about why he followed the applicant and then stopped to observe him. These notes state, “Sgt Gervais advised he was drawn to vehicle in his rear view mirror approaching at a high rate of speed. ..followed vehicle as it drove home. Observed male exit the vehicle to ensure he wasn’t drunk (stumbling).

91There is insufficient evidence to find that there is a connection between the applicant’s race, age or sex and Gervais’s decision to follow him on May 18, 2015.

92The applicant also submits that Gervais was harassing him again as he drove past his house a second time. Gervais testified that he did this because he noted the applicant raise his arms in the air and appear angry and agitated when he was observing him from the end of the driveway. He wanted to circle back around to make sure everything was fine.

93Even if I were to find that when Gervais circled back a second time was over-policing or intimidating behaviour, there is insufficient evidence to support that the applicant’s race, sex or age were a factor for why Gervais did this.

94I do not doubt that the applicant has a sincere belief that Gervais’ decision to follow him, observe him in his driveway and then drive past his home again were linked to the fact that the applicant is a young, South Asian male. However, it is well established that the applicant’s belief that the respondent discriminated against him because of a prohibited ground of discrimination is not evidence that this occurred. It is not open to the Tribunal to make a finding of discrimination based only on the applicant’s suspicions or beliefs. There must be sufficient evidence to allow me to link the adverse treatment that is complained of in the Application to the applicant’s race, sex or age: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

95The evidence in this application is not sufficient to make the link between Gervais behaviour on the night of May 18, 2014 and the applicant’s race, sex or age.

Attendance at 22 Division Station

96As is stated above, in order for the Tribunal to find that the applicant experienced discrimination, the applicant must demonstrate, on a balance of probabilities, that he experienced adverse treatment or harassment that is connected to his race when Gonsalves indicated that he could not be inferring that Gervais’ actions that evening were racial profiling, because he was not black or a visible minority race and then Gonsalves identified himself as South Asian.

97The applicant states that when Gonsalves made this comment, he was denied his identity.

98Gonsalves testified that he identified himself as South Asian prior to the point where the applicant self-identified. There is no mention of this part of the conversation at 22 Division in either of the sets of notes prepared by Gervais or Gonsalves.

99The applicant alleges that when he identified himself as South Asian, Gonsalves pointed to his own skin and said, "Well, I'm South Asian and you don't look Indian to me."

100Even if I accept that Gonsalves did say, “you don’t look Indian to me”, I do not find that this comment amounts to discrimination or harassment.

101The applicant did not provide any evidence to demonstrate how he experienced adverse treatment when Gonsalves made this comment. He stated that after this exchange, Gonsalves advised him that he could make a complaint and that they all got up and left the room. Gonsalves offered to get him the paperwork to make the complaint and the applicant stated that he would file it on-line. The applicant then left the station.

102I do not find that there is any evidence to demonstrate that this was adverse treatment. Gonsalves recognized that the applicant believed he had experienced racial profiling by an officer, that he might want to make a formal complaint and then offered to get the documents he needed in order to make such a complaint.

103“Harassment” is defined in section 10 of the Code:

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

104Thus, in order to constitute harassment, I must find that the comment made meets the threshold of a “course of vexatious conduct or comment that is known, or objectively should have been known, to be unwelcome.”

105The applicant submitted that the events of the evening of May 18 to 19, 2015 must be considered in context of one another to note the pattern or course of conduct by Sergeant Gervais and Staff Sergeant Gonsalves.

106I have considered the entire context of the events of that evening and I do not find that the events of the evening are “repeated conduct or a pattern of behaviour.”

107As I stated previously, Gervais had a valid non-discriminatory reason to follow the applicant and although the applicant found the presence of Gervais’ car at the end of his driveway and on the subsequent drive past to be menacing, there was insufficient evidence to connect this conduct to the applicant’s race, sex or age.

108Gonsalves’ comment was in response to the applicant alleging that Gervais conduct may have been racially motivated. His response was isolated from the conduct of Gervais and I do not find the conduct of the two to be repeated conduct or a pattern of behaviour that amounts to harassment under the Code.

109This Tribunal has found that a single comment may, in certain circumstances, amount to a breach of the Code. In Way v. Coalition Against Psychiatric Assault 2011 HRTO 1234 (“Way”) the Tribunal stated at para 37-38:

Court and tribunals have recognized that a single comment can amount to a breach of the Code, but only in limited circumstances. In Hazdic v. Pizza Hut Canada (c.o.b. Pizza Hut), [1999] B.C.H.R.T.D. No. 44, the British Columbia Human Rights Tribunal (“BCHRT”) stated at para 33:

The context within which the racial/religious harassment occurs is important. Usually repeated conduct is required to establish racial/religious harassment. However, if the conduct is considered extreme, there is less need to establish a pattern of behaviour and a single act may be sufficient evidence: Bell v. Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont.Bd.Inq.).

Furthermore, in Pardo v. School District No. 43, 2003 HCHRT 71, the BCHRT stated at para 12:

(…) all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code. Without suggesting that this is an exhaustive list, some of the relevant factors would be the egregiousness or virulence of the comment, the nature of the relationship between the involved parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.

110I do not find that Gonsalves’ comment is extreme, egregious or virulent. It does meet the threshold to fall within the meaning of “harassment” under the Code.

order

111The Application is dismissed.