Terry Mester v. Niagara Regional Police Service, 2016 HRTO 1488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Mester

Applicant

-and-

Niagara Regional Police Service

Respondent

DECISION

Adjudicator: Alison Renton

Date: November 22, 2016

Citation: 2016 HRTO 1488

Indexed as: Mester v. Niagara Regional Police Service

APPEARANCES

Terry Mester, Applicant

Self-represented

Niagara Regional Police Service, Respondent

Bradley Troup, Counsel

1This Application alleges discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It was filed on May 2, 2016. The Tribunal has not required the respondent to file a Response.

2A Case Assessment Direction (“CAD”) was issued on July 5, 2016, directing that a summary hearing would be scheduled and heard by way of a teleconference call. The teleconference call took place on November 17, 2016, and both parties participated.

3Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions, feelings or beliefs that support his assertions that the treatment that he received from the respondent was due to his disability. For the reasons set out below, the Application is dismissed as having no reasonable prospect of success.

the applicant’s submissions

4The applicant alleges that he has a number of medical conditions, including depression and anxiety. He has attended the courthouse in Welland in relation to a civil matter on several occasions, including September 25, 2015, January 11, 2016, and April 25, 2016. Attending the courthouse requires that he pass through a metal detector and security, which is conducted by police officers of the respondent.

5On April 25, 2016, at security, the police required the applicant to put his legal papers and the contents of his pockets onto a table and, after he passed through the metal detector, to lift his pant leg to show his calf. The applicant alleges that the police required him to do this, particularly the lifting of his pant leg, because of his appearance. On that day, the applicant stated, he was not looking his best. He looked dishevelled because he was not feeling well because of his disabilities and the police selected him for this form of security because of his appearance. The police officer with whom he interacted was clean-shaven and clean-cut. He alleges the officer treated him like riff raff. The applicant was embarrassed and intimidated.

6The applicant asserts that the security measures at the courthouse are not necessary and are in contrast to other, more important, government buildings such as city hall, which is located across the street from the courthouse and does not have security. Further, he submits, these security measures are paid for by taxpayers, and are not consistent with democratic principles. He also filed a complaint to the police services board.

7The applicant confirmed that he would testify about his allegations, but was not in a position to call other witnesses because he did not know who else was present in the courthouse on the three dates. He submitted that in July 2016, he requested that the respondent produce the video from April 25, 2016. He was told that the video was not retained, and alleges that the respondent has destroyed relevant evidence, for which it should be sanctioned.

the respondent’s position

8The respondent does not deny that it required the applicant to pass through a metal detector, put his papers and pocket contents on the table, and lift his pant leg, but denies that this was done for any discriminatory reason. The respondent requires all individuals attending the courthouse to pass through security, including a metal detector, and conducts searches on persons and their belongings pursuant to a general order issued by the police chief under the provisions of the Police Services Act, R.S.O. 1990, c. P.15, as amended. It submits that courthouse searches have been approved by the Ontario Court of Appeal in R. v. Campanella (2005), 2005 CanLII 10880 (ON CA), 75 O.R. (3d) 342, and that such searches are conducted at courthouses across Ontario.

9The respondent submits that if the applicant has a disability or disabilities as defined by the Code, they are not disabilities that would be readily apparent to the police officers. There is no factual connection between the applicant’s allegations and the Code ground. The respondent stated that the applicant himself has submitted that the police conducted their search because his appearance was dishevelled, and submitted that in the Application, the applicant says that because his appearance was dishevelled and he looked like a poor, impoverished person, on that basis he alleged unfair treatment. The Tribunal cannot determine, the respondent submits, claims of unfairness.

10The respondent submitted that after the applicant contacted it in July 2016, requesting a copy of the videos, it wrote to the applicant advising that videos are retained for 30 days.

11The respondent submitted that the Application has no reasonable prospect of success and should be dismissed.

analysis

12The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application will be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

13The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact that he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

14However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which supports his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment he allegedly experienced with the Code’s protections.

15As the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

16Having reviewed the materials filed by the parties and the submissions made during the teleconference call, I have determined that the Application has no reasonable prospect of success.

17The applicant has not been able to point to any evidence that could reasonably support a finding that the respondent’s actions were discriminatory based upon disability.

18The Police Services Act provides in section 137 that police boards are responsible for court security. That section provides:

(1) A board that is responsible for providing police services for one or more municipalities has the following responsibilities, with respect to premises where court proceedings are conducted:

1. Ensuring the security of judges and of persons taking part in or attending proceedings.

2. During the hours when judges and members of the public are normally present, ensuring the security of the premises.

3. Ensuring the secure custody of persons in custody who are on or about the premises including persons taken into custody at proceedings.

4. Determining appropriate levels of security for the purposes of paragraphs 1, 2 and 3.

19The Court of Appeal in Campanella, above, has accepted that courthouse security searches are lawful. In specifically addressing an individual’s privacy concerns about being subjected to a search of their personal belongings upon entering a courthouse, at para. 23 the Court stated:

People reasonably expect that everyone without prior clearance will be searched on a non-discriminatory basis in a reasonable manner to ensure the safety of all persons in attendance at the building.

20In this case, the applicant has “invisible disabilities” and claims that the respondent discriminated against him on the basis of appearance. In fact, during the hearing and in the Application, the applicant was focussed on the fact that the respondent subjected him to a search and additional security measures, particularly the lifting of his pant leg, because of his appearance. His appearance was dishevelled on April 26, 2016, because of his depression and anxiety.

21Regardless of alleging that the search was because of his invisible disabilities or his appearance, the applicant has not been able to point to any other evidence to show that he was subjected to adverse or differential treatment because of his disability. He cannot point to any evidence that he was subjected to higher or different scrutiny because of his disabilities.

22While he may not have access to the video documentation, if it existed, for April 25, 2016, as he requested the videos more than 30 days afterwards, by which time it was no longer available, the applicant has not identified or recalled other individuals who were subjected to less security. Even though he himself may not have been subjected to the same level of security in September 2015 or January 2016 as he was later in April 2016, this, by itself, does not establish discrimination.

23It is clear that the applicant disagrees with the amount of security that is being used by the respondent at the Welland courthouse, and believes it is contrary to democratic principles, but he has not been able to point to any evidence that could reasonably support a finding that the actions of the respondent were motivated by his disability.

24Accordingly, the Application is dismissed as having no reasonable prospect of success.