Velegjanin v. Toronto Police Services Board, 2016 HRTO 158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nikolai Velegjanin

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: Sheri Price

Date: February 2, 2016

Citation: 2016 HRTO 158

Indexed as: Velegjanin v. Toronto Police Services Board

APPEARANCES

Nikolai Velegjanin, Applicant

Bakhtier Shakhnazarov, Paralegal

Toronto Police Services Board, Respondent

Brennagh Smith, Counsel

Introduction

1This is an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which the applicant alleges that the respondent police service discriminated against him because of his ethnic origin, creed, sex and disability when they placed him under arrest at his apartment on April 28, 2012, following a 911 call from one of the applicant's neighbours.

2In the amended Application that he filed with the Tribunal, the applicant pleads that he was asleep in his bed at approximately 3:00 a.m. on April 28, 2012 when unknown assailants attacked him, hitting him in the head and face, and calling him a "Russian shit". The applicant alleges that he ran to his kitchen, grabbed a "replica" rifle, and ran out of his apartment into the street. The applicant alleges that, once he was out in the street, he felt dizzy and disoriented because he had lost blood. After some time, the applicant alleges that returned to his apartment to find the door ajar. The applicant alleges that he went into his apartment, took out his "real" rifle to protect himself and lost consciousness.

3The applicant pleads that the next thing he remembers "in an indistinct way" is two police officers undressing him. The applicant pleads that he was "half conscious" when he felt one of the officers kick him in the leg several times. He alleges that one of the police officers ripped a silver chain with a cross from his neck, causing a burning pain in the applicant's neck. The applicant alleges that this constituted discrimination because of his creed. The applicant pleads that one of the officers called him a "Russian shit" while taking his pants off, thereby discriminating against the applicant because of his ethnic origin. The applicant also pleads that he felt "someone's hands" touching his genitals in an inappropriate and "abusive" manner, which the applicant alleges constituted sexual harassment and/or discrimination on the basis of sex.

4The applicant alleges that he was placed under arrest and handcuffed in the hallway outside of his apartment. The applicant alleges that he was in great pain and bleeding as a result of the earlier attack on him, but he was unable to tell the police that he had been attacked because, unbeknownst to anyone at the time, including the applicant, the applicant's jaw had been broken by the attackers. The applicant alleges that, despite his serious injuries, the police failed to ensure that the applicant received prompt medical attention and forced him to walk down the stairs to an ambulance, instead of arranging to have the applicant carried down on a stretcher. The applicant alleges that this treatment constituted discrimination because of disability.

5In addition, the applicant alleges that the respondent police service failed to investigate the April 28, 2012 assault on the applicant because the applicant was intoxicated at the time police encountered him. The applicant alleges that the respondent's failure to investigate the crime against him was discriminatory.

6Subsequent to his arrest, the applicant was charged with a number of criminal offences. He was tried and convicted of a number of offences. However, the Ontario Superior Court overturned all but one of the applicant's convictions (for threatening death to the neighbour) on appeal. At the hearing, the applicant indicated that he has appealed his sole remaining conviction to the Ontario Court of Appeal.

7At the hearing of the Application, the applicant testified on his own behalf with the assistance of a Russian-English interpreter. A number of documents were also put into evidence.

8Following the conclusion of the applicant's evidence, I heard submissions from the parties on the respondent's motion that the Application should be dismissed at this stage on the basis that it has no reasonable prospect of success, prior to the respondent calling its witnesses (see for example, Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777). Alternatively, the respondent argued that the Application ought to be dismissed on the basis that the applicant has failed to make out a prima facie case of discrimination.

9Having considered the applicant's evidence and the parties' submissions, and for the reasons that follow, the Tribunal finds that the applicant has no reasonable prospect of establishing that the respondent discriminated against him because of his creed, sex, ethnic origin and/or disability. The Application is dismissed accordingly.

analysis and decision

10The applicant in this case complains that police officers with the respondent police service mistreated him in various ways and violated his constitutional and civil rights, for example, by allegedly falsifying information against the applicant and conducting an illegal search of his apartment, among other claims.

11However, as I explained at the hearing, the Tribunal does not have a general power to deal with claims of mistreatment or abuse that are not based on prohibited grounds under the Code. The Tribunal only has jurisdiction to determine whether the respondent discriminated against the applicant based on prohibited grounds set out in the Code.

12In order to establish that the respondent discriminated against him contrary to the Code, the onus is on the applicant to establish in evidence that the respondent treated him in a disadvantageous manner because of one or more of the prohibited grounds cited in his Application, namely his ethnic origin, sex, creed and disability. However, the applicant's evidence fails to establish this.

13As set out in greater detail below, the applicant's evidence, which was generally vague and difficult to follow, does not provide a basis upon which the Tribunal could conclude that the respondent discriminated against the applicant on the basis of the prohibited grounds in question.

14At the hearing, the applicant's representative argued that the applicant has memory problems because of a head injury. He submitted that this affected the applicant's ability to give evidence in chronological order and in a clear way. That may be. However, as stated by the Supreme Court of Canada in F.H. v. MacDougall, 2008 SCC 53, clear, cogent and convincing evidence is needed to prove allegations on a balance of probabilities. In this case, the applicant's evidence failed to meet this standard. Indeed, in many key respects, as discussed below, the applicant failed to give any evidence about the allegations of discrimination contained in his Application.

15In the circumstances, the Tribunal has come to the conclusion that the applicant has no reasonable prospect of success of proving that the respondent discriminated against him contrary to the Code. Moreover, there is no reasonable prospect that the applicant will prove his case based on the evidence of any other witnesses who might be called to testify in this proceeding. If the hearing were to continue, there is no reasonable prospect that the police officers would testify in a manner that is inconsistent with their witness statements and notes and admit to discriminatory conduct that the applicant himself did not testify about. The emergency room doctor the applicant proposes to call is not expected to give any evidence that could establish that the respondent discriminated against the applicant.

16The Application is therefore dismissed at this stage on the basis that it has no reasonable prospect of success.

17Below, I address the applicant's specific allegations that the respondent discriminated against him because of a number of prohibited grounds under the Code.

Discrimination because of Sex

18Although, in his Application, the applicant pleaded that the respondent's police officers sexually assaulted and/or sexually harassed the applicant when they arrested him on April 28, 2012, this was not the applicant's evidence at the hearing.

19At the hearing, the applicant's testimony, which was admittedly vague, was that at some point while he was unconscious, he felt that somebody was undressing him and he had a sense that someone was sexually assaulting him. He testified that he did not understand if it was a dream or what it was. When he was asked by his legal representative during his examination-in-chief who had done this to him, the applicant testified that he did not know. The applicant did not testify that one of the respondent's police officers had touched him in an inappropriate sexual manner (as alleged in the Application), nor is that an inference that could be drawn from his evidence.

20In the circumstances, the applicant has no reasonable prospect of proving that the respondent sexually harassed and/or discriminated against him because of his sex. There is no evidence from the applicant or forthcoming from any other witness that would allow the Tribunal to find that the respondent police officers touched the applicant in an inappropriate sexual manner during the applicant's April 2012 arrest.

21This aspect of the applicant's discrimination claim is dismissed accordingly.

Discrimination because of Creed

22As noted above, in the Application he filed with the Tribunal, the applicant pleaded that the respondent's police officers discriminated against him because of his creed by ripping a cross from the applicant's neck during his arrest, which cross the applicant was wearing because he is Christian.

23However, at the hearing, the applicant gave no evidence that the police officers who arrested him took his cross or ripped it from his neck. There was a notation in the police notes about a gold chain being observed lying in a pool of blood, but the applicant's representative suggested that the chain referred to in the notes was not the applicant's, because the applicant's chain was silver, not gold.

24During his submissions, the applicant's representative stated that he "assumed" that a police officer had ripped the applicant's chain from his neck because he was angry about the applicant's inability to answer him and because the applicant had allegedly threatened a neighbour. However, as noted above, there was no evidence to support this argument. In any event, this would not lead to a finding of discrimination.

25Even if the applicant had testified that police officers had ripped a cross from his neck during his arrest, I am not convinced that this could lead to a finding that the police ripped it off because of a bias against Christians, which is essentially the applicant's allegation. Such an action on the part of the police, if it occurred, might be improper. However, it would not constitute a basis for a finding of creed-based discrimination.

26For these reasons, the applicant's creed-based discrimination claim has no reasonable prospect of success. This aspect of the applicant's case is also dismissed.

Discrimination because of Ethnic Origin

27The applicant's claim that the respondent discriminated against him because of ethnic origin has no reasonable prospect of success.

28At the hearing, the applicant testified that he heard the words "Russian shit" when he was being assaulted by unknown persons at approximately 3:00 a.m.. However, he did not testify that police officers called him that when they came to his apartment in response to a 911 call at approximately 5:30 a.m. (The parties agreed that that police arrived at the applicant's apartment building at 5:25 a.m. and had the applicant in custody at 5:45 a.m.) Nor did the applicant testify that police officers were the ones who had attacked him. The applicant's representative suggested this. Again, however, there was a significant divide between the applicant's evidence on the one hand and his representative's pleadings and submissions on the other.

29For these reasons, the applicant's claim that the respondent discriminated against him because of his ethnic origin is dismissed as having no reasonable prospect of success.

Discrimination because of Disability

30Finally, I come to the applicant's claim that the respondent discriminated against him because of disability.

31The applicant alleges that the respondent discriminated against him because of disability in two ways. First, the applicant contends that the respondent police service discriminated against him because of disability when police officers forced the applicant to walk downstairs to the ambulance, despite the fact that the applicant was in no condition to do so, instead of allowing paramedics to carry him down on a stretcher. Second, the applicant contends that the respondent police service failed to investigate the April 28, 2012 assault against the applicant because the applicant was intoxicated. In particular, the applicant alleges that, because he was intoxicated when police encountered him, the police saw the applicant as a culprit instead of the victim he was.

32When the applicant claims that the respondent police discriminated against him because of disability by forcing him to walk downstairs to the ambulance, instead of allowing him to be carried down by paramedics, he is essentially arguing that he had a disability-related need to be carried and that the respondent police failed to accommodate that need during the course of the applicant's arrest on April 28, 2012.

33There are a couple of problems with this argument.

34The first is that there is no basis to conclude that it was the respondent's police officers who decided that the applicant would be walked down to the ambulance, instead of being carried down by paramedics. The applicant contends that the police prevented paramedics from carrying him down on a stretcher, but this is merely speculation on the part of the applicant. There are no facts alleged or evidence adduced in this case that could lead to a finding by the Tribunal that the police prevented the applicant from being carried down by paramedics. Indeed, according to one of the documents submitted in evidence, the paramedics who attended the scene made a notation that the applicant was "ambulatory".

35In addition, it is well-established that a respondent can only be held liable for failing to accommodate a disability-related need that it knew or ought to have known about. In this case, there is no dispute that the applicant did not tell police that he could not walk to the ambulance. The applicant testified that the only word he was able to "squeeze out" of himself when asked by police who had attacked him was "poltergeist". (As noted above, the applicant's jaw had been broken by his attackers, which the applicant testified rendered him unable to speak. The applicant had surgery on his jaw when he was taken from his apartment to the hospital by an ambulance called by the police.) The applicant's representative submits that it was obvious from the applicant's condition that he needed to be carried down to the ambulance. However, I do not see how the fact that the applicant was bleeding from the head and/or mouth, or even the fact that the applicant was only "half conscious", would have led the police to conclude that the applicant had a disability which required him to be carried to the ambulance on a stretcher as opposed to being taken to the ambulance in some other way. Nor is there any basis in the applicant's evidence or otherwise for a finding by the Tribunal that the applicant needed to be carried to the ambulance because of a disability.

36The applicant's testimony about being taken downstairs to the ambulance was extremely limited. He testified that someone "grabbed" him under the armpits and "dragged" him downstairs to the ambulance. (He did not know who, but presumably it was the police officers or the paramedics.) The applicant did not testify that he needed to be carried to the ambulance, because of a disability or otherwise. In my view, the applicant's complaint about how he was transported to the ambulance is more in the nature of a general claim of harsh or unfair treatment, as opposed to a claim of adverse treatment, that was linked to a disability and which could have been avoided if the applicant's disability-related needs were accommodated.

37I now turn to the applicant's claim that the respondent failed to investigate the assault on the applicant, because he was intoxicated.

38I note that the respondent denies that it failed to take appropriate steps to investigate the assault on the applicant. The respondent submits that the police need some basic information in order to investigate a crime, which was acknowledged by the judge in the applicant's criminal trial. The police submit that they sought to obtain such information from the applicant when they asked him on April 28, 2012 who had assaulted him. The respondent points to the applicant's own testimony that he answered that he had been attacked by a "poltergeist".

39Leaving this aside, even if the applicant could make out that the respondent did fail to take appropriate steps to investigate the crime against him, the applicant has no reasonable prospect of proving that any such failure was discriminatory.

40Even if the applicant were able to prove that the respondent failed to investigate because he was intoxicated on April 28, 2012, this would be insufficient to establish discrimination because of disability. The mere fact that the applicant was intoxicated at the time of his arrest does not establish that he had or has a disability within the meaning of the Code. Alcoholism is certainly a disability within the meaning of the Code. However, the applicant testified that he is not an alcoholic and further that a doctor who examined him after his arrest and detention confirmed that he is not an alcoholic. Nor is there any other evidence or alleged facts that if proven to be true could establish that the applicant was intoxicated on April 28, 2012 because of a disability. Accordingly, even if the applicant were to prove that the respondent failed to investigate a crime against him because he was intoxicated at the time, his claim that this constituted disability-based discrimination has no reasonable prospect of success.

41For the above reasons, the applicant has no reasonable prospect of proving that the respondent discriminated against him because of his ethnic origin, creed, sex or disability. The Application is dismissed accordingly.

Dated at Toronto, this 2nd day of February, 2016.

"Signed by"

Sheri Price

Vice-chair

CORRECTION

Due to an administrative error, the Decision released on February 2, 2016 was missing the word "failure" in paragraph 39. This error has been corrected.