Tsiofas v. Toronto Police Services Board, 2016 HRTO 825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gus Tsiofas

Applicant

-and-

Toronto Police Services Board and Andrew Haynes

Respondents

DECISION

Adjudicator: Mark Hart

Date: June 17, 2016

Citation: 2016 HRTO 825

Indexed as: Tsiofas v. Toronto Police Services Board

APPEARANCES

Gus Tsiofas, Applicant

Self-represented

Toronto Police Services Board and Andrew Haynes, Respondents

Glenn Chu, Counsel

1This is an Application dated November 24, 2014 and completed December 15, 2014 alleging discrimination with respect to services because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Application arises out of a traffic stop that occurred in the Pape and Danforth area in downtown Toronto on November 9, 2014. While the applicant disagrees with the basis for the traffic stop, he does not allege any violation of the Code relating to the personal respondent’s decision to make the stop. The only allegation of a violation of the Code before me is that the personal respondent uttered the words “fucking Greek” at some point during the stop.

3The applicant was born in Greece and came to Canada when he was young. In the early evening on November 9, 2014, the applicant was driving his vehicle eastbound on Danforth and signalled to make a left turn onto Pape. The applicant observed a police cruiser across the intersection in the westbound lane signalling to make a right turn onto Pape. The applicant states that he delayed his left turn to afford the police cruiser the courtesy of making its right turn, but that the officer driving the police cruiser (the personal respondent) waved him ahead. This is disputed by the personal respondent, who states that the applicant made an unsafe left turn against oncoming traffic. As no allegation of a violation of the Code is raised in relation to this issue, it is not necessary for me to make any factual determination on this point.

4The applicant states that after he executed his turn onto Pape and was travelling northbound, he observed the police cruiser speed up and follow him closely before falling back to a safe distance. The personal respondent denies that he was following the applicant too closely. Once again, as no alleged Code violation is raised in relation to this issue, nothing turns on this point.

5The applicant states that he then signalled to turn right onto Aldwych Street. He acknowledges that he executed the right turn out of the center lane on Pape, but states that he was unable to move into the right lane prior to executing his turn due to vehicles that were parked close to the intersection. There is police video in evidence before me showing the applicant’s vehicle at this point, and I can see a brief flicker of the applicant’s right turn signal as he was executing his turn.

6At this point, the personal respondent decided to pull the applicant over and activated his emergency lights. The police cruiser was equipped with a forward facing camera and three microphones, one for each of the officers in the cruiser and another in the cruiser itself. The camera continuously records video, but only saves the 30 seconds prior to when the emergency lights are activated. That is why there is no video of the interaction at the intersection of Pape and Danforth, and why the video only starts once the cruiser is travelling northbound on Pape. The microphones are only activated once the emergency lights are engaged, so there is no audio prior to that point.

7The personal respondent and his partner approached the applicant’s vehicle on either side. The applicant’s only engagement was with the personal respondent, who was on the driver’s side of the vehicle. The personal respondent asked the applicant if he knew why he had been stopped, to which the applicant replied that he had no idea. The personal respondent proceeded to explain that the applicant had made an unsafe left turn from Danforth onto Pape and had made a right turn onto Aldwych from the center lane. The personal respondent told the applicant that he was giving him a verbal warning. The applicant states that the personal respondent then stepped back from the driver’s side door, and the applicant asked, “are we done?” The applicant’s evidence is that he just wanted to know whether he was free to leave, but he believes that the personal respondent interpreted his question as being rude or sarcastic, because the personal respondent then said that he needed to give the applicant a written warning.

8The foregoing facts are largely undisputed, although the personal respondent does not recall the applicant saying “are we done?” The personal respondent acknowledges that he initially told the applicant that he was being given a verbal warning, but then recalled a directive indicating that all warnings had to be documented. This directive is in evidence before me. As of November 9, 2014, the personal respondent had only recently returned to his regular platoon, having been away for three years in another role that did not involve traffic stops. As a result, he states that he simply did not recall the directive that had been issued while he was away from his platoon.

9There is no dispute that the personal respondent and his partner returned to the police cruiser after advising the applicant that he would be given a written warning. The personal respondent filled out the written warning on the appropriate form and returned to the applicant’s vehicle to provide him with the warning. The personal respondent then went back to the police cruiser, and that was the end of the interaction.

10In his evidence at the hearing, the applicant states that, as the personal respondent was leaving the applicant’s vehicle the first time (that is, before issuing the written warning), he uttered the words “fucking Greek” as he was walking away. This evidence is a significant change from what the applicant previously had maintained. The day following the incident, the applicant wrote a letter to the Chief of Police regarding his interaction with the personal respondent. There were two different versions of this letter in evidence before me: one that was attached to the Application as filed with the Tribunal in November 2014; and one that the applicant filed in February 2016 as part of his hearing materials. The applicant states that he does not know which version of these two letters he actually sent to the Chief of Police, although he suspects that it was the version attached to the Application. He states that he did not keep a copy of the version of the letter sent to the Chief of Police, and printed the copies filed with the Tribunal from his computer. He states that at the time he filed his hearing materials in February 2016, he made changes to the letter, which explains why it is different from the version attached to his Application.

11In any event, in both versions of the November 10, 2014 letter in evidence before me, the applicant states that the racial slur was uttered by the personal respondent as he was walking away the second time after issuing the written warning. In the Application itself, as filed with the Tribunal shortly following the incident, the applicant also puts the timing of the utterance of the racial slur as being after the second time the personal respondent came to his vehicle and after he had been issued the written warning.

12The applicant’s evidence on this point changed only the day prior to the hearing, when he filed a revised witness statement now stating that the personal respondent had uttered the racial slur the first time he walked away from the applicant’s vehicle and before he was issued the written warning. The applicant acknowledged in his evidence before me that he submitted his revised witness statement after reviewing the video and audio recording disclosed by the respondents in this proceeding, which he reviewed a few days before the hearing.

13As stated above, the microphones in the police cruiser are activated when the emergency lights are engaged. Police procedure is for each officer to attach one of the microphones to their uniform prior to engaging the public. When the officers return to the cruiser to conduct investigative checks and write up a warning or ticket, the microphones are disengaged, but are re-engaged upon exiting the cruiser and having further interaction with the public.

14In this case, the personal respondent candidly acknowledged that he did not follow proper procedure during his first interaction with the applicant, in that he did not attach the microphone to his uniform at that point. As a result, there is no audio of the personal respondent’s first interaction with the applicant up to the point at which he returns to the cruiser the first time. By the time of his second interaction with the applicant, the personal respondent states that he recalled that he needed to attach the microphone to his uniform and did so. As a result, there is a full audio recording of the personal respondent’s interaction with the applicant from the time he left the cruiser for the second time to issue the written warning to the applicant until he returned to the cruiser and disengaged the microphone. At no point during this second interaction with the applicant does the personal respondent (or his partner for that matter) utter the words “fucking Greek”.

15The personal respondent’s explanation for why he forgot to attach the microphone to his uniform for his first interaction with the applicant once again relates to him having been away from his regular platoon duties for a three year period. It was during the time when the personal respondent was away from his platoon that the police cruisers in his Division were all equipped with cameras and microphones. As a result, at the time of the stop on November 9, 2014, the personal respondent states that he had only returned to the platoon for a very short period of time and had not yet developed his “muscle memory” to remember to attach the microphone to his uniform.

16The only issue for me to determine in this case is whether or not the personal respondent uttered the racial slur as alleged by the applicant, which fundamentally is an issue of credibility. The personal respondent denies uttering the racial slur at any time during his interaction with the applicant. The audio recording, as it exists, provides compelling proof that the personal respondent did not utter the racial slur at the time originally alleged by the applicant.

17The only question is whether I should accept the applicant’s now-revised evidence that the racial slur was uttered at an earlier point in the interaction, for which there is no audio recording. I decline to do so. There is a stark inconsistency in the applicant’s evidence as to the timing of the alleged racial slur as stated in both versions of the letter he wrote to the Chief of Police and as stated in his Application, as opposed to what he stated in the witness stand and submitted to the Tribunal the day before the hearing after reviewing the video and audio recording. The applicant claims that his review of the video and audio recording served to jog his memory, so that he now was better able to recall that the racial slur had been uttered at an earlier point in time. I do not accept that. Rather, the inference I draw from the evidence before me is that, once he had reviewed the video and audio recording, it became clear to the applicant that the racial slur had not been uttered at the time he had alleged, and so he needed to re-position the timing of the alleged racial slur to a point where there was no audio recording.

18I also am persuaded by the submission made by respondent counsel that, if the personal respondent had made the racial slur as alleged during his first interaction with the applicant, it would not have made sense for the personal respondent to have engaged with the applicant on a second occasion with his microphone on, given that the applicant may have made some reference to the alleged racial slur. In my view, the fact that the personal respondent attached his microphone for his second interaction with the applicant supports the personal respondent’s evidence that his failure to do so on the first occasion was an oversight, and supports his evidence that he did not utter the alleged racial slur.

19Accordingly, having considered the totality of the evidence before me, I find that there is insufficient reliable or credible evidence to support the applicant’s allegation that the personal respondent uttered a racial slur. As this is the only alleged Code violation raised in this proceeding, the Application is therefore dismissed.

ORDER

20For all of the foregoing reasons, the Application is dismissed.