Cui Ling Qiu v. Toronto Police Service, 2017 HRTO 1003

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cui Ling Qiu Applicant

-and-

Toronto Police Service Respondent

DECISION

Adjudicator: Yasmeena Mohamed Date: August 4, 2017 Citation: 2017 HRTO 1003 Indexed as: Qiu v. Toronto Police Service

APPEARANCES

Cui Ling Qiu, Applicant Angela Makris, Counsel

Toronto Police Service, Respondent Glen K.L. Chu, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to services because of race, citizenship and ethnic origin.

2Specifically, the applicant alleges that the respondent unlawfully arrested her and laid criminal charges against her in 2012. The applicant alleges that the criminal charges were subsequently withdrawn, but the record of these criminal charges, including copies of her fingerprints and photographs (collectively known as “records”), taken at the time of her arrest, remain in the custody of the respondent. The applicant alleges that the respondent has refused several requests to have her records destroyed. The applicant further alleges that the respondent has illegally disclosed her records to the United States of America (USA) Border Services and this has caused her difficulties in entering the USA.

3By Case Assessment Direction (“CAD”) dated March 14, 2017, the Tribunal directed that a summary hearing be held to address whether the Application, or any part of it should be dismissed for the following reasons: (1) on the basis that the allegations relating to the applicant’s arrest and charges are untimely and/or (2) on the basis that the allegations relating to the respondent’s refusal to destroy the applicant’s criminal records and her difficulties in entering the USA border have no link to the grounds cited in the Application and therefore have no reasonable prospect of success.

4I conducted a summary hearing into the issues identified in the CAD and the parties presented their respective submissions in this regard.

5For the reasons that follow, I find that this Application must be dismissed on the following basis: (1) the applicant’s allegations in relation to her arrest and charges in 2012 are untimely and (2) the applicant’s allegations in relation to the respondent’s refusal to destroy her records and her difficulties in crossing into the USA have no link to the grounds cited in the Application and therefore have no reasonable prospect of success.

ALLEGATIONS RE. THE APPLICANT’S ARREST - TIMELINESS

6Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

7The applicant was arrested and criminally charged on February 5, 2012. The Application was filed on December 22, 2016, more than four and half years later. The allegations of discriminatory conduct in relation to the applicant’s arrest and charges are therefore untimely. Despite being given the opportunity to make submissions at the hearing, the applicant declined to make any submissions in response to the delay issue identified in the CAD. In addition, I could not find any information and/or explanation in the Application that might shed light on of the reasons for her delay. Accordingly, I find that the applicant did not provide any explanation as to why the allegations in relation to her arrest and criminal charges were delayed and/or that the delay was incurred in good faith.

8Considering my finding that the applicant has failed to make out a “good faith” explanation for her delay, I need not deal with the issue of any prejudice resulting to the respondent because of the delay.

9For the reasons set out above, any and all parts of the Application relating to the applicant’s arrest and charges in 2012 are dismissed as untimely.

ALLEGATIONS RE. RECORDS HAVE NO REASONABLE PROSPECT OF SUCCESS

10The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

11The 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 of the treatment 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.

12However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal 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 allegedly experienced by the applicant with the Code’s protections.

13As the Tribunal indicated 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.

14Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts as alleged by the applicant.

15The applicant alleges that on February 16, 2016, she received a letter by mail from the respondent’s Records Management Services (“RMS”) office, notifying her that she had not met the eligibility requirements to have her records destroyed, because her records contained primary and secondary designated offences. The applicant alleges that she made a second request through her legal counsel, but the respondent refused the second request as well. The applicant alleges that on May 12, 2016, she called the RMS office and spoke to a staff member who asked her why she wanted her records destroyed and whether she was planning to travel or immigrate. The applicant alleges that the tone of the staff member’s questions was discriminatory because it implied that she was convicted of the charges in her record. The applicant also alleges that she was stopped and interviewed at the USA Border about her charges and as a result experienced great difficulties in crossing the USA border.

16The respondent submits that its refusal to destroy the applicant’s records are not based on any Code grounds, rather it is based on compliance with the respondent’s policy prohibiting the destruction of records that include charges that are designated as primary and secondary offences under the Criminal Code. The respondent therefore submits that the Application should be dismissed on the grounds that it has no reasonable prospect of success.

17Even 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 her own suspicions that the respondent’s letter refusing to destroy her records and/or the “tone” of the questions asked by the RMS staff member when she enquired about the respondent’s refusal letter, are linked to the grounds listed in her Application. The applicant alleges that the “tone” of the RMS staff member was discriminatory because it implied she was convicted of the offences in the records she sought destroyed. This allegation of an “implied conviction” is not an enumerated ground under the Code and therefore cannot be viewed as evidence of discrimination. In addition, the applicant has not been able to point to any evidence beyond her own suspicions to indicate that her experiences at the USA border services and difficulty in crossing the USA border is linked to the grounds listed in her Application. Moreover, these actions were not actions of the respondent but, instead, actions of the USA border authorities.

18As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

19For all the above reasons, I find that the timely allegations in the Application must be dismissed on the basis that they have no reasonable prospect of success under the Code.

ORDER

20For the above reasons, the Application is dismissed.