Maligie Koroma v. The Regional Municipality of Peel Police Services Board and the Windsor Police Services Board, 2017 HRTO 1248

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maligie Koroma Applicant

-and-

The Regional Municipality of Peel Police Services Board and the Windsor Police Services Board Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 22, 2017

Citation: 2017 HRTO 1248

Indexed as: Koroma v. The Regional Municipality of Peel Police Services Board

APPEARANCES

Maligie Koroma, Applicant Self-represented

The Regional Municipality of Peel Police Services Board, Respondent Patty Murray, Counsel

Windsor Police Services Board, Respondent Mark Nazarewich, Counsel

1This is an Application filed on June 24, 2016 alleging discrimination because of race, colour, ethnic origin and record of offences, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The allegations giving rise to this Application relate to certain events that took place commencing on the evening of July 13, 2015 and continuing to the following morning, as well as to the investigation of a complaint made by the applicant to the Office of the Independent Police Review Director (“OIPRD”) in February 2016. In brief, as against the respondent the Windsor Police Services Board (“WPSB”), the applicant alleges that he was racially profiled by certain officers of the Windsor Police Service (“WPS”) when his licence plate was checked and he was subsequently arrested on an outstanding warrant issued for breach of his bail conditions. As the arrest warrant had been issued by the Peel Regional Police Service (“PRPS”), certain officers from the PRPS attended in Windsor to transport the applicant to Peel, where he was held overnight until he appeared in court the following morning. The specific allegations against the respondent The Regional Municipality of Peel Police Services Board (“PPSB”) are the subject of this Interim Decision and will be discussed in detail below.

3The Application as originally filed also named the applicant’s former employer, a bank, as an additional organizational respondent. By Interim Decision dated September 13, 2016 (2016 HRTO 1199), the bank was removed as a respondent as the bank is a federally-regulated business that is outside this Tribunal’s jurisdiction. In this regard, I note that the Application as filed alleges discrimination with respect to employment, which has no application to the remaining respondents. However, the allegations raised against the remaining respondents fall within this Tribunal’s jurisdiction as alleging discrimination with respect to services, contrary to s. 1 of the Code. I further note that the applicant’s allegation of discrimination because of “record of offences” has no application in this context, as that is not a ground of discrimination protected under s. 1 of the Code.

4The respondent PPRB filed a Request for Summary Hearing dated December 9, 2016. This request was granted by this Tribunal by Case Assessment Direction (“CAD”) dated December 23, 2016.

5A summary hearing was held by teleconference on May 29, 2017, at which time I heard oral submissions from the applicant and the PPSB. I also have considered all material filed with the Tribunal for the purpose of the summary hearing, subject to my comments regarding the application of certain provisions of the Police Services Act set out below. The WPSB took no position with regard to the PPSB’s summary hearing request.

6At the summary hearing, an issue arose that the respondents had not received certain material that had been filed by the applicant with the Tribunal under cover of a letter dated November 4, 2016 but received by the Tribunal on December 7, 2016. This material was shared by the Tribunal with the respondents on May 29, 2017 following the summary hearing, and the PPSB was afforded an opportunity to make written submissions in response to this material, if necessary. No such submissions were filed.

Analysis and decision re reasonable prospect of success

7The issue raised by the summary hearing is whether the allegations raised in the Application as against the PPSB should be dismissed as having no reasonable prospect of success.

The first allegations

8The Application sets out three separate allegations as against the PPSB. The first allegations are that, as he was being transported from Windsor to Peel by the PRPS officers in the early morning of July 14, 2015, the applicant was threatened by these PRPS officers, told to “shut your Black mouth”, and that one of the officers decided to switch the music in the vehicle to rap music and told the applicant that this would get him to shut up.

9At the summary hearing, the applicant identified by name the two PRPS officers who had transported him from Windsor to Peel, which is information known to the respondent PPSB. He confirmed his allegation that he had been told to “shut your Black mouth”. With regard to the alleged threat, the applicant stated that he was told that the charges against him were serious, and could lead to more serious trouble. He alleged that when he was first in the vehicle, the officers were playing rock music. However, he alleges that in the context of telling him to shut up, one of the officers changed the music to rap music, and said that this would calm the applicant’s emotions down. The applicant alleges that the change from rock music to rap music and the alleged effect this would have on him is based on an assumption directly related to his race.

10As mentioned above, the applicant filed a complaint with OIPRD in February 2016, a copy of which has been filed with the Tribunal. While the OIPRD complaint raises the allegation of racial profiling as against the WPS officers and an allegation against the PRPS regarding a phone call allegedly made to the applicant’s employer (this is the second allegation, addressed below), the OIPRD complaint does not set out any allegation regarding how the applicant was treated during his transport from Windsor to Peel. When asked by me why no such allegations had been raised in the OIPRD complaint, the applicant first contended that he had raised this allegation in the OIPRD complaint. When it was demonstrated to him that he had not done so, the applicant then said that he had not raised it because of how he had been treated by the PRPS detective assigned to investigate the applicant’s OIPRD complaint. When it was raised with the applicant that this could not be true because he had filed his OIPRD complaint prior to the involvement of the PRPS detective, the applicant then said that his OIPRD complaint had been filed following a discussion with an unidentified friend who had told him what issues to raise.

11The respondent PPSB takes the position that the first allegations should be dismissed as having no reasonable prospect of success on the basis that the applicant failed to provide proper particulars of this allegation. I disagree. On its face, the Application is clear about when and in what context the impugned conduct is alleged to have occurred, which is during his transport from Windsor to Peel in the early morning hours of July 14, 2015. The identity of the two officers who transported the applicant is known to the PPSB. The allegations that the applicant was told to shut his Black mouth and that the music was changed to rap music to get the applicant to shut up are clearly specified in the Application. While the general allegation that he was “threatened” by these officers is set out in the Application, I agree that at the summary hearing the applicant provided further information regarding the specific nature of the alleged threat. However, in my view, that additional information is not a sufficient or proper basis upon which to dismiss the first allegations in their entirety.

12However, I nonetheless have concerns about the evidence that would be presented by the applicant at any merits hearing in this matter in relation to the first allegations. First, the OIPRD complaint filed by the applicant is an indisputable piece of documentary evidence that would need to be considered at any merits hearing. There is no dispute that it was authored and filed by the applicant. The OIPRD complaint squarely raises the racial profiling allegation as against the WPS officers, namely that they ran his vehicle licence plate because the applicant is Black. So there can be no dispute that the applicant was alleging racial discrimination as part of his OIPRD complaint. And yet, while the OIPRD complaint then goes on to make reference to the applicant being “transported to Peel Regional Police and locked up” and proceeds to detail the allegation against the PRPS about contacting the applicant’s employer, no allegation is raised regarding any alleged racial comments or conduct engaged in by the PRPS officers who transported the applicant from Windsor to Peel.

13Further, as set out above, the applicant gave shifting explanations at the summary hearing as to why these allegations were not included in his OIPRD complaint. He first contended that they were included (which they clearly are not). He then stated that they had not been raised because of how he had been treated by the PRPS detective assigned to investigate the OIPRD complaint (which is impossible, as the PRPS detective only became involved after the OIPRD complaint had been filed). And he then finally stated that a friend had told him what to include in the OIPRD complaint.

14One of the things that this Tribunal assesses at a summary hearing is what evidence the applicant would be able to present at any hearing on the merits in support of his allegations, and whether that evidence would be sufficient to establish that an applicant has a reasonable prospect of success in proving his allegations at any merits hearing. In this case, given the absence of any reference to the first allegations in the OIPRD complaint and the applicant’s shifting explanations at the summary hearing regarding this omission, I am satisfied that the applicant would not be able to present evidence at any merits hearing that would establish these allegations.

15Consequently, the first allegations are hereby dismissed as having no reasonable prospect of success.

The second allegation

16The second allegation raised in the Application relates to a telephone call to the applicant’s employer that the applicant alleges was made by a PRPS officer while he was in the holding cell awaiting his bail hearing. The applicant states that at some point after he arrived in Peel, he told the officers that he wanted to use the telephone to contact his supervisor to notify her that he would not be coming in to work that day. He alleges that he was first told to wait, and later told that he would not be allowed to use the phone. He alleges that as he was being taken to court that morning, he was told that the police had called his employer and told the employer that the applicant was in jail. The applicant alleges that he asked the officers whether his race was an issue there, and also asked why they had called his employer without his consent. The applicant alleges that the officers brushed off his comments.

17At the summary hearing, I confirmed with the applicant that this Tribunal has no jurisdiction to deal with an allegation of a violation of his privacy rights, which the applicant stated that he understood. In response to my question as to how he was linking or connecting this allegation to his race, colour or ethnic origin, the applicant stated that he was linking this allegation back to him being racially taunted by the PRPS officers when he was being transported from Windsor. He alleges that the call to his employer was made in order to cause him problems at his workplace. I have two difficulties with this alleged link. First, as I already have found that the applicant’s allegations of racial comments and conduct by the transporting officers has no reasonable prospect of success, these allegations cannot be relied upon to establish a link to race, colour or ethnic origin being a factor in relation to the second allegation. Second, at the summary hearing, the applicant confirmed that the officer who is alleged to have placed the call to his employer was a different PRPS officer than the officers who had transported him from Windsor.

18When I asked the applicant how he was making the link or connection to the allegations of what had occurred during transport when it was a different officer who is alleged to have made the call, the applicant stated that when he was brought into the police station, the officers were talking and laughing at him and told him to go sit in the corner. He states that one of officers said, “you will pay for what you did, you’ve got to shut up”. The applicant states that he then said that the officers had already taunted him in the transport vehicle. None of this is set out in the Application or in any other material filed by the applicant with this Tribunal. In any event, none of this is sufficient to establish a link or connection between the alleged phone call to his employer and the applicant’s race, colour or ethnic origin.

19As a result, the second allegation is also dismissed as having no reasonable prospect of success.

The third allegation

20As set out in the Application, the third allegation raised as against the PPSB relates to the alleged conduct of the PRPS detective who was assigned to conduct the investigation into the applicant’s OIPRD complaint. In the Application, the applicant alleges that the PRPS detective was “racist on the phone to me” and asked whether the applicant was looking for financial compensation.

21At the summary hearing, I asked the applicant how he was alleging that the PRPS detective had been racist on the phone with him. The applicant alleges that during a phone conversation with this detective, the detective asked what financial remedy the applicant was looking for if he dropped the OIPRD complaint. The applicant states that he responded by saying that it was not a matter of financial remedy; it was a matter of being a Black person and being profiled and taunted and subjected to racial comments. He states that he told the detective to stop calling him and stop asking about money when Black people were being killed by police. He states that he asked the detective whether he wanted to kill the applicant and then send him money, and he alleges that the detective said yes. The applicant states that he told the detective never to call him or e-mail him again.

22None of these details are set out in the Application or in any other material filed by the applicant with this Tribunal. I appreciate that the respondent PPSB vigorously denies the applicant’s allegations, which were described at the summary hearing as outrageous. Part of an officer’s role in investigating an OIPRD complaint is to explore the potential for resolving the complaint by way of an early resolution agreement. In this context, it is conceivable that the PRPS detective may have asked the applicant whether he was seeking monetary compensation as a remedy for his OIPRD complaint. If that in fact occurred, I can understand how that may have angered the applicant, if he felt that his alleged experience was being reduced to a matter of money. But that has nothing to do with the applicant’s race, colour or ethnic origin.

23I agree with the respondent PPSB that the allegation that the detective agreed with the applicant’s statement that he wanted to kill the applicant and then send him money is outrageous. If in fact such a serious comment had been made by the detective, I would have expected it to be set out in the Application or referred to somewhere in the materials filed by the applicant with this Tribunal, and not arise for the very first time at the summary hearing. Accordingly, I place no reliance on this allegation.

24Accordingly, I find that the applicant’s third allegation also has no reasonable prospect of success. As I have found that all of the allegations against the PPSB have no reasonable prospect of success, the Application is dismissed as against the PPSB.

The Police Services Act

25At the summary hearing, I raised a concern with the respondent PPSB regarding two provisions of the Police Services Act (“PSA”) and their impact in relation to the information and material included by the PPSB in its Response as filed with the Tribunal.

26The first provision is s. 83(8) of the PSA, which states:

No document prepared as the result of a complaint made under this Part is admissible in a civil proceeding, except at a hearing held under this Part.

27The second provision is section 95 of the PSA, which states:

Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

28The Part of the PSA referred to in ss. 83(8) and 95 is Part V, which includes the procedures by which complaints to OIPRD are dealt with. This Tribunal has held that a human rights proceeding is a “civil proceeding” within the meaning of s. 83(8) of the PSA, and that the “law enforcement purposes” exception in s. 95(c) of the PSA does not apply in the context of a human rights proceeding: see McWilliam v. Toronto Police Services Board, 2016 HRTO 934; Roberts v. Toronto Police Services Board, 2016 HRTO 1464; McWilliam v. Toronto Police Services Board, 2017 HRTO 78.

29As a result, information obtained in the course of the investigation of an OIPRD complaint should not be communicated to this Tribunal, and documents prepared as a result of an OIPRD complaint are not admissible in a proceeding before this Tribunal.

30Due to these statutory provisions in the PSA, I have not relied upon any information set out in the Response filed by the respondent PPSB obtained during the course of the investigation of the applicant’s OIPRD complaint, or any documents filed by the respondent PPSB that were prepared as a result of the applicant’s OIPRD complaint. These statutory restrictions do not apply to the OIPRD complaint itself: see McWilliam v. Toronto Police Services Board, 2016 HRTO 934.

Applicant’s request for a Tribunal-ordered inquiry

31On December 20, 2016, the applicant filed a Request for a Tribunal Ordered Inquiry, seeking to have the Tribunal obtain video evidence from the location where the applicant was arrested, video evidence from the PRPS station, and testimony from the respondent police services.

32At the summary hearing, I advised the applicant that his Request was denied. As I have dismissed the allegations against the PPSB, video evidence from the PRPS station where the applicant was held is no longer relevant to the remaining allegations against the WPSB. With regard to witness testimony, this Tribunal’s Rules of Procedure already sets out the requirement for the parties to identify their proposed witnesses and provide witness statements in advance of the hearing. With regard to video evidence from the location where the applicant was arrested, I explained to him that he could seek production of such evidence from the third party that owns the location by serving a Request for Order (Form 10) on the respondent WPSB and the third party owner to seek a Tribunal order to this effect.

Next steps

33As the allegations against the PPSB have been dismissed, the only remaining allegations are against the WPSB and relate to events that occurred in Windsor. As a result, it is my view that Windsor is the appropriate location for the hearing in this matter.

34The Tribunal will proceed to schedule a one-day in-person hearing in Windsor on the merits of the applicant’s allegations against the WPSB, and the parties should expect to receive the Notice of Hearing in due course.

ORDER

35For all of the foregoing reasons, I hereby make the following order:

a. The allegations raised in the Application as against The Regional Municipality of Peel Police Services Board are dismissed as having no reasonable prospect of success, and this respondent shall be removed as a party to this proceeding;

b. The applicant’s Request for a Tribunal Ordered Inquiry is denied; and

c. The Tribunal will proceed to schedule a one-day in-person hearing in Windsor on the merits of the applicant’s allegations against the Windsor Police Services Board.