Jerzy Nataluk v. The Regional Municipality of Niagara Police Services Board and Andrew Long, 2009 HRTO 1986

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jerzy Nataluk

Applicant

-and-

The Regional Municipality of Niagara Police Services Board

and Andrew Long

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: November 23, 2009

Citation: 2009 HRTO 1986

Indexed as : Nataluk v. Regional Municipality of Niagara Police Services Board

AppearanceS BY

Jerzy Nataluk, Applicant ) On his own behalf

The Regional Municipality of Niagara ) Woodward McKaig,

Police Services Board and Andrew Long, ) Counsel

Respondents ) )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated December 10, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 25, 2007.

2The Applicant alleges that he experienced discrimination in relation to services because of his place of origin, in relation to his interaction with the personal respondent Constable Long and the Regional Municipality of Niagara Police Services arising out of an incident that occurred in late November 2006.

3The Case Resolution Conference (hearing) in this matter was held on October 19, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and the personal respondents. The parties were afforded the opportunity to cross-examine after I had completed my questioning of all witnesses.

Background

4The applicant self-identifies as a Canadian citizen coming from an Eastern European Communist country background.

5The applicant cut some branches off of a tree that was on his neighbour’s property but that were overhanging onto his property. This action appears to have been the final straw in an ongoing dispute between the applicant and his neighbours.

6On November 26, 2006, the neighbours called the police and Constable Long responded to the call. After speaking with the neighbours, Constable Long spoke briefly with the applicant. The applicant alleges that he was in his garden doing some work and talking to himself, and Constable Long said, “Shut up, be quiet”. This allegation does not appear in the applicant’s complaint. Constable Long does not recall what he initially said to the applicant, but denies that he said the words alleged. There is no dispute that Constable Long asked the applicant whether he had something to drink that day, and that the applicant replied that he had.

7In conducting his investigation at the scene, Constable Long did a routine CPIC inquiry regarding the applicant. This inquiry revealed that the applicant was wanted in Winnipeg on a criminal charge, and that certain conditions had been placed upon him. These conditions included that the applicant abstain from consumption of alcohol, maintain a residence in the City of Winnipeg, and keep the peace and be of good behaviour.

8As it was late in his shift and there did not appear to be any immediate cause for concern, Constable Long did not lay charges or arrest the applicant at that time. In addition, Constable Long required written statements from the neighbours in order to substantiate the grounds for any charges, and the neighbours had requested that they be allowed to prepare their statements overnight. As well, Constable Long required further information from the police in Winnipeg in order to prepare the charges.

9The following day, November 27, 2006, Constable Long re-attended at the scene and obtained the written statement from the neighbours. Constable Long believed that he had reasonable and probable grounds to lay a charge of criminal harassment against the applicant, based upon the neighbours’ statement outlining an ongoing pattern of harassment by the applicant. In addition, Constable Long believed that he had reasonable and probable grounds to lay a charge of mischief under $5,000, arising out the damage caused to the neighbours’ tree.

10Constable Long also had been able to obtain confirmation from the police in Winnipeg that the warrant was still outstanding. As a result, Constable Long laid three charges against the applicant for breach of the conditions that had been imposed upon him, namely for the consumption of alcohol contrary to these conditions, for the failure to maintain his residence in Winnipeg, and for his failure to maintain the peace and be of good behaviour on the basis of his conduct towards his neighbours.

11Consequently, Constable Long proceeded to arrest the applicant that day. The applicant was taken into custody and appeared before a Justice of the Peace the following day. On that day, the Crown withdrew the three charges relating to the breach of conditions. The transcript from this hearing, which was introduced into evidence before me, shows that these three charges were withdrawn because the police in Winnipeg had advised that they were not planning to proceed on the warrant.

12The transcripts reveal that there were multiple appearances by the applicant and lengthy consideration about releasing him on bail. The transcripts indicate that the Justice of the Peace was concerned that the applicant not be released until a surety for him had been obtained. As no surety came forward for the applicant, he remained in custody until January 17, 2007. On that day, the remaining two charges against him were withdrawn. The evidence indicates that the reason the charges were withdrawn on that day was because the applicant’s girlfriend appeared at the court and assured the neighbours that she would monitor the applicant’s behaviour in the future and the neighbours were satisfied with this assurance.

13The applicant’s evidence is that since this time, a fence has been built between the two properties and there have been no further problems.

Analysis and Decision

14The applicant asserted a number of reasons why he believes that he experienced discrimination because of his place of origin.

15The applicant testified that on a previous occasion, about a year prior to the incident in question, he was told by a police officer from the Niagara Police Service that if he didn’t like how he was being treated, he could go back to the old country. The applicant could not identify the police officer who is alleged to have said this, but was clear that it was not Constable Long. Constable Long testified that he was not aware of any such comment having been made or any such sentiment having been expressed towards the applicant. In the absence of any evidence as to the person alleged to have made this comment, I am unable to attach any weight to this allegation by the applicant.

16The applicant relies upon his evidence as to how he was approached by Constable Long and being told to “shut up, be quiet”, which the applicant describes as abuse. Constable Long denies that he said this. In any event, in my view there is no connection between the statement alleged to have been made and the applicant’s place of origin.

17The applicant also asserts that if he had done something wrong, he should have been arrested on the same day and not the following day. Constable Long has provided a reasonable explanation for why he didn’t arrest the applicant on the day he first attended at the scene. Once again, however, I fail to see any connection between the timing of the applicant’s arrest and his place of origin.

18The applicant takes the position that the charges laid against him were “phony” and “bogus”. With regard to the charges relating to the warrant out of Winnipeg, the applicant’s evidence is that he had no knowledge of any such warrant or conditions being placed upon him. The applicant acknowledged being convicted of a criminal offence in Winnipeg and states that he was aware that certain conditions applied to him for a period of one year, but states that for the second year he was allowed to move to the Hamilton area and after that he understood that he was not subject to any further conditions.

19The precise nature and status of the conditions imposed upon the applicant arising out of the criminal charge he faced in Winnipeg are not entirely clear. Nonetheless, I am satisfied that Constable Long conducted a routine CPIC inquiry and became aware of the warrant and conditions, and then confirmed with the Winnipeg police that the warrant was still outstanding. I agree with the respondents that, if there was some error in the inputting of this data into the CPIC system or some error made by the Winnipeg police, this error should not be visited upon the respondents who acted on the basis of the information made available to them. I do share the respondents’ concern that the applicant, before he next visits Winnipeg, take steps to clarify the status of the warrant and conditions so that he avoids any potential difficulties he may face.

20With regard to the remaining two charges, Constable Long laid these charges on the basis of the statements given to him by the applicant’s neighbours. These statements reported an ongoing history of harassment and abuse by the applicant. I appreciate that the applicant does not agree with his neighbours’ views, but this was for the court and not Constable Long to decide. Once again, I am satisfied that Constable Long laid charges on the basis of the information made available to him by the neighbours and in response to their complaint, and that there was no discrimination because of the applicant’s place of origin in so doing.

21The applicant also raised the fact that he spent 50 days in jail for trimming a tree. However, cutting branches off of his neighbours’ tree was merely the final incident in a longstanding dispute between the applicant and his neighbours, which had resulted in prior police intervention. In addition, the decision not to release the applicant on bail in the absence of a surety was a decision made by the Justice of the Peace and not the respondents. Accordingly, I do not find any basis to support that the respondents were responsible for the length of time that the applicant spent in jail nor do I find that there was any evidence of discrimination because of the applicant’s place of origin in this regard.

22For all of these reasons, the Application is dismissed.