HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Barton

Applicant

-and-

Loft Community Centre and Linda Sallay

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: May 21, 2009

Citation: 2009 HRTO 647

Indexed as: Barton v. Loft Community Centre

AppearanceS BY

Craig Barton, Applicant ) on his own behalf

Loft Community Centre and Linda Sallay, ) E.C. Carla Zabek,

Respondents ) Counsel

[1] This is an Application dated July 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on June 5, 2008.

[2] The Case Resolution Conference hearing (CRC hearing) in this matter was held on April 16, 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. I took the lead in questioning the witnesses and heard from the applicant, the personal respondent and one witness.

[3] Loft Community Centre (“Loft”) is one of four agencies that provide housing under the Mental Health and Justice Initiative, a partnership program with the Ministry of Health and Long Term Care. The target population for housing under this program are individuals who satisfy all of the following four criteria:

• Suffer from a serious mental illness

• Have current involvement with the criminal justice system

• Are homeless or potentially homeless, and

• Are likely to live safely supported in the community with minimal assistance.

[4] The applicant submitted an application for supportive housing that was referred to Loft. Two staff members from Loft met with the applicant to review his application sometime in September 2005. One of the staff members who met with the applicant gave evidence at the hearing. This staff member expressed a number of concerns arising from the meeting with the applicant, but was particularly concerned about the nature of the applicant’s involvement with the criminal justice system, which the application indicates includes sexual assault and uttering threats. However, the staff member states that, at this initial interview, no decision had been made about the applicant’s suitability for the program. Rather, more information was required in order to make that assessment.

[5] Loft obtained written consents from the applicant to speak with his doctor and his probation officer, copies of which were provided and marked as exhibits. The staff member’s discussions with the applicant’s doctor and probation officer also were documented. The staff member states that the main focus of her discussion with the applicant’s doctor was that the doctor felt that the applicant did not have insight into his illness and was not compliant with medications. The staff member states that this was a source of concern for Loft, because if the applicant did not have insight into his illness and was non-compliant with medication, that led to concerns about the applicant re-offending and potentially harming a staff member or another individual in the program or living in the building where housing was provided.

[6] The staff member’s discussion with the applicant’s probation officer also was a source of concern. The applicant was subject to an “810” order, which Loft was told indicates that the person was at high risk of re-offending. The applicant’s probation officer expressed to Loft that he felt that there was a very high chance of the applicant re-offending and harming another person, particularly women. Loft was told that the applicant did not respect boundaries when he was in the probation office in terms of how he interacted with probation officers and that he was inappropriate in interacting with females, and needed to be assigned a male probation officer. The probation officer also spoke to the applicant’s failure to comply with the terms of his probation by using alcohol. The staff members states that while abstinence from alcohol is not a requirement of acceptance into the program, there was a concern with the applicant that using alcohol would increase the risk of the applicant harming another individual physically or sexually. The probation officer also expressed his view to Loft that women were not safe around the applicant. For Loft, this posed a concern for the safety of Loft’s own staff, who were predominantly female, as well as for other vulnerable residents or other women living in the same building.

[7] The witness states that while she did not get any further details regarding the nature of applicant’s offences, she understood that they were serious assaults that resulted in the applicant being closely monitored by probation because there was such a high risk of it happening again. This witness also states that the information she had at time was that whatever rehabilitation had been set up, the applicant was not following through with it as he was not taking his medication and was not abstaining from alcohol.

[8] The next step in the process was for the staff member to review the information she had obtained with the team at Loft. The staff member’s recommendation was that the applicant was not an appropriate candidate for the program. The staff member felt that Loft could not provide the kind of support required by the applicant to live safely in the community. She was concerned that the applicant was non-compliant with treatment recommendations, and that there was a high chance that he would harm another individual, whether staff or other residents, and particularly women. She was further concerned about the applicant’s lack of insight into those issues. As a result of these concerns, Loft decided to deny the applicant’s application.

[9] The applicant thereafter made two further applications to the Mental Health and Justice Initiative. The first was not processed because it was incomplete. The second was not accepted because the program by that time required referral from a “priority referral service”, whereas the applicant had been referred by his doctor.

[10] Nonetheless, the Director of the Mental Health and Justice Initiative at Loft became directly involved in 2006 as a result of repeated contacts by the applicant by phone and fax. The Director ultimately met with the applicant on May 5, 2006 to hear what his concerns were about being denied access to the program. The Director states that while the applicant was well beyond the three week period for an appeal of Loft’s initial decision, she nonetheless decided to treat the applicant’s concerns as a first stage appeal.

[11] At the meeting, the Director obtained consents from the applicant to speak with the psychiatrist who had treated him while he was incarcerated and to speak again with his probation officer. The Director wanted to speak to the probation officer in order to obtain further details regarding the nature of the applicant’s offences, and to obtain an update on the applicant’s situation since the last time the probation officer had spoken with Loft. As result of this discussion, the Director had safety concerns in relation to Loft’s predominantly female staff and with vulnerable females housed by Loft.

[12] The applicant’s psychiatrist confirmed that he had been treated for 18 months in a relapse prevention program and had successfully abstained from drugs and alcohol, and that his behaviour was manageable so long as she and her staff set firm boundaries with him. While this caused the Director to be more at ease regarding the safety of her staff, she remained concerned about the ability of other vulnerable program members and residents to set proper boundaries with the applicant. The Director further was concerned that while the psychiatrist could speak to the applicant’s successes while he was incarcerated, Loft was not in a position to provide the kind of 24 hour support that the applicant had received in that setting.

[13] The psychiatrist also said that she was concerned about the safety of vulnerable people around the applicant, and said that the applicant talked about harming other people when he’s scared and that he is paranoid that other people will harm him. The psychiatrist also spoke about the applicant needing to stay away from drugs, porn and chat rooms. This raised further concerns for the Director as there was no way for Loft to ensure that the applicant stayed away from these things, and so it raised a safety concern about not being able to monitor the applicant.

[14] In the end, a decision was made by Loft to deny the applicant’s appeal, which was communicated to him by phone and by letter dated June 22, 2006. This decision was made because the applicant was a high risk offender to begin with and there was a strong risk of re-offending. Typically, Loft provides services to persons who have committed Class 1 or Class 2 offences with low to medium risk, such as theft and break and enter. Sexual assault is a Class 3 offence. While Loft does provide housing to some Class 3 offenders, including people with sexual offences, the agency needs to assess the risk posed and how this risk can be balanced with other supports. Typically, Class 3 offenders who are admitted to the program are compliant with medication and have a full support plan, neither of which was in place for the applicant.

[15] Loft also was concerned about its inability to provide 24 hour support to the applicant, the concern for the safety of its predominantly female staff and for the vulnerable women it housed, the applicant’s poor insight into his illness and need for compliance with his treatment regimen, and increased risk posed by the applicant’s failure to abstain from drinking alcohol. Finally, Loft notes that the applicant already had housing at the time his appeal was being considered, and thus for that reason alone would not have been eligible for the program.

[16] The applicant’s complaint alleges discrimination because of disability, race and record of offences. In terms of racial discrimination, the applicant self-identifies as being “mulatto” or mixed-race. He points to the fact that he was denied access to the program by White women, whom he alleges were hostile and racist towards him. However, apart from generalizations about the attitudes of White people towards those of mixed race, the applicant did not provide any specifics to support his allegation of racial discrimination. In my view, the respondents have provided evidence, supported by documentation made at the time, that supports that its decision to deny access to its housing program was made for safety-related reasons and because Loft did not feel capable of providing the applicant with the level of support he required. I find that there was a legitimate basis in the evidence to support these concerns, which is sufficient to dispel any inference of racial discrimination.

[17] The applicant did not provide any basis for his allegation that he experienced discrimination because of disability. In this case, I am dealing with a program that expressly targets people with serious mental health issues. There is no evidence before me to indicate that the denial of the applicant’s application had anything to do with the nature of his mental health issues; rather, the evidence indicates that Loft’s concerns related to the nature of his history of criminal offences, his high risk of re-offending and the safety concerns that this raised for staff, program participants and other residents. As a result, I do not find any basis in the evidence to support the allegation of discrimination because of disability.

[18] With regard to the allegation of discrimination because of “record of offences”, this ground has a restricted meaning under the Code and applies to Criminal Code offences only if a pardon has been granted. There is no evidence before me that the applicant has been granted a pardon for the sexual assaults which were the main basis of the safety concerns raised by Loft. As a result, there is no basis to support this allegation.

[19] For all of these reasons, the Application is dismissed. I have considerable sympathy for the applicant, as he may have greatly benefited from obtaining housing through Loft. I did question the Loft representatives as to what kind of housing would be appropriate for the applicant in light of the concerns raised, and was told that either an all-male residence or a housing program that was able to provide 24 hour support may be appropriate. I was further informed that this kind of housing is available. It is my sincere hope that the applicant is able to access services and housing that are appropriate to meet his needs in his struggle to overcome his mental health issues and his correctional history.

Dated at Toronto, this 21^st day of May, 2009.

“Signed by”

_________________________________________

Mark Hart

Vice-chair