HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.O.
Applicant
-and-
Windsor Police Services Board and Linda Skoyles
Respondents
Decision
Adjudicator: David Muir
Indexed as: R.O. v. Windsor Police Services Board
APPEARANCES
) Jeff Wilkinson and R.O., Applicant ) Linda Wilkinson, ) Representatives
Windsor Police Services and Linda Skoyles ) Nancy Jammu-Taylor,
) Counsel
1This Application was filed June 26, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in the provision of services by the respondents on the basis of gender. The applicant alleges generally that, subsequent to complaints made against him by his then spouse, he has been subject to systemic discrimination by the respondents. The applicant alleges that the police investigate allegations of assault and sexual assault in a gender biased manner. He also alleges that he was subject to differential treatment by the respondent police services on the basis of his gender.
2The particulars provided in the complaint underlying this Application are summarized as follows:
June 18, 2005
a. The applicant alleges that on June 18, 2005 the respondents instructed E.O. to kidnap his children from his home. The applicant alleges that when he attended at the police station to report the alleged abduction he was loudly berated and chastised by police for having brought his daughter with him. The applicant alleges that he was taken into custody and arrested and his daughter was ordered to be given to E.O.. The applicant alleges that he was treated in this manner because he is male.
b. The applicant alleges that his statements concerning the false allegations made against him by E.O. were ignored by the police because he is male. The applicant alleges that he was told when a woman complains a man must be charged.
c. The applicant alleges that he reported assaults on himself and his children, theft and destruction of property and evidence. The applicant alleges that these complaints were never investigated by the police because he is male.
May/June 2006
d. The applicant alleges that he reported a theft in progress at his home. The following day two female police officers attended at his home and physically and verbally intimidated him.
e. The applicant alleges that in June 2006 Detective Bodri attended at his work place making his presence known.
February 2007
f. The applicant alleges that he was served with summonses to appear in February and March 2007 which contained allegations of sexual assault, despite the dismissal of these charges.
3A hearing was held in respect of these allegations on March 29 and 30, 2011 in Windsor Ontario in accordance with the expectation set out in the Code and the Tribunal’s Rules that transitional Applications be processed in a fair, just and expeditious manner. I heard from the applicant and the respondent Linda Skoyles as well as Sgt. Bodri and Constable Ouimet.
4The Application is dismissed. The applicant’s frustration and exasperation at what has happened to him flowing from the charges laid against him on June 18, 2005 is clear. Despite his frustration, there is no evidence of his claim of gender bias in the manner in which the investigation of his ex-spouse’s complaints of assault and sexual assault against him were handled. Similarly there is no evidence of differential treatment by the police in his subsequent interactions with them. My reasons for these conclusions follow.
5The applicant was married to E.O. The couple had two children. In the Spring of 2005 the marriage failed. E.O. began a relationship with another man in March and the applicant became aware of it. The couple sought counselling. She left the matrimonial home on at least one occasion but returned. She left again on June 13 or 14, 2005 but returned to the matrimonial home on June 16. E.O. also sought legal counsel.
6E.O. made a complaint of assault and sexual assault against the applicant on June 17, 2005. The applicant had served E.O. with what were described as “separation papers” immediately prior to her doing so. The applicant believes that his spouse concocted her complaints about him in response to his serving these documents on her. He believes that she did so to gain an advantage over him in those proceedings. He also believes that by serving these documents on E.O. he had secured custody of the children and possession of the matrimonial home. The applicant believes that E.O.’s complaints and the police investigation of them were intended in part to get him out of the house and in effect transfer this de facto custody of the children and possession of the home from him to E.O. Accordingly the applicant states that the investigation was one sided and biased. He also believes that Constable Skoyles, in his words, counselled E.O. to kidnap his children. This belief that the children were kidnapped by E.O. at the urging of the police is a significant issue informing the applicant’s view of the events giving rise to this Application.
7Constable Linda Skoyles investigated E.O.’s complaint and determined that charges were warranted. The applicant believes that Constable Skoyles was trained in a biased manner. The applicant relied on old training materials that he said were gender biased, a fact conceded by the respondents. The applicant also contends that the policy underlying the approach of the police where allegations of domestic violence are made is gender biased. In this regard the applicant relied on a government publication, the Domestic Violence Action Plan for Ontario (“DVAP”) from 2004 and an update from 2007. The applicant states that these documents are gender biased and that the policy and training of police officers such as Constable Skoyles has been influenced by this gender bias. The applicant also contends that the entire criminal justice system has been tainted by the gender bias related to the issue of domestic violence. The applicant asserts that Statistics Canada research indicates that the rates of victimization of men and women are not dramatically different. Despite this fact, states that applicant, the police and the courts behave as if the victims are always female and the aggressor invariably male. The applicant asserts that he was a victim of this cultural bias.
8Constable Skoyles described her training and experience in the domestic violence unit. She testified that she was trained to understand that when a complaint of domestic violence is made, if there are reasonable grounds to lay a charge, a charge must be laid; there is no discretion. This policy is mandated by the Province in the Policing Standards Manual (2000). The respective gender of the complainant and victim are irrelevant to the application of this policy. Constable Skoyles testified that she has laid charges on more than one occasion against a woman in domestic heterosexual relationship and at least one woman in a same sex domestic relationship. She also testified that there are cases where charges are laid against both parties, again irrespective of the gender of the parties. Constable Skoyles agreed that more women than men make complaints of domestic violence and that more charges are laid against men than woman. Constable Skoyles, while somewhat familiar with the DVAP, testified that it did not govern how she did her work which was governed by, amongst other things, Windsor Police Service Directives on Spousal/Partner Violence Response.
9On June 18, 2005 Constable Skoyles reviewed the information provided the previous day by E.O. and determined that immediate follow up was required. She spoke with E.O. at 11:15 a.m. Based on the information provided by E.O. and P.C. Harrington, Skoyles quickly determined that charges of assault and sexual assault were warranted. Constable Skoyles testified that she advised E.O. that she had reasonable grounds to lay a charge and arrest the applicant. She testified that she discussed a safety plan with E.O. with a view to her safely contacting the applicant and advising him of the charges. Constable Skoyles testified that E.O. was reluctant to leave her home and felt that so long as her father-in-law was there E.O. would be safe. Ms. Skoyles did not agree and counselled E.O. to leave out of concern for how the applicant might react to charges being laid against him. E.O. left the matrimonial home with one of the two children, the other being with the applicant at the time. Her leaving with the child prompted the applicant’s father, who was in the matrimonial home at the time, to call 911 and report the “kidnapping” of his grandchild.
10Constable Skoyles intercepted this 911 call and spoke with the applicant’s father and then the applicant who had returned home. Ms. Skoyles advised the applicant that she had grounds to arrest him and cautioned him. The applicant testified that he was surprised but agrees that he was so advised and cautioned. They spoke about the fact that the applicant had served E.O. the day prior. Constable Skoyles had been aware of this but did not believe it was relevant to her investigation.
11Constable Skoyles asked that the applicant turn himself in but the applicant indicated that he wanted to speak to his lawyer first. The applicant agrees that Constable Skoyles indicated that if he turned himself in it would avoid the embarrassment of a police car coming to his home to apprehend him, but was told that he needed to turn himself in as soon as possible. The applicant now believes that the alternative of turning himself in rather than being taken away in a police car was for the ulterior motive of getting him out of the house.
12The applicant and Skoyles disagree about whether or not the applicant delayed his arrival at the police station. The applicant acknowledges that he was aware that he was to be charged and there was a warrant for his arrest. He agrees that he was told to report to the police station as soon as possible. On the other hand he testified that he did not think there was any urgency in his reporting. A “be on the look out” (“BOLO”) notice for the applicant was apparently issued about two o’clock that afternoon, however in the end, the applicant was able to turn himself in and was not apprehended in the street. It is not insignificant that instead of reporting to the police station as soon as possible the applicant changed all of the locks on his house, a fact he claims to not recall but is undoubtedly what happened.
13The applicant arrived at the police station at about 3:15 p.m. He had his daughter with him, despite attempts by E.O. to retrieve her from him. The police were aware of E.O.’s efforts to retrieve her daughter from the applicant and that he was planning to bring her to the police station. He alleges that he was chastised for bringing his child with him. I find that he likely was chastised for his actions and the child was taken away from him not because he was male but because he going to be arrested.
14The applicant did not seem to understand the implications of the charges against him. He testified that he believed that he was coming to the police station to have a “conversation”. The applicant states that he was shocked by what was happening to him. Accordingly, he resisted what he characterized as the kidnapping of his daughter by the police. Not surprisingly the applicant’s very young daughter was very upset. The child had to be forcibly removed from the applicant’s arms and he was taken to the cells. The applicant’s father was asked to produce the keys to the new locks on the house and did so. E.O. was called to pick up her daughter.
15The applicant testified that he was then held in the cells for an “inordinate” period of time. He testified that it was a Saturday night and things were busy. He stated that he believes that he was the last person dealt with. When challenged in cross-examination he agreed that in fact he was taken for processing at about 3:20 and placed in the cells at about 3:48. He was then allowed to speak to his lawyer at 3:52 and was on the phone with counsel until 4:20 when he was taken to an interview room. The interview lasted about an hour and he was later released on conditions.
16The first significant material factual dispute in this case relates to a brief discussion which the applicant alleges took place while Constable Skoyles was escorting him from the cells to the interview room between approximately 4:20 and 4:25. The applicant claims that Constable Skoyles said to him on the way to the interview room that “when a woman complains a man must be charged”. Skoyles denies saying anything at all to the applicant prior to their arrival at the interview room and turning on the video recording. She stated that her reference at the outset of the video recording to prior discussions about the charges against him etc. was a reference to her formal charge and arrest of the applicant when he reported to the police station at 3:15.
17Constable Skoyles did say in the interview, after explaining that E.O. had been reluctant to get him in trouble and did not want him to be arrested:
But what I explained to her (E.O.) and what I explained to you was that when it comes to domestic situations we have very strict rules and we (the police) have a mandate from the government and if the police have some grounds we don’t have an option we have to lay a charge.
18The applicant claims to have believed that this was an interview in which he would get to tell his side of the story. He believes that he was entitled to expect that if he made allegations against E.O. that might support a charge against her that this would also be investigated. Following immediately after the discussion above, which appears to have been an attempt by Constable Skoyles to shift responsibility for the charge from E.O. to the police, the applicant asked Skoyles if she had to respond to the allegations he had made about E.O. and her mother. Constable Skoyles did not respond directly other than to say that “it was all part of it now” and suggested that if the applicant was saying that some of what he did was in self-defence “well these things have to come forward”. She advised him to raise all of these issues with his lawyer. The applicant then said “it didn’t happen (in apparent reference to E.O.’s allegations of assault and sexual assault)” to which Skoyles replied “Again understand that I’m gathering information. And the information I had was enough that I was bound to do something about it”.
19The interview lasted about an hour. The applicant, although cautioned, spoke at length. He made a number of allegations of verbal abuse and described some minor physical assaults of him by E.O. and her mother. He stated that on one occasion his mother-in-law poked him in the nose and cheek and E.O. punched him in the shoulder, and that at another time E.O. kicked him or hoofed him in the back. He talked about their marriage and E.O.’s alleged instability. The applicant advanced his theory that E.O. was making up a story in response to his beginning the family law proceeding.
20The interview concluded with a lengthy discussion of the conditions of the applicant’s release including that he not go to the matrimonial home and have no contact with E.O. or the children, who would be with their mother. A case conference was scheduled for the following Tuesday. The applicant was apparently quite surprised because he believed that the status quo was that he had custody of the children and the matrimonial home. In the end he agreed to the conditions and was released that evening.
21There is no basis for the applicant’s contention that Constable Skoyles conducted her investigation in a gender biased manner, much less that the police conspired with E.O. to transfer de facto custody of the home and the children to E.O. The applicant’s theory rests on several pillars, none of which provide an adequate foundation.
22First, the applicant says that the training Constable Skoyles received was gender biased. There is no evidence that this is the case. The applicant’s reliance on out-dated training materials is not helpful to his theory. Similarly, while I can agree that the DVAP is written in a starkly biased manner, in that it is written as if the only domestic violence that can occur is male against female, there is no evidence that the DVAP influenced the manner in which Constable Skoyles did her work. While the training received by some police officers in the past might have had a gender bias, this no longer appears to be the case and there is no evidence that the training Constable Skoyles received was biased in this way.
23Secondly, the applicant states that the investigation was biased. This element of the applicant’s theory rests on the fact that while the police appear to have accepted E.O.s statement at face value they did not investigate his complaints. I have considered this issue carefully and have reviewed the videotape. There can be no significant issue that the police had reason to accept the statements of E.O. as being capable of belief. The allegations were serious and there was some physical evidence of injury. Subsequent investigation indicated that others had seen evidence of physical injury to E.O. in the days leading up to her complaint.
24In respect of the failure of Constable Skoyles to investigate the applicant’s allegations of assault, I am not persuaded that this failure, if that is even what it was, is sufficient to establish that the investigation was biased. I agree with the applicant that Constable Skoyles might not have complied with the full letter of the spousal/partner domestic violence response policy in that she did not advise him of his right to take his complaints and attempt to swear a private information before a Justice of the Peace. However at the time, Constable Skoyles was, as she said to the applicant, gathering information – information that supported and information that did not support the charges that she had already determined were warranted. While I agree that she might have been more clear in responding to what was a pretty direct question from the applicant, I also find that her answer was honest and consistent with what she was engaged in at the time – taking a statement from a person charged with a serious offence. The applicant could not reasonably have understood Constable Skoyles to be saying that she would investigate his allegations. I also accept her evidence that the allegations of assault were somewhat vague, and there was no indication of any injury being suffered by the applicant. In short, Constable Skoyles did not think that reasonable grounds existed for a charge. In all of the circumstances that judgement does not seem so unreasonable. Although she could have advised the applicant that he could have attempted to swear a private information before a Justice of the Peace, I find that her failure to do so is not sufficient to taint the whole process with gender bias.
25The applicant believes that the police conspired with E.O. to get him out of the house thereby transferring de facto possession of the house and custody of the children to E.O. There is no basis for the applicant’s belief. This may be what happened to him, but that is a function of the process in which he found himself and not any effort by the police to aid E.O. in that regard. Constable Skoyles considered the status of the children and discussed it with her superiors. At the time of his arrest, there was no reason not to leave both children with E.O. who had equal right to custody of them at that point. As regards the other issues of concern to the applicant, these were a function of the conditions of release. Given the serious nature of the charges against him, the conditions do not seem unreasonable and in any event there is no indication that the conditions were affected in any way by the applicant’s gender as opposed to the status of being an accused.
26Finally, there is the statement allegedly made by Constable Skoyles to the effect that when a woman complains a man must be charged. It seems to me more likely than not that this statement was not made in the way suggested by the applicant. I make this finding for a number of reasons.
27Although there is really very little in dispute on the facts of this case, where there are disputes I find I must prefer the evidence of the police officers over that of the applicant. The applicant’s sense of victimization is profound and this view of himself as victim informed his evidence to a considerable degree. So, for example, he claimed to have been held in the cells for “an inordinate amount of time” on a busy Saturday night and was the last person dealt with. The facts as discussed previously are completely different. Similarly, although he and his father changed the locks on the house, presumably to keep E.O. out, he claims to have no recollection of having done so. I have also considered the applicant’s theory that the charges were laid against him in part as a plan by the police to get him out of the house and transfer de facto custody of the children and possession of the matrimonial home to E.O. This claim is simply not credible and the fact the applicant has continued to advance it has influenced how I have assessed his evidence.
28On the other hand I have also considered how likely it is that Constable Skoyles would have said such a thing to an accused outside of the interview room. Of course it is possible that she did, but it seems unlikely, particularly given that it does not appear to be how Constable Skoyles views her role in these cases. It is also not in line with the manner in which she conducted this investigation in particular. I find that the applicant’s recollection of what was said to him and when it was said has been distorted by his view of the fairness of what has happened to him. I find that what was said to him about the basis for the charges was what was said to him in the interview room.
29Even if the statement was more like what the applicant claims, this would not change my conclusions about this aspect of the case. This is so because the alleged statement is inconsistent with what actually happened. For the reasons set out above there appears to have been no bias in the manner in which Constable Skoyles approached this case. She had ample reason to consider that charges were warranted. The question for me is not whether or not the applicant was guilty of anything or whether Constable Skoyles was even correct in her assessment that charges were warranted. The question I must determine is whether the conduct of Constable Skoyles in all the circumstances was sufficiently unreasonable that an inference can be drawn that her conduct was influenced by the applicant’s sex. The applicant appears to believe that Constable Skoyles had an obligation to hear his side of the story and then make a determination of who was right and who was wrong. That is not the process. In all of the circumstances I can find no evidence of gender bias in the manner in which the complaints against the applicant were investigated or in any of the other circumstances described above.
30The next incident occurred almost a year later in May 2006 and involves an alleged theft the applicant reported in progress at his home. The applicant believes this incident is part of a pattern of gender biased behaviour by the respondent police service. At the time the applicant was living in a dorm at St. Clair College. The applicant called the police to report a theft in progress from the matrimonial home. He told the police that his wife’s brother and father were taking things from his garage. He stated that he got the run around from the first officer he spoke to. The officer is alleged to have said to the applicant that he had conditions and should not have been at the matrimonial home. He then told the police that his neighbour reported the theft to him which led the applicant to call the police. The applicant states that after some discussion the police indicated they would investigate.
31Constable Ouimet and one other officer attended at the applicant’s home. The applicant alleges that two police officers, Ouimet and another officer, attended at his door after somehow getting past security. This is not disputed by Ouimet who stated that they got past security rather than being buzzed up as would normally have been the case but cannot remember now how that happened.
32The applicant alleges that the police barged into his apartment and attempted to intimidate him, forcing him into a corner and threatening him. He testified that they accused him of harassment and violating the conditions of his release. The applicant does not believe that the police ever sent a car around to the matrimonial home. The applicant stated that he has lost many things that have not been returned. He did not say precisely what has gone missing.
33Constable Ouimet stated that they arrived at the applicant’s unit and he answered the door. According to this witness the applicant appeared to be interested in talking and he allowed them in. Constable Ouimet testified that they first asked the applicant about his complaints of theft and he told them that his neighbour, described as a good friend who treated him like a son, had called him and told him. Constable Ouimet then asked the applicant about what he was doing in the neighbourhood to which he responded that it was to maintain his friendship with K.S. and to do his laundry at her place.
34Constable Ouimet testified that she attempted to engage the applicant in some reasonable discussion about getting his stuff out of the garage but that he did not appear to be interested in a resolution. Constable Ouimet agreed that she asked the applicant to stay away from E.O. and the family home – to stay off the block – which was beyond the restrictions on the applicant. Constable Ouimet testified that she believed that the applicant was likely attending at his former home when he should not be and was attempting to intimidate and harass E.O.
35The police then went to speak with the neighbour, K.S., who, contrary to the applicant’s version of events, stated that he had been there that day and had witnessed the theft himself. K.S. also contradicted the applicant’s report to the police that he had been doing his laundry there periodically. She told the police that he had done laundry there for the first time. No charges were laid as a result of these incidents.
36The applicant takes issue with the fact that in responding to his complaint of theft the police seemed to be more concerned with his being on the block. He also complains that the police attempted to intimidate him. I have considered the evidence as it relates to this incident and have concluded that there is no evidence of gender bias in the manner in which the applicant was treated. Again the police response was largely informed by the fact that the applicant had been charged with a serious criminal charge and had conditions placed upon him. Based on the information they had available to them it was not unreasonable to conclude that the applicant may have been attempting to intimidate or harass E.O. The police took no action with respect to the alleged theft because they concluded, not unreasonably, that no theft had taken place.
37The next incident occurred a few weeks later when Sgt. Bodri attended at the applicant’s workplace. A 22 calibre bullet casing had been found in the garage of the matrimonial home. Because of the outstanding charges against the applicant, Sgt. Bodri gave the issue some priority and attended at the applicant’s workplace the day after the bullet casing had been reported. He testified that it was a business day and it is not unusual for him to seek to question individuals at their workplace if the circumstances warranted it. Sgt. Bodri considered this to be a high risk matter – a domestic violence case and a bullet casing – and as such he felt the need to investigate it promptly. The applicant alleges that Sgt. Bodri informed school staff about the reasons for being there. Sgt Bodri denies doing so, and the applicant has no evidence that this occurred. When challenged, the applicant backtracked somewhat stating that Sgt. Bodri’s presence in the workplace was enough.
38Sgt. Bodri was interested in whether or not the applicant had access to a firearm. The applicant stated that he did not and that ended the matter for Sgt. Bodri as he believed that the applicant was being truthful on that score. The applicant alleges that Sgt. Bodri made some reference to a notorious incident of domestic violence in the Windsor community. Sgt. Bodri did not believe that he would have made such a comment and had no recollection of doing so. No charges were laid in relation to this incident.
39I find that in light of all the circumstances, the inquiries made of the applicant by Sgt. Bodri were quite reasonable and there is no indication that the decision to question the applicant, the attendance at the workplace, or any of the surrounding circumstances were informed by the fact that the applicant was a man.
40The applicant alleged in his complaint that in February and March 2007 he was served with summonses to attend court that described his offences as assault and sexual assault. At the hearing he testified that he was twice asked to sign a recognizance in relation to the summons which referred to the charges made against him. Although there had been discussion of a resolution of the matter with the Crown and the applicant ultimately agreed to a Peace Bond, the fact is that the applicant was charged with assault and sexual assault. I do not understand how the service of these documents could be considered discriminatory.
41I find there is no evidence of differential treatment of the applicant by the respondent police services on the basis of his gender. For all of these reasons the Application is dismissed.
Dated at Toronto, this 7th day of July, 2011.
”signed by”__________ David Muir
Vice-chair