Larcher v. Kirkland Lake Ontario Provincial Police, 2011 HRTO 209

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryan Larcher

Applicant

-and-

Kirkland Lake Ontario Provincial Police, Haileybury Crown Attorney, Wayne Rancourt and Terri Regimbal

Respondents

decision

Adjudicator: Mary Truemner

Date: January 28, 2011

Citation: 2011 HRTO 209

Indexed as: Larcher v. Kirkland Lake Ontario Provincial Police

APPEARANCES BY

Ryan Larcher, Applicant ) Self-represented

Kirkland Lake Ontario Provincial Police, ) Ananthan Sinnadurai, Haileybury Crown Attorney, Wayne ) Student-at-Law Rancourt and Terri Regimbal, Respondents )

1This is a Decision in respect of an Application filed on June 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in services on the basis of sex (gender) because the Kirkland Lake Ontario Provincial Police and Constable Wayne Rancourt (the “OPP respondents”), and the Haileybury Crown Attorney and Terri Regimbal, a Crown Attorney (the “Crown Attorney respondents”), treated him differently from his former girlfriend in their handling of issues arising out of domestic disputes.

Background

2The Tribunal issued a Case Assessment Direction (“CAD”) dated October 6, 2010, advising the parties that the Application did not appear to identify a link between the alleged discriminatory treatment and the ground cited, and scheduled a summary hearing. Rule 19A.1 of the Tribunal’s Rules of Procedure states the following:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3The CAD directed the applicant to be prepared to explain how he can prove that he experienced discrimination because of gender, and what evidence he would use to establish discrimination because of gender. It also directed the applicant to be prepared to address the respondents’ position that the Crown Attorney respondents were protected by prosecutorial immunity and, consequently, the Tribunal has no jurisdiction to deal with the allegations in the Application against them.

4The Summary Hearing was held on January 18, 2011, by teleconference, and the applicant conceded that the Tribunal has no jurisdiction over the allegations against the Crown Attorney respondents. Citing Traverse v. Canadian Embassy in Paris, 2010 HRTO 1663 and Oliphant v. Ontario (Attorney General), 2009 HRTO 1902, I ruled orally that the Tribunal has no jurisdiction given the Crown Attorney respondents’ prosecutorial immunity, and I dismissed the Application against the Haileybury Crown Attorney and Terri Regimbal.

5The Summary Hearing continued with respect to the allegations against the OPP respondents.

Evidence the Applicant Intends to Present at the Hearing

6The applicant explained the circumstantial evidence that he proposed to give at a Hearing if his Application is not dismissed following the Summary Hearing. The facts as described by him in this section of the Decision do not represent any finding of fact by the Tribunal. Rather, they are the facts which the applicant intends to establish to link his treatment by the OPP respondents with discrimination on the basis of gender. For the purpose of determining if there is any reasonable prospect that the Application as against the OPP respondents will succeed, I will assume the following facts asserted by the applicant are true.

7The applicant said that he complained to the OPP in 2005 about criminal conduct by his former girlfriend against him, and she was charged with harassment and assault. He does not know what happened to the charges in court against her, or what findings of guilt might have been made, but he says that she was released on a peace bond. He did not know the terms of the peace bond when it was in effect, but he has subsequently discovered that his former girlfriend was not to communicate with him for a period of time. She did contact him, but he did not know that she was breaching a peace bond, so he did not report it to the OPP.

8In the Autumn of 2006, the applicant reconciled with his former girlfriend and they continued a relationship which was both romantic and platonic until March 2008 when the applicant broke off their relationship. He says that she began to harass him, and then, on March 20, 2008, lured him to her apartment and then physically blocked his departure. Another person intervened so that he could leave the apartment.

9The incident was fraught with emotion, and the applicant went to the OPP station to report that his former girlfriend had blocked him from exiting her apartment. He decided not to tell the OPP at that time that his former girlfriend had actually assaulted him, but his description of the event resulted in an OPP constable’s offer to attend his former girlfriend’s residence. The applicant told the constable that he did not want the OPP to pursue an arrest of his former girlfriend because she was a single mother and because his experience of supporting her prosecution in 2005 did not provide him with confidence that the criminal process would “do any good.”

10On the same day, March 20, 2008, the former girlfriend reported to the OPP that the applicant had assaulted her and that she wanted him charged. The OPP found that the evidence did not warrant charging the applicant for an assault on that day, but the statements that the former girlfriend and a witness provided convinced them to lay charges of assault against the applicant for alleged offences over the previous two years.

11The applicant was required to enter into a recognizance not to contact his former girlfriend. He says that she constantly contacted him afterwards, electronically and by phone, and admits that he eventually did have contact with her. Constable Rancourt suspected that the applicant had contact with his former girlfriend when the applicant presented the OPP with a recantation letter from her, and Constable Rancourt warned the applicant that even speaking with his former girlfriend could result in the applicant being charged with a breach of the recognizance not to contact her.

12After the applicant’s trial for assault in January 2009, Constable Rancourt approached the applicant and said that if the applicant contacts his former girlfriend or if she contacts him, the OPP would charge them.

13In March of 2009, the applicant approached Constable Rancourt to complain that his former girlfriend was harassing him on the internet and in public, doing things like deliberately walking down aisles in which he was present at the grocery store when she was not in need of any grocery items. He provided Constable Rancourt with evidence, but Constable Rancourt responded by saying that he did not believe that the applicant was in fear for his safety so he would not charge her. At the Summary Hearing, the applicant did not argue that his former girlfriend had ever convinced the OPP to charge him with harassment. In fact, he clarified that he has never been charged with harassment by the OPP. Still, the applicant insisted that the failure of the OPP respondents to charge his girlfriend amounted to a violation of the Code.

14The applicant went on to argue that the OPP respondents should not have ignored his 2009 complaint that he was assaulted by his former girlfriend in March 2008 (which he did not report on the day it happened, as discussed above), and that they continued to ignore his ongoing complaints of harassment by his former girlfriend. He set up a meeting in the summer of 2010 with a constable with whom he was dealing and her supervisor for an explanation. The supervisor said that the OPP will charge someone with harassment only if it is recent. The applicant responded by saying that some of the incidents that justify charges against his former girlfriend were less than one year old, and that it was not fair that the OPP would not charge her, given that they had charged him with assaults in 2008 for incidents which occurred up to two years before he was charged.

Issues

15The issues before me involve a legal analysis about whether the Application has a “reasonable prospect” of success within the meaning of Rule 19A.1. As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

16When asked if he had any evidence other than his feeling to establish discrimination because of gender, the applicant explained that he has never heard anyone say, nor has he ever seen anything in writing, that he was treated differently because of his gender. He understands that the OPP respondents will arrest both a man and a woman in a domestic dispute incident, but he feels that the OPP provided more protection to his former girlfriend than to him, despite their similar requests for protection. He feels that the only explanation for this differential treatment is gender.

Analysis

17The applicant argues that circumstantial evidence establishes discrimination on the basis of gender because the OPP did not recently charge his former girlfriend with harassment and assault but they had charged him. In reviewing the history of the charges laid by the OPP against the two of them, I note that the OPP has never charged the applicant with harassment, but charged the former girlfriend with harassment in 2005. I note that the OPP charged the former girlfriend with assault in 2005, along with the harassment charges, and charged the applicant with assault in 2008.

18I do not find that the efforts made in 2009 and 2010 by the applicant to have his former girlfriend charged are comparable to the efforts by the former girlfriend in 2008 to have the applicant charged. On March 20, 2008, a day when there had been a serious incident between the applicant and his former girlfriend, the police attended the home of the former girlfriend, and a witness corroborated the former girlfriend’s accusation of previous assaults which led to the charges against the applicant. In contrast, in 2009 when the applicant pressed the OPP to have charges of assault laid against the applicant for what happened on March 20, 2008, there was no heat of the moment situation. The applicant had no witness to support his statement that an assault had occurred on March 20, 2008, and, in fact, the OPP had received a previous statement on March 20, 2008, from the applicant himself, which glaringly omitted any reference to an assault against him.

19I agree with the respondents’ representative that, contrary to the applicant’s assertion, the situations are not analogous. I therefore see no reasonable prospect for the Tribunal to draw an inference of discrimination on that basis, nor can I see how the comparison in these dissimilar situations might reasonably be considered to amount to a Code violation.

20Further, having never been charged with harassment himself, the applicant cannot argue that the OPP treated him differently from his former girlfriend, and therefore he has not provided a basis to establish that the OPP discriminated against him on the basis of gender in this context of harassment charges.

21The applicant also implied that the OPP should have charged his former girlfriend in 2005 for her breach of a peace bond which forbade her from contacting him, and that the OPP’s warning to him that he should not contact her is therefore discrimination because of gender.

22Again, I do not find the situations to be comparable. The applicant could not point to any evidence to show that the OPP even knew or suspected that the former girlfriend was breaching her peace bond. In contrast, he admitted that the OPP knew that he was breaching his recognizance when he was warned. Also, he stated that the OPP warned both of them after his trial that they were not to contact each other or they could both be charged. I find that the applicant has not provided an evidentiary basis to link the absence of charges or warnings for breach of the former girlfriend’s peace bond with discrimination because of gender, and I see no reasonable prospect that the dissimilar situation of his warning would amount to a Code violation.

23In conclusion, there is no reasonable prospect that the evidence proposed by the applicant will provide a link between the alleged events and the ground of sex. Even assuming all the applicant’s factual allegations to be true, I find that the allegations cannot reasonably be considered to amount to a Code violation.

Decision

24The Application is dismissed as against the Crown Attorney respondents. The Tribunal has no jurisdiction because these respondents are protected by prosecutorial immunity.

25The Application is dismissed as against the OPP respondents because there is no reasonable prospect that the Application as against them will succeed.