Kerry Crawford v. Ontario Provincial Police, 2012 HRTO 688

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerry Crawford

Applicant

-and-

Ontario Provincial Police, Regional Municipality of Peel Police Services Board, Toronto Police Services Board, and Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services

Respondents

Interim Decision

Adjudicator: David Muir

Date: April 11, 2012

Citation: 2012 HRTO 688

Indexed as: Crawford v. Ontario Provincial Police

Appearances

) Kerry Crawford, Applicant ) Self-represented ) ) Ontario Provincial Police, Respondent ) Marine Bacher, Counsel

Regional Municipality of Peel Police Services )

Board, Respondent ) Patricia G. Murray, Counsel

Toronto Police Services Board, Respondent ) Andrea Donevan, Counsel

HMQ in Right of Ontario as represented by ) Sharlene Ziniuk , Counsel

the Minister of Community and Social Services,)

Respondent )

1This is an Application filed on February 9, 2011 pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application the applicant alleges that his right to be free of discrimination in the provision of services has been infringed by each of the respondents on the basis of the applicant’s colour, ancestry, ethnic origin, creed and reprisal.

2The Tribunal, on its own initiative, directed that a summary hearing be held to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The respondents were advised that they need not file Responses.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4The Tribunal directed the parties to address two broad issues. First, whether some or all of the allegations made by the applicant were out of time, the Application being filed beyond the time limits prescribed in sections 34(1) and (2) of the Code. Second, the parties were asked to address whether the Application has no reasonable prospect of success because the applicant will not be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and any of the Code grounds alleged. As was suggested in the Case Assessment Direction directing the summary hearing, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To put it another way, the question is, assuming the allegations of the applicant are capable of being proved, is there any reasonable prospect that they would support the conclusion that any of the respondents had violated the Code.

The Allegations

5The allegations in the Application are wide ranging and are said to have occurred over a number of years - some as far back as the mid 1990’s - although the bulk appear to be related to events between 2003 and 2010.

6The allegations are for the most part very vague and often hard to follow. The language used by the applicant to describe his allegations is often opaque. Although it is not clear that this was intended, the applicant’s description of the issues more often than not tends to obscure rather than reveal the details of the allegations making them difficult to understand and respond to. Further confusing matters, there are also multiple references in the applicant’s material to parties who somehow figure in the complaints of discrimination but who have never been named as respondents.

7The respondents Regional Municipality of Peel Police Services (“Peel”), Toronto Police Services Board (“Toronto”); and the Ontario Provincial Police (“OPP”) are three police services. The Family Responsibility Office (“FRO”) is an agency of the respondent Ministry of Community and Social Services. Although the applicant perceives connections between the four respondents and the incidents he complains of – he suggests, amongst other things, that these respondents have improperly shared information about him – there is no apparent connection between the respondents and no evidence that they have improperly shared information about the applicant. Because there is no connection between these respondents or the allegations against them for purposes of this decision they have been considered separately.

The Delay Issue

8A significant number of the applicant’s allegations implicating several of the respondents appear to be out of time. I will deal with that issue first.

9The allegations as they relate to Peel are many and are said to have occurred over a number of years, but the bulk of them are said to have occurred between 2005 and 2009 with a number from 2010, but some as far back as the mid 1990’s. There is no obvious linkage between any of them and for the most part the applicant has provided incomplete particulars of when and what is alleged to have occurred. For example it is very difficult, with a few exceptions, to determine when an incident is said to have occurred. Similarly the individuals involved are not always identified.

10The allegations fall into two general categories – the first being those situations where the applicant is perceived to be the perpetrator of criminal activity; and, the second being where the applicant has claimed to be a victim of a crime and made a complaint to the police. The applicant’s case as it relates to Peel rests, in part, on his view that he has been treated differently as an alleged perpetrator of crime as opposed to his treatment by the respondent as an alleged victim. The other important linkage the applicant articulates is that, because of inaccurate information maintained in police and court records, he is perceived to be in individual with a criminal past and that much of his difficulty with Peel flows from that fact.

11The applicant alleges that his first contact with Peel as an alleged perpetrator was in 2005 when he was charged with domestic assault and was treated inappropriately by the arresting officer. He states that he was ultimately acquitted. The applicant alleges that his next contact with Peel was in 2009 when he was again arrested and charged with domestic assault. The applicant alleges that he was acquitted of this charge as well.

12The applicant alleges that his contact with Peel as a victim of crime began in 1993 when he “suffered a series of violations involving the theft of my identity via the purchase of automobiles, electronic equipment and credit cards.” The applicant appears to be alleging he gave evidence in court about these matters but that the court and police records have been revised to make it appear as if he were the accused rather than the victim of crime. The applicant states that “this depiction and dissemination of these falsehoods based on the exploitation of prevailing prejudice surrounding my ethnic heritage has contributed to the governance of my circumstance.”

13The applicant’s next allegation of differential treatment as a victim is said to have occurred in 2004 when he made a complaint of a break and enter into his residence. He alleges that the investigating officers were not able to locate any of the missing items or provide him meaningful updates on their success in identifying suspects.

14The applicant also alleges that in 2008, 2009 and 2010 he experienced “tampering with his mail on an “industrial scale” and made complaints about it to Peel. The applicant states that the problem continues. He also alleges that in 2007 his residence was broken into and his vehicle stolen. Although the applicant believes “ex-colleagues and situational circumstances surrounding their associates to be responsible, this was another instance of fund miss appropriation (sic).” The applicant states that those allegedly responsible were never brought to justice.

15The applicant states that in 2008 his residence was broken into again and the applicant alleges that the investigating officer did not do an adequate investigation and whoever was responsible was not brought to justice. The applicant also alleges that he was the victim of a fraud by a moving company in 2009. The applicant alleges that the police told him that they could do nothing in the circumstances. The applicant also alleges that in 2009 he made complaints to Peel about “unknown civilians who have harassed stalked, assaulted and slandered my person”. The applicant alleges that he provided the investigating officers all the information they needed to apprehend the individuals involved but the “interferences” with him continued.

16These remaining allegations concerning Peel involve four complaints the applicant made to them in 2010 (see below) and apparently within 12 months of the Application being filed.

17As regards the FRO the applicant alleges that a “case worker” selectively “accepted information that was consistent with personal prejudice and disregarded information that was contrary to that opinion.” The applicant alleges that the FRO chose to enforce court orders, made in his absence and without his knowledge. The applicant complains that he had difficulty contacting his case worker in 2009 and was held on hold for extraordinary periods of time. The applicant alleges that when he did make contact with the case worker he was met with a culturally biased attitude that suggested that Black men do not have an interest in taking care of their children. As clarified by the applicant at the hearing, these allegations largely relate to the consequences of a court order made in September 2008. The applicant apparently missed a court date and amongst other things a bench warrant was issued. The applicant stated at the hearing that some unidentified persons, presumably officials of the FRO, made unsubstantiated allegations at these proceedings which resulted in the court order complained of and which took a period of time for him to correct. The applicant also states that he missed the court date because his mail was being systematically stolen. As a consequence of these events the applicant lost his driver’s licence for a period of months and his passport for a number of years which affected his ability to have contact with his daughter who had left the country with her mother.

18Although this is far from clear on the material, the applicant appears to have made four allegations that implicate Toronto: one in 1996, a second in 2004 and two others, one related to a traffic stop in December 2009 and then another in October 2010 which involved an alleged assault of the applicant. The respondent Toronto states that the first three of these should be dismissed for delay.

19The 1996 incident appears to relate to an alleged failure to investigate a complaint by the applicant that he had been assaulted. The allegation in 2004 may relate to the applicant being charged with uttering a threat. The 2009 allegation relates to a traffic stop in December of that year. The applicant alleges that he was shouted at by the officer in a demeaning manner and told to keep his hands on the steering wheel. The applicant states that as a consequence he was unable to comply with the requirement of the officer to produce his driver’s licence and insurance slip. The final allegation relates to an alleged assault of the applicant in October 2010 which he claims was inadequately responded to by the respondent.

20The only allegation respecting the OPP is said to have occurred in 2010 and appears to be timely.

21The allegations summarized above, other than those said to have occurred in 2010 are out of time.

22Section 34 of the Code is as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

24The applicant offers essentially two explanations for the delay in filing this Application against each of the respondents. The applicant first states that he first contacted the Tribunal in July and then filed an incomplete Application in October 2010 before finally filing his Application in February 2011. It is not clear how this would affect the timeliness of any of the allegations in issue however it is also not consistent with the record. The timeline provided in section 34 is established by the filing of the Application, not by contact with the Tribunal. The Tribunal received an incomplete Application in February 2011. There is no record of an incomplete Application being filed in October 2010. Accordingly any allegation of discrimination said to have taken place prior to February 2010 is out of time subject to the provisions of section 34.

25The other explanation offered by the applicant is that the incidents of discrimination he complains of are systemic and therefore section 34 does not apply. This is a mis-reading of the section. In my view the issue is not whether the discrimination is systemic but rather whether the allegations can be understood to be a series of incidents within the meaning of section 34(1)(b). The Tribunal has interpreted the phrase “series of incidents” as requiring that the incidents be connected to each other both in time and in their subject matter. The Tribunal has determined in other cases that a significant gap in time between incidents will interrupt the series of incidents even where their substance or subject matter may be related. See Chintamen v. Toronto District School Board, 2009 HRTO 1225.

26In my view the incidents described by the applicant as related to Toronto can not be seen as series of incidents in the sense contemplated by the Code. Despite the suggestion by the applicant that the incidents involving the respective respondents are somehow connected, there is no basis for that contention. The applicant did not articulate any connection between them either in terms of their timing or their subject matter. The gaps in time between the first three of them are enormous. As regards the allegations of incidents in 2009 and 2010, while more closely connected in time there is still a gap of many months between them and no thematic connection. In particular I note that there is no indication that the officer in the second case would have had any knowledge of the applicant’s prior history with Toronto. It appears that they are completely unrelated to each other in their subject matter and I find that they are not incidents in a series. Accordingly the allegations of incidents said to have occurred prior to 2010 are out of time.

27Similarly the allegations against the FRO, which appear to be that a court order made in 2008 had subsisting consequences for him and that he had a great deal of difficulty reaching the FRO staff in 2009 are neither a series of incidents or otherwise timely. The applicant stated that as a result of the court order it took him until 2011 to get his passport back. Even assuming that the enforcement of a court order might be seen to be an act of discrimination, the alleged consequences of an incident of discrimination does not serve to extend the timelines in the Code. The Application as it relates to the FRO is out of time subject to a good faith explanation from the applicant.

28Turning to the allegations as against Peel, I am not persuaded that they comprise a series of incidents either. Other than being more numerous than the allegations against the other respondents, the applicant has not articulated any particular connection between them other than asserting that the discrimination he has experienced is systemic. As indicated earlier, the suggestion that an issue is systemic does not vitiate the requirement that an Application be made in timely way. Moreover the mere assertion that an issue is systemic is insufficient on its own to elevate a collection of unconnected events into a series of incidents as contemplated by the Code. In considering this aspect of the delay issue I have also considered the fact that there appears to be nothing in these alleged incidents linking them to any Code protected ground. The allegations relate to complaints made by the applicant in large part as well as two complaints made against him by domestic partners resulting in criminal charges. The allegations on their face are a series on unconnected incidents involving different issues, apparently different police officers, in different detachments of the police service. To the extent that there is an articulated connection between them it is the applicant’s belief that because of errors in record keeping he is perceived to have a criminal past. This is not a ground of discrimination that the applicant has plead, nor is it one protected by the Code. As well, there are significant gaps in time between many of them, well beyond what could possibly be considered to be a series of connected incidents within the meaning of section 34(1)(b) and, accordingly, the allegations against Peel, other than those said to have occurred in 2010 are made beyond the one year time limit contemplated by the Code.

29Section 34(2) of the Code provides that where an Application is out of time, the Tribunal may consider it where there is a good faith explanation for the delay. The applicant’s explanation for the delay in filing the Application is set out above – that he filed an incomplete Application in October 2010 and, secondly, that the issues are systemic. The applicant’s submission was essentially that the Application was not out of time. I am not satisfied that the applicant has offered a good faith explanation for the delay in this case. Having found that there is no good faith explanation for the delay, it is not necessary to consider whether any party would be prejudiced by the delay. Accordingly, all of the allegations as against Toronto and Peel with the exception of those said to have occurred in 2010 are dismissed. .

No Reasonable Prospect of Success

30As indicated above the Tribunal on its own initiative directed that the parties address, pursuant to Rule 19A above, whether this Application should be dismissed in whole or in part because it has no reasonable prospect of success. Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 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.

31In this case the issue is whether the applicant can prove on a balance of probabilities a link between the incidents of alleged discrimination and the alleged prohibited grounds in the Code.

32In Villella v. Brampton (City), 2011 HRTO 1085, the Tribunal held that the Code is not designed to remedy all instances of unfairness. In dismissing that Application because it had no reasonable prospect of success the Tribunal held as follows:

The applicant does not allege any facts that could give rise to a finding of Code-based discrimination. His principal grievance is with customer care and service quality at the court. Other than a bald assertion that because he and other members of his family are of Italian origin and they allegedly have experienced poor service at the court, there are no additional facts or allegations, which, if accepted as true, provide the necessary nexus between the impugned conduct and Code grounds.

…

The Code is not designed to remedy all instances of differential treatment, poor service delivery or professional misconduct. The alleged treatment must be linked in a substantive way to a Code ground..... There must be at least some objective facts and circumstances to support the theory linking the respondents' action with the Code.

33At the outset of this part of the Interim Decision, I find that the Application as it relates to the ground of creed should be dismissed there being no credible allegation that engages this ground of discrimination. Similarly there are no allegations of reprisal. The only mention of reprisal in the Application is in the context of a discussion of the lack of ethnic diversity in various governmental authorities. Accordingly there are no allegations of reprisal in the Application and that aspect of it is dismissed as well.

34Returning to the timely allegations as against Peel, the first incident the applicant complains of relates to his claim that a vehicle was being taken from his residence without his consent while he was away and then returned some time later. Although this is not clear, it appears that this happened more than once and then finally, although again this is not clear, the vehicle was not returned. He states that when he first reported these mysterious circumstances to Peel he spoke with a female person who told him to wait a couple of weeks to see if the vehicle was returned. The applicant states that when he “reconvened” she advised him to attend the police station. When he did so he met another officer who took some information and instructed the applicant to return in a couple of weeks. Eventually, the applicant states an officer permitted him to file a stolen vehicle report. It appears that this process took two months.

35The applicant alleges that he filed a further complaint with Peel concerning a break in at his residence in spring of 2010. He states that he told the police who he believed had committed the offence but the police have yet to apprehend this person or recover any of the stolen items. The applicant also alleges that he filed a report about a stolen wallet in 2010 but that his wallet has not yet been recovered.

36The applicant alleges that he filed a complaint with Peel related to allegedly slanderous emails and being “aggressively pursued by a civilian contingent who on several occasions made contact with their automobile and mine”. The applicant states that he gave identifying information of the parties responsible “but very little was done”. Ultimately the applicant states that he gave the respondent more than enough information to identify and apprehend the individuals responsible for what he characterizes as cyber crime and yet they have been unable to do so.

37Finally the applicant alleges that he made a complaint about a work vehicle which was damaged in some way or broken into. The applicant alleges that at the first station he attended they refused to take his and his associates’ complaint so he was forced to attend another one and to have someone file the complaint on his behalf. The applicant states that although he believes the vehicle would have been in view of a surveillance camera “yet the authorities refused to access the footage.”

38I find that this aspect of the Application has no reasonable prospect of success. The applicant has no direct evidence of differential treatment on the basis of the alleged grounds by Peel. This is not unusual and it is not fatal to an application under the Code. The nature of discrimination is such that there is often no direct evidence readily available to an applicant. The question becomes whether there is sufficient circumstantial evidence from which a reasonable inference might be drawn that the applicant’s race, ancestry and ethnic origin were factors in what is essentially an allegation of poor service from the Peel police. However other than the assertion that he received very bad service from the police on these occasions there are no material facts identified from which the inference could be drawn that a factor in the unsuccessful investigations of his complaints were the alleged Code grounds. In fact the applicant himself suggests throughout his written and oral submissions that his treatment by Peel flows from errors in record keeping from the mid 1990’s which has resulted in him being perceived to have a criminal background. In short the applicant suggests that, because he is perceived to have a criminal background based on erroneous record keeping, the police do not take his complaints seriously. At other times the applicant suggests that he is perceived by the police in a certain way because of the charges of domestic assault. Even if these assertions were true, they are not evidence of differential treatment of the applicant based on his race, ancestry and ethnic origin and not otherwise protected by the Code. In my view there is no reasonable prospect that the applicant will be able, based on the available evidence, to establish the necessary link between the incidents complained of and the protected grounds relied on. Accordingly the Application as it relates to Peel is dismissed.

39The remaining allegation against Toronto is that an officer failed to investigate an alleged assault on the applicant in October 2010. The applicant alleges that he was assaulted by a number of civilians although he was able to defend himself. The applicant alleges that he had hot coffee thrown on him. The applicant alleges that the officer who took the report indicated that finding the perpetrators would be nearly impossible in the circumstances. The applicant alleges that he told the officers he was attacked by persons unknown, but then suggested to the police officers that they may be associated with ex-colleagues. The applicant alleges that the officer indicated that as he was not injured it would not be appropriate to expend the type of resource required to find the perpetrators.

40I find that this aspect of the Application has no reasonable prospect of success and will be dismissed. Again, other than asserting that, because he is African Canadian and Black the officer chose not to investigate the applicant’s complaint, there are no material facts to support the assertion of differential treatment of the applicant.

41The remaining incident involves a traffic stop by the OPP. In the Application the applicant alleges that he was confronted by the OPP while parked in a parking lot. The applicant alleges that the OPP normally patrol the 400 highways and not municipal roads such as Winston Churchill which he alleges he had been travelling on. The applicant alleges that the officer’s vehicle struck the rear end of his vehicle causing damage to his rear bumper and jerked the applicant and his young son who was riding in the back seat. The applicant states that he began to exit his vehicle when he was told “very harshly” to remain in his vehicle and place his hands on the steering wheel. The applicant then alleges that the officer approached my vehicle with his hand near his left side. The applicant alleges that he asked the officer what prompted the aggressive behaviour. The applicant alleges that the officer ignored the applicant and shouted demanding his “paper work”. The applicant alleges that when he went into the middle console to retrieve his documents the officer shouted that the applicant should move slowly and then proceeded to reach his hand into the applicant’s vehicle striking the applicant’s jaw. The applicant alleges that the officer jerked his documents out of his hands leaving a visible mark on his face. The applicant alleges that the officer issued several “citations” indicating that he had been travelling on Highway 403 when he had not been on the highway at all.

42At the hearing the applicant added to these alleged facts, the allegations that the officer in speaking with him referred to “negroes like you”, a dead beat dad and a wife beater. I note that the use of this type of language is not referenced at all in the Application. The respondent OPP filed the complaint the applicant made to the Office of Independent Police Review Director (OIPRD) about this incident. It is different than the allegations made in the Application in several material respects. It also does not include the allegation that the officer referred to “negroes like you”.

43I am not satisfied that this aspect of the Application has no reasonable prospect of success. The fact that I am not satisfied that this aspect of the Application has no reasonable prospect of success, does not of course mean the opposite, that it will be successful. However the allegation that the officer may have referred to “negroes like you”, together with all of the applicant’s other allegations if proven as well, may be sufficient to draw the inference that a factor in the alleged treatment was the applicant’s race, ancestry and ethnic origin.

44In this regard the OPP states that the applicant can not rely upon and I should not accept as credible his assertion that the officer made the reference to “negroes like you” because the allegation had never been made before the summary hearing – it does not appear in the Application, nor in the OIPRD complaint nor in the lengthy submissions made by the applicant in anticipation of this hearing. I agree with the OPP that there are reasons to wonder why this allegation was not made until now and the applicant’s failure to assert it prior to the summary hearing may be an issue in the hearing on the merits, however it is inappropriate in most circumstances to make findings of credibility at the summary hearing stage. Other than its late disclosure, the allegation is otherwise capable of belief and, as indicated above, if proven together with the applicant’s other allegations may be sufficient to support an inference that Code protected grounds were a factor in what is alleged to have occurred that day.

45For all of these reasons the Application, except for the allegation of inappropriate treatment by an OPP officer on February 10, 2010, is dismissed.

Other Matters

46As indicated above the applicant filed an OIPRD complaint with respect to the OPP allegation and a determination was rendered. The OPP indicated that it reserved its right to request the dismissal of the allegation pursuant to section 45.1 of the Code because the substance of it had been appropriately dealt with in another proceeding.

47If the OPP intends to pursue this issue it should deliver and file a Request for Order During Proceeding (RFOP) detailing its position in this regard within 21 days of the date of this Decision.

48I am not seized of this case