Price v. London Police Services Board, 2013 HRTO 1676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leo Price

Applicant

-and-

London Police Services Board

Respondent

DECISION

Adjudicator: Eric Whist Date: October 4, 2013 Citation: 2013 HRTO 1676 Indexed as: Price v. London Police Services Board

APPEARANCES

Leo Price, Applicant Self-represented

London Police Services Board, Respondent Cheryl Rovis, Counsel

1This Application was filed on April 5, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to services on the basis of race, colour, ancestry, place of origin, ethnic origin, gender identity and gender expression. The applicant self identifies as a Black Canadian. He alleges that the he was subject to discriminatory treatment by different London Police Services’ officers principally in May 2011 and April 2012.

2On June 11, 2013, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held pursuant to Rule 19A of its Rules of Procedure. At a summary hearing the Tribunal will determine whether an Application should be dismissed in whole or in part as having no reasonable prospect of success.

3The CAD also indicated that at the summary hearing the Tribunal would consider whether the Application should be dismissed on the basis of delay under section 34 of the Code. Section 34 requires that an application be filed within one year of the last incident of alleged discrimination or that an applicant has to satisfy the Tribunal that any delay past the one year time limit was incurred in good faith.

4The summary hearing was held by teleconference on September 25, 2013. At the outset of the hearing the applicant clarified that in addition to alleging discrimination based on race, colour, ancestry, place of origin and ethnic origin he was alleging discrimination based on sex, not gender identity and gender expression as he initially indicated in his Application. The respondent did not object to the grounds of discrimination being amended.

5For the reasons that follow I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.

BACKGROUND

6The following is a brief summary of information provided by the applicant during the course of the hearing.

7The applicant purchased a house on Hunt Club Drive in London Ontario. He lived there with a girlfriend who was added to the deed. There was a breakdown in this relationship and a dispute over who would continue to occupy the house.

8On May 21, 2011, the applicant was working at his mother’s house when his mother told him that police officers of the London Police Services were looking for him in relation to a break and entry. He telephoned the police to indicate that he was prepared to come to the required police station but was told that a Detective Kelday would come to his mother’s house to visit him.

9Detective Kelday and a fellow police officer came to see the applicant. The applicant alleges that when Detective Kelday arrived his face went immediately red to the degree that the applicant initially thought he was ill. Detective Kelday proceeded to follow the applicant into and around the house before he told the applicant that the police were there in relation to a break and enter at the Hunt Club Drive house.

10The applicant told the police officers he was the owner of the house and that he had not seen anything stolen from the house. He was then told that he was the person who was suspected of having broken into the house. The applicant disputed this. He showed the police officers that he had a key to the house. In response Detective Kelday told him that this was not possible as all the locks had been changed and that there was a witness to his having broken into the house. It appears the police also had information from the applicant’s girlfriend that he had broken into the house using a crowbar and had stolen some of her personal papers.

11The applicant was told he was being charged with break and entry, unlawful confinement and theft under $5,000. The applicant submits these charges were completely unfounded. He noted that Detective Kelday later went to the Hunt Club house and determined that the applicant’s key did work (i.e. the locks had not been changed).

12The applicant was taken to a police station where he again tried to indicate he owned the Hunt Club Drive house. The sergeant on duty told him he did not own the house and was not persuaded otherwise even though the applicant provided a copy of his driver’s license to indicate his home address was the Hunt Club Drive house address.

13The applicant was incarcerated for 28 hours. He was released on a Recognizance that required him not to attend within 200 meters of the Hunt Club Drive house except to retrieve personal belongings on one occasion in the company of a London Police Services officer. The Recognizance submitted by the applicant also states that the requirement not to be within 200 meters of the Hunt Club Drive house is in place unless changed by a subsequent family court order.

14The applicant tried to retrieve his personal belongings on four occasions. The first time was when he arranged to meet a London Police officer at the house. He waited near the house but the police officer failed to appear. He subsequently learned that the police officer may have been called away for a higher priority assignment. The applicant was later contacted by the London Police Services and told that he had breached his recognizance by being in close proximity to the house. It appears no charges were laid in relation to this alleged breach.

15On a further occasion the applicant attempted to make an arrangement in advance for a police officer to accompany him to the Hunt Club Drive house and was told he could not make an arrangement that long in advance.

16On the third occasion he was set to enter the house with an accompanying officer when that officer was called away on a priority call. The police officer returned an hour later- the fourth occasion- at which time it appears the applicant was told that the police would retrieve his personal items. The applicant states he still does not have everything he wants out of the house.

17In February 2012 a family court judge ordered that the house be sold and the proceeds held pending litigation of the issues between the applicant and his girlfriend. The judge also ordered that both parties have access to the house once a month with their real estate agents to ensure that the house was in “listing condition”.

18On April 22, 2012, the applicant attended the house with his real estate agent to discuss whether the house should be painted. Two hours later the applicant was telephoned by the police and told he had breached his recognizance. The applicant subsequently voluntarily attended a police station. The applicant alleges that when he tried to explain to the sergeant on duty that he had a family court order in hand that allowed him to be at the house he was told by the sergeant that the London Police will not comply with a family court order when there is a criminal court order in effect. The applicant was of the view that proper consideration was not given to the evidence he had that he was not in breach of his Recognizance. He was of the view that this incident demonstrated that the London Police were making up the law rather than enforcing it.

19The applicant alleges that while he was in discussion with the sergeant on duty he noticed that the sergeant’s holster holding his gun was unbuckled. He believes the sergeant must have unbuckled the holster while he was at the police station (he did not notice it earlier) and did so to deliberately intimidate the applicant. He then asked the sergeant if it was necessary to unbuckle his gun. The sergeant then left the room and when he returned he was without his gun.

20The applicant was held for four hours before being released. He was charged with breach of recognizance.

21In March 2013 the Crown Attorney dropped all charges against the applicant.

22The applicant’s alleges that Detective Kelday’s actions at his mother’s house on May 22, 2011, and the unnamed sergeant’s actions on April 22, 2013, were unreasonable and that the hostile behaviour of these two police officers and their refusal to accept his reasoned and non-confrontational counterarguments must be related to his race, colour, ancestry, place or origin, ethnic origin and sex

ANALYSIS AND DECISION

23In Corpus v. Toronto Police Service, 2013 HRTO 1141 the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

24The Tribunal does not have the power to deal with allegations of unfair treatment that are not Code related. At a summary hearing an applicant has to show why his or her assumptions or beliefs for why he or she has been treated unfairly are linked to a Code ground. There must be an evidentiary basis beyond mere accusations or speculation for an applicant to succeed at a summary hearing.

25I find the applicant’s claims of discrimination to be speculative in nature. In terms of the events of May 2011 the applicant submits that it was significant that Detective Kelday became red in the face upon his arrival at his mother’s house and that he proceeded to follow the applicant around the house suggesting, it appears, that Detective Kelday was surprised to learn that he was Black and that Detective Kelday was subjecting him to closer monitoring because he was a Black suspect. The applicant has not pointed to any evidence to support this speculation and the evidence he has pointed to (the alleged behaviour of the Detective) does not in my view support an inference that race was a factor. I find there is no reasonable prospect that the applicant can establish that Detective Kelday’s physical actions on May 21, 2011 are somehow discriminatory.

26The applicant clearly believes that the decision to proceed with charges against him in May 2011 was not warranted in light of the information he provided about owning and living at the house and having continued access to it. However, the applicant himself also acknowledged that his girlfriend had wanted him out of the house, that he had taken documents from the house that included documents that belonged to her and that the police were relying on a neighbour’s eyewitness report that he was disputing. In other words while he was of the view he had evidence to support his account of events there was evidence to support a different version of events. However, even if the applicant was able to demonstrate that the decision to proceed with these charges was in some measure ultimately unreasonable or unfair the applicant has not pointed to evidence to indicate that the decision to lay charges was tainted by discriminatory concerns.

27The applicant did state that he believed that there may have been an assumption operating that he, as a Black man, could not have owned the house given that this house is apparently in an affluent neighbourhood. Again, I find this to be highly speculative. The applicant has not pointed to any evidence as to why he is of the view that the police may have held such a view and that the decision to proceed with charges was informed by such a view. Consequently, I find there is no reasonable prospect that the applicant can establish that the decision to lay charges in May 2011 are somehow discriminatory.

28The applicant submits that the police sergeant’s behaviour on April 22, 2012 was also discriminatory. He is clearly affronted that the sergeant would find that the family court order he brought to show that he was entitled to be at the house was insufficient evidence for why he was there and that he was subsequently charged with a breach of his recognizance. The applicant appears to be relying on an argument that because the police officer’s actions were so unreasonable that they must, in some degree, be attributable to the fact that he is a Black male. However, the applicant has simply not pointed to evidence that would explain why the police officer’s refusal to consider the documents he brought to support his contention that he had not breached his recognizance even if unreasonable or wrong was related to the applicant being a Black male.

29The applicant submits that the police officer he was dealing with had an unclipped gun while he was with the applicant in the police station. The applicant alleges that the police officer must have unclipped his gun while the applicant was at the station and did so in order to intimidate the applicant. I do not find that the applicant has a reasonable prospect of proving that the gun was unclipped while he was in the station, that it was done to intimidate and that this intimidation was linked to him being a Black man. I do not find that the applicant has a reasonable prospect of establishing that what took place on April 22, 2012 violated his rights under the Code.

30The applicant provided no specifics about why he was of the view that the police may have discriminated against him when he attempted to retrieve his personal possessions from the house except to suggest it was an example of the further difficulties he was having with the London police.

31It was clearly evident that the applicant was frustrated by the failure to successfully retrieve his personal effects from the house but he himself, provided non-discriminatory reasons for why the police were unable to assist him (e.g. being called away to higher priority calls). The applicant did state that unlike the difficulties he had in going to the house to retrieve his possessions his girlfriend was able to take some of his possessions and to readily deliver them to his mother’s house. It appears the applicant was of the view that his girlfriend and himself were being differentially treated by the police. However, their situations are hardly comparable in that his girlfriend had no restraining order that would prevent her from coming to the applicant’s mother’s house.

32It was clear from the hearing that the applicant was of the view that he had not done anything wrong in relation to his girlfriend and accessing the house. He repeatedly talked about attempting, in good faith, to co-operate with the London Police Services. He clearly was of the view, that despite his efforts, he was unfairly treated by the London Police Services.

33However, the onus on the applicant in a summary hearing is higher than simply establishing that something adverse happened to him and that he is a Black male. He must point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner at least in part because he is a Black male. The applicant has not done that. I find that this Application has no reasonable prospect of success because there is no evidence which may be available to the applicant which would tend to establish a violation of the Code. On this basis the Application is dismissed.

34Given this decision I have not addressed the issue of whether parts of the Application should be dismissed for delay pursuant to section 34 of the Code.