Dwight Grange v. The Regional Municipality of Peel Police Services Board, 2014 HRTO 1171

Human Rights Tribunal of Ontario

Between:

Dwight Grange Applicant

-and-

The Regional Municipality of Peel Police Services Board, Robert Hackenbrook and Todd Leach Respondent

Decision

Adjudicator: David Muir Date: August 6, 2014 Citation: 2014 HRTO 1171 Indexed as: Grange v. Regional Municipality of Peel Police Services Board

Written Submissions

Dwight Grange, Applicant Self-represented

The Regional Municipality of Peel Police Services Board, Robert Hackenbrook and Todd Leach, Respondent Patricia Murray, Counsel

1This Application alleges discrimination with respect to goods and services because of race, colour, ethnic origin, place of origin, association and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The central or essential allegation of the applicant is that as a result of racial profiling he was singled out for investigation of a murder.

2In a Case Assessment Direction issued on January 30, 2014 the Tribunal on its own initiative directed that that a summary hearing be held to determine whether this 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 would succeed.

3A summary hearing was held by telephone conference call on June 25, 2014. All parties participated in person or by counsel.

4Rules 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.

5Details 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.

6The 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 succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent's alleged actions and a Code ground. For the reasons that follow I find that the applicant is unable to point to any direct evidence or any other evidence reasonably available to him that would tend to establish such a link.

7The applicant is a Black male. He is also a successful businessman operating real estate brokerages in Toronto and Jamaica. He held a party for clients and prospective clients in December 2012. Two or more individuals who attended this party were allegedly involved in violent home invasion three days later. One of the alleged invaders was killed in the course of the home invasion by the homeowner. The applicant's cell phone number was found on the cell phone of the deceased as well as the cell phone of another alleged invader. This is how the applicant came to be known to the police. He was identified as a person of interest and the police attended his business address to speak with him.

8The applicant agreed to meet with the police and did so later the same day when they attended at his residence – a two tower complex of buildings somewhere in the City of Toronto.

9The applicant met with the two personal respondents, police officers with the respondent police service. The applicant was initially completely cooperative. He answered their questions. He acknowledged being acquainted with the deceased and other alleged invader. The police enquired about security video. The applicant indicated to the officers that this would not be necessary because he had taken photos of everyone who attended the event and would provide a picture of the two men. He did so shortly after the meeting.

10The applicant did provide a version of the photograph the police were interested in. He altered the photo by cropping out a corporate banner for his business which appeared in the photo. The applicant's concern as expressed at the hearing was that should the police use the photo by, for example, releasing it to the media in the course of their investigation, it could be significantly damaging to his business.

11After his initial full cooperation the applicant decided to exercise what he understood to be his rights and chose to no longer speak to the police. An email exchange ensued between the applicant and the respondent Leach who requested that the applicant provide an original photograph of the three males for "court purposes" and that the applicant come in and make a recorded (audio and video) statement. The applicant declined to comply with either request.

12In apparent response to the failure of the applicant to provide the original photograph and audio video statement the respondents sought and obtained a search warrant which was executed at the applicant's residence. A number of the applicant's electronic devices were seized.

13The applicant has no direct evidence of discrimination but argues that an inference can be drawn from the circumstances. At the hearing the applicant largely repeated the points he made in the Application and Reply. The applicant relies on the following events/incidents:

a. His perception that the personal respondents shock at his apparent success in life as evidenced by his expensive motor vehicles;

b. After he refused to cooperate fully he was told that the information they were seeking could be had the easy way or the hard way;

c. When he asked to see the warrant the unidentified officer reacted as if he had no right to ask;

d. When he asked for all of their names and badge number they simply shouted out their numbers until the applicant made them stop and given their names and badge numbers individually;

e. When the officers entered his residence comments were made which indicated to the applicant that things could get bad for him – e.g. being told that certain kinds of charges were difficult to dispute – i.e. assault on police or resist arrest;

f. The respondents threatened to renew the warrant to keep property after 90 days; and

g. When his property was returned in early August 2013 an officer asked him about another black male who had attended an earlier event held by the applicant.

14At the hearing the applicant argued that the respondents sought and executed a search warrant because he had refused to provide the photograph and give a recorded statement. The applicant asserted that he was within his rights to refuse to speak to them further and that they had no reason to continue the investigation. He also argued that they had no reasonable and probable cause to obtain a search warrant. The applicant made a number of arguments about the validity of the search warrant and the need of the police to obtain it. In my view, as argued by the respondent, the warrant was issued by Justice of the Peace and I have no authority to inquire into the validity or necessity of the warrant.

15At the hearing the applicant made the point a couple of times that the respondents were not happy that he ceased cooperating with their investigation and that they were determined to get the information from him. He also suggested that he perceived that he was becoming more than mere bystander. The respondents do not disagree with either proposition. In the circumstances, it is not clear how an inference that the applicant's race was a factor in his interactions with the respondents flows from these two propositions.

16The applicant's central argument and allegation is that the only connection between himself and the two alleged home invaders was that all three were black. I do not agree. It is not disputed that the applicant knew the two men. There is no reason to dispute his assertion that he did not know them well and knew nothing about the crime they allegedly committed. However, it should not be controversial that the police did not necessarily have to accept what he was telling them at face value. More importantly, for our purposes, there is no basis in the evidence the applicant relies on to believe that their request for the original photograph and a formal statement were not a legitimate part of their investigation of a violent home invasion and homicide. The fact is that the applicant was connected to the two men, if only circumstantially. No inference can be drawn from the fact that the respondents sought to explore the nature of those connections and any other information that might be obtained by following up on whatever connections might exist between the applicant, his associates and the two alleged home invaders.

17The applicant's concern and dismay with what happened to him is evident and understandable. However I have carefully considered the submissions of the parties, the materials they have filed and have concluded that there is no reasonable prospect of this Application succeeding. At the heart of the case is the applicant's belief that the search warrant was not required because he had no more useful information to provide to the police. This may well have been true, but it is also true that the police did not have to necessarily accept his assertions at face value. It is also true that the applicant was not in a position to know what information the police required or unbeknownst to him what information he had which would be useful to the police. It might even be true, as the applicant believes, that the respondents suspected he might have been more involved than he claimed to be and that his withdrawing cooperation might have fueled those suspicions. However the inference the applicant seeks to have drawn does not flow from those circumstances.

18As indicated the applicant also alleges reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. See, Noble v. York University, 2010 HRTO 878 at para. 31. For the purposes of the summary hearing, to proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent's alleged actions. The applicant argues that the decision of the respondents to obtain and execute a search warrant were in response to his withdrawal of cooperation – in effect in reprisal for his exercising his constitutional right not to speak to them any further. Whether or not this was the case that is not a reprisal under the Code which only relates to reprisal where one has sought to assert a right under the Code. There is no indication and the applicant makes no claim that he raised any Code concerns with the respondent at any point prior to the events in question. There is no reasonable prospect that this aspect of the Application can succeed and accordingly it is dismissed.

19For all of these reasons the Application is dismissed.