HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tim Marczenko
Applicant
-and-
Durham Regional Police Service and Robert Aukema
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Marczenko v. Durham Regional Police Service
APPEARANCES
Tim Marczenko, Applicant
Self-represented
Durham Regional Police Service and Robert Aukema, Respondents
Alexander Sinclair, Counsel
1This Application alleges discrimination with respect to services because of colour and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant, who is in his mid-twenties and self-described in his Application as brown, believes that a factor in his being detained by police and charged with trespass was his appearance. The applicant believes that because of his age and his colour he was profiled as a drug dealer. He believes that if he were a white woman in the same circumstances he would have been treated differently than he was.
3In a Case Assessment Direction issued on April 9, 2014, the Tribunal directed on its own initiative 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 it will succeed. The respondents were not required to file a response.
4A summary hearing was held on September 22, 2014 by telephone conference call. All parties participated.
5For the reasons that follow I find that the Application must be dismissed because it has no reasonable prospect of success. In coming to these conclusions, in addition to the submissions of the parties, I reviewed the Application, the Report from the Office of the Independent Police Review Director (the “OIPRD Report”) created in response to a complaint filed by the applicant, and the applicant’s reply to the OPIRD Report which was appended to his Application.
6Rules 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.
7Details 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.
8The 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. In my view there is no evidence to which the applicant can point that would tend to establish that a factor in the applicant’s treatment was his age or colour.
facts
9The following facts are not disputed. The applicant is a member of Ontario Wildlife Field Research, and was in Brock Township on August 26, 2012 to follow up on a reported Sasquatch sighting in the area. He parked near the end of Concession Road 2 (the “road”) and entered the wooded and swampy area to the east of the end of the road (the “woods”). He observed and believes he was observed in turn by the owner of the property (the “property owner” on the south side of the road which included some of the wooded area entered by the applicant. The applicant entered the woods and made a number of observations but apparently nothing definitive in relation to the sighting of the Sasquatch. After a couple of hours he exited the woods. He got into a car and began to drive to his home in the Toronto area. While driving away, he was pulled over by the personal respondent and questioned.
10The personal respondent, a police officer employed by the Durham Regional Police Service, had been dispatched to the area in response to a complaint made earlier that same day by the property owner. In particular, the property owner contacted police to report two young males parking at the end of the concession road in front of the property, exiting the vehicle and walking into the woods. The owner provided the police with a licence plate number. The personal respondent arrived 30 minutes later and the same vehicle was still there. The personal respondent checked the licence plate and determined that it was a rental vehicle.
11As part of his investigation into the property owner’s complaint, the personal respondent pulled over the applicant. When questioned about why he was in the area, the applicant told the personal respondent that he was in the area looking for a Sasquatch. The applicant was travelling alone but he states that the personal respondent questioned him repeatedly on the whereabouts of a friend or travelling companion.
12The applicant was detained by the personal respondent for a period of time – somewhere between 60 and 90 minutes. He alleged that the personal respondent was unprofessional and abusive, making a number of threats against him and his alleged accomplice.
13It is not disputed that the complaint made on that day by the owner was one in a series of reports from the owner related to the illegal growing of marijuana on or near the woods. There had been two prior incidents involving young male persons driving to the end of the road and walking in or around the woods, on or adjacent to the property owner’s land. In at least one of these instances the young males involved indicated when questioned that they were investigating a Sasquatch sighting in the area.
decision
14The applicant argues that he was profiled. He argues that there was no reason for his detention, arrest and investigation for drug related offences. I do not agree. Although extremely unfortunate for the applicant, there is really no evidence to which the applicant can point which would tend to support the inference that a factor in the decision to detain and investigate him were his colour and age. The applicant’s ultimate contention is that if he were a middle–aged, white woman he would not have been apprehended because that does not fit the profile of a drug dealer. It is likely true that had the applicant been a middle-aged, white woman he would not have been stopped, not because such a person does not fit the profile of a drug dealer but because the personal respondent had been dispatched looking for two young males who had arrived in a car and had entered the woods, an area where it was suspected that marijuana was being cultivated.
15Moreover when the applicant was asked why he was in the area he responded that he was looking for a Sasquatch, a somewhat unusual explanation, and one that had been used by other young males suspected of being involved in marijuana cultivation. Furthermore, the applicant was driving a rental car. The applicant does not dispute the respondents’ contention that drug growers and dealers often use rental cars when engaged in activities related to their trade. In my view, it would be somewhat surprising if a police officer, given these circumstances, did not continue the investigation by questioning the applicant.
16The applicant also complains that he was unfairly issued a ticket for trespass onto the property. He now disputes that he was trespassing, but has already pled guilty and paid the fine. I agree with the respondents that it would be an abuse of process to permit the applicant to re-litigate that issue in this forum. In any event there is no evidence that the applicant’s age or colour were a factor in the decision to lay this charge.
order
17For all these reasons, the Application is dismissed.
Dated at Toronto, this 26th day of September, 2014.
“Signed by”
David Muir
Vice-chair