Smith v. London Police Services Board, 2014 HRTO 158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Travis Smith

Applicant

-and-

London Police Services Board

Respondent

DECISION

Adjudicator: Judith Hinchman Date: February 3, 2014 Citation: 2014 HRTO 158 Indexed as: Smith v. London Police Services Board

APPEARANCES

Travis Smith, Applicant Self-represented

London Police Services Board, Respondent Frank A. Angeletti, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of age.

evidence

2The alleged discrimination relates to an incident on April 13, 2012, which occurred in Farnsborough Park (the “Park”) located in London, Ontario. The applicant and a female friend were in the Park that evening sitting on playground equipment. The respondent Constables O’Brien and Webb were patrolling in the area.

3The Park has a curfew of 10:00 p.m. The officers patrolled by the Park and saw the applicant and his friend in the Park, stopped their cruiser, got out and approached them, requested identification, and issued the applicant a Provincial Offence Notice for violating the Trespass to Property Act, s. 2(1)(a)(i). The fine was $65.

4The applicant was 19 years old at the time. He alleges that the officers ignored another older couple in the Park and due to his age targeted him and his friend and treated them offensively.

5The parties’ version of what happened in the Park that evening differs and most of the evidence is testimony from the applicant and Constable O’Brien. Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), which include considering a witness’s opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he or she has seen and heard. In addition, the Court stated:

(…)Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility. (…)

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions. (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

6Accordingly, I have not considered the witness’ evidence in isolation, but rather, in the context of the totality of the evidence. See Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915.

7I have also considered the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity that is his or her willingness to speak the truth, as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Incident in the Park

8Regarding the incident in the Park, I heard evidence from the applicant and Constable O’Brien.

9The applicant testified that on the evening in question, he and his friend decided to take a walk. He testified that he believes that at about 9:30 or 9:45 they entered the Park. They sat on the jungle gym. He testified that within about fifteen or twenty minutes a large spotlight was shone on them and they noticed two officers. The applicant testified that one of the officers began running and shouting at them with his hand on his gun holster. The applicant testified that he and his friend walked towards the officers and sat down on a planter near the police cruiser as instructed. The applicant testified that he asked what the charge was and that Constable O’Brien told him trespassing. The applicant testified that he told the officer that he did not know about the curfew and asked him about the other couple. He testified that Constable O’Brien told him to shut up or he would arrest him.

10The applicant testified that after about ten minutes he was issued a ticket for trespassing that read 10:05 p.m. The applicant testified that he believes the officers approached them in the Park before 10:00 p.m. and wrote the ticket at 10:05 p.m.

11Constable O’Brien testified that at 10:05 p.m. he and his partner drove by the Park and noticed two individuals in the Park. He testified that he got out of the police car, called to the applicant and his friend, and asked them to come over to the police cruiser. He testified that he told them about the curfew and that they were trespassing and then issued the ticket. He testified that he did not run at them with his hand on his gun because he did not feel in any danger. He also testified that he was not yelling and was not rude.

12Under cross-examination, the applicant testified that he actually did not know the exact time he was in the Park or when the ticket was issued. The applicant agreed that he did not check the time when issued the ticket and could not dispute that he was in the Park after the curfew began. He assumed the ticket was written at 10:05 because that is the time written on it, but conceded that that could have been the time that the officers noticed him in the Park. Constable O’Brien testified that the time 10:05 p.m. written on the ticket refers to the time of the offense; the time that he and his partner saw the applicant and his friend in the Park. Given that the applicant does not know exactly what time the incident occurred, his testimony that it must have been before the curfew time of 10:00 p.m. is unreliable. It is reasonable that, as Constable O’Brien testified, the time written on the ticket reflected the time of infraction. On a balance of probabilities I find that the officers noticed the applicant and his friend in the Park after 10:00 p.m. and specifically at 10:05 p.m. It is not disputed that this is after the Park curfew. Thus I find that the applicant was in the Park after curfew and that the ticket was issued for that reason.

13The applicant also alleges that another older couple in the Park at the same time were not ticketed and thus he was treated differently due to his younger age. He testified that he recalled another couple walking a dog in the Park at the same time and thought they were there when the officers arrived. Constable O’Brien testified that he did not notice anyone else in the Park at the time.

14On cross-examination, the applicant testified that although he had seen another couple walking a dog through the Park, they might have left just as the police arrived. He agreed that he is not sure that they were still in the Park when the police approached him and cannot be sure they were in the Park after the curfew. On a balance of probabilities I find that although the applicant is sincere in his belief that another older couple were in the Park at the same time, he admits that he is not sure they were still there when the police arrived, perhaps having just left. On a balance of probabilities I do not have sufficient reliable evidence to find that there was in fact another older couple in the Park when the police arrived.

15The applicant testified that after the ticket was issued, the officers told the applicant not to walk back through the Park in order to walk home. He testified that they followed him and his friend as they walked home. This was not disputed and I find that the officers drove along side the Park as the applicant walked home. Under cross examination the applicant also testified that he lived on the other side of the Park and it would have been reasonable for the officers to follow him around the Park perimeter to ensure he did not re-enter the Park. I agree.

16The applicant testified that he felt like a criminal, that the treatment was disrespectful, scary, and not fair. There is no dispute that a police cruiser spotlight was shone on the applicant and his friend and that he was asked to come to the police cruiser and then issued a trespassing ticket. With respect to how the police handled the situation, under any circumstances, I accept that this was an upsetting scenario for the applicant.

17Constable O’Brien also testified that he and his partner were assigned to Project LEARN and pursuant to that project were routinely patrolling the Farnsborough Crescent area on the evening in question. The applicant alleges that Project LEARN targets college age students and that the officers were patrolling with the intent to target college aged students.

18Constable O’Brien testified that his understanding of Project LEARN is that it targets behaviours and not any particular group. He testified that in the past he had given tickets to non-students in the Park.

19Sergeant Cowan testified about Project LEARN. The Sergeant is the Community Oriented Response Unit (“COR unit”) Supervisor. His testimony was not disputed and I accept the following as factual regarding Project LEARN.

20The COR unit responds to chronic complaints that are considered to affect quality of life identified within specific neighbourhoods. Several projects have been developed to address categories of these complaints. One is Project LEARN that stands for Liquor Enforcement and Reduction of Noise. Sergeant Cowan testified that the geographical areas for Project LEARN are chosen as a result of complaint volume.

21Historically, given a high number of complaints in downtown London, near Fanshawe College, and near Western University about over consumption of alcohol, property damage, disturbances, assaults and excessive noise, Project LEARN was established with a mandate to maintain a highly visible police presence in these areas to proactively dissuade unlawful or antisocial behaviour. During a three-week period in the spring and a five-week period in the fall, the police step up their visibility to dissuade unlawful behaviour. Depending on community complaint volumes, the officers are deployed accordingly. Sergeant Cowan also testified that students and non-students make complaints that factor into the decisions of where to patrol. In addition, at the requests of Western University and Fanshawe College, prior to the fall and spring campaigns, the police work with these educational institutions and use media to educate about the program and the quality of life issues the program promotes as well as to encourage lawful behaviour.

22Sergeant Cowan testified that Project LEARN strictly enforces the bylaws, regardless of age, targeting behaviours rather than individuals. The respondent produced a list of statistics showing numbers of criminal charges and provincial offence notices routinely compiled by the London Police Service to monitor Project LEARN. These statistics show that during the Project LEARN weeks for the years 2009 through 2012, non-students were issued criminal charges more than students and students were issued more provincial offence notices than non-students for the offence categories discussed earlier. The trend appears to be that over the four-year period, the ratio of students to non-students charged in each category has steadily declined; such that in the Fall LEARN 2012 program, 7 students and 54 non-students were charged criminally, and 1276 students and 1017 non-students were issued provincial offence notices.

23Sergeant Cowan was a credible witness who appeared to have a good grasp of the Project LEARN mandate and history and as noted his testimony was not disputed. I accept his explanation of the program and the list of statistics as accurate. I am persuaded Project LEARN was a program to increase police visibility during the fall and spring periods to dissuade any person from acting unlawfully in response to community complaints.

ANALYSIS

Applicable Law

24The Application relates to s. 1 of the Code, which provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

25The applicant has the onus of proving, on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred.

26It is well established in human rights law that in order for an act to constitute a violation of the Code, discrimination need only be one of the reasons for the act. It is not necessary that discrimination be the sole or even the predominant reason for the act. See Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 DLR (4th) 575 (ON C.A.) at para. 1, and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 OR (3d) 290 (Div. Ct.) at para. 11.

27The issues in this case are:

a. Did the respondent discriminate in providing services to the applicant by treating him differently or targeting him for mistreatment because of his age?

b. If discrimination occurred, what is the appropriate remedy?

28The applicant argues that because the officers were patrolling during the spring Project LEARN campaign, I can draw an inference that they were targeting young persons and that was a factor in the offence ticket issued to him and the treatment he experienced.

29Is the fact that the officers were patrolling during Project LEARN circumstantial evidence that age was a factor in the applicant’s treatment by the officers?

30In Maynard v. Toronto Police Services Board, 2012 HRTO 1220, and Smith v. Toronto Police Services Board, 2013 HRTO 2103, the Tribunal analyzed discrimination in police profiling. In those cases the applicants alleged that race was the factor leading to their treatment. In Smith the applicant alleged that age was also a factor. In both cases, the Tribunal asked: was the applicant’s race the predominant factor that led the police to follow and investigate the applicants and if the suspects had been in the circumstances of those cases Caucasian males, with no other defining characteristics, would the officers have chosen to investigate them? Applying that analysis to this case the questions are: was the applicant’s youthful age a factor that led the police to stop at the Park and issue a trespassing ticket to him and if he had not been a youth would the officers have chosen to stop and issue him a ticket?

31I have found that Constable O’Brien and his partner were on a routine patrol with the purpose of dissuading unlawful activity in the geographic locations outlined by Project LEARN. I have found that they were driving by the Park after 10:00 p.m. the night that the applicant was ticketed. I have also found that while driving by the Park, they noticed the applicant and his friend in the Park after the curfew time of 10:00 p.m. I accepted the officer’s testimony that he had issued trespassing tickets in this Park in the past to both students and non-students. I also accepted his testimony that he would have issued a ticket to anyone who happened to be in the Park after curfew. There is no reason to conclude that the officers would have not stopped had the applicant been an older individual in the Park at that time. On a balance of probabilities I am persuaded that if the applicant were not a youth, the police would have acted in the same manner. Therefore I do not conclude that the applicant’s age was a factor that led the police to issue him a trespassing ticket, but that rather the time, just after curfew, was the reason.

32I have also found that I do not have sufficient reliable evidence to establish that there were other persons in the Park at the time of this incident, or, if there were, that any such persons came to the attention of Constable O’Brien. I find that the officer’s behaviour in issuing the ticket was routine, no comments regarding age were made, and therefore I cannot conclude that the applicant was treated any differently that an older person would have been in that situation.

33With respect to the officer’s following the applicant around the block, I agree with the applicant’s testimony that this would not be unreasonable behaviour to ensure he did not re-enter the Park.

34I accept that the situation was upsetting to the applicant, however, I am not satisfied that the applicant has established that the respondent treated him any differently than anyone else due to his age as a young person. No comments were made, and I am unable to find that there were other older individuals treated differently on that occasion. Furthermore there was a non-discriminatory reason for the respondent’s actions, namely that the applicant was in the Park after curfew, which was unlawful.

35The applicant’s belief that he was singled out due to his age is not evidence but a mere assumption. See Sosoo v. Winners Merchants Incorporated and Workers United Ontario Council, 2010 HRTO 1367, para. 71. On a balance of probabilities I cannot find that the applicant’s age was a factor in the respondent’s treatment of him in the Park during the incident.

36The applicant has not met his burden to establish that he was treated differently because of his age or otherwise discriminated against based on his age. The Application is therefore dismissed.