Yaylacam v. Toronto Police Services Board, 2015 HRTO 715

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sedat Yaylacam

Applicant

-and-

Toronto Police Services Board

Respondents

DECISION

Adjudicator: Daniel Randazzo

Date: June 1, 2015

Citation: 2015 HRTO 715

Indexed as: Yaylacam v. Toronto Police Services Board

APPEARANCES

Sedat Yaylacam, Applicant

Bakhtier Shakhnazarov, Counsel

Toronto Police Services Board

Robert J. Baldwin, Counsel

1This is an Application filed under section 34 of Part IV 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 ethnic origin, sex and marital status. In summary, the applicant alleges that the respondent discriminated against him by arresting him, causing him to be the subject of a strip search, arresting him again following an alleged breach of recognizance, and by failing to arrest the alleged victim who lodged the complaint against the applicant.

PRELIMINARY AND PROCEDURAL MATTERS

2The hearing commenced on September 5, 2014, and continued on November 5, 2014. Prior to starting the hearing, the respondent brought a motion to request to have the proceedings recorded by a court reporter and requested a waiver of the requirement to provide a copy of the transcript. I allowed the respondent’s request to record the hearing by use of a court reporter but denied their request for a waiver of the requirement to provide a copy of the transcript to the applicant and the Tribunal. The applicant requested an order excluding witnesses. The respondent objected to the applicant’s request. The respondent based its objection on the basis that although the Toronto Police Services Board (“TPS”) was the respondent, the applicant’s allegations impugn three officers and natural justice would require that the three officers be able to hear the evidence against them. In dismissing the respondent’s request and directing the exclusion of witnesses, I noted that although I appreciate the seriousness of the allegations made against the officers and their desire to hear the evidence, it is of fundamental importance to ensure a fair hearing and on that basis the witnesses must be excluded. It is well-established that courts and tribunals have the discretionary power to exclude witnesses from the court or hearing room until such time as it is necessary for them to give their evidence, and, upon the request of a party, will normally do so in order to preserve the original state of the witness’ testimony. I further noted that the individual officers were not respondents and reminded the applicant that as such he could not seek a remedy against the officers.

3Following the completion of the applicant’s evidence, the respondent brought a motion to dismiss the allegations dealing with the applicant’s second arrest and his interactions with Detective Morris (“Det. Morris”) on the basis that there was no reasonable prospect of success with respect to the allegations. After hearing the submissions of the parties, for the reasons set out below, I dismissed the applicant’s claim as it related to his second arrest and the conduct of Det. Morris.

4At the commencement of the second day of hearing (November 5, 2014) the applicant, in reply to the respondent’s evidence, sought to introduce a letter which indicated that the transcript from the applicant’s criminal trial was incomplete. Counsel for the applicant advised that the letter referred to the failure of the court reporter to transcribe a conversation between the Crown and Judge presiding over the criminal trial. The letter provided the details of the alleged conversation. It was the intention of the applicant to give evidence on what he overheard with respect to this conversation. The respondent objected to the introduction of the letter and the evidence of the applicant on the basis that the letter should have been produced earlier, the relevancy of the letter and the testimony and on the basis that the testimony was hearsay. The applicant acknowledged that the request to include the details of the conversation in the transcript was made after the conclusion of the criminal trial, which concluded on May 30, 2013, and that the letter had been in his possession prior to the commencement of the hearing before the Tribunal. The applicant submitted that the letter was not produced earlier as it did not appear to be relevant. The applicant suggested that it only became relevant after the respondent’s witness had referred to the last two pages of the transcript from the applicant’s criminal trial. The respondent conceded that the applicant had made a request that the criminal trial transcript be amended to reflect a conversation between the Crown and the Judge presiding at the criminal trial and that applicant believed that the transcript was incomplete but it maintained their objection to the admission of the letter into evidence and the applicant’s evidence with respect to what he overheard between the Crown and Judge at his criminal trial. I upheld the respondent’s objection and did not permit the applicant to testify with respect an alleged conversation between the Crown and the Judge who presided at his criminal trial. Although the Tribunal has the power to admit evidence that is hearsay, it was not appropriate in these circumstances to do so. The applicant had questioned the criminal trial’s transcript but had failed to include the letter in his arguably relevant documents or in his Rule 16.2 filings as documents he intended to rely upon despite knowing and agreeing to the inclusion of the criminal trial transcript as evidence.

EVIDENCE

5I heard from three witness, the applicant Mr. Sedat Yaylacam, Detective Tricia Johnston (“Det. Johnston”), and Detective Constable David Alexander (“D.C. Alexander”). The applicant testified that he met a woman (“S.M.” or “the complainant”) on line. They commenced a relationship which lasted approximately six months. The applicant testified that on February 24, 2012, which according to the applicant marks the end of their relationship, S.M. attacked him by punching him, kicking him and striking him in the ear with a water bottle. It was the applicant’s testimony that S.M., by striking him in the ear, caused hearing loss and problems with his balance. On March 9, 2012, two officers appeared at the door to his workshop and arrested him for assault. He was read his rights, taken into custody and transported to 22 Division. The applicant was given an opportunity to talk to Duty Counsel and was advised by duty counsel that he did not have to talk to the police and that if he did the police might use those statements against him.

6The applicant did not have an encounter with Det. Johnston until he was already custody. The applicant testified that Det. Johnston was sarcastic in her interactions with him. The applicant testified that Det. Johnston asked him “what kind of name is ‘Sedat’”; referenced his past assault charge and said “History repeats”; and referred to him as a “small man”, “a married man having fun with girls”. The applicant also testified that Det. Johnston referred to the applicant as “Turkish” and suggested that he did not take orders from women. The applicant testified that during his conversation with Det. Johnston, Det. Johnston became upset and said, “Have you ever been stripped searched?”; “I’m going to get one for you then.” The applicant said that while in custody he informed Det. Johnston that the complainant had hit him and that the complainant should be charged with assault.

7The applicant was eventually strip searched and held in custody overnight. The next day he was released on bail with conditions which included the requirement that he not have contact with the complainant.

8The applicant testified that he had no further contact with the police until June 18, 2012. On that date, two police officers arrived at the applicant’s place of business and arrested him for breach of his bail conditions. He was handcuffed and bought to the police station. At the police station, the applicant was approached by two officers, Officer Coyle and Det. Morris. He was advised by Det. Morris that the complainant had complained that he had contacted her and he was not residing in accordance with his bail conditions. The applicant denied these accusations and, according the applicant’s evidence, Det. Morris called him a liar and turned her back on him and walked away. As a result of this second arrest the applicant spent four days and nights in jail.

9The applicant testified that as a result of his two arrests, including his four night detention, he suffered financial losses, humiliation, sleep deprivation, loss of appetite and weight. Upon his release, the applicant testified that he suffered from panic attacks, could not sleep and was prescribed medication from his physician to help him cope with these health issues.

10The charges relating to the assault and breach of recognizance were tried and the applicant was acquitted.

11Det. Johnston testified with respect to the events leading to and relating to the applicant’s first arrest. Det. Johnston has been with the TPS since 1995 and is trained as a Domestic Violence Investigator. On March 9, 2012, the day the applicant was arrested, Det. Johnston was working with D.C. Alexander. Det. Johnston testified that on March 8, 2012, at approximately 11:50 p.m., the complainant came to the front desk and reported an incident of domestic violence. Det. Johnston and D.C. Alexander took the complainant to the community room to speak to her and to take her report. Det. Johnston’s evidence is that the complainant was visibly upset and crying. She reported that her ex-boyfriend, the applicant, had hit her in the past. The officers took down her statement, including the conducting of a videotaped statement. Based upon the statement of the complainant, Det. Johnston and D. C. Alexander jointly decided to arrest the applicant and two officers were dispatched to make the arrest.

12Det. Johnston testified that the applicant was placed under arrest and brought to the station. A search of the applicant’s history revealed that he had been previously arrested, several years prior, for domestic violence. It was decided by Detectives Johnston and Alexander to hold the applicant overnight. This decision was based upon the demeanor of the alleged victim and the safety of the victim. Det. Johnson testified that she and D.C. Alexander allowed the applicant to speak to duty counsel and then they both went to speak to him to obtain the necessary information for the applicant’s show-cause hearing. Det. Johnston testified that the exchange took a few minutes. Det. Johnston points out that the applicant was arrested and had spoken to duty counsel and that any discussions with the applicant, other than to obtain the show-cause information would have been inappropriate. Det. Johnston denies making any of the comments attributed to her by the applicant. Det. Johnston’s testimony was that the strip search was not authorized or arranged by her. The decision to strip search the applicant was in this case and is generally made by the Staff Sergeant on duty.

13D.C. Alexander testified that he and his partner Det. Johnston made the decision to arrest the applicant. Following the interview of the complainant, the officers were of the opinion that they had reasonable grounds to believe that an offence had taken place. D.C. Alexander testified that the officers were of the view that the applicant was the aggressor. D.C. Alexander testified that he did not speak to the applicant when he was in custody and that only Det. Johnston spoke to the applicant.

ARGUMENT

Applicant

14The applicant argues that the complainant made false allegations to the police to punish the applicant for breaking up with her and because he asked for his belongings back. The applicant further argues that if the officers, Det. Johnston and D.C. Alexander, had made a proper and thorough investigation they would never have charged the applicant. It is argued that the only reasons the applicant was charged was because he was a married Turkish male. The applicant points to the fact that the complainant admitted to the officers that she hit the applicant in the arm with a water bottle, yet she was not charged with an assault. The applicant argues that during the “interrogation” of the applicant by Det. Johnston, Det. Johnston humiliated the applicant, abused the applicant and because she did not get a confession from the applicant, Det. Johnston ordered a strip search of the applicant.

15The applicant points to perceived discrepancies between Det. Johnston’s testimony and that of D.C. Alexander and argues that Det. Johnston was not truthful in her testimony before the Tribunal.

16The applicant further argues that Det. Johnston was involved in the decision to have the applicant strip searched and suggests that Det. Johnston’s testimony supports this claim. The applicant points to Det. Johnston’s answers to questions relating to the procedure and the reasonable grounds necessary to conduct a search of the person and suggests that because Det. Johnston was aware of the procedures and grounds for a search, she was involved in the decision to have the applicant stripped searched. Furthermore, as the higher ranking officer and the case manager she must have had input into the decision to strip search the applicant.

Respondent

17The respondent addressed several areas of allegations made by the applicant. Those areas, as described by the respondent, are (1) the communication between the applicant and Det. Johnston, (2) the decision to conduct a strip search of the applicant, (3) the decision to arrest the applicant, and (4) the failure of the TPS to arrest the complainant.

18With respect to the communication between the applicant and Det. Johnston, the respondent points out that the applicant was already under arrest when he was brought into the station and as such any communication between the applicant and Det. Johnston would have been limited to processing for the purposes of a show-cause hearing. This the respondent argues is consistent with Det. Johnston’s testimony. The respondent argues that the applicant had consulted duty counsel and had the constitutional right to remain silent. The respondent argues that Det. Johnston was forthright, honest and credible and further argues that in testimony there were no manifestations of discriminatory intent. The respondent argues that the opposite is true with respect to the applicant and points to two areas in the applicant’s testimony in which the applicant referenced a racialized analogy and referred to Canada as having a stigma of being a woman’s rights country. The respondent urges me to reflect upon the testimony of the witnesses, their demeanor, candidness and responsiveness and suggests that Det. Johnston’s and D.C. Alexander’s evidence must be preferred over that of the applicant.

19With respect to the decision to conduct a strip search, the respondent argues Det. Johnston’s evidence is clear in that she had nothing to do with the decision to have the applicant strip searched. The respondent argues that those who made the decision were male and it was unlikely that male officers would be sexist towards a male accused. The respondent argues that there is no evidence that those who were responsible for making the decision to conduct a strip search were influenced by sex, ethnic origin or marital status.

20With respect to the decision to arrest the applicant, the respondent argues that there was a complainant who alleged an assault and on that basis alone there was reasonable grounds to charge the applicant. The respondent argues that contrary to the position put forth by the applicant, the evidence is uncontradicted that the decision to arrest the applicant was made by both Det. Johnston and D.C. Alexander as a team. The respondent argues that the basis of the applicant’s claim is that the decision to arrest the applicant was orchestrated by a female officer who had a discriminatory intent toward men. The respondent argues that this theory fails on the fact that the decision was made jointly by a female and male officer.

21With respect to the decision not to arrest the complainant for assault, the respondent argues that based upon the information, the officers determined that there was no intent to injure. The respondent points out that to lay charges the officers must have objective and subjective reasonable grounds, and in this case the respondent argues that it is uncontradicted that the officers did not have the subjective reasonable grounds required to make an arrest or lay a charge against the complainant. The respondent points out the Det. Johnston testified that in many cases she has laid charges of domestic assault against women.

22The respondent argues that there is no causal nexus between the manner in which the applicant was treated and his marital status. The respondent points out that there was no evidence that D.C. Alexander made any anti-Turkish comments and there was no evidence that the officers who were involved in the strip search harboured any anti-Turkish sentiments. Finally, the respondent points out with respect to the allegation of sex, D.C. Alexander and those officers involved in the strip search were all male and this undermines the applicant’s allegation that he was discriminated based on his male sex.

Applicant’s Reply

23The applicant points out in reply that there may have been comments made by the applicant in testimony which, as argued by the respondent, could be considered to be racially-charged and sexist. However the applicant explains that these are attributable to communication issues given that English is not the applicant’s first language.

24In reply, the applicant reiterated that Det. Johnston’s evidence was inconsistent and contradictory.

Decision

25For the reason that follow, the application is dismissed.

26The relevant provision of the Code is:

1. 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.

27It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination: Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”) at para. 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

28In the matter before me the applicant has made five allegations of discriminatory acts:

1. The encounter between Det. Johnston and the applicant following his arrest.
2. The first arrest of the applicant on the charges of domestic violence.
3. The decision to and the act of strip searching the applicant.
4. The second arrest of the applicant on the charges of breach of recognizance.
5. The failure to charge the complainant for assaulting the applicant.

29All the allegations are factually woven together, however for ease of reference I have dealt with each allegation separately.

1. The encounter between Det. Johnston and the applicant following his arrest

30The applicant claims that the decision to arrest him was made by Det. Johnston and was motivated by a discriminatory intent. The applicant argues that Det. Johnston and D.C. Alexander should have conducted a more thorough and complete investigation before they decided to arrest the applicant. It is suggested by the applicant that, at the very least, they should have interviewed the applicant before they arrested him. The evidence of the Det. Johnston and D.C. Alexander was that after interviewing the complainant they came to the conclusion that they had reasonable grounds to charge the applicant with domestic assault. They based this decision not only on the interview of the complainant but also on the fact that the applicant had been charged with domestic violence in the past.

31The evidence of the officers is uncontradicted. They, together, came to the conclusion that there was reasonable grounds to arrest the applicant. This conclusion as stated above was based upon the information provided by the complainant. The applicant points to the body language of the complainant during her brief video interview by the officers to suggest that this demonstrates that she was lying to the officers. The applicant also points to the fact they she was reluctant to give a videotaped interview and eventually chose to discontinue her videotaped interview as evidence that she was lying to the officers. The applicant suggests that either the officers knew she was lying or should have known that the complainant was lying. Contrary to the applicant’s submissions, there is insufficient evidence to conclude that the officers knew or should have known that the complainant was lying and purposely ignored this in order to arrest the applicant. The evidence establishes and I find that the officers acted upon the information of the complainant and on the knowledge that the applicant had a previous charge of domestic violence to form the basis of their conclusion that there were reasonable grounds to arrest the applicant. There is insufficient evidence to conclude that the officers were motivated by a discriminatory intent.

2. The first arrest of the applicant on the charges of domestic violence

32The applicant’s testimony and the testimony of Det. Johnston are at odds. The applicant claims that Det. Johnston was sarcastic in her interactions with him; asked him “what kind of name is ‘Sedat’”; referenced his past assault charge and said “History repeats”; and referred to him as a “small man” and “a married man having fun with girls”. The applicant also testified that Det. Johnston referred to the applicant as “Turkish” and suggested that because of his ethnic origin he did not take orders from women. Det. Johnston denies making these comments and describes her encounter with the applicant as short and factual for the purposes of gathering information for the applicant’s show cause hearing.

33In assessing the credibility and reliability of the testimony of the applicant and Det. Johnson, I have applied the traditional test set out in the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 356-357:

(...) 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 demeanor 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 in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

34I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, 1995 CanLII 3498 (Ont. 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.

35I find that Det. Johnston’s testimony should be preferred. Det. Johnston was forthright, honest and detached. She was able to give her evidence in a factual, straightforward manner.

36Furthermore, when the evidence is weighed in the context of the events, the evidence of Det. Johnston is more likely to be a reliable account of the events. It is not insignificant that the applicant was already arrested, informed of his rights, spoke to duty counsel before his encounter with Det. Johnston and as such Det. Johnston, who has over 20 years of experience as an officer, would not have interrogated the applicant in the manner suggested by the applicant. I find that the applicant’s testimony that he was interrogated by Det. Johnston to be inconsistent with the fact that the applicant was already arrested prior to the encounter with Det. Johnston and that the exchange between the applicant and Det. Johnston was therefore more likely to be limited to obtaining basic information for the show-cause hearing.

37I find that the events as described by Det. Johnston to be, on a balance of probabilities, the more reliable description of the events; that is, when Det. Johnston spoke with the applicant the conversation took a few minutes and was for the purpose of gathering basic information for the purposes of the applicant’s show cause hearing.

38I therefore find that the applicant’s claim that Det. Johnston conducted herself in a discriminatory manner during the encounter between the applicant and Det. Johnston must fail.

3. The decision to and the act of strip searching the applicant

39As indicated above, I have found that Det. Johnston’s description of the conversation between herself and the applicant to be the more reliable description. In coming to this conclusion, I find that Det. Johnston did not tell the applicant that he would be strip searched. It was the clear evidence of Det. Johnston that she had nothing to do with the decision to strip search the applicant. This decision was made in this case and in general by the Staff Sargent in charge of the station. Although the applicant’s testimony suggests otherwise, I find Det. Johnston’s evidence to be the more reliable account of the events.

40What is left is a decision by the Staff Sargent. In making the decision the Staff Sargent likely knew that the applicant was a male but there is insufficient evidence to conclude that the applicant was treated differently than other individuals who were held overnight. I have rejected the respondent’s suggestion that a male officer could not be sexist towards a male accused. However, the evidence before me does not support a finding that the Staff Sargent was influenced by the applicant’s sex in making the decision to subject the applicant to a strip search. Also, there is no evidence that the Staff Sargent was aware of the applicant’s ethnic origin or marital status. I therefore find that the respondent’s decision to conduct a strip search of the applicant was not made in discriminatory manner or based upon the improper grounds of sex, ethnic origin or marital status.

4. The second arrest of the applicant on the charges of breach of recognizance

41As indicated earlier, I dismissed the allegation that the applicant’s second arrest on the charges of breach of recognizance following the completion of the applicant’s case without requiring the respondent to call evidence. The reasons for this decision follow.

42It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination: O’Malley, above, at para. 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), above.

43In Shaw v. Phipps, 2012 ONCA 155, the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in O’Malley, above, that the onus rests on the complainant to establish a “prima facie” case of discrimination which is described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent.”

44Although this was not scheduled as a summary hearing the no reasonable prospect of success analysis applies (See: Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777). In Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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 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.

45In the matter before me, it was incumbent on the applicant to call sufficient evidence to establish a “prima facie” case that there was a link or nexus between the decision to arrest the applicant for breach of recognizance and the prohibited grounds of sex, marital status and ethnic origin. The applicant called no evidence during his examination-in-chief which could link to the decision to arrest the applicant and the prohibited grounds. At most the applicant’s evidence was that he was arrested; while in custody. he professed his innocence to the detective (Det. Leslie Morris), and she replied that she thought he was lying and turned her back on him. The applicant submitted that he intended to call evidence through cross-examination that would prove that discrimination occurred. Although there are times when the proof of discrimination is discovered through the cross-examination of the respondent, before the applicant has the opportunity to subject the respondent to cross-examination he must call sufficient evidence to establish a “prima facie” case. In the words of Dabic, the applicant must call sufficient evidence or be able to point to evidence that could establish a link between the event and an alleged ground of discrimination. The applicant’s evidence in this matter falls far short of that standard and as a result I dismissed the allegation without the necessity of hearing evidence from the respondent.

5. The failure to charge the complainant for assaulting the applicant

46The applicant argues that it was an act of discrimination by the TPS in failing to charge the complainant for assaulting the applicant. The applicant`s evidence is that on a number of occasions, both while in custody and then through correspondence later, he advised Det. Johnston that the complainant had assaulted him and that he had suffered an injury to his ear, resulting in a loss of hearing and a problem with his balance.

47Both Det. Johnston and D.C. Alexander testified that they did not believe that they had reasonable grounds to charge the complainant. The officers base their decision not to charge the applicant on the information provided by the complainant (she hit the applicant with a water bottle) and on the fact that the applicant never filed a complaint with the TPS that he had been assaulted. The officers point to the fact that it was their assessment that the complainant, in hitting the applicant with a water bottle, did not intend to injure the applicant and as such the required intent was not present to form the basis of a criminal charge.

48The officers did not deny the fact that the applicant told them that the complainant had hit him as well, however the officers in both examination-in-chief as well as in cross-examination maintained that they did not have reasonable cause to charge the complainant.

49The applicant did not call any evidence which could reasonably form the basis of a finding that the decision to charge the applicant and not the complainant with assault was based upon ethnic origin or marital status. The applicant’s claim with respect to sex rests on the claim that the only reason they did not charge the complainant was because she was a woman. Other than the applicant’s belief that the complainant was not charged because she was a woman, there is no cogent evidence that supports the applicant’s belief. D.C. Alexander testified that he assessed that there was not reasonable grounds to charge the complainant. Det. Johnston testified that there was not reasonable grounds to charge the complainant. Det. Johnston also testified that in her experience there have been many times in which the female in the relationship and not the male is charged with domestic violence. However, in this case both Det. Johnston and D.C. Alexander determined that the applicant, not the complainant, was the aggressor and as such they determined that there were no reasonable grounds to charge the complainant.

50I find that there is insufficient evidence to find that the decision not to charge the complainant was based or influenced by improper motives amounting to discrimination on the grounds of sex, ethnic origin or marital status.

51For the foregoing reasons, the application is dismissed.