Dewar v. Ontario (Community Safety and Correctional Services), 2016 HRTO 633

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Dewar

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondent

DECISION

Adjudicator: Aida Gatfield

Date: May 11, 2016

Citation: 2016 HRTO 633

Indexed as: Dewar v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Steven Dewar, Applicant

Self-represented

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Indira Sawh, 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 race, colour and ethnic origin. The purpose of this decision is to address whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success.

PROCEDURAL BACKGROUND

2The Application was filed on August 31, 2015. By Case Assessment Direction dated December 8, 2015, the Tribunal directed that a summary hearing be scheduled for this matter pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The respondents were not required to file a Response to the Application. The summary hearing was held by teleconference on March 22, 2016.

Summary Hearing

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

5The 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.

6The 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.

7Accepting 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 any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

8The 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. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

9The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

11The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

13The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically, the applicant was asked what evidence he has or may be reasonably available to him to establish a nexus between the respondent’s conduct and the prohibited grounds of race, colour and ethnic origin.

14The applicant alleges that the respondent discriminated against him based on his race, colour and ethnic origin because a Probation and Parole Officer (the “Officer”) indicated in documents that the applicant had a criminal record and gang affiliation. As a result, the Children’s Aid Society (the “Society”) changed how he gets access to his daughter. Access had been in the community, however, that was then revoked.

15The applicant filed an email dated April 24, 2014 where the Officer notes, “As per out (sic) conversation earlier today, here is a rundown of his CPIC information.” The email then sets out various offences of which he was convicted as well as a current charge, stating “His current charge includes the use of a weapon (knife) during theft…”. It goes on to provide additional information including the following, “Toronto Police Service indicates that Steven is a Crack Cocaine user and his main source of income is drug dealing. He has also been identified as a primary member of the Vaughn Road Bloods”. The email also states “His previous supervising P&P officer in 2011 indicated ‘he has a violent history and is known to use weapons-exacto knife.’”

16The applicant’s submission was that he is not a member of a gang and never has been. He objected to being placed with the Toronto Anti-Guns and Gangs Unit Probation and Parole Office. He explained that upon his release from jail this was the probation office he was told to report to. He also submitted that although he had been charged with a concealed weapon offense, the weapon was not a gun. He provided a letter from the Society legal counsel dated January 22, 2015 where the rationale for the change in access is noted. The letter states, “…the entire service team met to discuss the case following the careful review of the voluminous criminal records of both [named individual] and Mr. Dewar.” It cites, among other reasons, the applicant’s “extensive criminal history and gang affiliation…”

17The applicant also relied on a letter from the Toronto Police Service in response to a request for access to information. The letter states, “Please be advised that full access has been granted to the enclosed report. (Please note that the report indicating you are a known member of the “Vaughn Road Bloodz” could not be located.)” The applicant submitted that this proves that he is not a gang member. The respondent submitted that the letter does not say that the applicant is not a gang member, rather it merely states that a report indicating as such could not be located.

18The applicant alleged that the Officer indicating he is affiliated with a gang amounts to racial profiling.

19The respondent submitted that the applicant was assigned to report to the Toronto Anti-Guns and Gangs Unit following his release from jail. The respondent noted that the Toronto Anti-Guns and Gangs Unit is a probation office that deals specifically with those who have a gun conviction, gang affiliation, or organized crime affiliation. The respondent stated that the applicant was identified as having a gang affiliation. The respondent further submitted that the applicant’s issue is with the Society preventing access to his daughter. That is a decision made by the Society not the respondent. The respondent pointed out that the “criminal record” consists of more than the probation record created by the probation office and would include information obtained from a variety of sources. If the Society requests records the probation office provides them with the information it has from all relevant sources.

20The applicant’s complaint appears to be with the Society’s decision to alter access to his daughter, which he alleges was based on information provided by the Officer. Whether the applicant is or is not affiliated with a gang is not the issue before the Tribunal, rather it is whether the applicant can point to any evidence to establish a link between the information provided by the Officer indicating that he has gang affiliation and the grounds alleged. That is, the applicant needs to point to some evidence that the Officer engaged in racial discrimination or racial profiling by falsely alleging a gang affiliation rather than simply reporting the information provided to her.

21It is not disputed that after release from jail, the applicant was directed to report to the Anti-Guns and Gang Unit Probation and Parole Office. There is no suggestion that the Officer made this decision. As noted above, this is a specialized Unit to deal with individuals with specific convictions or affiliations. The applicant is in essence alleging that the Officer falsely alleged that she had information provided by the Toronto Police Service that the applicant has a gang affiliation. To support this allegation, the applicant relies on the fact that the Toronto Police Service could not locate a report indicating that he was a known member of the Vaughn Road Bloodz. However, the mere lack of a record does not mean that the Officer’s information that the applicant has a gang affiliation did not come from the Toronto Police Service. Such information could have come in a variety of ways, including orally. Furthermore, there was a basis upon which the applicant was directed to report to this specialized Unit upon his release from jail, namely, his purported gang affiliation.

22While I appreciate the applicant’s position that he should not have been assigned to this Unit as he has no gang affiliation, that is not the issue to be determined. The Application makes a claim of discrimination with respect to the Officer’s provision of information on the applicant’s gang affiliation to the Society. The issue on the summary hearing is therefore whether the provision of this information by the Officer amounts to discrimination on the basis of race, colour and ethnic origin. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. In order to proceed with the Application, the applicant must be able to point to some evidence beyond his own speculation and belief that any treatment afforded to him by the respondent was because of one of the prohibited grounds listed in his Application.

23Even assuming that the applicant does not have gang affiliation and that he was erroneously placed in the Unit and that the Toronto Police Service is unable to locate a record regarding the applicant’s affiliation with the Vaughn Road Bloodz, these facts do not establish a sufficient nexus between the Officer’s email and the applicant’s race, colour or ethnic origin. The applicant does not have a reasonable prospect of success in establishing that the Officer falsely provided the information because of the prohibited grounds listed above.

24Accordingly, the Application is dismissed.