HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daniel Gale
Applicant
-and-
Thunder Bay Police Service and Andrew Johnstone
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Gale v. Thunder Bay Police Service
APPEARANCES
Daniel Gale, Applicant
Self-represented
Thunder Bay Police Service and Andrew Johnstone, Respondent
Robert Edwards, Counsel
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, services and facilities because of race, colour, ancestry, place of origin and ethnic origin.
Background
2The applicant identifies himself as black and Christian. He is a resident of the City of Thunder Bay, Ontario. The applicant alleges that on or about August 2, 2015 he called the police because he suspected his children were being abused. The applicant states that he placed the call at about 8:06 p.m. but the police did not arrive until about 11:27 p.m. Two officers attended at his home. The applicant did not recall their names, but he identified the number on the uniform of one of them to be 375. The applicant reported his concerns, but was told that he would have to speak to Officer George. Officer George had investigated previous complaints of child abuse made by the applicant in June 2015. The applicant received no information about his complaint made on August 2, 2015. The applicant asserts that he believes that the officers ignored his concerns because he is a black person.
3The applicant states that Officer 375 arrested him on August 30, 2015. The applicant had attended at his ex-wife's new residence two days before she was due to move in. The applicant was there to determine if this residence was closer to his children's school, as his ex-wife had claimed. The applicant did not believe he was doing anything wrong. Nonetheless, Officer 375 arrested him and charged the applicant with breaching a temporary custody Order. The applicant states that the Order required him to refrain from harassment, but does not say he could not go to his ex-spouse’s address. The applicant denies harassing anyone.
4The applicant further alleges that Officer 375 has followed him in an unmarked car.
5The respondents, the Thunder Bay Police Service ("TBPS") and Constable, First Class, Andrew Johnstone (Officer 375) deny the applicant's allegations.
6The respondents state that the TBPS have been called to address disputes between the applicant and his ex-wife, MD, on several occasions between April 7, 2014 and August 30, 2015. The applicant and MD have two children together.
7The respondents state that the applicant had contacted the TBPS at about 8:21 p.m. on August 1, 2015 to request police involvement because he felt his children were being abused by his ex-wife's boyfriend. Two officers, neither of whom were the individual respondent, attended at the applicant's home at about 10:50 p.m. The applicant did not provide any particulars of the alleged abuse, but complained that his ex-wife and new boyfriend had taken the children out of school in June 2015 to go camping. The officers learned that this was the same complaint as the applicant filed on June 9, 2015 and that this complaint had been investigated and assessed. The applicant's primary concern was that he had seen another car in his ex-wife's driveway when he drove by her house, which he stated he did regularly. The applicant stated he was concerned that his children were being abused, but did not state any basis for that concern. The applicant wanted the police to attend at his ex-wife's home to check on his children's welfare. Officer Milionis cautioned the applicant not to continue checking on his ex-wife, as such behaviour could lead to criminal charges.
8On August 30, 2015 at about 1:16 p.m., the individual respondent was dispatched to an apartment in the north end of the City of Thunder Bay regarding harassment and a domestic dispute "in progress." The respondents state that "in progress" indicates that both parties to the dispute are present. A domestic dispute in progress is a high priority call. The individual respondent proceeded to the address. When he arrived, he identified the applicant, who was sitting in his vehicle parked in front of the residence. The individual respondent left the applicant with a second officer, who was also dispatched to the scene, and went into the residence to speak to MD.
9MD explained that she was in the process of moving to the apartment and had driven from her previous residence earlier that day. As she approached the new address, she saw the applicant parked on the side of the road. The applicant pulled out and followed her in his vehicle. When she arrived at the new residence, the applicant got out of his car and began yelling abuse at MD. The applicant appeared to leave, but MD later observed the applicant sitting in a car in a nearby parking lot when she went to run some errands. The applicant again followed her back to the apartment building. MD then called the police. MD produced an interim Court Order regarding MD’s and the applicant's family law issues. Amongst other things, the Order required the parties to refrain from molesting, annoying or harassing each other. The individual respondent arrested the applicant for breaching this Order. The individual respondent did so because he had reasonable and articulable grounds to believe the applicant had committed an offense.
The hearing
10The Tribunal held the hearing of this matter on September 16, 2016; March 1 and 2, 2017; and, April 10, 2017 in Thunder Bay, Ontario. The applicant testified and the respondents presented three witnesses, including the individual respondent.
The Applicant's Evidence
11The applicant was affirmed and gave the following evidence.
12In the course of the family law proceedings, MD's lawyer said that MD was moving closer to the children's school. MD previously lived on Redwood Avenue, which is roughly in the central part of the city, to Hodder Avenue, which is in an area in the north part of Thunder Bay known as Current River. I note that the city of Thunder Bay was created in 1970 with the amalgamation of the former cities of Port Arthur (to the north) and Fort William (to the south). Redwood Avenue is in the former City of Fort William. Hodder Avenue is located in the north end of the former City of Port Arthur. The applicant lives on Sequoia Drive, which is also in the former City of Port Arthur, but not in the Current River area.
August 1, 2015
13The applicant went to a shopping centre near MD's residence at the time (on Redwood Avenue). The applicant observed a car parked in MD's house. She and the children exited the vehicle. A fourth person, a man, also exited the vehicle and went into the apartment with them. The applicant stated that a car with license plates from Minnesota, USA, was often parked in a parking lot near MD's residence. The applicant believed that the man with MD and the children was the owner of the vehicle. The applicant had reported the license plates to the police before, because he believed this man abused his children. The applicant stated that his children told him that this man "pushed them down." At about 7 p.m., the applicant left the area to go to the police station. On the way, he stopped to call 911. He reported his observations and was informed that the police would attend at his home. He went home and waited from about 8 p.m. to 11:27 p.m. when the police arrived.
14The applicant asked the officers to check on the safety of his children. When asked, the applicant confirmed that he had previously reported this issue to the police to Officer George on June 9, 2015. The officers were dismissive and asked when the children went to bed. The applicant stated that they go to bed at 8:30 p.m. when they are with him. He was not certain when their mother put them to bed. The officers asked if the applicant wanted them to wake his wife up. The applicant replied that he called because of a safety issue and the police took their time to respond. The applicant stated that if the officers were supposed to investigate they should do so and get back to him. The applicant stated that the officers never got back to him and he had no further contact with the police until August 30, 2015.
15I asked the applicant whether he agreed with the respondents' position that the individual respondent had not attended at his home on this occasion. The applicant stated that he was not sure. He stated that it was dark and he thought one of the officers was number 375.
August 30, 2015
16The applicant wanted to determine whether MD’s new residence was actually closer to the children's school, which is located closer to the centre/downtown area of Port Arthur. He also wanted to check out the neighborhood to determine whether it was appropriate for his children. The applicant was also gathering information to use in an appeal of a recent Court Order. The applicant drove his car to MD's residence by following Cumberland Street eastward. Cumberland Street runs along the shore of Lake Superior until turning north at which point it becomes Hodder Avenue. The applicant drove past MD’s new address and stopped in a rest area near the Trans-Canada Highway, which was not far up the road. The traffic was busy. The applicant pulled out the temporary Court Order while having coffee. When the traffic cleared, the applicant turned his vehicle around and proceeded south toward MD's address. He parked on the street in front of MD's residence and got out of his vehicle. Shortly afterward, the applicant noticed a truck backing up. MD came out of the house and walked towards the truck. The children came out of the house with her and saw the applicant. The children ran towards the applicant. MD screamed at the applicant and he told the children to go back to their mother.
17MD told the applicant that he was not supposed to be there. The applicant replied that he was not there to speak to her or anyone else. The applicant walked around and then returned to his car. The applicant decided to leave and drove to a Shell gas station on Cumberland Street, where he filled his fuel tank. After paying for the fuel, the applicant realized that he did not have the Court Order in his vehicle. He decided to go back to MD's residence. Accordingly, he drove back up Hodder Avenue and saw some paper lying where he had parked previously. The applicant performed a U-turn, parked and got out of his vehicle to retrieve the document. A maintenance person parked beside the applicant and advised him not to go into the apartment building and threatened to call the police. The applicant replied that he was not there to go to the apartment or to speak with anyone. The applicant picked up the Court Order from the ground and got into his car. The applicant sat in his car for a few minutes thinking about the treatment he had received from MD and the maintenance person. A police car then parked behind the applicant's car. The individual respondent exited the police vehicle and approached the applicant. The individual respondent requested the applicant's identification and registration, which the applicant provided. The individual respondent explained that he was responding to a 911 call and the applicant's car matched the description he was given. The individual respondent went to speak to MD. At about that time, another police officer arrived who stayed with the applicant. After some time passed, the individual respondent returned and informed the applicant he was arresting him for breaching a Court Order. The applicant denied that he had breached the Order, but the individual respondent asked him to get out of the car. The applicant complied and was placed under arrest. The applicant pointed to Exhibit 1, which is the Temporary Order of the Ontario Court of Justice dated July 14, 2014. In that Order amongst other things, the Court ordered that "each party is to refrain from molesting, annoying or harassing the other party both directly and indirectly."
Surveillance
18The applicant stated that he has observed the individual respondent following him on several occasions. The applicant stated that this occurred in different parts of the city and that the individual respondent was sometimes in a police vehicle and sometimes in a private car. The applicant stated that the first occurrence was in 2011 when he was on the way to the police station. The applicant was driving on Balmoral Road (the road on which the police station is located) and overtook the individual respondent who was driving a white or gray truck. The applicant parked at the police station. The individual respondent arrived and confronted the applicant, stating that the applicant had been speeding. The applicant recalled telling his lawyer that he usually saw the individual respondent following him when he went to get his coffee in the morning. The applicant stated that he went to the Robin's Donuts (a local coffee franchise, similar to Tim Horton's) location on Memorial Avenue and other locations in the former City of Port Arthur. On these occasions, the individual respondent was either driving a police vehicle or a civilian vehicle similar to a police cruiser, but not a truck. The applicant stated that the individual respondent would drive behind him for about five minutes, but would not follow him into the coffee shop parking lot. Sometimes, the individual respondent would disappear even before he reached Robins' Donuts, but at other times he observed the individual respondent drive past.
19The applicant stated that these incidents occurred both before and after August 30, 2015 and stopped right after he filed this Application. The applicant stated that he recognized the individual respondent because he met the individual respondent on August 30, 2015 and due to his training as a security guard.
20In cross-examination, the applicant confirmed that he completed his Application, including the narrative describing the events underlying his claim. The applicant confirmed that Officer 375 was one of the police officers who attended at his house on August 2, 2015. At the time he filed the application, he understood Officer 375’s first name was Andrew, but did not know his last name. Exhibit 4 was the General Occurrence Report prepared by Constable T. Milionis, Officer 379, regarding the police attendance at the applicant's home on August 1, 2015. Exhibit 4 reflects that the incident occurred on August 1, 2015. The applicant stated that this was not the correct date. When it was put to him that August 1, 2015 was in fact the correct date, the applicant stated that he thought it had been August 2, 2015, but would check his phone to verify. Counsel for the respondent then put to the applicant that the applicant was not sure of the actual date. The applicant respondent that he would "get back to you" after he checked his phone records. Later, in re-examination, the applicant confirmed that the date was August 1, 2015. The applicant confirmed that he was sure Officer 375 attended at his house. Exhibit 7, entitled "Event Chronology", is the dispatch record showing that Officers 379 and 398 were sent to the applicant's home on April 1, 2015. This was put to the applicant to refresh his memory, but he responded that he "can't comment."
21The applicant agreed that he informed the attending officers that he believed his children were being abused. Exhibit 4 recorded that the officers arrived at 22:50 (10:50 p.m.) and that the applicant came out of his car, parked in his driveway. The applicant agreed with these facts. The applicant agreed that he advised the officers that he believed his children were being abused by his ex-wife's boyfriend. The applicant agreed that he complained that his ex-wife had taken the children out of school to go camping and that one of them had hurt his hand. The applicant agreed that this was the same complaint to be made to Constable George in June 2015. Counsel put to the applicant that Constable Milionis used as a computer system in his patrol car and found that the applicant had made the same complaint two months previously. The applicant stated that Constable Milionis had reported that his computer was not functioning. It was put to the applicant that this would not be the officers' evidence. The applicant agreed that he made the same report previously. The applicant agreed that he felt there was an emergency because he had seen a man at his ex-wife's house. He agreed that Exhibit 4 indicated that the police had referred the matter to the Children's Aid Society and that "for your information" notice had been provided to Officer George. The applicant agreed that Officer George followed up with him two days later.
22In Exhibit 4, Constable Milionis reported that “His (the applicant's) main concern was that he drove by his ex-wife's house and saw another car in the driveway and he is concerned that his children are being abused." The applicant agreed that Constable Milionis had accurately recorded his concerns. The applicant denied that he drove by MD's house "all the time" as is recorded in Exhibit 4. He agreed that the statement recorded in Exhibit 4, "He is concerned that it is a new boyfriend and he wants officers to attend at the residence to check the welfare of the children", also accurately reflected his concerns. Counsel put to the applicant that Constable Milionis recorded in Exhibit 4 that the applicant provided no grounds to believe his children were in danger; that it appeared, based on the applicant's own account, that the applicant was stalking his ex-wife; and that Constable Milionis cautioned the applicant to cease this behaviour. The applicant stated that he had not been warned about stalking, but agreed that he had reported the same car previously. The applicant confirmed that he felt the situation was urgent and that the police should have attended at his ex-wife's residence and woken everyone up. The applicant agreed they had not reported any violent crime and that what he reported was seeing four people get out of a car, two adults and two kids. Nonetheless, the applicant stated that he believed the police should have arrested his ex-wife's boyfriend that night. The applicant confirmed his view that the individual respondent consciously ignored the complaint because of the applicant's race.
23The applicant confirmed the statement in his Reply that Constable George acted responsibly when he investigated the applicant's concerns in June 2015. He agreed Constable George had investigated his concerns and found no reason to suspect child abuse and that further police involvement was not necessary. The applicant confirmed his allegations set out in the Reply that he believed the Children's Aid Society ("CAS"), which had been involved with his family, and the TBPS were conspiring against him. The applicant further stated that this conspiracy had continued throughout the process of his family law dispute with his ex-wife. The applicant acknowledged in cross-examination that officers of George and Milionis made referrals to the CAS as part of their investigations into his complaints. He asserted that these referrals were part of the conspiracy against him because of his race and perhaps his gender. The applicant stated his view that the CAS was assisting his ex-wife in the custody dispute and agreed that the conspiracy against him included his ex-wife, the CAS, the TBPS and the individual respondent. The applicant stated that the individual respondent wrote a false statement to have him charged.
24The applicant agreed that he did not seek legal advice about the requirement to refrain from "harassing, molesting and annoying" his ex-wife. He stated, however, that the Court Order did not prevent him from going to MD's house.
25The applicant agreed that he visited MD's new address on Hodder Avenue to collect evidence for an appeal of a Court Order rendered in August 2015 in his family law dispute. Amongst other things, the Court denied the applicant's motion for sole custody of the children and ordered that the applicant could not change one of his children's school. The applicant agreed that, in addition to responding to his concerns, he hoped the police would provide him with information that would assist him in his family law dispute. The applicant agreed with the suggestion that he believes that it is the job of the police to "snoop" on a party to a family law dispute and report back to the other party. The applicant denied that he called MD names or yelled at her on August 30, 2015.
26Regarding the individual respondent's alleged surveillance, the applicant stated that he was not surprised that the individual respondent arrived at the police station just after he did. The applicant was not certain of the dates on which the individual respondent followed him, but that it occurred two or three times per week until he filed this Application in December 2015. When asked if he recalled where he observed the individual respondent following him, he stated he recalled seeing the individual respondent when he attended a Robin’s Donuts store located at Frederica and James Street (in the south end of the city) and on another occasion when he attended a Robin’s Donuts location on Memorial Avenue (in the north end of the city). The applicant did not change his evidence when it was put to him that the individual respondent would testify that he never met the applicant before August 30, 2015 and, but for Court appearance, never saw him again outside of his proceeding.
The Respondents’ Evidence
27The individual respondent was affirmed and stated that he joined the TBPS in June 2004 and holds the rank of Constable, First Class. He gave the following evidence.
28The individual respondent received training at the Police College regarding policies and what to expect in domestic dispute situations. Domestic violence "in progress" calls are assigned priority one, which is the highest priority. "In progress" means that both parties are present and therefore there is a potential for violence. Two officers are required to respond to these types of calls. The individual respondent was called to a domestic violence in progress call on August 30, 2015. The individual respondent was on patrol in the Current River area. At approximately 1:16 p.m. he was dispatched to an apartment on Hodder Avenue regarding a domestic dispute. Acting Sgt. Pollock was also dispatched, but the individual respondent arrived on the scene first. The information the individual respondent had was that the instigator of the disturbance was in a green Toyota parked in front of the address. The individual respondent approached the vehicle and requested the driver's ownership and driver’s license in order to identify him. After speaking briefly with the driver, the individual respondent left to speak to the complainant. The individual respondent left the driver, i.e., the applicant, with acting Sgt. Pollock.
29The individual respondent proceeded to the complainant's apartment, which was identified in the information provided by dispatch. At that point, the individual respondent was only aware that the applicant had been in some kind of altercation with a maintenance worker that he had been yelling at his ex-wife.
30The individual respondent met with MD in her living room, away from the children. MD told him that she was moving into the unit and had hired movers to help her. She led the movers from her former residence, up the highway to Hodder Avenue. They exited onto Hodder Avenue and she saw the applicant parked in the snow plow turnaround. The applicant pulled out and followed them to the apartment. The applicant parked his car, exited, called MD names and left. MD later went to a nearby Royal Bank location to get money for the movers. She then went to Mac's Mart, a convenience store, to get drinks for her children. While at the store, she saw the applicant parked in the parking lot of a strip mall across the street.
31MD showed the individual respondent electronic version of a Court Order, which included a "no harassing/molesting/annoying” clause. The individual respondent believed the Order was in place and enforceable. The individual respondent formed the view, based on MD’s account, that the applicant was in breach of a Court Order. Accordingly, the individual respondent proceeded outside and advised the applicant that he was under arrest for breaching a Court Order. He did not simply warn the applicant because MD advised that there had been issues with him before and, in any event, he was required to make an arrest and lay a charge in circumstances where he concluded an offense had been committed. The individual respondent had never before seen the applicant and had not seen him since, other than in this proceeding and in Court. The individual respondent had also not seen MD before August 30, 2015.
32The individual respondent advised the applicant that he was under arrest for breaching a Court Order, which the individual respondent understood to be a breach of section 127 of the Criminal Code. The applicant was placed in the police cruiser and advised of his rights. The applicant said he understood and wanted a lawyer. The applicant was taken to the police station, where he was processed and incarcerated. The individual respondent placed a call to a criminal defense lawyer on the applicant's behalf.
33The individual respondent is familiar with Exhibit 22, the TBPS' Domestic Violence Policy. The individual respondent noted that section 4.1 states that
Members of the Thunder Bay police shall lay charges in all incidents of domestic violence where there are reasonable grounds to believe that an offense has been committed. Offenses for which charges may be laid relating to domestic assault include, but are not limited to:
F) Harassment/stalking
H) Breaches of Court orders
Accordingly, there is no discretion for an officer if he or she believes that an offense has been committed in domestic violence situations. The individual respondent noted that under the policy "domestic violence" is not limited to acts of physical violence. The individual respondent noted that section 7.22 of the policy also requires officers to lay charges in domestic violence situations where there has been a breach of a Court Order made under the Children's Law Reform Act ("CLRA”). The individual respondent was of the view that the applicant had breached an Order under the CLRA. Section 34 of the policy sets out several factors that officers should not consider when deciding to lay charges, including race and ethnicity. The applicant's race and ethnicity had no bearing on the individual respondent's decision to arrest the applicant. Rather, the individual respondent based his decision on the information he gathered at the scene.
34The individual respondent was working on the night of August 1, 2015. He worked the night shift and was assigned to Area 4, which he described as Downtown South, Fort William. The individual respondent was assigned to general patrol duties. Referring to his notes taken that evening, the individual respondent describes several of his activities on that shift, all of which occurred in southern part of the city, in the Fort William area. The individual respondent was not anywhere near the applicant's address, on August 1, 2015 and did not encounter the applicant on that date.
35In cross-examination, the individual respondent confirmed that he had not been with Constable Milionis at any point on August 1, 2015. The applicant asked if it was possible that he took Constable Milionis' uniform by mistake. The individual respondent stated that it was not possible, and as he gets ready for his shift in the locker room and he does not take his uniform off until the end of his shift. The individual respondent noted that his vest is fitted to him and Constable Milionis is both smaller and shorter than him. Accordingly, Constable Milionis' uniform jacket would not fit the individual respondent.
36The individual respondent stated that breaches of court orders were not a common occurrence. He had dealt with only one other situation where he determined a Court Order had been breached and laid the same charge as against the applicant. The individual respondent confirmed that he did not have to speak to his supervisor to lay the charge or with Acting Sgt. Pollock. The information that the individual respondent gathered was sufficient to conclude that the applicant had breached a Court Order; therefore, the individual respondent arrested him.
37The applicant put to the individual respondent that he had observed the individual respondent following him at various locations after August 31, 2015. He asked the individual respondent whether this surveillance was part of the investigation or if he was directed to do so by a supervisor. The individual respondent replied that at no time was he following the applicant. Robin’s Donuts is a place police officers go for coffee, but if the individual respondent was there at the same time as the applicant, he did not see the applicant. The individual respondent stated that it is not practice to follow individuals after they had been arrested.
38Taxios Milionis holds the rank of Constable, First Class, and has been a member of the TBPS for 14 years. He was affirmed and gave the following evidence.
39Constable Milionis prepared Exhibit 4, which is a General Occurrence Report describing his interactions with the applicant on August 1, 2015. Constable Milionis and Constable Bliss were dispatched to the applicant’s address where they spoke with the applicant. The applicant reported that his children were being abused while in his ex-wife's custody. The applicant complained that his children had been taken out of school and that he had seen injuries on them. Constable Milionis asked the applicant about the situation and the applicant referred to a report he made to the police in June 2015. The applicant confirmed to Constable Milionis that he had spoken to the police regarding this issue previously. Constable Milionis used the computer in his patrol car to pull a report by Constable George. Constable Milionis determined that the applicant made identical allegations to Constable George. The applicant was more concerned that he saw a vehicle parked at his ex-wife's driveway when he drove by her house. The applicant wanted the officers to check on his kids. In Constable Milionis' view, there were no exigent circumstances calling for them to check on the children's well-being.
40The applicant had essentially admitted that he was going by his ex-wife's house to check on her. The applicant had also been consuming alcohol that evening and Constable Milionis was not sure what the applicant planned to do that night. As a result, Constable Milionis cautioned the applicant about his "drive-bys" of MD's house, which could amount to harassment in a domestic situation. Constable Milionis advised the applicant to continue to pursue his family law disputes in Court.
41The officers did attend MD's house at approximately 11:15 p.m. and observed that the house was in darkness. They decided not to awaken the occupants. Constable Milionis also tried to call MD, but could not recall exactly when.
42Constable Johnstone was not with Constables Milionis and Bliss on August 1, 2015 and was not part of the investigation. Constable Milionis stated that the applicant's race and colour were not factors in his actions on August 1, 2015.
43The applicant asked Constable Milionis whether it was policy not to respond to safety issues, such as the applicant's request for assistance, and only follow-up with another officer. Constable Milionis replied that there was no reason to check on the applicant's children, as the applicant did not describe any exigent circumstances suggesting they were in any danger. The child authorities had been made aware of the applicant's concerns following his complaint in June 2015. In Constable Milionis' view, it was neither necessary nor practical to wake the family to check on the children.
44Constable Milionis did not recall if he spoke to the individual respondent prior to his shift on August 1, 2015.
45David Bliss is a Constable, First Class in the TBPS, with whom he has been employed for 10 years. He was affirmed and gave the following evidence.
46Constable Bliss confirmed that he was with Constable Milionis on August 1, 2015 and that the reference to Officer 398 in Exhibit 7 was to him. He and Constable Milionis attended at the applicant’s address that evening. Constable Bliss recalled that the applicant complained that his children had been taken out of school and there had been an injury to the kids while camping. Constable Bliss did not recall speaking to the applicant. He and Constable Milionis spent 15 to 20 minutes with the applicant and then went to the applicant's ex-wife's house. They found of the house in darkness and took no further action. The individual respondent was not with them at the applicant's residence.
47In cross-examination, Constable Bliss did not recall that anyone had approached the officers while at the applicant's home to make a complaint. Constable Bliss recalled that Constable Milionis checked the applicant's previous complaint and that he determined the concern the applicant was raising on August 1, 2015 had already been reported. Constable Milionis advised the applicant to get in touch with the original investigating officer. Constable Bliss understood the applicant's issue to be that his ex-wife took the children out of school to go camping and that the children may have sustained an injury while camping. The applicant did not raise any new concerns; therefore, the applicant was directed to the original officer for follow-up. Constable Bliss did not recall the applicant offering to show them pictures.
48Constables Bliss and Milionis were partners for the entire shift on August 1, 2015. Constable Bliss saw the individual respondent at the beginning of the shift at the police station. The applicant asked Constable Bliss if it was possible that another officer could take his uniform by mistake if a call came in and he was not ready to respond. Constable Bliss said this was not possible because officers are required to be in uniform and ready for their shifts. Constable Bliss stated that his locker is not near the individual respondent's. In any event, his uniform would not fit the individual respondent and vice versa. In that regard, I note that the individual respondent is a very large man, significantly larger than Constables Milionis and Bliss. Constable Bliss confirmed that police officers are required to wear epaulets with their badge numbers on them.
ANALYSIS AND DECISION
49Section 1 of the Code states as follows:
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.
50The applicant has the onus of proving that the respondents violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against him and/or harassed him, on the basis of place of race, colour, ancestry, place of origin and ethnic origin, contrary to the Code. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
51In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal 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 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.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
52I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
53I did not find the applicant to be a credible witness. In cross-examination, his testimony was not infrequently evasive and non-responsive to questions. His testimony was often vague and lacking detail, in particular with respect to the allegation that the individual respondent followed him on several occasions. The applicant made sweeping allegations of a conspiracy against him by the CAS, the TBPS and the individual respondent without producing any evidence whatsoever to support such a serious allegation, which in my view calls into question his ability to come to reasonable conclusions. The applicant also denied facts that are contrary to the evidence and plainly true. For example, he stated that Constable Milionis' computer in his police cruiser was not functioning on August 1, 2015, despite the fact that it is clear, even on the applicant's testimony, that Constable Milionis referred to the applicant's previous complaint to Constable George in their conversation. More significantly, the applicant maintained his position that the individual respondent, or perhaps someone wearing his uniform, attended at his house on August 1, 2015. While the applicant spoke to Constables Milionis and Bliss outside after dark, the fact is that the individual respondent bears no resemblance to either of them and is also much taller and larger than them. The respondents’ evidence, which is not seriously contradicted, was that the individual respondent was nowhere near the applicant's home on August 1, 2015. The applicant maintained that the individual respondent was at his home on August 1, 2015 because he recalled that one of the officers was number 375, which is the individual respondent's number. Constable Milionis is number 379 and it may be that the applicant misread his number to be 375. When it became obvious in the course of the hearing that the individual respondent had not attended at the applicant's home on August 1, 2015, the applicant suggested in cross-examination that Constable Milionis or Constable Bliss was wearing the individual respondent's uniform. The applicant's final submissions were very general and did not address the factual and legal issues arising in this matter. Consequently, he did not clarify whether his position continued to be that the individual respondent was at his home on August 1, 2015. Neither did he resile from his position, however. In any event, the applicant's inability to distinguish the individual respondent from Constables Milionis and Bliss calls his powers of observation into question. His unwillingness to or inability to concede that the individual respondent was not at his home on August 1, 2015, despite the evidence, and instead pursue a far-fetched theory, undermines his credibility in my view.
54The respondents' witnesses, by contrast, testified in a direct, straightforward manner. Their testimony was consistent with the documentary evidence and the circumstances of the incidents in question. As a result, I preferred the evidence of the respondents’ witnesses to the applicant to the extent they differ.
Surveillance
55It follows from my credibility ruling that the applicant's claim that the individual respondent often followed him must fail. In light of the deficiencies in the applicant's powers of observation noted above, I am not prepared to accept that the applicant could accurately identify the individual respondent in a moving vehicle while the applicant was driving. Apart from the unreliability of the applicant’s evidence, the applicant offered no evidence that would provide any reason for the individual respondent to start following him, other than his unsubstantiated conspiracy theory. In my view, there was no reason for the individual respondent to follow the applicant before or after August 30, 2015 and there is no credible evidence that he did.
August 1, 2015
56The applicant's evidence was that he believed Constables Milionis and Bliss should have done more to address the concerns he relayed to them on August 1, 2015. Specifically, he wanted them to check on his children, waking them if necessary, and report back to him. Constables Milionis and Bliss did not do this. This was not the outcome the applicant desired. However, the applicant provided no evidence that his race, colour, ancestry, place of origin or ethnic origin was a factor in the officers' decision not to investigate his concern as vigorously as he wished. The applicant merely stated that he believed the officers disregarded his concerns because of his race and colour. This is no more than a bare assertion and does not amount to a proper basis for inferring racial discrimination. In any event, I find that Constables Milionis and Bliss acted reasonably in the circumstances. There is no dispute that the applicant wanted to Constables Milionis and Bliss to investigate on the strength of concerns he had already reported to Constable George and his observation that his ex-wife and children were accompanied by another man. The applicant agreed that Constable George had acted responsibly regarding his concerns. There is no dispute that Constable George discovered no evidence that the children's welfare was in jeopardy. With all due respect, I find that the applicant presented no reason to believe his children were in any danger. Nonetheless, constables Milionis and Bliss drove past MD's residence and, finding a house in darkness, concluded that it was unnecessary to waken the household based on the applicant's inconsequential observation. In my view, this was a reasonable decision in the circumstances. By contrast, the applicant’s view that the officers should have woken MD’s household and arrested her boyfriend was completely out of proportion to the circumstances and not reasonable. In the absence of evidence that the TBPS treat similar concerns raised by non-racialized people differently, there is no proper basis for finding the officers' actions to be discriminatory.
57The applicant confirmed in cross-examination that part of his motivation in seeking police assistance was to gather evidence to support his position in his family law dispute. He also confirmed that he believed that the police’s duties included "snooping" on a party to a family law dispute and report back to the other. I would simply note that it was not the function of the police to gather information for the applicant for use in his family law dispute. Accordingly, the fact that Constables Milionis and Bliss did not report back to him, as he wished, is not in itself evidence of discrimination.
August 30, 2015
58The background to this Application is an acrimonious family law dispute between the applicant and his ex-wife, MD. There have been several Court proceedings concerning the dissolution of their marriage and in particular the custody and access arrangements for their children. The Ontario Court of Justice finally disposed of the custody and access issues in a decision released on July 15, 2016, Court File Number: Thunder Bay FO-13-251-01. In that decision, the Court records MD’s allegations of verbal and emotional abuse during the marriage. The applicant denied these allegations, but it is clear that the relationship between the applicant and MD is not amicable. In this context, the Court ordered them, in a previous decision, to refrain from molesting, annoying or harassing each other, directly or indirectly, as is set out in Exhibit 1.
59There is no dispute that the applicant attended MD's residence on August 30, 2015 where on two occasions he exited his vehicle. The applicant's position was that the Court Order did not prohibit him from attending MD's address. In circumstances where the applicant knew or ought to have known that his presence would be unwelcome, I find the applicant's interpretation of the Order to be narrow and self-serving. At the very least MD, even on the applicant's evidence, made it clear that she was annoyed by his presence.
60In any event, the issue is not the applicant's interpretation of the Court Order but the individual respondent's. The individual respondent's evidence was that MD advised him that the applicant waited for her on Hodder Avenue, followed her to her new home, exited his vehicle and hurled abuse at her. He left, but stayed in the area and followed her back to her residence after she ran some errands in the neighborhood. I found the individual respondent to be a credible witness and I have been presented with no reason to doubt that MD gave this account to him. In finding, as I do, that MD made this report to the individual respondent, I am not finding that the account is true, merely that it was made. Nonetheless, based on MD's report the individual respondent concluded the applicant had breached the "no annoying/molesting/harassing" Order. In my view, this conclusion was inescapable, as on this account, the applicant's behaviour was certainly annoying and harassing. The evidence was that in the circumstances, the individual respondent was obliged to arrest the applicant and lay a charge of breaching a Court Order, pursuant to the TBPS Domestic Violence Policy. There is no dispute that the Crown later withdrew the charge because it was improperly laid. The respondents filed a factum in which they made arguments to the effect of the Crown's conclusion was incorrect. It would seem, based on the respondents' arguments, that the Crown's interpretation may have been incorrect, but I do not need to decide this issue. I find that the individual respondent was acting in good faith based on his understanding of the law and TBPS policies. I also find that the applicant presented no evidence connecting the Code grounds he relied upon to the individual respondent's decision to arrest him. The individual respondent's evidence was that he made arrests in both of the cases where he concluded that a party had breached a Court Order. There is no evidence that he ever failed to lay a charge against non-racialized persons in similar circumstances. The respondents pointed out that MD is also a black person; therefore, there is no question of the individual respondent favouring MD because of race. Again, the sole basis for the applicant's allegations of discrimination was his stated belief that the individual respondent arrested him because he is black, which is again a bare assertion.
61For the foregoing reasons, I find that the applicant has not established that his race, colour, ancestry, place of origin or ethnic origin was a factor in the respondents’ actions towards him.
62The Application is dismissed.
Dated at Toronto, this 29th day of November, 2017.
“Signed by”
Douglas Sanderson
Vice-chair