Kayembe v. New Westminster Police Department, 2025 BCHRT 102
Date Issued: May 2, 2025
File: CS-002399
Indexed as: Kayembe v. New Westminster Police Department, 2025 BCHRT 102
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Kato Kayembe
COMPLAINANT
AND:
New Westminster Police Department
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c), 27(1)(d)(ii), and 27(1)(f)
Tribunal Member: Andrew Robb
On his own behalf: Kato Kayembe
Counsel for the Respondent: Naomi Krueger and David T. McKnight
I INTRODUCTION
[1] Mr. Kayembe is a Black man. In October 2020, the New Westminster Police Department [ NWPD ] charged him with a criminal offence for violating a court order, and detained him pending a bail hearing. The court order prohibited communication between Mr. Kayembe and his ex-girlfriend, AB (not her real initials), except for specific purposes. The police officer who charged Mr. Kayembe decided to detain him, pending a bail hearing, because the officer believed there was a risk he would use violence against AB. As I understand his complaint, Mr. Kayembe denies there was any basis to believe there was a risk of violence, and says AB, who is white, also violated the court order, yet she did not face arrest. He says the decision to arrest and detain him for violating the court order was discrimination based on his race, contrary to s. 8 of the Human Rights Code .
[2] NWPD denies discriminating. It says the decision to arrest and detain Mr. Kayembe was necessary to protect AB, and consistent with NWPD policy regarding allegations of domestic violence. NWPD says the Provincial Court dismissed a civil claim filed by Mr. Kayembe, about the same issues that arise in his human rights complaint, and an investigation by the Office of the Police Complaint Commissioner [ OPCC ] found that Mr. Kayembe’s complaint about the officer who charged him was unsubstantiated.
[3] NWPD applies to dismiss the complaint under s. 27(1)(c) of the Code , on the basis that Mr. Kayembe has no reasonable prospect of proving a connection between his race and the decision to arrest and detain him. NWPD also applies to dismiss the complaint under s. 27(1)(d)(ii) and s. 27(1)(f), on the basis that the substance of the complaint was appropriately dealt with by the Provincial Court and the OPCC investigation, and it would not further the purposes of the Code to proceed with the complaint.
[4] For the reasons set out below, NWPD’s application is denied. I am not satisfied that Mr. Kayembe has no reasonable prospect of proving a connection between his race and his arrest and detention. In particular I find NWPD is not reasonably certain to prove it was reasonable to believe, based on the information NWPD had at the time, that there was a risk of violence if Mr. Kayembe was not arrested and detained .
[5] I am also not satisfied that the Provincial Court or the OPCC investigation appropriately dealt with the substance of Mr. Kayembe’s complaint. On the evidence before me, it is not clear that either the Court or OPCC addressed Mr. Kayembe’s allegation that his race was a factor in the decision to arrest and detain him, or that they made any findings about his credibility.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
[7] I apologise to the parties for the Tribunal’s delay in making this decision.
II BACKGROUND
[8] Much of the background to Mr. Kayembe’s complaint relates to his relationship with AB. Most of the following information is taken from police and court records in the evidence submitted by the parties.
[9] Mr. Kayembe was in a relationship with AB, and lived with her for approximately nine months, until June 2020. They lived in an apartment in New Westminster.
[10] In the last few days before Mr. Kayembe and AB stopped living together, NWPD officers attended the apartment on several occasions. On June 12, 2020, Mr. Kayembe called the police when AB changed the locks to the apartment, preventing him from getting in. AB’s brother, who came to the apartment to support AB, called the police at least twice in the following days, saying AB feared for her safety as a result of Mr. Kayembe’s actions. On one of these occasions AB’s brother reported that Mr. Kayembe had cut the cord on a security camera inside the apartment. The police reports appear to show that on each of these occasions NWPD officers investigated and found there had been no threats or physical violence, but there were verbal arguments about who owned items of personal property. Police encouraged AB and Mr. Kayembe to seek an order in Family Court, to resolve their property dispute, and AB did so.
[11] On June 18, 2020, the Honourable Judge Steinberg of the Provincial Court heard from AB and Mr. Kayembe, and granted a conduct order under the Family Law Act [the Conduct Order ]. The parties did not provide AB’s application materials, and there is no evidence before me about what happened in court, other than the Conduct Order.
[12] The Conduct Order required Mr. Kayembe to remove his possessions from the apartment that same day, June 18, and said he was not to enter the apartment after that date. If there was a dispute about who owned what personal property, the Conduct Order said the final determination would be made by the Court. The Conduct Order also included the following provision:
There is to be no communication, direct or indirect, between the Applicant and the Respondent [AB and Mr. Kayembe] after 10:00 PM today, 18 th June 2020, except by text communication solely for the purpose of sorting out any remaining property issues and filing any necessary paperwork in court to resolve property matters.
[13] The Conduct Order went on to say, “Neither the Applicant nor the Respondent will talk in any demeaning manner about the other person to any third person.” The Conduct Order also included a notice that disobeying the order was a criminal offence, and enforcement action could include arresting “the person against whom this order is made”.
[14] In the following months, Mr. Kayembe and AB continued to communicate, by text message and email, for the purpose of sorting out their property issues. They also occasionally communicated, by text and email, about issues other than their property. Some of their messages are described below.
[15] On September 29, 2020, Mr. Kayembe went to the street where AB lived. He had filed a claim against her in Small Claims Court, and he says he was there to serve court papers on her. In a statement to police, AB said she saw him walking on the street as she was driving home, and she believed he was following her, so instead of entering her building, she drove away from the area and called the police. Mr. Kayembe says AB called the police when she saw the court papers in his hand. An NWPD officer, Officer JS, responded to AB’s call and investigated the situation. By that time Mr. Kayembe had left the area.
[16] AB gave a statement to Officer JS. The statement included a physical description of Mr. Kayembe as a “black male”, followed by his height and weight and a description of the clothes he was wearing when AB saw him. The statement also said:
a. AB was driving home when she saw Mr. Kayembe standing on the corner of her block. He followed her, and she became afraid, so she drove away and called the police.
b. Mr. Kayembe had been communicating with AB’s friends, saying she needed help, and that he could help her through her friends.
c. Mr. Kayembe had accused her of stealing his property and said she owed him several thousand dollars, and he was considering suing her.
d. Mr. Kayembe had been messaging her and asking her for things, and she was working with him to return his belongings. He had also been messaging her about unrelated matters, but she had not responded to these messages, except one, about a lost cat. She said she received flowers the next day, from an anonymous sender.
[17] AB showed Officer JS copies of text messages and emails from Mr. Kayembe, that were not about their property issues. These messages are not in evidence before me, but Officer JS’s report describes them. The report lists 10 separate dates when Mr. Kayembe sent messages to AB, between June 28 and August 24, 2020, including:
a. On June 28, he said, “I know you were already working on it, but I thought you could take advantage of the situation to make your project come to life.” The report does not give any further context for this message.
b. On July 3, he said, “what did your doctor said about Shingles? How did you get it and should I get tested?” AB told Officer JS that Mr. Kayembe was a health professional and should have known how to find that information on his own.
c. On July 15, he said he had been interviewed by a Youtube channel about his girlfriend, and he sent her a link to the Youtube channel. The message concluded, “Hope for you your next guy brings you everything you need.” The report does not give any further context for this message.
d. Also on July 15, he sent her a video of a lost cat that got into his apartment, with messages saying, “Do you how who to call? I don’t know which group to post into…Ok you can come grab her then.” AB told Officer JS that Mr. Kayembe knew she was an animal lover and she believed he was trying to lure her to his residence.
e. On July 17, he asked if she could help his friend with the friend’s CV. The report does not give any further context for this message.
f. On July 22, he said she had been disrespectful to his friends, and he accused her of selfish and childish behaviours. The report does not give any further context for this message.
g. On July 31, he asked her to keep her personal issues to herself, “because I do end up in weird conversations where I need to defend you cause that’s what I promised I would always do.” The report does not give any further context for this message.
h. On August 2, he told her he was prescribed an antiviral drug, and suggested that she check with her doctor too. The report says this was for an eye infection.
i. On August 10, he said, “Most of our agreements were also broken by you and unfortunately I will not continue my effort to end this in a friendly and understandable way.” The report does not give any further context for this message, but it says AB understood this as a threat, and she feared for her safety.
j. On August 18, he accused her of using violence against him, and asked her to send him an “accountability” letter. He also said she owed him money and provided his address so she could send a bank draft. The report does not give any further context for this message.
k. On August 24, he emailed her about ICBC coverage on her vehicle. The report does not give any further context for this message.
[18] The police report, in reference to the date and time of Mr. Kayembe’s alleged violations of the Conduct Order, suggests Mr. Kayembe also contacted AB on September 23, 2020. The report does not provide any further information about what happened on September 23, but in an affidavit filed in Family Court, described below, AB said Mr. Kayembe’s September 23 message said, “I have something to hand to you. Please tell me when and where you want it.” Mr. Kayembe says this was a reference to court papers he had to serve on her.
[19] Mr. Kayembe’s response to NWPD’s application to dismiss included copies of some of his text messages with AB. The messages he provided show that both parties generally used a friendly tone, except where the messages refer to Mr. Kayembe’s threat to sue AB. Most of the messages he provided are about their property issues, but some are not. One message appears to show that AB initiated a conversation about her dog’s health and a recipe she was looking for. Most of the messages appear to be from July 2020, but for some of them the date is not clear.
[20] NWPD does not say whether Officer JS saw any messages in which AB communicated with Mr. Kayembe for reasons unrelated to their property issues, other than the message about a lost cat. There is no evidence before me about whether Officer JS asked AB if she initiated any communications with Mr. Kayembe that were unrelated to their property issues.
[21] Officer JS’s report shows AB described threatening behaviour by Mr. Kayembe. In response to a question, in a standardised domestic violence checklist, about whether he has ever made threats, she said he has “placed knives around [AB’s] apartment and charged at [her], forcing [her] to lock herself in the bedroom while [Mr. Kayembe] banged on the door.” In response to a question in the checklist about whether Mr. Kayembe has a criminal history or gang affiliations, AB said he “may know gangs who grow weed.” In response to a question about whether there had been an escalation in abuse, the report said, “No, but frequency/intensity of contact is increasing.” In response to a question about whether he has engaged in stalking behaviour, the report said, “Yes, the suspect has displayed jealous/controlling behaviour in the past and has now started walking around the complainant’s apartment building.” In response to a question about whether there was a history of domestic violence, the report referred to unspecified verbal abuse “documented in prime files.” I understand this to be a reference to police files related to NWPD involvement with AB and Mr. Kayembe in June 2020.
[22] Officer JS’s report does not include any further information about AB’s allegation that Mr. Kayembe displayed jealous or controlling behaviour in the past, or that he charged at her and banged on the door, or that he placed knives around the apartment. In response to the application to dismiss, Mr. Kayembe appears to deny the allegation about placing knives around the apartment. He says the knives in question were always kept in the same place on the kitchen counter, when he lived with AB. In support of this, he provided photographs showing what appear to be kitchen knives on a kitchen counter.
[23] Based on the messages and emails provided by AB, Officer JS determined that Mr. Kayembe had disobeyed the Conduct Order. On September 30, 2020, she requested a warrant for his arrest for disobeying a court order, contrary to the Criminal Code , and recommended that he be detained pending a bail hearing.
[24] On the morning of October 1, 2020, at the request of Officer JS, a different NWPD officer went to the courthouse in New Westminster and obtained a certified copy of the Conduct Order. After confirming the order included police-enforceable conditions, NWPD asked the Burnaby RCMP to go to Mr. Kayembe’s residence and arrest him, as he was now living in Burnaby, outside NWPD’s jurisdiction.
[25] Meanwhile, AB had gone to the courthouse on September 30, 2020, to apply for an order to add conditions to the Conduct Order, on an urgent basis. Her application sought a protection order, to “mitigate the non-compliance of the court order and curtail ongoing and future harassment, including harassing litigation”. In an affidavit in support of the application, AB said she saw Mr. Kayembe circling her building the previous night, and she called police, who said they would consider charging him. Most of the affidavit addresses their dispute about property. It goes on to say he continues to initiate interactions prohibited by the Conduct Order, including on September 23, and he has attempted to “alienate friends and family against me.” It concludes by saying AB fears for her safety as Mr. Kayembe “has repeatedly threatened to forcefully enter my house and bedroom prior to the court order, has used his physical presence and size to intimidate me, has taken out knives and bear spray in my presence, and has cut the cord to the security camera that was used to record our actions for my safety. And now last night, he was circling my building and following me.”
[26] The affidavit included a letter from AB, with further information. The letter said she wanted the Court to find Mr. Kayembe in contempt, issue a stricter protection order that would keep him further away from her, implement consequences if he disobeys the order, and require him to obtain leave to file any legal action against her. Much of the letter addressed their dispute about property. The letter also described Mr. Kayembe’s attempts to alienate her family and friends from her, but did not suggest that he used violence or threats to do so. The letter said AB feared for her safety due to his actions before the Conduct Order, and because he came to her building the previous night. It also said he falsely accused her of using violence, which made her fearful that he planned to use violence against her.
[27] On the materials before me, it is not clear when NWPD found out about AB’s court application filed on September 30, 2020.
[28] AB’s application was heard the following day, October 1, 2020, in Family Court. Apparently by coincidence, it was heard by Judge Steinberg.
[29] Mr. Kayembe received notice of the application and attended the hearing. He says that during the hearing, AB told Judge Steinberg that NWPD was planning to arrest Mr. Kayembe on a charge of disobeying the Conduct Order, and Judge Steinberg found he had not violated the Conduct Order, and said the charge should be dismissed.
[30] NWPD does not deny Mr. Kayembe’s account of what happened in Family Court on October 1, 2020. The OPCC investigation found the charge was not addressed in Family Court. The OPCC investigator appears to have made this finding based on the fact that the Crown prosecutor was not present in Family Court, and Officer JS did not present her evidence. But there is no evidence before me from anyone who attended Family Court on October 1, 2020, other than Mr. Kayembe.
[31] The evidence before me shows Judge Steinberg adjourned AB’s application, on October 1, 2020, with no new orders being issued. There is no evidence that AB ever returned the application to court.
[32] Around 1:00 PM on October 1, 2020, a few hours after Judge Steinberg adjourned AB’s application, police officers from the Burnaby RCMP came to Mr. Kayembe’s residence and arrested him for disobeying the Conduct Order. Mr. Kayembe says he told the RCMP officers that Judge Steinberg dismissed the charges, and he showed them documentation of what happened in court that morning—it is not clear to me what documentation he showed them—so they called NWPD to seek further direction. Mr. Kayembe says NWPD told the RCMP officers “it was for different charges than what the judge had dismissed.” NWPD does not appear to deny this.
[33] After he was arrested by the Burnaby RCMP, Mr. Kayembe was transferred to NWPD’s custody. He was detained and held in cells overnight, pending a bail hearing. He says he repeatedly told NWPD officers that the charges against him had been dismissed by Judge Steinberg that morning, but officers told him there would be new charges. NWPD does not appear to deny this.
[34] The next morning, October 2, 2020, the bail hearing was held, again apparently by coincidence, before Judge Steinberg. A transcript of the hearing is before me. It shows Judge Steinberg confirmed that Mr. Kayembe had filed a small claims action against AB. Judge Steinberg said, “the other day you told me you did go to her neighbourhood to see when she would be driving by so that you could give her the papers.” He encouraged Mr. Kayembe to serve court documents on AB by mail, rather than personal service.
[35] The transcript shows the Crown prosecutor decided to withdraw the charge against Mr. Kayembe after learning that the matter had been addressed before Judge Steinberg the previous day. The prosecutor said that if he knew AB and Mr. Kayembe appeared before Judge Steinberg on October 1, he would not have approved the charge in the first place, and in his view it should not have been laid. Mr. Kayembe was released.
[36] In 2021, Mr. Kayembe filed a civil claim against NWPD and the City of New Westminster in Provincial Court, about his arrest and detention. His claim sought damages for wrongful arrest, and alleged racial discrimination against Officer JS. Among other things, the claim said Officer JS failed to get Mr. Kayembe’s side of the story before deciding to arrest him, and failed to consider that AB had violated the Conduct Order in the same way he had, by communicating with him about issues other than their property issues. It also said that when RCMP came to arrest him on October 1, 2020, and he told them what had happened in court that morning, “they proceeded to contact the New Westminster police who did not take time to verify and requested my arrest anyways.”
[37] The Court dismissed Mr. Kayembe’s claim on October 19, 2021. Mr. Kayembe says the Court did not address his allegation of racial discrimination. NWPD says the Court dismissed the claim after hearing submissions from NWPD about the merits of the claim, but this is not clear from the evidence before me. The documentation provided by NWPD shows the claim was dismissed, with each party to bear their own costs, but it does not provide any further information about the Court’s decision. There is evidence that the City of New Westminster was seeking to have the claim dismissed for non-compliance with s. 736 of the Local Government Act , which says a municipality is not liable for damages unless it receives notice of the damage within two months from the date on which the damage was sustained.
[38] Mr. Kayembe made a complaint to OPCC about his arrest, and OPCC appointed an investigator. NWPD provided a redacted copy of the investigator’s report. Unredacted portions of the report show the OPCC investigator interviewed Officer JS, and she provided the following information:
a. When asked why she wanted Mr. Kayembe to be detained upon arrest, rather than released on his own recognizance, she said she believed his behaviour was escalating and he was breaching his conditions.
b. In response to a question about whether Mr. Kayembe’s race was a factor in forming her grounds to arrest him, she said no.
c. When asked why she did not attempt to obtain a statement from Mr. Kayembe before she decided to arrest him, she said she had reasonable grounds to believe he “breached his conditions not to contact the victim”, and “Given the high-risk behaviour that Mr. Kayembe displayed to have no-contact conditions placed on him in the first place, I believed it was necessary to arrest Mr. Kayembe as soon as possible to ensure the safety of the victim and maintain the public trust.”
d. She said there was nothing Mr. Kayembe could have said, if he had given a statement, that would have changed her decision to arrest him.
[39] The OPCC report said the decision to arrest and detain Mr. Kayembe was not an abuse of authority, as Officer JS had sufficient cause to arrest him for violating the Conduct Order. The report said Officer JS followed NWPD policy regarding allegations of violence against women in relationships, which provides that in all cases where police determine there is a significant risk of violence, police should detain the accused person.
[40] The OPCC investigator accepted that Officer JS had no way to know what happened in Family Court on October 1, 2020, before Mr. Kayembe was arrested.
[41] The OPCC report acknowledged that Mr. Kayembe was alleging racial bias, and that he believed the police accepted AB’s allegations about Mr. Kayembe because she is white and he is Black. As noted above, the investigator asked Officer JS if Mr. Kayembe’s race was a factor in her decision to arrest him. But the unredacted portions of the report do not otherwise refer to Mr. Kayembe’s allegation of racial bias. Nor do they comment on Officer JS’s determination that there was a risk of violence if Mr. Kayembe was not arrested and detained.
[42] Mr. Kayembe says he asked OPCC for a review of the investigator’s decision, under the Police Act , but his request for a review was not granted.
III DECISION
A. Section 27(1)(c) – No reasonable prospect of success
[43] NWPD applies to dismiss Mr. Kayembe’s complaint under s. 27(1)(c) of the Code , on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing. The onus is on the Respondent to establish the basis for dismissal.
[44] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[45] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 .
[46] To prove his complaint at a hearing, Mr. Kayembe would have to prove he has a characteristic protected by the Code , he was adversely impacted in the services provided by NWPD, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[47] There is no dispute that Mr. Kayembe is Black, and NWPD does not appear to deny that being arrested and detained in custody had an adverse impact on him. But NWPD says Mr. Kayembe has no reasonable prospect of proving a connection between his race and the decision to arrest and detain him, as he has not provided any evidence that supports an inference of racial discrimination.
[48] To prove his complaint at a hearing, Mr. Kayembe would not be required to prove Officer JS or NWPD intentionally or consciously discriminated against him: Code, s. 4; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at para. 482. Sometimes people do not recognise racial prejudice in themselves: Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275 [ Campbell ] at para. 102. Nor would Mr. Kayembe need to prove his race was the only factor, overriding factor, or even a significant factor in the decision to charge and detain him, only that it was a factor: Quebec (Commission des Droits de la personne et des droits de la jeunesse) v. Bombardier Inc. , 2015 SCC 39 at paras. 45-52; Stewart v. Elk Valley Coal Corp ., 2017 SCC 30 at para. 46.
[49] The social context of anti-Black discrimination, which includes an understanding of stereotypes and prejudice and their historical effects on marginalised communities, can help interpret individual incidents that may otherwise be “explained away”: Clarke v. City of Vancouver and another , 2024 BCHRT 298 at para. 100. The Tribunal has recognised that Black people may be subject to stereotyping that suggests they are prone to violence or criminal behaviour: Young Worker v. Heirloom and another , 2023 BCHRT 137 at para. 58; Mema v. City of Nanaimo (No. 2) , 2023 BCHRT 91 at para. 342. But any inference of discrimination must be rooted in the evidence of a particular case: Campbell at para. 104.
[50] NWPD says there was a non-discriminatory explanation for Officer JS’s decision to charge and detain Mr. Kayembe. NWPD says Officer JS had a duty to respond quickly to a breach of a court order, especially in a situation involving potential domestic violence, considering that AB reported concerns for her safety, and Officer JS observed her to be in a frightened state. NWPD says Officer JS was following NWPD policy for matters related to domestic violence investigations, which provides that in cases where police determine there is a significant risk of violence, the accused should be detained pending a bail hearing.
[51] Mr. Kayembe alleges the decision to arrest and detain him for breaching the Conduct Order was based, in part, on racial discrimination. He says AB breached the Conduct Order too, by communicating with Mr. Kayembe about matters other than their property issues, and yet Officer JS apparently did not consider charging AB. Officer JS’s report refers to evidence that AB sent Mr. Kayembe at least one message unrelated to their property issues, when she responded to him about a lost cat in July 2020. It is not clear whether Officer JS was aware of any other instances where AB communicated with Mr. Kayembe about matters unrelated to their property issues. In any event, in order to determine whether Mr. Kayembe has taken his allegation that Officer JS’s decision to charge him was connected to his race beyond conjecture, I must consider the full context of the decision, which includes Officer JS’s concerns about domestic violence and the risk of further violence.
[52] Based on her report and the information she gave to the OPCC investigator, it appears Officer JS was concerned about violence based on the following:
a. AB told Officer JS that Mr. Kayembe had placed knives around her apartment and had charged at her, forcing her to lock herself in a bedroom, and that he “displayed jealous/controlling behaviour in the past”.
b. AB told Officer JS that Mr. Kayembe had been communicating with AB’s friends, saying she needed help, and that he could help her through her friends
c. Mr. Kayembe had been asking AB for items of personal property, and for money.
d. Mr. Kayembe contacted AB, on at least 10 occasions, for reasons unrelated to their property dispute, despite the Conduct Order. Some of the messages from Mr. Kayembe to AB described in the report apparently had a negative tone, including the July 22 message saying she had been disrespectful to Mr. Kayembe’s friends, the July 31 message asking her to keep her personal issues to herself, and the August 10 message saying she had broken their agreements and “I will not continue my effort to end this in a friendly and understandable way.”
e. Mr. Kayembe came to AB’s street on September 29, 2020, and AB appeared frightened when Officer JS met with her.
[53] However, on the evidence before me, it appears that Officer JS also had reasons to believe the risk of violence was limited:
a. The police reports from June 2020 say Mr. Kayembe did not have a criminal record, and there is no suggestion, in the materials before me, that anyone has ever accused him of using violence, other than AB and her brother, in June 2020.
b. The evidence before me about the messages Mr. Kayembe sent to AB between June and September 2020 suggests these messages generally had a reasonable, non-threatening tone, except the July 22, July 31, and August 10 messages. The most recent messages referred to in Officer JS’s report, from August 24 and September 23, apparently were not negative or threatening, in their tone or content.
c. Although some of Mr. Kayembe’s messages to AB were about matters other than property issues, despite the Conduct Order, Officer JS’s report does not suggest that AB felt threatened by them, other than the August 10 message.
d. Despite Officer JS’s statement in the police report that the “frequency/intensity of contact [between AB and Mr. Kayembe] is increasing”, there is no evidence before me that Mr. Kayembe contacted AB between August 24 and September 23, 2020, or between September 23 and 29, 2020.
e. There is no suggestion, in the materials before me, that Mr. Kayembe came near AB’s apartment at any time after the date of the Conduct Order, until September 29, 2020.
f. AB told Officer JS that Mr. Kayembe was considering suing her, to resolve their property issues.
g. It appears that Officer JS was aware of Mr. Kayembe’s September 23 message to AB, saying he had something to hand to her.
[54] NWPD’s submissions do not address any of these considerations.
[55] AB’s affidavit in support of her September 30, 2020, court application suggests the incidents involving Mr. Kayembe allegedly placing knives around the apartment and charging at her took place shortly before the Conduct Order was issued, in June 2020. NWPD reports from June 2020 show officers came to the apartment and investigated allegations of violence against Mr. Kayembe, and found there had been no threats or violence. I understand Officer JS’s reference to the “prime files”, in her report, to mean that she reviewed the NWPD reports from June 2020.
[56] Regarding the reference, in Officer JS’s report, to Mr. Kayembe’s “jealous/controlling behaviour in the past”, NWPD provides no further context or detail about this behaviour, and it is not clear what this refers to.
[57] I am not satisfied that NWPD is reasonably certain to prove there were reasonable grounds for Officer JS to believe there was a significant risk of violence if Mr. Kayembe had not been arrested and detained. While NWPD relies on Officer JS’s finding that there was a risk of violence, NWPD offers no submissions about why this finding was reasonable. Based on the evidence before me in this application, it appears the evidence before Officer JS, when she decided to arrest and detain Mr. Kayembe, could have supported a finding that AB’s allegations that Mr. Kayembe made threats of violence against her had been previously investigated, in June 2020, and were found to be unsubstantiated. It appears the evidence before Officer JS could have supported a finding that since June 2020, after attempting to resolve his property issues with AB, Mr. Kayembe had sued her, and was taking steps to serve her. The evidence before me is insufficient to support a conclusion that NWPD is reasonably certain to prove it was reasonable to believe, based on the information that NWPD had at the time, that there was a risk of violence if Mr. Kayembe was not arrested and detained.
[58] I am not persuaded by NWPD’s submission that there is no evidence that could support an inference that Mr. Kayembe’s race played a role in NWPD’s decisions about him. I consider that some of Officer JS’s statements to the OPCC investigator could suggest she made unfounded assumptions about the reason for and nature of the Conduct Order, which are not supported by any evidence before me, and which are consistent with a belief that Mr. Kayembe was prone to violence. Officer JS referred to Mr. Kayembe’s “high-risk behaviour” that led to no-contact conditions being placed on him, and she said he “breached his conditions not to contact the victim”. But there is no evidence before me that the Conduct Order was based on any high-risk behaviour, and the Conduct Order imposed no-contact conditions on both Mr. Kayembe and AB; it does not appear that they were “his” conditions, or that there had been a finding that AB was the victim. On the evidence before me, I am not satisfied that NWPD is reasonably certain to prove there was a reasonable basis for Officer JS’s statements.
[59] Officer JS told the OPCC investigator she did not attempt to get a statement from Mr. Kayembe because there was nothing he could have said that would have changed her decision to arrest him. But it appears that Judge Steinberg, upon hearing Mr. Kayembe’s side of the story in Family Court, on October 1, 2020, found that his conduct did not warrant arrest or detention. On the evidence before me, it appears Mr. Kayembe told Judge Steinberg, and Judge Steinberg accepted, that he went to the street where AB lived, on September 29, because he had filed a civil claim against her and he was attempting to serve her. This seems like the type of information that could have informed the decision about whether to arrest and detain him.
[60] On the evidence before me, it appears that AB told Officer JS that Mr. Kayembe planned to sue her, and Officer JS was aware of the Conduct Order which specifically referred to the possibility of further litigation between AB and Mr. Kayembe, and was aware of Mr. Kayembe’s September 23 message to AB saying he had something to hand to her. If, despite all this, Officer JS was not prepared to consider that there could have been a non-culpable reason for Mr. Kayembe coming to AB’s street on September 29, that could suggest she had closed her mind to the possibility that he was taking reasonable steps to resolve his dispute with AB via litigation. The Tribunal could find, after a hearing, that this supports an inference that Officer JS assumed Mr. Kayembe was prone to violence.
[61] I also consider Mr. Kayembe’s evidence that he told NWPD, during his arrest and detention, that Judge Steinberg had dismissed the charge against him. NWPD does not deny this, in the materials before me, and does not suggest that anyone took any steps to verify Mr. Kayembe’s claim about what happened in Family Court. That could suggest that NWPD officers chose to ignore evidence that Mr. Kayembe did not pose a risk of violence. The Tribunal could find, after a hearing, that this supports an inference that stereotypes about Black people being prone to violence played a role in the decision to continue his detention.
[62] NWPD cites Ontario cases in support of its application under s. 27(1)(c), including Hughes v. Ontario Provincial Police , 2012 HRTO 609 and Corpus v. Toronto Police Service , 2013 HRTO 1141. In Hughes , the Human Rights Tribunal of Ontario dismissed a claim of racial discrimination against the police by a person of Welsh descent who was arrested for stealing hay from a farm. I do not find this case relevant because to the best of my knowledge, there is no historical context of anti-Welsh racism, or any prevalent stereotype suggesting people of Welsh descent are prone to criminality.
[63] Corpus involved a charge of sexual assault against a Filipino man who claimed the sex was consensual. The Human Rights Tribunal of Ontario dismissed his claim that the decision to detain him was based on his race, colour, ethnic origin, gender identity, and age, finding he provided no evidence of a connection to those grounds other than a “bare allegation” that he had experienced discrimination. I am not persuaded that Corpus has significant factual similarities to this case, and I do not find it relevant.
[64] Police officers must take matters of domestic violence seriously, and must make difficult judgement calls. But considering all the evidence before me, and the low threshold that applies under s. 27(1)(c) of the Code , I am not satisfied that Mr. Kayembe has no reasonable prospect of proving facts that could support an inference that the decision to arrest and detain him was based, in part, on a stereotype about Black people being prone to criminality and violence. In light of factors including the social context of anti-Black discrimination, NWPD’s failure to address the evidence that Mr. Kayembe posed a limited risk of violence, and Officer JS’s statements to the OPCC investigator that are not supported by the evidence before me, I find he has brought the connection between his race and NWPD’s conduct beyond conjecture.
[65] I dismiss the application under s. 27(1)(c) of the Code .
B. Sections 27(1)(d)(ii) – Proceeding would not further the purposes of the Code
[66] Section 27(1)(d)(ii) allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 , at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125, at paras. 113-118.
[67] NWPD’s application under s. 27(1)(d)(ii)of the Code is based on a brief submission that the factual circumstances of the complaint, including issues of credibility, have been fully considered in the OPCC investigation.
[68] As noted above, the unredacted portions of the OPCC report do not address Mr. Kayembe’s claim of racial discrimination. Since the OPCC investigator apparently made no findings relevant to this claim, I am not satisfied that the OPCC investigator fully considered all the factual circumstances related to Mr. Kayembe’s complaint.
[69] Nor am I persuaded by NWPD’s submission that the OPCC investigation considered credibility issues. The report found Mr. Kayembe’s police complaint was unsubstantiated because there was not “clear, convincing and cogent evidence” that Officer JS did not have good and sufficient cause to arrest Mr. Kayembe, but the unredacted portions of the report do not appear to make findings about anyone’s credibility.
[70] I dismiss the application under s. 27(1)(d)(ii) of the Code .
[71] Before moving on to the application under s. 27(1)(f), I pause to address Mr. Kayembe’s argument, in his response to the application to dismiss, that the redactions in the OPCC report suggest that NWPD tampered with or tried to conceal evidence. I do not need to determine whether evidence was tampered with or concealed, as nothing in my decision turns on this issue. But I note the redactions appear to refer to provisions of the Freedom of Information and Protection of Privacy Act , and it appears they were made by OPCC, not NWPD.
C. Section 27(1)(f) – Substance of the complaint has been appropriately dealt with in another proceeding
[72] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Code if the substance of the complaint has been appropriately dealt with in another proceeding. The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [ Figliola ] at paras. 25 and 36.
[73] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:
a. Did the other proceeding have jurisdiction to decide human rights issues?
b. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?
c. Did the complainant have the opportunity to know the case to be met and have a chance to meet it, regardless of whether the previous process mirrored the Tribunal’s?
Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliola at para. 37.
[74] NWPD says the substance of the complaint was appropriately dealt with by the Provincial Court, which dismissed Mr. Kayembe’s civil claim alleging wrongful arrest and racial discrimination, and by the OPCC investigation, which found that Officer JS’s decision to arrest and detain Mr. Kayembe was not an abuse of authority.
[75] NWPD acknowledges that neither OPCC nor the Provincial Court has jurisdiction to decide human rights issues under the Code , but argues that they appropriately addressed Mr. Kayembe’s allegation that he was arrested for a reason other than his breach of the Conduct Order. NWPD says OPCC made findings about all the facts necessary to address this issue, and the Tribunal should discourage his “forum shopping”.
[76] I am not satisfied that the substance of the complaint has been appropriately dealt with, in either the Provincial Court or the OPCC investigation. The only evidence before me about the basis for the Provincial Court’s decision is Mr. Kayembe’s evidence that the Court did not address his claim of racial discrimination, and the evidence that the City of New Westminster was seeking to have the claim dismissed for non-compliance with s. 736 of the Municipal Government Act . There is no evidence before me that the Court decided the same legal or factual issues that arise from Mr. Kayembe’s human rights complaint.
[77] The OPCC investigation found Officer JS did not abuse her authority, because she had sufficient cause to believe Mr. Kayembe committed an offence by breaching the Conduct Order. But the issue the Tribunal must decide is not whether Officer JS had cause to believe he breached the Conduct Order, but whether his race was a factor in his arrest and detention. The unredacted portions of the OPCC investigation report do not address Mr. Kayembe’s allegation that his race was a factor in NWPD’s decisions about him. The report notes that he alleged racial bias, and the investigator asked Officer JS if his race was a factor in any of her decisions. But when JS denied it, the investigator apparently had no follow-up questions, and there are no findings about Mr. Kayembe’s allegation of racial discrimination, in the unredacted portions of the report.
[78] The OPCC report says the decision to detain Mr. Kayembe was consistent with NWPD’s policy, in domestic violence cases where there is a significant risk of violence. However, the unredacted portions of the report do not include findings about the rationale for Officer JS’s determination that there was a significant risk of violence. I understand Mr. Kayembe’s allegation that there was not a risk of violence to be part of the substance of his complaint. It does not appear that the OPCC investigator considered whether Officer JS’s finding about that risk was justified.
[79] On the evidence before me, I am not satisfied that OPCC or the Provincial Court addressed the same dispute that arises from Mr. Kayembe’s human rights complaint. I dismiss the application under s. 27(1)(f) of the Code.
IV CONCLUSION
[80] I deny the application to dismiss. The complaint will proceed to a hearing.
Andrew Robb
Tribunal Member