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Tribunal dismisses BDSM complaint

But leaves door open for BDSM protection

The BC Human Rights Tribunal has dismissed the complaint of a BDSM lifestyler who says police denied him a chauffeur’s permit because of his sexual orientation.

However, the tribunal deliberately declined to rule on whether BDSM qualifies for protection from discrimination under BC’s Human Rights Code.

Instead, the Nov 23 ruling says the tribunal “assumed, without deciding, that BDSM could constitute a ‘sexual orientation’ protected by the Code.”

“I think the important thing flowing from this case is that the tribunal has left the question of whether BDSM identity could constitute sexual orientation open for another day,” Peter Hayes’ lawyer, Lindsay Waddell, told Xtra on Nov 23.

“It’s unfortunate that they didn’t stray into the definition of sexual orientation, but at least they didn’t draw any negative conclusions about that.

“That is something that I have no doubt will be tested by the tribunal again,” she adds.

Vancouver police had tried to stop the tribunal from hearing the more than five-year-old case, arguing that the Human Rights Code doesn’t protect BDSM players from discrimination.

Both the BC Supreme Court and the Court of Appeal dismissed that argument and sent the case back to tribunal for a hearing.

The case stems from Hayes’ allegations that Const Kevin Barker discriminated against him during an interview for a chauffeur’s permit because he is a pagan involved in a “cult-like” relationship based on a “master/slave dynamic.”

“He just wrote me off. He said I was involved in a sex cult; that’s it, end of discussion,” Hayes testified before the tribunal in April 2009.

Hayes accused Barker of being “completely irrational, unprofessional [and] aggressive,” adding that he wished there was a video of the meeting.

In her opening submission to the tribunal, Waddell explained her client’s identity as a BDSM lifestyler means he not only participates in BDSM activities, but that BDSM practice is a core part of his identity and being.

But Barker testified that Hayes “didn’t say anything about being involved in BDSM or talk about paganism,” the ruling notes.

Barker also testified that he doesn’t consider an applicant’s religion in reviewing applications.

The tribunal pointed to separate police reports of incidents involving Hayes that Barker said he relied on in denying Hayes a chauffeur’s permit.

The first incident in 1994 ended up in court where Hayes was acquitted of charges related to sexual touching and sexual assault. The second, in 2003, involved a neighbour’s allegation that Hayes posed naked in his apartment, but no charges were laid. A third, also in 2003, was a domestic incident involving Hayes and a former girlfriend but neither laid any charges.

It was the Oct 13, 2003, domestic call that referred to master-slave that “jumped out” at him, Barker testified.

In Barker’s view, “it spoke to the power relationship in a domestic situation,” the tribunal found. Barker felt Hayes “acted inappropriately in certain relationships, and that he didn’t have any intention of changing his behaviour.”

“In the end, Const Barker was clear that, before the interview, there was ‘no true room for us to do something different’ than refuse the permit,” the tribunal found.

Barker’s preconceived determination that Hayes was unsuitable for a permit “may have been unfair,” the tribunal continued, “but unless it was discriminatory, it is not an issue over which we have jurisdiction.”

The tribunal acknowledged that Barker’s and Hayes’ accounts of the permit interview diverged “at times markedly.”

“Where Mr Hayes’ evidence conflicts with Const Barker’s, we prefer Const Barker’s evidence,” the tribunal decided.

“Rather than being ‘completely unprofessional, snarky and demeaning’ as described by Mr Hayes, Const Barker struck us as someone who did things by the book, had a calm confidence in both the inherent validity of police reports and his own judgment about risk,” the ruling says.

By contrast, the tribunal said the discrepancies between Hayes’ written statements and his testimony “negatively affect our assessment of his credibility, and consequently our ability to rely on his testimony in this and other matters.”

Hayes had trouble recalling what was said four years ago and who said what, the tribunal noted. And at least one of Hayes’ written statements accusing Barker of discrimination struck the tribunal as “inherently unlikely.”

“We consider it unlikely that Const Barker ever expressed himself to such an effect or in such terms,” the ruling says.

“It is not part of our task to determine whether Mr Hayes, in fact, engaged in any of the behaviour referred to in the police reports, or whether Const Barker’s assessment of risk was accurate,” the tribunal noted.

“The question for us is whether Const Barker raised that information, and acted on it, out of concern that it might indicate a propensity for violence, coercion or inappropriate behaviour in relation to vulnerable people.”

Hayes was denied a permit because the police believed, “perhaps wrongly,” that he was unfit to be a chauffeur because he presented an “unacceptable risk of inflicting violence, practising coercion or behaving inappropriately with those whom he would necessarily come into contact in the course of his work,” the tribunal found.

In denying Hayes a permit, police “did not know or believe that he was a BDSM lifestyler, and they did not unfairly attribute to him negative characteristics of such an orientation,” the ruling concludes.