Decision shows racial profiling as a form of everyday racism, confirms test for discrimination
The OHRC intervened in Peel Law Association v. Pieters, where the Court of Appeal overruled a Divisional Court ruling, and held that the Divisional Court applied an overly strict test for discrimination. In its June 2013 decision, the Court of Appeal found that the HRTO was reasonable in concluding that the claimants were discriminated against because of race and colour.
The case involved the treatment of two Black lawyers by a librarian in the Peel Law Association lounge in May 2008. Only “lawyers, articling students and students of law” were permitted in the lounge. The librarian approached them in an aggressive and challenging manner, and asked them to produce identification. No one else in the lounge was questioned and asked for identification. The HRTO found that the librarian falsely claimed that the reason she singled them out was because she knew everyone else in the lounge. There were two other people in the lounge who had never been there before and whom she did not know. One was not a lawyer.
The Court of Appeal confirmed the traditional three-part test for a prima facie case, as argued by the OHRC. It rejected the test applied by the Divisional Court. The Court of Appeal found that to establish a prima facie case, a claimant must show:
- That he or she is a member of a group protected by the Human Rights Code
- That he or she was subject to adverse treatment, and
- That the protected characteristic was a factor in the adverse treatment.
The OHRC argued that racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices, and is not limited to the law enforcement context. The Court of Appeal accepted this as a “sociological fact.”
The Court also reiterated the principle that there does not need to be direct evidence of discrimination – it will more often be proven by circumstantial evidence and inference.
The Court’s decision shows that racial profiling is a form of everyday racism. Racial profiling is about more than just traffic stops by the police. It is a phenomenon that is widespread in our society, and has many faces.
Taking stock of carding, community contacts
There has been much concern that the Toronto Police Service (TPS) practice of “carding” has a major impact on the African Canadian community, particularly young Black men, and could contravene the Human Rights Code. For the statistical story, see the Toronto Star’s in-depth series on carding, by Jim Rankin and associates, available online at www.thestar.ca.
In 2013-14, the OHRC took steps, in concert with community groups, to eliminate practices that could lead to human rights violations. Here are some highlights...
Community meetings: We attended community meetings around Toronto with the Law Union of Ontario, the Human Rights Legal Support Centre, Action for Neighbourhood Change Mount Dennis, and the York Youth Coalition. We provided public education on rights under the Code, the human rights system, carding and racial profiling. We continue to encourage affected community members to come forward and share their stories.
March 2013: We supported the decision of the Toronto Police Services Board (TPSB) to collect and analyze data on contact cards and the pattern of contact between the police and members of the community in general, including young people from certain racialized communities.
June 2013: We raised human rights concerns about carding at the TPSB, including:
- the gross over-representation of African Canadians in the Toronto Police Service’s contact card database
- how carding interactions are commonly seen as detentions or restraints of liberty
- how such stops may lead to unreasonable questioning, requests for identification, intimidation, searches and aggression.
We called for existing practices to be stopped until they could be completely and transparently assessed against the Code and the Charter.
November 2013: We again called on the TPS to stop carding until policies and procedures were fully developed and assessed against the Code and the Charter. We recognized several positive steps in the TPS’s Police and Community Engagement Review (the PACER Report), including:
- creating a standing community advisory committee to assess and address racial profiling
- doing community surveys to evaluate and address issues relating to public trust and racial profiling
- monitoring officer performance trends and indicators that may relate to racial bias
- reporting publicly on “Community Safety Note” related procedures and practices.
However, we still had major concerns about the TPS stopping individuals, asking for and recording their personal information and circumstances without clear and lawful criteria.
December 2013: We joined the PACER standing community advisory committee as regular members, and began working with the community and the TPS to implement PACER Report recommendations.
January 2014: We wrote to the TPSB about the independent legal opinion on carding it asked criminal lawyer Frank Addario to prepare. We called for Mr. Addario to assess the practice against the Charter and the Human Rights Code, and to look at concerns that in most cases, TPS officers cited “general investigation” as their reason for asking for, recording and storing personal information. These kinds of stops may lead to unreasonable questioning, requests for identification, intimidation, searches and aggression. Also, people who are stopped may feel they are not free to leave, and may not be told that they are free to leave.
We also asked that Mr. Addario consider the gross over-representation of African Canadians being issued contact cards in all Toronto neighbourhoods, including the patrol zones in which they live, and under the category of “general investigation.”
And once again, we called for carding to be stopped until clear and lawful criteria were developed and assessed against the Human Rights Code and the Charter.
April 2014: We made a deputation to the TPSB on its new Draft Policy on Community Contacts, citing it as an important step in its efforts to monitor and oversee reforms to the current approach to Community Contacts (formerly known as carding). We acknowledged the value of surveys to gauge public satisfaction regarding street checks, and collecting data in a separate database to monitor for racial bias in street checks.
The policy addressed several important issues, but our human rights concerns remained. We again called for the practice of arbitrarily stopping individuals and recording and retaining their personal information and circumstances to be stopped. We saw no indication in the policy about how officer discretion would be constrained to avoid racial profiling, and called on the TPSB to clearly define terms such as “ensuring public safety,” “meet and greets,” “community inquiries” and contacts that are prohibited.
We also called for clear penalties for inappropriate contacts. Real accountability requires penalties up to and including dismissal when officer behaviour is consistent with racial profiling.
The Board listened to concerns raised by the OHRC and other advocacy and community groups and came back with a revised Draft Policy for consideration on April 24. They set out a definition of “public safety” and disciplinary measures if the policy is breached.
However, a new clause seemed to bring us right back to where we started. The clause said that “collecting intelligence relating directly to an identifiable, systemic criminal problem and pursuant to a Service or Division-approved initiative” was a valid public safety purpose justifying initiating or recording contacts. It suggested that just being in a high-crime neighbourhood was a good enough reason for someone to be stopped and their personal information recorded and kept on file.
The OHRC and community and advocacy groups, including the Law Union of Ontario, the Black Action Defense Committee and Justice for Children and Youth, were united in calling for the clause to be deleted. We told the TPSB that the clause would continue to permit officers to arbitrarily stop people and record and retain their personal information – with the same disproportionate impact on African Canadians.
The TPSB listened. They deleted the clause and they added a provision requiring receipts.
The result is a policy that, if effectively implemented, should help limit officer discretion, reduce racial profiling and increase community trust. Good implementation, including data collection, clear procedures with close monitoring and effective training, is key to making this work.
We are ready to assist the Board and look forward to continued work with the Service through the PACER Advisory Committee to implement the policy. We will also continue to work with affected communities to help eliminate racial profiling from the streets of Toronto.
This year in history
Nassiah v. Peel (Regional Municipality) Services Board
The Nassiah case was one of the first HRTO cases dealing with racial profiling. In February 2003, Peel Police were called to investigate a possible shoplifting allegation at a large department store in Mississauga. The HRTO found that Ms. Nassiah, a Black woman, was subjected to a more intensive, suspicious and prolonged investigation because of her race. In other words, she had been subjected to racial profiling.
She had been wrongly apprehended by store security on suspicion of stealing a low-priced item despite her repeated and impassioned denials, and a Peel Police officer conducted a discriminatory investigation that included:
- stereotypically assuming that a Black suspect might not speak English
- assuming that the White security guard was telling the truth and that the Black suspect was not, without properly looking at all the evidence, including a videotape of the alleged theft, which exonerated her
- adopting an “assumption of guilt” approach to the investigation by immediately demanding that Ms. Nassiah produce the missing item
- unnecessarily arranging for a second body search after the first one had shown she did not have the allegedly stolen item
- continuing with the investigation, rather than releasing Ms. Nassiah, even after the second body search confirmed that she did not have the stolen item
- spending up to one hour pursuing an allegation of theft, in the face of fragile evidence, for an item worth less than $10.
The HRTO also found that the police officer subjected Ms. Nassiah to verbal abuse, and threatened to take her to jail if she didn’t produce the missing item. The police and store security ultimately released Ms. Nassiah after they concluded that they had made an error. The HRTO stated that racial profiling is a form of racial discrimination, and that it is against the Human Rights Code for police to treat persons differently in any aspect of the police process because of their race, even if race is only one factor in the different treatment. The HRTO also noted the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual “bad apples” but part of a systemic bias in many police forces.
Saying no to racial profiling: Phipps v. Toronto Police Services Board
In a decision in a complaint by Ron Phipps, who is Black, the HRTO ruled he had been subjected to racial profiling in 2005 by a Toronto Police officer. The officer stopped Phipps when he was delivering mail in an affluent Toronto neighbourhood, checked with a homeowner Phipps spoke to, trailed him and checked his identity with a White letter carrier. The OHRC intervened in this case.
In a 2010 decision, the HRTO said that although there was no overt racism, it did find that racial profiling had occurred. It said this incident served as an important reminder that racial profiling exists and is not acceptable in policing or security. It also confirmed that racial profiling can be a systemic act that people are not even aware they may be doing.
The OHRC’s work on racism and racial profiling has been a driving force in its activities with police and corrections services across Ontario.