HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Jacqueline Nassiah Complainant
-and-
The Regional Municipality of Peel Services Board and Richard Elkington Respondents
DECISION
Adjudicator: Kaye Joachim
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Raj Dhir and Prabhu Rajan, Counsel Jacqueline Nassiah, Complainant ) Davies Bagambiire, Counsel Peel Regional Police Services, ) Ann Dinnert, Counsel Richard Elkington, Respondents )
BACKGROUND
1The Complainant, Jacqueline Nassiah, alleges that on February 18, 2003, Richard Elkington, a police officer with the Peel Regional Services Police Board (Peel), discriminated against her in the provision of a service in the manner he conducted his police investigation into an allegation that she had stolen a bra from a Sears store.
DeciSION
2I find that Officer Richard Elkington and Peel discriminated against Ms. Nassiah on the basis of race in the provision of a service on February 18, 2003. I find that Officer Elkington asked whether Ms. Nassiah spoke English in part because she is Black. He was more suspicious and his investigation was heightened because she is Black. In addition, he called her a "fucking foreigner" during the investigation and threatened to take her to jail if she did not produce the bra.
SUMMARY OF KEY EVIDENCE
3I heard from 12 witnesses over 13 days, between June 2006 and March 2007. I will set out the evidence of the key witnesses before assessing issues of credibility.
Ms. Nassiah's Evidence
4Ms. Nassiah is a Canadian Black woman. On February 18, 2003, she went to the Sears store in the Dixie Mall in Mississauga to purchase some bras to send to her sister in Trinidad. She tried on a couple of bras and bought four bras. After she left the Sears store, she was stopped by a Sears security guard (John Nevers) who accused her of stealing merchandise.
5She was shocked; she offered to show him her purchases and receipt but he did not check. She accompanied him back to the security office where Mr. Nevers immediately called the police, reporting that he had caught a "Black female" stealing a bra. Mr. Nevers asked her to sign a document which she refused to do until the police arrived.
6Ms. Nassiah testified that she felt uncomfortable in the office with the male security guard and asked for a female employee to be present. Maria Santos, a sales clerk, was called to the office. Ms. Nassiah suggested that Ms. Santos search her to prove that she did not have a bra. Ms. Nassiah was wearing pants with no pockets, a pullover sweater, boots, and a winter coat. She showed Ms. Santos that there was no bra in her pockets; she took off her boots and lifted up her sweater to show that the bra she was wearing was not a stolen bra. Ms. Santos told Mr. Nevers that Ms. Nassiah did not have the bra on her. Ms. Nassiah testified that after this Ms. Santos left her alone with Mr. Nevers again.
7Ms. Nassiah was very upset, crying and kept asking Mr. Nevers to "look in the bag." A mall security officer (Brian DeSousa) came into the security office during this time, and joined Mr. Nevers in looking at the video. Mr. DeSousa approached Ms. Nassiah and told her to make it easy on herself and tell them where the bra was and she again denied having the bra.
8At one point Ms. Nassiah asked Mr. Nevers if she could call her babysitter to explain why she was late but was told that the only call she can make was to her lawyer. She asked if she could see the video but Mr. Nevers did not permit it. At another point, he told her to "shut up."
9About an hour after having first been detained, a police officer (Richard Elkington) arrived. According to Ms. Nassiah, the officer opened the door, looked around the room and asked to speak to Mr. Nevers outside; as they left, she heard him ask Mr. Nevers "does she speak English?" She felt humiliated.
10After five to ten minutes, the officer entered the room. His first words to her were "where's the bra?" Ms. Nassiah denied stealing a bra and told him she had a receipt for the bras in the bag. She testified she told him she had already been searched. When the officer asked for identification, she gave him her driver's licence and he left the security office.
11When he returned, he asked her in a hostile tone, "where's the bra?" Ms. Nassiah cried as she denied stealing the bra and asked him to look in her bag, which he did.
12However, he persisted in asking her to "produce the bra". Ms. Nassiah testified that he said, "if you don't tell me where the bra is I am going to take you down and you will spend the night in jail."
13Officer Elkington went into the video room (presumably to view the video, but she could not see what they were doing in there); when he returned he asked again, "where's the bra."
14He arranged for Ms. Nassiah be searched by a female employee, although Mr. DeSousa advised him that Ms. Nassiah had already been searched. Suzanne Narcisco was called to the office and asked to search her while Officer Elkington and Mr. Nevers remained in the adjacent video room. Again, Ms. Nassiah demonstrated that she was not wearing the bra, nor was it concealed in her boots, her pants or her coat. Ms. Narcisco advised the officer nothing was found.
15Officer Elkington then asked what was in her coat pocket and she said she gladly took her coat off and gave it to him. She had $600 in cash in her coat pocket; when Officer Elkington asked about it, she said the $600 was a gift for her parents in Trinidad.
16At this point, Ms. Nassiah testified that Officer Elkington leaned towards her and said "fucking foreigner...if you don't tell me where the bra is I'm going to take you down" or "downtown". Ms. Nassiah said "as God as my witness I did not steal the bra." To which Officer Elkington sarcastically replied, "God is all of our witnesses".
17Ms. Nassiah asked what was on the video and Officer Elkington told her that she was seen going into the change room with two bras and seen coming out with one bra. Ms. Nassiah said that what had probably happened is that she had both bras in her left hand, because she is left handed. Officer Elkington immediately left and returned to the video room. When he returned he said "I'm letting you go; we don't have enough evidence to proceed."
18Ms. Nassiah was still crying and asked why she had not even been permitted to call her babysitter; Officer Elkington told her that was normal procedure but that she could call now if she wanted. She testified that she tried to call but was crying so hard the officer took the phone and gently put it down so she could compose herself. She eventually called her sitter to say she was on her way.
19Then Officer Elkington asked her to sign his notebook. She testified that the pages were blank when she was asked to sign; he said this was normal procedure so she signed the blank page. Officer Elkington asked how she felt she had been treated and she said "okay." She refused his offer to escort her to her car.
20She went to her babysitter's residence to pick up her son and then drove to her apartment, where her brother Glen was waiting for her in the parking lot. Ms. Nassiah told him what she had undergone. During the retelling, she realized that the receipt from the Sears bag was missing. Her brother was upset with her for signing a blank notebook and suggested they go back to the mall immediately to get the receipt. They returned to the Sears store and confronted Mr. Nevers. Mr. Nassiah told Mr. Nevers that it was not fair the way he (Nevers) had treated his (Nassiah's) sister and accused him of calling Ms. Nassiah a "fucking foreigner." She intervened saying it was the Officer, not the guard, who had said that.
21Mr. Nevers said the officer had the receipt, so they left Sears. On the way out, they saw Mr. DeSousa who said that Ms. Nassiah had not been treated fairly. He offered his card, and offered to help if they wanted to take matters further. Mr. DeSousa was also able to supply the name of the officer.
22Ms. Nassiah testified that she was so worried about the receipt that she called the police station that evening and asked to speak to Officer Elkington. He got on the line and she told him she would like her receipt. He offered to drop it off and she gave him her address. She promptly called back and spoke to Officer Elkington again, asking him to leave the receipt with her building superintendent, because she was afraid of him knowing her apartment number.
Richard Elkington
23Richard Elkington is a White police officer. He worked as a police officer for eight years in Leicestershire, England before moving to Canada. He was hired by Peel in 2002. After receiving basic training, he was assigned regular police duties in September 2002. He received three commendations including one for a thorough investigation he made concerning an alleged abduction of a school-aged teenager. He has since moved to the Sudbury police force for family reasons.
24Peel's computerized dispatch records indicate that Peel received a call on February 18, 2003 at 5.40 p.m. from a "John Sears" [sic] reporting a "shop theft." The incident report notes "ADULT FML FOR SHOPLIFTING." Officer Elkington was dispatched at 5.58 pm and arrived at the mall at 6.14 pm.
25Officer Elkington testified that when he arrived he met Mr. Nevers outside the security office. Mr. Nevers advised him that he seen Ms. Nassiah on the video camera entering the change room with two bras and exiting with one bra. Officer Elkington ordered a search of the change rooms, and asked that someone retrace the route taken by Ms. Nassiah to and from the change room.
26Then he went into the security room; as he did so, he asked Mr. Nevers, "does she speak English?" Officer Elkington testified that he had by this time seen Ms. Nassiah and could see that she was Black. On cross-examination, Officer Elkington conceded that one factor in his asking the question was that she was Black.
27Officer Elkington also conceded that in hindsight, he could understand how Ms. Nassiah, as a Black woman, would be offended by a White police officer and a White security officer discussing whether she was capable of speaking English. At the time, however, he did not see this as an inappropriate question.
28Officer Elkington testified that he introduced himself to Ms. Nassiah and explained that he was there to investigate the theft. He asked where the bra was. In his view, this was a neutral question. He testified that Ms. Nassiah was upset and denied stealing anything.
29He then asked her for identification and she provided her driver's license. He returned to his vehicle and contacted Peel to conduct three checks: a criminal record check, a traffic offence check and a "suspicious activity" check. All were negative.
30He returned to the security room and looked into the Sears bag and noted that there were four black bras and a receipt for four black bras. He concluded that the stolen bra was therefore not in the bag. However, that did not exonerate Ms. Nassiah in his mind, as she could have stolen a different bra; in his experience, a suspect may legitimately purchase some goods as a ruse for stealing other goods.
31In his mind, he was eliminating various possibilities about where the bra could be: the change room, the surrounding area, the Sears bag. That left the possibility that the bra might be concealed on Ms. Nassiah. Officer Elkington then arranged for Ms. Nassiah to be searched. He testified that he had not been advised by anyone that Ms. Nassiah had been previously searched and nothing found. Ms. Narcisco conducted a search of Ms. Nassiah and reported that nothing was found.
32After she was searched, Officer Elkington approached her and asked for her coat which she handed to him. He searched the pockets and found a wad of bills; he asked her about them and she responded that it was a gift for her parents, an explanation he accepted.
33Officer Elkington viewed the video several times during the investigation. He testified that Mr. Nevers cued the video each time and showed him those portions where Ms. Nassiah was seen entering the fitting rooms with two bras and then seen apparently leaving with one bra. He did not view the entire video until the last viewing. When he finally viewed the video to the end, he discovered what appeared to be two tags hanging from Ms. Nassiah's hand. He concluded that Ms. Nassiah had exited the change room with two black bras. He pointed this out to Mr. Nevers, who exclaimed "oh wow." Officer Elkington returned to Ms. Nassiah and advised her that the evidence showed she did not steal any bra and that she was free to go. He apologized for the delay caused to her. He asked Ms. Nassiah to sign his notebook and she did so. He offered to walk her to her car, but she declined.
34Thus, according to Officer Elkington, he arrived at Sears at 6:14 p.m. and released Ms. Nassiah by about 7:00 p.m. He remained at the store and spent about fifteen minutes with Mr. Nevers ensuring that Nevers understood that the evidence clearly demonstrated Ms. Nassiah's innocence. He called Peel at 7.16 p.m. (confirmed by exhibit 24) indicating that "report of theft unfounded on proper examination of video tape no items stolen or concealed. Detained party released unconditionally at the scene." He stopped at Tim Horton's for a cup of coffee before returning to his vehicle and advising that he was ready to receive another call, at 7:31 p.m. (confirmed by exhibit 24).
35He denied using a hostile or badgering tone, calling her a "fucking foreigner", threatening to "taking her down" or any other derogatory remarks. He also denied asking Ms. Nassiah to sign a blank notebook.
36He did not take Ms. Nassiah's receipt although he did recall at one point Ms. Nassiah contacting him to demand one. He merely advised her he did not have it.
37I also heard evidence about the events of February 18, 2003 from Glen Nassiah, the Complainant's brother, John Nevers, the Sears security guard, Suzanne Narcisco and Maria Santos, Sears sales associates.
Glen Nassiah
38Glen Nassiah is Jacqueline Nassiah's brother. He testified about Ms. Nassiah's initial and ongoing emotional reaction to the events of February 18, 2003. He confirmed that he met his sister the same evening and that she reported the whole story related above, including the "fucking foreigner" comments and the threat to take her to jail. He testified that he returned to the mall with her that evening and confronted John Nevers, accusing him of calling his sister a "fucking foreigner," which Mr. Nevers denied.
John Nevers
39John Nevers worked as a part-time security guard (also known as a loss prevention officer) for Sears from 2000 until 2006. He is White. On February 18, 2003 he was surveying the store through one of the six closed circuit television cameras placed in the ceilings throughout the store. He began watching Ms. Nassiah and then saw what he believed was a suspicious sign – she glanced around as though to see if someone were watching her (in fact what had caught Ms. Nassiah's eye was another customer passing by). He continued to focus on her. He saw her pick up what appeared to be two black bras and head towards the fitting room.
40He trained his camera on the fitting room to watch her when she emerged. Ms. Nassiah emerged from the fitting rooms carrying what appeared to be one black bra.
41Mr. Nevers concluded that he had video evidence of Ms. Nassiah entering the fitting room with two black bras and leaving the fitting room with one. He contacted Maria Santos, a sales associate near the fitting room, and asked her to check if there was a black bra in the fitting room; she called back indicating there was not. Mr. Nevers then left the security room and checked the fitting room himself.
42Mr. Nevers kept an eye on Ms. Nassiah as she proceeded to the cash and left the store. He followed her outside the store, detained her and brought her to the security office. He testified that on his way to the security office he stopped and asked Ms. Santos to accompany him, in accordance with store policy that a female associate must be present when a female suspect is detained.
43In the security office, Mr. Nevers stated that he opened a binder on his desk containing the standard form of rights and read them to her. He asked her where the bra was. She denied having it. He asked Ms. Santos to go with her to the washroom and check for the bra. Ms. Santos reported that Ms. Nassiah was not wearing a black bra, but was wearing a pink bra. This caused him to doubt his arrest, since he assumed the only place she could have the bra was on her person.
44He then asked her for identification and when Ms. Nassiah refused to provide any he called the police. While waiting for the police to arrive, he began to complete his paperwork. At one point he asked Ms. Nassiah to sign the Notice of Apprehension form indicating that he had read her her rights, but she refused.
45He testified that Ms. Nassiah was upset, but not crying; he denied telling her to shut up. He agreed she asked to call her babysitter, but he denied that request as it was store policy not to permit any phone calls except to a lawyer.
46He testified that at some point Ms. Santos indicated she could not stay, so he contacted Ms. Narcisco to attend. He denied ever being alone with Ms. Nassiah in the security office.
47Once Officer Elkington arrived, Mr. Nevers spoke with him outside the office advising that he had video evidence of the suspect entering the change room with two bras and exiting with one. Officer Elkington asked if Ms. Nassiah spoke English as they were entering the office and Mr. Nevers confirmed that she did.
48Once Officer Elkington arrived, Mr. Nevers remained in the adjacent video room. He was shocked when Officer Elkington showed him the presence of two bras in Ms. Nassiah's hand on the video.
49Later that evening, Ms. Nassiah returned with her brother who accused him of arresting Ms. Nassiah because she was Black and calling her a "fucking foreigner." He denied the allegations. He did not recall Ms. Nassiah correcting her brother that it was the officer who had said that.
50Ms. Santos and Ms. Narcisco were also called to testify about the searches they performed and whether one or the other of them were present in the office with Mr. Nevers and/or Officer Elkington. For reasons I will explain shortly, I do not find their evidence useful or reliable.
51The key witnesses of what transpired in the security office on February 18, 2003 between approximately 5:40 p.m. and 7:16 p.m. are Ms. Nassiah, Officer Elkington and John Nevers.
Test for Credibility
52Their dramatically differing accounts cannot be reconciled by fading memories, confusion or mistake. Someone is not telling the truth. In assessing the evidence I have used the traditional test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):
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 demeanour 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 is 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.
53In assessing the credibility of the differing versions of events I was assisted by documents prepared contemporaneously or soon after the events, including the computerized police incident reports (exhibits 18 and 24), the letter of complaint written February 19, 2003 (exhibit 7), the human rights questionnaire dated March 2003 (exhibit8), Officer Elkington's notebook (exhibit 13), the Respondent's response to the initial complaint (exhibit 20), the statements and notes written by John Nevers (exhibits 23 and 37) and Maria Santos on February 18, 2003 (exhibit 25) and the video tape recording (exhibit 6) of the suspected theft.
Assessment of the Evidence
Ms. Santos
54I discount the oral evidence of Ms. Santos. Ms. Santos candidly conceded during the hearing that she had almost no recollection of the events of February 18, 2003 when she was giving evidence over three and one-half years later. She was completely amenable to whatever suggestion was put to her, agreeing at one point that she had searched Ms. Nassiah and agreeing at another point that perhaps she had not searched Ms. Nassiah after all. She agreed she had discussed the events with Ms. Narcisco and Mr. Nevers and that she may have been influenced by their versions of events. I do not find the brief note from a Commission investigator any more useful as Ms. Santos noted that when she spoke to the investigator by telephone in January 2005, she was sleep deprived from having recently had a baby and did not know what she was saying. Thus, I find that Ms. Santos can neither reliably confirm, or deny, whether she was present in the office with Mr. Nevers and Ms. Nassiah. She did sign a brief statement for Sears on February 18th, 2003, which confirmed that she had been asked to check the change rooms and had advised Mr. Nevers that no bra was found there. I find that this is a reliable piece of evidence, as Ms. Santos wrote this when the events were fresh in her memory.
Ms. Narcisco
55I discount the evidence of Ms. Narcisco for similar reasons. More than three years had passed since the events in question and she had had discussions with Mr. Nevers and Ms. Santos about what had happened in preparation for the hearing. Ms. Narcisco also conceded that the passage of time had affected her memory of events. Ms. Narcisco was often confused about whether she was actually remembering the events, or assuming that events had transpired a certain way because that was what Mr. Nevers or Ms. Santos had told her. In particular, I put no weight on her assertion that she was called to be present during the entire investigation (after Ms. Santos left) and remained present during the entire investigation. I find that Ms. Narcisco was confused between whether she actually remembered being present, or thought she must have been present, because it was store policy that a female should be present. Again, I find that Ms. Narcisco cannot reliably confirm or deny whether she was present in the office with Mr. Nevers and Ms. Nassiah or with Officer Elkington and Ms. Nassiah.
56I did not find either of these witnesses to be untruthful; they were simply unable to provide any reliable evidence.
Mr. Nevers
57Mr. Nevers' evidence must be approached with a great deal of caution. In addition to the passage of time, and his going over the evidence with his colleagues, he had made a serious mistake in apprehending Ms. Nassiah and faced potential employment consequences. He had every motivation to downplay his mistake and explain his own actions as reasonable and in accordance with store policy. He also had reason to be grateful to Officer Elkington who assured him that his mistake was understandable and that he would "look after this." I find that the most reliable evidence from Mr. Nevers can be found in notes he made in his personal notebook that evening and a written statement he wrote that day. I recognize that, even this early on, Mr. Nevers was likely to tailor his notes in his own favour and so those notes cannot be viewed as entirely reliable. I note in particular that Mr. Nevers wrote in a statement that day that "the accused admitted that she had the bra on. The accused was taken to the washroom with a female employee where she had on a pink bra." He could not explain at the hearing why he had written that as he confirmed at the hearing that Ms. Nassiah had never admitted taking the bra and indeed vehemently denied having stolen the bra.
58Nonetheless, his written notes and statement from February 18 document that he saw Ms. Nassiah going into the change room with two bras and coming out with one; that he asked Ms. Santos to check the change room and checked the change room himself, that he detained Ms. Nassiah, that he asked her for identification which was refused and that he called the police. He asked Ms. Santos to conduct a search of Ms. Nassiah, which was done and nothing was found. He returned to the office and waited for the police. After Officer Elkington arrived, Ms. Nassiah was eventually released when it was discovered that the video showed she had two bras in her hand after leaving the changeroom. He also noted that Ms. Nassiah's brother accused him that very evening of arresting her because she was Black and calling her a "fucking foreigner." I accept that portion of his evidence that is consistent with the above notes.
The videotape
59The videotape concerning Ms. Nassiah began recording (according to the video's time clock) at 5:29 p.m. and ended at 5:34 p.m. (approximately five minutes). Mr. Nevers begins surveying Ms. Nassiah in the bra section. She can be seen picking up black bras and inspecting them. She turns with two black bras in her hands and moves towards a salesperson. The view of Ms. Nassiah is lost momentarily either by a post or because of a change to a different camera. The camera picks Ms. Nassiah up again as she follows a salesperson towards the changeroom. The camera loses sight of her momentarily. There is no footage of her actually entering the changeroom. The camera remains focused on the fitting room exit for about two minutes. When Ms. Nassiah exits the change room, the bottom half of her body is not clearly visible. She makes some movement with her hands, which is obscured by clothes racks blocking the camera's view. It is impossible to see whether Ms. Nassiah had anything in her hands immediately upon exiting the change room.
60The view of Ms. Nassiah is again momentarily obscured. The camera picks her up again back at the bra section. She appears to be holding a black bra in her left hand. It is unclear whether there is one bra or more than one bra in her left hand.
61She picks up another black bra in her right hand and inspects it. As the bras in her left hand move, two tags become visible which indicates that she is holding two bras in the left hand. At one point she moves a black bra from her left hand to her right hand, leaving a black bra in the left hand. Thus, she must have held two bras in her left hand. There are three bras briefly visible at this point.
62I find that the section of the videotape where Ms. Nassiah is holding the two bras in her left hand is not clear and it was an understandable mistake that Mr. Nevers thought she may have held one bra in her hand at that point. However, it is puzzling to me why Mr. Nevers (and later Officer Elkington) were so certain that the videotape showed a theft.
63The views of Ms. Nassiah entering and exiting the fitting rooms are blocked or interrupted several times. She may have discarded one bra on the way to the fitting room. She may have exited the fitting room with two bras and put one down before the camera located her again.
64While the video tape may reasonably have given rise to a suspicion on Mr. Nevers' part that Ms. Nassiah had taken two bras into the change room and exited with one, it was not, by itself, evidence of theft. Unless the bra was actually found on Ms. Nassiah's person, there was no possibility that a charge of theft could be proven, based on the videotape alone. I find it highly unlikely that a police officer would charge anyone with theft on the basis of the video.
65The frailties of the videotape, as evidence of theft, are factors to be considered in assessing the reasonableness of Officer Elkington's investigation.
The evening of February 18th, 2003
66Jacqueline and Glen Nassiah and John Nevers agree they (the Nassiah's) returned the evening of February 18, 2003 and accused Mr. Nevers of calling Ms. Nassiah a "fucking foreigner."
67This gives rise to various possibilities. Ms. Nassiah might have, on the way home after her incident with Mr. Nevers and Officer Elkington, embellished, exaggerated or outright fabricated the comment and falsely told her brother it was made, leading him to inaccurately accuse Mr. Nevers of making the statement. Or, Glen Nassiah mistakenly or deliberately made up this statement when confronting Mr. Nevers and Ms. Nassiah subsequently adopted it. Third, the comment was made by Officer Elkington, related by Ms. Nassiah to her brother, who angrily confronted the wrong person with the accusation.
68The probability of these various scenarios can only be understood in the context of other evidence.
The letter of February 19, 2003
69The next day, Ms. Nassiah went to work at the Oakville Life Care Centre. Ann Haughton was Ms. Nassiah's supervisor until she (Haughton) left the facility in September 2003. Since that time, she had not been in contact with Ms. Nassiah or anyone connected with these events until she was contacted by Peel and asked to give evidence at this hearing. Ms. Haughton had no interest in the outcome of these proceedings and no reason to tailor her evidence in any way. I found her evidence very reliable. Ms. Haughton testified that Ms. Nassiah was visibly upset on February 19, 2003 and explained what had happened to her the evening before. Ms. Haughton felt that the events were quite serious as Ms. Nassiah related them and urged her to write a letter to the police about it. Ms. Haughton did an internet search and found the name of Inspector Dineen of 12th Division, Peel Region. She listened to Ms. Nassiah's tale several times and drafted a letter on Ms. Nassiah's behalf. She did not recall whether she provided the printed letter or a disk with the letter on it to Ms. Nassiah.
70When shown a copy of the letter at the hearing, Ms. Haughton agreed that she had written about 90 per cent of the letter. There were a couple of paragraphs she could not recall specifically drafting, particularly the reference to racial profiling. In her view, she was unlikely to have written those words because she did not believe she was familiar with the concept of racial profiling in 2003. However, she agreed that the language, even in that paragraph was much more similar to her way of speaking and writing than Ms. Nassiah's. I find that Ms. Haughton drafted almost all, if not all, of the letter on February 19, 2003, based on Ms. Nassiah's retelling of the events. The letter in its entirety is reproduced below, verbatim:
Feb 18, 2003
Dear Inspector Dineen,
This letter comes to you with a heavy heart, from a Canadian, and proud to say, a contributor to Canada, in terms of my work, my church, my social life.
This evening after work I went into Sears at Dixie Mall, to pick up something for my sister. It was underwear (bra's). Since she is a bigger woman that I, I tried on the underwear in the fitting room, and determined the underwear would fit her. I had two items.
Out of the cash I had in my pocket ($600.00) I paid for the items, but as I was leaving the store a security guard to my embarrassment, stopped me saying I was on tape as having stolen an item of underwear.
I informed him I had paid for the merchandise I had, but he took me to a room, where a woman searched my clothing and person.
They were not satisfied, so a policeman was called.
Officer Elkington's (badge number 2570) arrived and opened the door to the room where I was being held. He looked in and then turned around to the security guard and asked without speaking to me, "Does she speak English?"
He was told I did.
They then went and discussed the incident.
On Officers Elkington's return, he repeatedly asked, 'Where is the bra?" He then left again to view the tape. On his return he said to me "where is the bra you fucking foreigner" He also threatened that if I didn't tell him where the bra was he would arrest me and I would spend the night in jail.
I reiterated to the officer that I didn't have any items that I hadn't paid for. I then asked the guard if I could call the babysitter, since my boy was there, and they were expecting me. I was held for 2 hours and no one in the family knew where I was, since I wasn't allowed to contact anyone "except" said the guard "a lawyer"
The police officer and the guard said I was recorded on videotape as having taken the item. I said that perhaps if they looked again, they might see that the items were in one hand, I believe my left, since I'm left handed.
After time had passed and they knew I hadn't taken anything, the officer was totally different with me, suddenly he knew my first name, and became quite ingratiating and wanted to escort me to my car. I refused his offer.
I was shocked, frightened and humiliated by this officer's verbal aggression towards me.
I'm not a person who speaks to people in this manner, and neither do I expect to be treated in this manner, especially by a police officer.
There are two very serious issues at hand:
a I was accused wrongly, and indiscriminately held, without being allowed to inform my family where I was for 2 hours
and even more seriously:
b I was the victim of verbal abuse and racial profiling by a Peel Region Police Officer.
I've seen these topics in the papers and heard it on the news, and have been a little dubious about its origin, but now I understand why the black community in Mississauga and the GTA feels the way it does towards the police in these municipalities.
I am leaving this in your hands for now, until such time as I think it through further, and decide which road to take.
This is not the Canada I came to, to make a good life for my family; this is not what my understanding of the police service was.
I trust you will have a response to these issues, and await your reply.
Sincerely
Signed
"Jacqueline Nassiah"
71It is possible that Ms. Nassiah made up the "fucking foreigner" and jail references that evening and interspersed these falsehoods into the otherwise factually accurate, largely undisputed, account of the events. Or, the comments were actually made and she accurately reported them to Ms. Haughton the next day.
72Inspector Evans (formerly Dineen) testified that she was the Inspector at Peel 12th Division at that time and did not receive the letter. I found her evidence to be straightforward and credible. However, nothing turns on this, as it is possible that either the letter was not mailed or never reached its destination. What is important is that the letter was written by Ms. Haughton the day after the events, based on Ms. Nassiah's reporting it to her.
Human Rights Questionnaire dated March 17, 2003
73One month after the events, Ms. Nassiah obtained a lawyer and filed a human rights complaint questionnaire. In this more detailed questionnaire, Ms. Nassiah indicated that she had asked for a woman to be present. I find that the fact Ms. Nassiah made this claim long before it was a point of dispute between the parties is significant.
Respondents' response, approximately September 2003
74A complaint was served on Peel Regional Police in September 2003 and their initial response, after obtaining a statement from Officer Elkington, included a complete denial of the "fucking foreigner" statement, and the threat to take her downtown. The response acknowledged the question "does she speak English" but denied that a second search took place. The response acknowledges, "It was at this point that the Complainant offered (my emphasis) that it may have appeared she stole the bra because she exited the change room with both bras in the same hand. Upon hearing this explanation, Officer Elkington determined to view the videotape again in order to corroborate her explanation." I accept that Officer Elkington has been consistent in his denials of making the comments above. I also find that initially, the Respondents accepted that Ms. Nassiah was the one who first suggested a solution to the apparently missing bra.
Findings of Fact
The "Fucking Foreigner" and Jail Comments
75Weighing the competing oral testimony of Ms. Nassiah and Officer Elkington, and the written documents recorded by the key witnesses in the early hours, days and months after the events, I find it more probable than not that Officer Elkington did call Ms. Nassiah a "fucking foreigner" in the investigation and did threaten "to take her down" or to jail if she did not produce the bra.
76Ms. Nassiah's overall claims, that she was detained by Nevers, that she immediately denied the theft, that she was emotionally upset, crying or close to tears, that she was searched twice, first by Ms. Santos and then by Ms. Narcisco, that she asked to call her babysitter and that request was denied by Mr. Nevers, that one of the first questions that Officer Elkington put to her was "where's the bra?", that she was detained in total for approximately two hours, that her Sears bag was searched by Officer Elkington and no stolen items found, that she agreed to have her coat searched, that she was questioned about the $600.00 that she was asked to sign the officer's notebook, that she and her brother returned to the Sears that evening, that she reported the events to her supervisor the next morning, that she called Officer Elkington at some point to request the receipt, are all relatively undisputed or confirmed by witnesses adverse in interest to her (Elkington or Nevers) or completely neutral (Haughton).
77I found Ms. Nassiah's evidence on these two comments straightforward and unexaggerated (unlike other aspects of her testimony). Also the extent of Ms. Nassiah's emotional upset that evening and the next morning were consistent with the serious verbal abuse alleged.
Signing the Blank Notebook
78Ms. Nassiah testified that she was asked to sign a blank page in Officer Elkington's notebook (which caused great worry, not just to her but also her brother). I prefer Officer Elkington's evidence on this point for two reasons. First, Ms. Nassiah did not raise this issue in her letter of February 19, 2003, her complaint of March 17, 2003 or in her interview with the human rights investigator on March 4, 2004. In the latter interview, she specifically mentioned being asked to sign the notebook but said nothing about the pages being blank. Second, when I viewed the Officer's notebook, some of the notes recorded could only have been recorded when Ms. Nassiah was present, and not after she had signed the book and left. Specifically, the officer recorded Ms. Nassiah's full name, driver's licence and address with postal code. He obtained that information from her driver's licence, which she agrees he returned to her immediately upon returning from his police checks. He must have recorded that information before asking her to sign the notebook.
79I find therefore, that Ms. Nassiah was untruthful on this point, although the reason why escapes me. There is nothing in the notebook that contradicts her version of events. She was not asked to sign the notebook to verify the truth of its contents or in the form of a witness statement.
80What is most significant though is that I find she lied on this point. Glen Nassiah testified that his sister was so upset about the blank page that she mentioned it on the night of February 18, 2003. I find that this affects my assessment of his credibility. Also, his close relationship with his sister, his evident desire to support her case, and the fact that they have discussed the events of February 18, 2003 many times over the years, weakened the reliability of his evidence.
Ordering the fitting rooms and surrounding area to be searched
81Officer Elkington testified that after speaking to John Nevers he ordered him to undertake a search of the fitting room and to retrace the route taken by Ms. Nassiah as she left the change room. He points to his notebook as evidence confirming this instruction. In his notebook he has written:
Party Detained
Investigations at the
Scene. View Store
Security Video.
Showing Detained Party
With 2 x Items Entering
Changing Rooms.
Seen to Leave With
One.
Area Searched After DP [meaning detained party]
Left. N/T ([meaning no trace] of the Item
of Woman's Lingerie
1 x Blk Bra.
82Mr. Nevers testified that he did not recall any such order nor did he undertake any such investigation after Officer Elkington arrived. I find that the notes above relate to what Mr. Nevers reported to Officer Elkington (that Nevers had video evidence of Ms. Nassiah entering the change room with two items and leaving with one and that the change rooms had been checked.) It does not refer to the alleged investigation that Officer Elkington says he ordered. It would make no sense for Officer Elkington to order a search of the change room or exit route of Ms. Nassiah over one hour after the alleged theft. Presumably sales associates routinely clear fitting rooms and replace misplaced merchandise. Although this is not a significant point, it is evidence of lack of truthfulness on Officer Elkington's part.
Awareness of Prior Search?
83Was Officer Elkington advised that Ms. Nassiah had been searched prior to his arrival? Ms. Nassiah testified that she told him she had been searched and that the mall security guard, Mr. DeSousa, also told him she had been searched once. However, Mr. DeSousa was not called to testify on her behalf despite his offer to do so. Mr. Nevers testified that he had advised Officer Elkington about the first search of Ms. Nassiah, as well as the fact that he had previously searched the fitting rooms, but he was not 100 per cent sure. Officer Elkington denies knowing that she had previously been searched. I note that Officer Elkington's notebook does not refer to a first search, although he did record in his notebook that Mr. Nevers advised him of the video evidence and the search of fitting area.
84On a balance of probabilities, I find it more likely than not that Mr. Nevers advised Officer Elkington that Ms. Nassiah had been searched already. Mr. Nevers firmly believed that Ms. Nassiah had stolen the bra in the change room and therefore the bra must be on her person. The fact that a search was done was an important piece of information and I find it unlikely that he would have omitted it during his briefing of the Officer. It is unnecessary for me to decide whether Ms. Nassiah also advised him of the first search.
Viewing the Videotape
85Initially the Respondents claimed that the videotape was ambiguous and that therefore it was reasonable for Officer Elkington to have accepted Mr. Nevers' claim that Ms. Nassiah entered the change room with two bras and exited with one. During cross-examination, however, Officer Elkington insisted that in fact he had never seen the last few seconds of the videotape and that as soon as he did, he noticed the two tags. He suggested that John Nevers, who cued the videotape for him, never showed him the last few seconds until the final viewing. Mr. Nevers testified that he had shown Officer Elkington the video to the end. I find it highly unlikely that Mr. Nevers deliberately refrained from showing the last few seconds of the video. The change in the theory of the case (that the video was ambiguous) to Officer Elkington's latest version (that he never saw the end of the video) is unconvincing. I find that Officer Elkington was not truthful which indicates an attempt to shade the evidence in ways that downplay his unreasonable suspicions of Ms. Nassiah (discussed more fully below).
The Call to the Police
86Ms. Nassiah testified that Mr. Nevers immediately called the police when they arrived at the security office and reported a "Black" suspect had been detained. Mr. Nevers testified that it was only when she refused to provide identification that he called the police, as required by the Shop Theft Policy.
87The Commission argued that there was not sufficient time between the alleged theft (recorded at 5:34 p.m. according to the videotape) and the call to the police (5:40 p.m. according to Peel's computerized dispatch) to have checked the change rooms, detained Ms. Nassiah, read her her rights, conduct a search, and ask for identification in six minutes. I note that the time on the video and the time on Peel's computerized system are not likely to have been exactly the same, and I find that there was sufficient time to detain Ms. Nassiah and at least ask her for identification before calling the police.
88I find it more likely than not that Mr. Nevers called the police only after Ms. Nassiah refused to provide him with any identification. First, in the letter of February 19, 2003, written the day after the events, Ms. Nassiah describes the police being called after she was searched. Second, Mr. Nevers personal notes also indicate that the police were called after she refused to provide identification. This is evidence of Ms. Nassiah tailoring the evidence to maximize her ill-treatment.
Presence of a Female Employee
89Was a female employee present at all times in the security room during the investigation? I already mentioned that I did not find the evidence of Ms. Santos and Ms. Narcisco helpful on this point and that Mr. Nevers had motivation to claim that he had complied with Sears store policies. I note that Ms. Nassiah mentioned early on (in her complaint of March 17, 2003) that she asked for a female to be present because she was uncomfortable being alone in the office with him. For these reasons, I conclude that although Ms. Santos, Ms. Narcisco, Mr. Nevers and Brian DeSousa the security guard entered and exited the security room at various times between 5:40 p.m. (the time she was detained) and 7:16 p.m. (the time she was let go), no one remained present in the security room the entire time with Mr. Nevers and Ms. Nassiah or with Officer Elkington and Ms. Nassiah.
90Having resolved the most contentious issues, I conclude that Ms. Nassiah was largely credible about the key facts in her retelling of the events of February 18, 2003. However, I also find that she was untruthful about several less critical matters (Nevers immediately calling the police, signing the blank notebook). While these issues are not crucial to the overall finding of discrimination it indicates to me that Ms. Nassiah, in her honest upset about the treatment she received from Mr. Nevers and Officer Elkington, subsequently and over time, recast the events of February 16, 2003 in an exaggerated and sometimes untruthful way.
91I have also found that Officer Elkington was not honest in his version of the events above and that colours my findings with respect to his evidence about his investigation overall.
February 18, 2003
92I find that the events between Officer Elkington and Ms. Nassiah unfolded as follows on February 18, 2003.
93Officer Elkington either met Mr. Nevers outside the security office or Mr. Nevers joined him outside the security office shortly after 6:15 p.m. Mr. Nevers reported that he had seen Ms. Nassiah on camera enter the change room with two bras and exit the change room with one bra. Mr. Nevers told him that the fitting rooms had been checked and Ms. Nassiah searched, and no bra found. Upon seeing that Ms. Nassiah was Black, and noticeably upset, he asked Mr. Nevers "does she speak English." Mr. Nevers confirmed she did.
94Officer Elkington entered the security room and may have introduced himself as a police officer. Other than that, the first thing he said to Ms. Nassiah was "where's the bra?"
95Officer Elkington then asked for identification and did three checks on her: a criminal record check, a traffic check and a check of "suspicious activity", all of which were negative.
96Officer Elkington asked Ms. Nassiah again, "where's the bra?" He searched her coat, the Sears bag and arranged for a search of her person. When the bra could not be found he became abusive calling her a fucking foreigner and threatened "to take her down" or to jail if she did not produce the bra.
97I find that it was Ms. Nassiah who suggested that she may have held two bras in one hand upon exiting the fitting room and that it was only when Officer Elkington viewed the video again with that possibility in mind that he noticed the two tags dangling from the bras. (This was noted in Ms. Nassiah's letter of February 19, 2003 and specifically agreed to by the Respondents in their response to the complaint).
98I find that Officer Elkington's demeanour changed and he became more pleasant once it was established conclusively that she had not stolen anything. He asked her to sign his notebook, which she did, but not as a witness statement or confirmation that she was satisfied with the way she was treated. Ms. Nassiah was released a little after 7:00 p.m. Officer Elkington remained at Sears for a few minutes with Mr. Nevers confirming that the video did not demonstrate theft and reassuring him that it was an understandable mistake. He reported to dispatch at 7:16 p.m. that the allegedly stolen item had been located.
Analysis
Discrimination on the Ground of Race
99A police investigation into an allegation of theft is a service within the meaning of section 1 of the Human Rights Code (the "Code"). As discussed below, I find that the investigation conducted by Office Elkington was discriminatory in several ways. Peel is liable for the discriminatory conduct of its employee under section 45(1) of the Code.
Does She speak English?
100Officer Elkington posed the question "does she speak English" to Mr. Nevers, in part because Ms. Nassiah is Black. Initially Officer Elkington tried to resist the suggestion that the colour of Ms. Nassiah's skin had anything to do with the question, stating that because many people in Peel did not speak English, he needed to assure himself of her ability to speak English in order to conduct a proper investigation. He suggested he might well pose the question about a White suspect because Peel also has a large Polish population. Officer Elkington eventually conceded in cross-examination, that Ms. Nassiah's colour formed part of the reason for asking whether she spoke English.
101Peel took the position that posing the question was not discriminatory or even inappropriate. Peel called Officer Bob Gooding as an expert witness to testify about the elements of a normal investigation.
102Officer Gooding testified that he did not find it unusual that a police officer would ask a loss prevention officer whether the person detained spoke English. He gave his evidence after hearing Officer Elkington's concession that he asked the question in part because she was Black. This did not alter his view that it was good police practice to ensure that a suspect is able to understand and respond to the investigation.
103I accept that it is important for police officers to ensure that a suspect understands English sufficiently well to conduct an investigation. However, it is not acceptable for an officer to make assumptions about which members of the community speak English sufficiently well for that purpose and which do not. It may be that, based on day-to-day experience, officers learn that some persons of a particular ethnic group, colour, or race are more likely than others to have difficulty communicating in English. But the assumption that all members of that group may therefore have difficulties speaking English amounts to discrimination on the basis of race, or skin colour or ethnic origin.
104The fact that in Officer Elkington's experience, some people in Peel who are Polish or Black lack English speaking ability does not justify asking every person who is Black or Polish, whether they speak English. While Officer Elkington suggested that he may ask some White suspects the same question (those who he suspects of being Polish?) it was not his evidence that as a matter of routine he asks every suspect whether they speak English.
105Given the way the events transpired, asking the question immediately upon seeing her, I infer that Officer Elkington consciously or subconsciously acted on a stereotypical assumption that because Ms. Nassiah is Black she may not speak English.
106I find that whether the question of English speaking ability is asked in the suspect's presence or not, or whether it is posed to the suspect or not, this is a discriminatory practice when the reason or part of the reason for asking the question is because of the colour of the person's skin.
The "Fucking Foreigner" Comment
107Officer Elkington discriminated against Ms. Nassiah on the basis of her race when he called her a "fucking foreigner" and threatened to take her to jail during the course of the investigation. The "fucking foreigner" comment was clearly a derogatory stereotype that she is likely to be a "foreigner" because she is Black.
Prolonged and Heightened Investigation
108The final aspect of the alleged discriminatory investigation is that Officer Elkington treated Ms. Nassiah with a greater degree of suspicion and hostility and to a greater degree of investigation because she is Black.
109The Commission referred to this as racial profiling and called University of Toronto Professor Scot Wortley as an expert witness to give evidence about racial profiling, how it is manifested, and how it affects individuals who are profiled.
110In an Interim Decision in this matter, 2006 HRTO 18, I ruled that Professor Wortley's personal research and knowledge of the academic literature qualified him as an expert in racial profiling in the criminal justice system and in police investigation in Canada.
111Professor Wortley is an Associate Professor at the Centre for Criminology at the University of Toronto. He holds a B.A., an M.A. and a Ph.D in Sociology. He has been personally involved in two large sociological studies into racial profiling in Canada and is currently completing work on a third. Professor Wortley has published the results of the two major studies in several peer reviewed sociological and criminology journals, a number of which were introduced into evidence (exhibit 2). He is completing the third study with the Kingston police. He has organized and participated in numerous conferences on racial profiling. He has studied and written about the literature on racial profiling from the United States and the United Kingdom. He has been qualified as an expert witness in other legal proceedings in Canada. For the reasons set out in my interim decision, I am persuaded that Professor Wortley's credentials qualify him as an expert in racial profiling in the criminal justice system and in police investigation in Canada.
112Racial profiling is a form of racial discrimination. There is nothing novel in finding that racial profiling is contrary to the Human Rights Code and nothing turns on how it is defined. It is and always has been contrary to the Code for the 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 differential treatment (Smith v. Mardana (No. 1) (2005), 52 C.H.R.R. d89 (Ont Div. Ct.); Dominion Management v. Velenosi (1997), 148 DL.R. (4th) Ont CA.; Peart v. Peel Regional Police Service Board, [2006] O.J. NO. 4456 (Ont CA) at para. 91 and para. 108).
113What is new (in the last two decades) is 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. What is also new is the increasing acceptance by the Courts in Canada that racial profiling by police occurs in Canada and the willingness to scrutinize seemingly "neutral" police behaviour to assess whether it falls within the phenomenon of racial profiling.
114In R. v. Brown (2003) 64 O.R. (3) 161 (Ont. CA) at para. 9, Morden J. A. stated that the Crown's concession that the phenomenon of racial profiling existed was "a responsible position to take because…this conclusion is supported by significant social science research". In Peart, supra Doherty J.A. stated the "racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it."
115I found Professor Wortley's evidence on the social science literature on racial profiling to be reliable and I accept his evidence as follows. The social science studies on racial profiling have typically focused on police activities before arrest, often focusing on police stop and search activities, during road checks, street investigations or border crossings. The studies attempt to determine whether race or ethnicity affects who is stopped and why and how they are investigated.
116There have been numerous academic studies in the US and the UK about racial profiling. These studies have taken a variety of forms. Some studies are primarily qualitative and involved detailed interviews with a small number of people about their interactions with police. Some of these studies have concluded that racial minority youth report being stopped "unfairly" compared to White youth. Because of the small sample size the results of these studies cannot be generalized to the larger population.
117A second major type of study is an observational study, where researchers have gone into the field and made street observations, unknown to the police. One example referred to by Professor Wortley was a study of thousands of hours of videotape viewing stops on the Florida turnpike which demonstrated that 70 to 80 per cent of all stops were of African American or Hispanic Americans but that those groups made up a small percentage of users of the turnpike. A similar study of UK police cameras, which are used quite widely in public spaces in the UK, demonstrated that the police focused more on young Black males (and attractive women) than other groups.
118A third type of study used in racial profiling is official police statistics. In many jurisdictions in the US, police must collect statistics of the race of all individuals who have been stopped and questioned. Some studies have found that racial differences in who is stopped can be partially explained by the activities of the individuals stopped i.e., speeding; other studies have found a profound disparity i.e., much higher number of racial minorities have been stopped, regardless of activity. Since officers know that they must record the race of the individuals this may have affected their behaviour, leading to less profiling than in situations where officers are not required to note the race/colour of individuals.
119The fourth type of study is the large random survey whose results can be generalized to the population. The general conclusion from these large random studies, coupled with the other studies, is that in street investigations racial minorities, particularly Black persons, are over represented in street stops and searches.
120Related studies have focused on what is known as the "hit rate" or the rate at which "stopped" persons are found to be carrying on illicit activity i.e., at border crossings, during car stops, etc. The hit rate is lower for Black persons than for White persons. That is, although a large number of Blacks have been stopped compared to a lower number of White persons, the rate of finding illegal behaviour is higher among the White population. This has led the researchers to conclude that the minority groups were subjected to a higher level of suspicion before being stopped. Before White persons were stopped there were a lot of other suspicious factors also present, which led to a higher hit rate. These studies tend to indicate that racial profiling is not efficient (that skin colour or ethnicity is not a reliable proxy for illicit behaviour).
121There has been relatively little research done on racial profiling in Canada, compared to the US and the UK, in part because of the ban on collecting race-based statistics in Canada.
122Professor Wortley has personally conducted three studies of police investigation and race in Canada.
123As the research officer for the Commission on Systemic Racism in the Ontario Criminal Justice System from 1993 to 1996, he was responsible for the design, data analysis and report preparation of a number of studies. One study involved a random sample of over 1,200 Black, White and Chinese persons in the Toronto area. The survey asked whether they had been stopped by police, as pedestrians or in cars, over the past two years and if so, how many times. After statistically controlling for gender and age, the study revealed that Black Torontonians reported being stopped significantly more often than White or Chinese Torontonians. The second major finding was that the Black populations perceived a much higher level of discrimination in policing than the comparator groups.
124The second major survey was conducted in 2000 to 2001 and involved detailed surveys of 3,400 high school students from the Toronto area about their interactions with the police. The questionnaire inquired about contact with police in the previous year, leisure activities, and involvement with drugs and alcohol, among other factors. The study found that Black youth were 2.3 times more likely to have reported being stopped than White students. After controlling for suspicious activity i.e., alcohol and drugs, which might justify higher levels of police scrutiny, the odds jumped to 4.1 times more likely to be stopped. That is, well-behaved White teenagers were rarely stopped, but well-behaved Black teenagers were stopped frequently. There were similar discrepancies about the rate of being searched.
125In the third study, Professor Wortley was hired to review all police stops in Kingston over a one year period where police, for the first time, in Canada, recorded race, gender, and age of all police stops, whether on foot or in a car. The study found that Black residents of Kingston were three times more likely to experience a stop and the difference was even greater with pedestrians. I note that this study has not yet been peer reviewed and accepted for publication.
126Overall, the social science evidence establishes that statistically, racial minorities, particularly Black persons, are subject to a higher level of suspicion by police because of race, often coupled with other factors. The emerging Canadian literature is consistent with the US and UK studies.
127There are three potential causes of racial profiling: overt racism, efficiency or unconscious stereotyping. Some police officers, like some members of the general public have specific racial prejudices and deliberately single out and treat some members of racial minorities more harshly than others.
128Another potential cause for profiling is the belief that if police experience demonstrates that certain groups are involved in certain types of crimes more than other groups, then it would be an efficient use of police resources to target those groups. This is no longer an accepted method of policing and is not openly acknowledged or taught as a proper method of police procedure.
129The third potential cause of racial profiling is that police officers, like all members of society, develop unconscious stereotypes about racial groups and subconsciously act on those stereotypes during routine police investigations. When, for example, a police officer concludes that a young Black male driving an expensive car in a certain neighbour fits the profile of a potential drug dealer, an unconscious stereotype about Black people may be operating.
130What am I to conclude from the above, and how is it helpful to this case? While there have been no studies of the Peel Region in particular, I find that the phenomenon of racial profiling is as likely to occur in Peel as it is in the Toronto area (where studies have been conducted.) The multi-ethnic character of Peel is sufficiently similar to Toronto that Professor Wortley's studies in the Toronto area can be reliably applied to the Peel region.
131The fact that racial profiling occurs in policing in the Toronto Region and likely occurs in the Peel Region does not answer the question whether Ms. Nassiah was discriminated against in this particular case. However, the evidence is useful in identifying factors or clues which point toward racial profiling/discrimination which might otherwise appear neutral if taken in isolation and without an awareness of the phenomenon of racial profiling (Peart, supra at para. 95–96).
132The social science evidence on racial profiling has typically focused on police activities before arrest, often focusing on police stop and search activities, during road checks, street investigations or border crossings. Peel argued that the racial profiling evidence is therefore irrelevant, because in this case, Officer Elkington did not make the initial decision to detain Ms. Nassiah. I agree that in this case, Officer Elkington was called to investigate a theft; he was obliged to investigate; he did not initiate the investigation, even in part, because of Ms. Nassiah's race.
133Professor Wortley testified that the social science evidence was not only useful to assessing whether the initial decision to "stop" (whether in car, street or border situations) was racially biased, but was also supportive of the fact that the level of scrutiny applied to the person after the initial stop was more heightened, more suspicious.
134I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black.
135In Johnson v. Halifax [2003] N.S.H.R.B.I.D. No. 2, the Nova Scotia Human Rights Board considered whether the decision by a Nova Scotia constable to pursue a vehicle driven by two black men was a form of racial profiling. The Board also went on to consider whether the subsequent investigation process, including the failure to assess properly the documentation proferred by the men, the decision to tow the vehicle, the level of the police response and the general treatment of the men as potential criminals, was the result of stereotyping based on race.
136In Peart v. Peel (Regional Municipality) Police Services Board [2003] O.J. No. 2669 (Ont. Sup. Ct), although the allegations of racial profiling were not accepted on the evidence, the trial judge assessed whether the phenomenon of acting upon racial stereotypes was present not just at the time of the initial stop, but continued to operate during the chase, the high risk takedown, the further investigation at Petro Canada, the journey to the station and the investigation/treatment at the station.
137Professor Wortley was asked to give his opinion on whether a hypothetical investigation (similar to the facts the Commission hoped to establish) was racially biased. Professor Wortley testified that the following factors would indicate racial profiling in the sense of heightened suspicion: asking whether she spoke English, asking "where's the bra", failure to look at the receipt for the bras purchased, conducting three police checks, viewing the video more than once, ordering a second search of her person, questioning about $600 in cash. He did not accept any of these as "normal" police investigation techniques. I did not find Professor Wortley's evidence on this point useful as he was not aware of the evidence as I have found it in this case, and he did not exhibit the required neutrality on this issue.
What is an ordinary police investigation?
138As I mentioned earlier, Peel called Officer Bob Gooding as an expert witness to testify about how Peel officers are taught to investigate, and the elements of a normal police investigation.
139The Commission disputed Officer Gooding's qualifications to provide opinion evidence and the relevance of his evidence. Mr. Gooding served as a police officer in Ontario from 1970 to 2000. During that time, he rose through the ranks to become an instructor of police investigation and interrogation techniques, both at the Toronto Police College and for external organizations. I held that Mr. Gooding had sufficient expertise to offer an opinion on what are generally accepted police investigation practices and whether Officer Elkington's investigation on February 18, 2003 fell within the bounds of ordinary or normal investigation.
140Just as I held that Professor Wortley's evidence was relevant because it alerted me to factors which might be indicative of racial stereotyping, Mr. Gooding's evidence was relevant to the issue of what an ordinary or normal police investigation into an alleged theft might look like. It would have been highly one-sided, in my view, to accept evidence of what might indicate a racially biased police investigation and refuse to hear evidence about what constitutes a normal police investigation.
141After hearing the full evidence and cross-examination, however, I find that Mr. Gooding's evidence must be approached with caution for the following reasons.
142Mr. Gooding did not prepare his own expert report, but rather counsel for Peel prepared a "will say" statement, which Mr. Gooding adopted as accurately reflecting his own view. For that reason I give less weight to the will say statement.
143While I accepted that Mr. Gooding was sufficiently experienced to offer opinion evidence, he holds no special qualifications or degrees in police investigation; he has not published any academic articles or studies nor reviewed the academic literature with respect to police investigations. His expertise derives primarily from his thirty plus years of practical police work and his work as an instructor of police investigation techniques. While I accept Mr. Gooding's oral evidence about what amounts to normal or routine police investigations in Ontario generally as credible and reliable, the weight I give to it is somewhat lessened by his lack of formal qualifications.
144In some instances, Officer Gooding criticized Officer Elkington's approach and investigation, but overall his draft report, his handwritten notes, and his oral evidence indicated an over-eagerness to view Officer Elkington's investigation as within the bounds of normal and to interpret Elkington's actions in the most favourable light. I find that he did not exhibit the required neutrality on this point. For these reasons, I give considerably less weight to his opinion of whether Officer's Elkington's investigation was normal.
145Bob Gooding testified that the essential elements to be established in an allegation of theft are the identity of the accused and the fact that the accused, fraudulently, and without colour of right, took anything with the intent to deprive the owner either temporarily or absolutely of the thing. In his view, these are the essential facts that an officer should have been concerned with when called to investigate an allegation of theft or shoplifting.
146Officers are taught to obtain as much information about a suspect as possible before beginning an investigation. Thus, record checks on prior convictions, traffic offences, etc. are reasonable, indeed, good police practice. He testified that these checks are very common. However, Mr. Gooding stopped short of testifying that Officers are taught to do this check in every investigation. That indicates to me that there is still a discretion in determining whether to do a record check or not. Professor Wortley also testified that the social evidence literature documented that during routine traffic stops, record checks were more often conducted on Black persons.
147During the investigation phase, there are three approaches which an officer might adopt: an assumption of guilt, an assumption of innocence, or an assumption of neutrality. It is up to the individual officer's discretion to determine which approach best suits which situation.
148One of the advantages of an assumption of guilt approach is the element of surprise – a suspect may be taken by surprise by the officer's assumption of guilt and quickly confess. The disadvantage of the assumption of guilt approach is that, where the suspect is innocent, trust is lost and it is not open to return to a more open-ended form of questioning. A second disadvantage of the assumption of guilt approach is that it can produce, in innocent people, a shutting down, which is indicative, wrongfully, of deceptive behaviour.
149Officer Gooding characterized Officer Elkington's investigation approach to the February 18, 2003 incident as an assumption of guilt approach.
150During the investigation phase, the preferred approach is to ask open-ended questions, to have the accused talk as much as possible. This enables the officer to assess the accused's credibility in terms of standard behavioural analysis. In Officer Gooding's view, Ms. Nassiah's level of upset and consistent, firm denials to the questioning about the bra, were consistent with a truthful witness.
151Mr. Gooding testified that Officer Elkington's decision to commence with the question "where's the bra?" and not ask open-ended questions, was not "textbook."
152Once the initial investigation is over, the officer will generally move to an interrogation if he/she believes that the evidence suggests that the accused is guilty of the offence. During an interrogation, instead of asking open-ended questions, the officer is encouraged to give the accused little chance to say anything, but rather to overpower the accused with the officer's belief in the accused's guilt.
153Officer Gooding characterized Officer Elkington's questioning as more investigative than interrogation, based on Officer Elkington's evidence. As I found the facts somewhat differently than Officer Gooding might have assumed, I find that although Officer Elkington never adopted a full interrogation mode, he adopted a strong assumption of guilt approach throughout the entire investigation, not lessening his assumption of guilt until the video conclusively showed him that no theft had occurred.
154Officer Gooding opined that it was reasonable for Officer Elkington to assume the truthfulness of the victim, in this case, the Sears security guard. The assumption is that security guards hired by retail outlets are trained and acting in good faith on behalf of their employer for the protection of their employer's property. In many incidents to which police are called, it may be inappropriate to investigate the complainant's veracity. He gave examples of sexual assault or spousal assault as incidents where it would be highly inappropriate to question the veracity of the complainant. However, Officer Gooding did not testify that officers are trained to accept the complainant's complaint at face value in all cases. In my view, sexual assault and spousal assault are so significantly different to a complaint of shoplifting that the analogy is not helpful. I accept that a police officer has to start somewhere when called to investigate and that in some cases it is not appropriate to conduct a full investigation into the reliability of the complainant's evidence before questioning a suspect. In other cases, officers will have to make assessments about the credibility of the person making the allegation, just as they must assess the credibility of the person accused.
155Despite his opinion that it was not out of the ordinary to accept the security guard's version of events, Mr. Gooding testified he would have preferred if the Officer had viewed the videotape evidence in its entirety earlier than he did. However, he noted that the standard expected of police officers is not perfection.
156Officer Gooding testified that police officers have a common law right to search suspects incident to arrest. In his view, the fact that Officer Elkington did not read Ms. Nassiah her Charter rights, advise her of her right to counsel, or obtain her consent before searching her person, was not improper. Officer Gooding did express concern that Officer Elkington did not read Ms. Nassiah her Charter rights before conducting the search, as this might have resulted in the evidence being excluded at trial.
157Officer Gooding stated that in his experience, persons are asked to sign police notebooks in order to confirm their statements. He had personally never asked anyone to sign a notebook for any other reason. I note that Officer Elkington did not claim to be asking Ms. Nassiah to sign as a witness, nor could he point to any other similar circumstances in his notebook where he had asked a complainant to sign his notebook.
158Mr. Gooding stated that in his opinion few officers would have been as diligent as Officer Elkington in keeping an open mind and pursuing the investigation into such a minor offence to a conclusion which eventually exonerated Ms. Nassiah. He was approving of Officer Elkington's thorough investigation.
159I note that Officer Elkington had been commended in January 2003 for a thorough investigation into an alleged abduction of a school child. I find, however, that the seriousness of that charge is so significantly different from a charge of theft of a bra that it is not evidence that this Officer is always especially diligent in his investigations.
160Overall, Officer Gooding's evidence confirmed there is a wide range of discretion in a police investigation, such that it is not possible to define a normal investigation.
161Which factors in this case point to an ordinary or normal investigation into a shoptheft by a thorough police officer and which factors, if any, indicate that Officer Elkington's investigation was different (more intensive, suspicious or heightened) because Ms. Nassiah is Black?
162It would be relatively easy to draw the inference in this case, based on my finding that Officer Elkington called Ms. Nassiah "a fucking foreigner" and threatened to take her to jail. However, I have assessed the facts assuming that those comments were not made.
163In my view, even if I had found those comments were not made, I would have concluded that Officer Elkington's investigation of the alleged theft of the bra was biased because of race.
164In determining whether Officer Elkington's investigation was discriminatory, I have accepted and taken into account the following principles.
165A police officer dispatched to investigate an alleged theft, is obliged to undertake an investigation. There is no discretion involved in whether to investigate. There is no set of rules or steps to an investigation; officers must exercise their discretion based on the circumstances of the case they are placed in. There is no legal right to be presumed innocent during an investigation. Officers are not held to a standard of perfection during an investigation. An officer who engages in a poor or even a negligent investigation is not necessarily engaging in a discriminatory investigation. Conversely, not every zealous investigation can be assumed to be discriminatory because the suspect is Black.
166Nonetheless, the following factors, taken together, lead me to conclude that Officer Elkington consciously or unconsciously, treated Ms. Nassiah with more suspicion than he would have a White suspect, because she is Black. I emphasize that the factors cannot be viewed in isolation. It is only when viewed together in their entirety that the pattern becomes clear:
- He stereotypically assumed that a Black suspect may not speak English well.
- He accepted the security guard's assertion that he had video tape evidence of theft without even looking at the video; he proceeded to investigate assuming that Mr. Nevers was telling the truth, although he had no basis for determining the relative credibility of Mr. Nevers (who is White) versus Ms. Nassiah (who is Black).
- He adopted an assumption of guilt approach to the investigation by asking "where's the bra" as his first question, which was not the "textbook" or the "preferred" approach.
- The video tape provided very weak evidence of theft; it did not clearly indicate whether Ms. Nassiah had even entered the fitting room with two bras; it was equally unclear how many bras she held immediately upon exiting the fitting room; the willingness to infer theft from the video was unreasonable; to persist in asking "where's the bra" after viewing the weak video evidence demonstrates a high degree of suspicion;
- He arranged for a second search of Ms. Nassiah's person, although he had no reason to believe that the first search was inadequate.
- After the second physical search, he was still not satisfied that the evidence was insufficient to lay a charge of theft, but he continued to investigate rather than releasing her.
- Peel's own expert testified that few officers would have been as diligent as Officer Elkington on such a minor offence. While Officer Gooding concluded that this was evidence of an "open mind" the evidence is equally consistent with an interpretation that Officer Elkington pursued Ms. Nassiah more diligently than ordinarily because she was Black. He spent a minimum of 45 minutes (on his own evidence) diligently pursuing an allegation of theft of a bra worth less than $10, in the face of fragile video evidence.
167I find that the record checks and the questioning about the cash in this case are at least equally consistent with a finding that that is how Officer Elkington would have treated any suspect. The failure to read the Charter rights, while possibly poor police practice, was not an indicia of excessive suspicion, nor was the somewhat unusual request to a suspect to sign the notebook.
168Peel argued that if Officer Elkington had not continued with the investigation which led to the final conclusion that Ms. Nassiah was innocent, but had released her earlier on the basis that the evidence was insufficient to charge her, this would have had negative consequences for Ms. Nassiah. Sears might have decided to issue a "no trespass" order against her, barring her from entering Sears based on their suspicion of unproven theft. Further, the final police report would have been inconclusive, resulting in a "suspicious activity" record, rather than a complete exoneration.
169The fact that Peel chooses to retain (and subsequently use) information on citizens who are detained but eventually released without charge because of insufficient evidence is irrelevant to my decision. While Peel may believe that Ms. Nassiah was ultimately better off for having been proven innocent, that is not the issue before me.
170Officers are not obliged to continue an investigation doggedly until guilt or innocence is proved. Rather, as Officer Gooding testified, an officer must assess whether there is sufficient evidence to charge a suspect. If there is not, the suspect is released. It is not the duty of the officer to prove the suspect's innocence and it stretches the bounds of credibility to suggest that that was Officer Elkington's goal.
171The only issue is whether Ms. Nassiah was treated to a higher degree of suspicion and scrutiny on February 18, 2003 because she is Black. The fact that, as a result of the prolonged detention and heightened scrutiny, the police found, not evidence of guilt, but of innocence is indeed fortunate for Ms. Nassiah, but it does not in any way excuse the differential behaviour.
172I find that Ms. Nassiah was discriminated against when she was subjected to a more intensive, suspicious and prolonged investigation because she is Black.
Individual Remedy
173The Commission requested general damages in the amount of $25,000 for the racially discriminatory treatment Ms. Nassiah experienced at the hands of Officer Elkington.
174Ms. Nassiah sought $28,000 in special damages for the loss of wages she experienced following the incident, plus $890 in babysitting expenses.
Evidence on Individual Remedy
175Ms. Nassiah testified that she was distraught and crying during most of the investigation on February 18, 2003. She was so upset driving home that she could barely see and almost had an accident. Ms. Nassiah continued to feel upset and distraught for months. Her brother testified that he arranged for her parents to visit from Trinidad and stay with her for a couple of months in the summer of 2003 to cheer her up. She claims she experienced nightmares of Officer Elkington coming to her apartment, poor appetite, sleepless nights, fear of elevators, and became more withdrawn. Her relationship with her sister in Trinidad deteriorated as she mentally blamed her for the incident. She developed an aversion to speaking to her family.
176Ms. Nassiah stated she could not focus at work and made many errors. She sometimes took time off work without pay because she was so traumatized and upset. In October 2003 the Oakville Lifecare Centre where she worked closed. Although Ms. Nassiah could have obtained a position at another nursing care facility in Mississauga, she testified that she felt unable to cope with work and took a severance package instead. She used the package to help purchase a townhouse elsewhere in Mississauga. She testified she moved because the old apartment held bad memories and was located quite close to a police station.
177Ms. Nassiah subsequently worked at a variety of factory jobs because she felt unable to return to full-time office work, which required more focus and concentration. It was not until September 2006 that Ms. Nassiah returned to work as an administrative nursing clerk again.
178Ms. Nassiah testified that she continues to feel the after effects of the incident in the form of nightmares and migraines. She distrusts the police and feels anxious when she sees them. She is considering moving back to Trinidad.
179The social science evidence demonstrates that persons who believe they have been racially profiled often feel angry, hurt, embarrassed and traumatized.
180Ms. Haughton testified that Ms. Nassiah was considerably and visibly upset at work the day following the incident and that she continued to be upset and angry for the next few days. Other than that, she did not notice any significant difference in Ms. Nassiah's demeanour or her work habits after the incident. Ms. Nassiah had complained of headaches and taken days off for various reasons before February 18, 2003 and she continued to do so after February 18, 2003. Ms. Nassiah was an adequate worker who seemed to make many errors, both before and after February 18, 2003. Ms. Julienne Laytham, Ms. Nassiah's immediate supervisor, gave similar evidence.
181I find that Ms. Nassiah was, understandably, considerably upset following the events of February 18, 2003. I accept that she continued to be upset for some months after that, and continues to be troubled by those events today. However, I do not accept fully her evidence of ongoing severe emotional trauma that she claimed continued unabated until the hearing.
182I accept Ms. Nassiah's evidence that she sought treatment from her family physician in the months after the incident and reported such headaches and emotional upset that she was prescribed medication. While medical evidence is not required to establish emotional upset, the severe degree of mental anguish alleged by Ms. Nassiah is not credible when weighed against the absence of any further medical treatment. I did take this exaggeration into account when assessing the credibility issues above. Nonetheless I find that the degree of emotional upset felt by Ms. Nassiah amounted to "mental anguish" under the Code. I find that Officer Elkington's comment about "fucking foreigner" and the threat to take her to jail were wilful, thereby justifying an award for mental anguish.
183Ms. Nassiah's reaction to February 18, 2003 was due in part to the unlawful detention by Mr. Nevers and his treatment of her. While she was detained in total for over two hours; only forty-five minutes to one hour of that detention was due to Officer Elkington's actions. I have factored that into my assessment of damages.
184In my view, the inexcusable verbal abuse by Officer Elkington, the insulting question about her ability to speak English, and the intensive, suspicious investigation together warrant an award of general damages and mental anguish in the amount of $20,000.
185The evidence does not support the claims for special damages. Ms. Nassiah's evidence about the extra babysitting costs was too vague to establish a connection between the costs and the discrimination.
186Ms. Nassiah continued to work for almost eight months, until the nursing home closed down in October 2003. The evidence from Ms. Haughton, Ms. Laytham and Ms. Nassiah indicated that there were plenty of opportunities for similar work at other nursing homes in Mississauga. I find that Ms. Nassiah's initial unemployment and ongoing underemployment were not caused by or significantly related to the events of February 18, 2003. In my view, a claim of two years underemployment (after having worked for over seven months immediately following the incident) should be supported by some independent evidence of incapacity, other than Ms. Nassiah's claim that she did not "feel capable" of returning to her prior work.
Systemic Remedies
187The Commission and Ms. Nassiah requested extensive systemic remedies including a comprehensive anti-racism audit of Peel, the development of an anti-profiling policy, extensive anti-racism and anti-racial profiling training, the development of anti-racist screening tests for new recruits, the establishment of an employment equity plan, the retention of an expert on racial profiling to review the mandate of the Peel's Diversity Bureau, and training for Officer Elkington.
188Where I find that a person's rights under the Code have been infringed, I may, by order direct the infringing party to do anything that, in my opinion, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices (s. 41(1)(a) of the Code. (emphasis added)
189I have found that Ms. Nassiah's rights under the Code have been infringed by Officer Elkington and Peel in the specific ways discussed above. This is not a complaint alleging systemic racial profiling by Peel Regional Police Services generally. The fact that I permitted an expert to testify about racial profiling generally did not alter the individual nature of the complaint and did not convert this into an inquiry into systemic racial profiling in Peel generally. I have not made any findings about whether racially biased police investigations generally occur in Peel. I have simply found that one racially biased investigation took place in Peel in February 2003.
190Accordingly, my remedy to prevent future practices should be related to and proportional to the findings of discrimination I made in this case (Johnson, supra at para. 106).
191The Region of Peel is ethnically diverse. According to 2001 statistics, approximately 40 per cent of the residents are visible minorities. Approximately 6 per cent of the residents of Mississauga and 10 per cent of the residents of Brampton are Black. Peel submitted that it is alive to the issue of racial profiling and has developed adequate training mechanisms to address the phenomenon.
192Officer Dennis Edwards was a member of Peel's Diversity Relations Bureau from December 2003 until November 2006. He testified about Peel's current practices with respect to diversity training.
193Peel formally created the Race and Ethnic Relations Bureau (now the Diversity Relations Bureau) in 1986 (the "Bureau"). The mandate of the Bureau includes education and training of police officers on diversity issues, and working with the community on crisis intervention. The Bureau reviews directives dealing with discrimination, conducts diversity training and works with community members in Peel to improve relations between the police and the community. There are two members of the Bureau, drawn from senior police officers.
194Officer Edwards had no formal training on issues of diversity before entering the Bureau although he attended a one week diversity training course at the Ontario Police College to help him prepare for the position. He regularly attended conferences and training sessions on issues of diversity throughout his three years.
Peel's Approach to Racial Profiling
195Peel has been a member of the Commission of Accreditation for Law Enforcement Agencies (CALEA) since 1984. CALEA is an organization of police associations across the US and Canada that has developed a set of standards by which associations can measure the quality of their police services. In March 2001, CALEA adopted a standard with respect to profiling. The CALEA standard 1.2.9 states:
The agency has a written directive governing bias based profiling and, at a minimum, includes the following provisions:
a. a prohibition against bias based profiling in traffic contacts, field contacts and in asset seizure and forfeiture efforts;
b. training agency enforcement personnel in bias based profiling issues including legal aspects;
c. corrective measures if bias based profiling occurs; and
d. an annual administrative review of agency practices including citizen concerns.
Commentary: Profiling, in itself, can be a useful tool to assist law enforcement officers in carrying out their duties. Bias based profiling, however, is the selection of individuals based solely on a common trait of a group. This includes, but is not limited to race, ethnic background, gender, sexual orientation, religion, economic status, age, cultural group or any other identifiable groups. (emphasis added)
196Peel has committed itself to abiding by this standard. Officer Edwards was unclear whether impermissible profiling occurred only if race were the sole reason for police action, or whether race plus other factors in police contacts was also prohibited by Peel. In cases of doubt, he testified that he would advise officers that the standard they are required to meet is the CALEA standard.
197I find that compliance with the CALEA prohibition on biased policing is not sufficient to meet Peel's obligations under the Human Rights Code. If race is one of the irrelevant factors in any police action (stop/investigation) even if other, legally relevant factors are also at play, this is a violation of the Code.
198It is troubling that Peel's official position on training new recruits, as indicated by its own diversity training officer, is that the lower CALEA standard is what officers should be applying.
199Although Peel claims to abide by the CALEA, it has not developed a specific written directive on biased profiling or racial profiling. Directives are formal written policies which are provided to all officers; they are re-evaluated annually. Officers are expected to be familiar with and abide by directives. Breach of a directive may lead to disciplinary action. Peel has issued the Race Relations and Anti-Discrimination Directive, which states, in part:
It is the policy of this police service to
(a) provide the fullest possible services in a prompt, fair and equitable manner to all persons, without discrimination on the basis of race, ancestry, place of origin, colour, religion, ethnic origin, sexual orientation, age, sex, citizenship, marital or family status, physical or mental disability, criminal record or social condition contrary to the Ontario Human Rights Code;
(b) extend fair and equal treatment under the law to every community and individual within its jurisdiction without discrimination on the basis of race, ancestry, place of origin, colour, religion, ethnic origin, sexual orientation, age, sex, citizenship, marital or family status, physical or mental disability, criminal record or social condition contrary to the Ontario Human Rights Code;
(c) maintain a respectful and co-operative relationship with all communities that recognizes their racial, cultural, religious and linguistic diversity, thereby fostering the kind of community support that is essential to effective secure policing;
(d) maintain a discrimination-free workplace for its personnel, to ensure that the organization is biasfree and that it reflects the racial diversity of the community; and,
(e) prohibit discrimination in asset seizure and forfeiture efforts.
200The Directive requires any member of Peel who observes or receives a complaint of discrimination to report it to a supervisor. There is a brief reference to CALEA 1.2.9 but the words biased or racial profiling do not appear anywhere in the directive.
201Officer Edwards testified that new officers are obliged to attend a one and a half hour session called Managing Diversity. Officer Edwards developed and delivered the current materials during his term at the Bureau. In the Managing Diversity session, participants are advised about the ethnic diversity of the region of Peel, taught basic concepts of discrimination, and instructed on Peel's anti-discrimination policy. One segment of the presentation involves a discussion of profiling. A short history of racial profiling in the United States is discussed, various definitions of profiling are reviewed, including the CALEA definition, and the case law is discussed. The participants watch a short video involving a black male driver interacting with a police officer. Following the video, the participants discuss issues such as the reasons for the stop, the impact on the driver, etc. A mock interaction with the instructor and the participants is played out, with similar questions, including a mock examination by a lawyer in a situation where an officer is called to testify about the stop. The overall message is to train the officers to be professional and be able to articulate the reason for their actions. There is no discussion of the social science literature.
202Officer Elkington testified that he took Peel's Managing Diversity training in April 2002, at which time it was taught by an officer other than Officer Edwards. He could not recall any discussion of the Human Rights Code, discrimination or racial profiling at that session, although he could recall one scenario on profiling being shown to him. He could not recall any other training or education on the issue of racial profiling, although it was sometimes mentioned in examples given during other Police College training sessions. He could not specifically recall the Race Relations and Anti-Discrimination Directive.
203There is also a training session for new recruits where members of various community groups are invited to speak to the officers about their personal experiences and their community's experience with the police. The issue of visible minorities feeling targeted because of their race is almost invariably raised and the impact on the individuals/communities is discussed.
204In 2005, the Ontario Police College in conjunction with Peel, developed a training module on diversity for newly appointed front line supervisors. The Bureau began delivering the training to new Peel supervisors in 2006. A segment of the diversity training involved a discussion of racial profiling. In this module the following definitions of racial profiling are used:
Racial Profiling exists when the members of a particular racial group become subject to greater criminal justice surveillance than the average or typical citizen. It has been associated with such practices as police stop and search practices, Customs searches and specific undercover operations.
Professor Scot Wortley
Centre of Criminology, University of Toronto
Racial Profiling refers to any action undertaken for reasons of safety, security or public protection, that relies on stereotypes about race, colour ethnicity, ancestry, region or place of origin…rather than on reason
Ontario Human Rights Commission
205The only other information provided to Peel officers regarding racial profiling was through the January/February 2005 version of the Force's monthly bulletin, the Hot Sheet, which is not required reading or a formal mechanism for training. In this Bulletin is a short article that includes some definitions of profiling, and a reference to two recent cases on profiling.
206Officer Edwards testified that commencing in February 2007 Peel planned to start offering half hour to forty-five minute presentations on racial profiling to each and every platoon/shift; he anticipated that it would take a year to complete. As the training had not begun when he testified, and he had recently left the Diversity Bureau, he was not able to explain what form that training would take.
207When asked how police forces should address the phenomenon of racial profiling, Professor Wortley suggested the development of distinct anti-profiling policies that clearly prohibit racial profiling, that define what activities are prohibited, and that identify disciplinary consequences for breach of the policy. He testified that studies on policing show that clear rules will be followed by officers. He also suggested the development of screening tools for Police College, (to weed out racism and screen in cultural capital), increasing minority recruitment, and race-based monitoring of police actions.
Conclusions on Peel's Training on Racial Profiling
208I find that Peel does not have a distinct anti-racial profiling policy and the Race Relations and Anti-Discrimination Policy does not clearly prohibit racial profiling. New recruits receive approximately half day training on "diversity" generally including a short segment on racial profiling. The ability of the officers to effectively absorb and comprehend the training after such a short session is doubtful, as evidenced by Officer Elkington's evidence that he scarcely recalled it. There may be some training on racial profiling being offered to current officers, but I heard no evidence on what kind of training it is and how often it is offered. Only newly appointed supervisors receive specific training on racial profiling, and only since 2005; I was not advised of any efforts to train existing supervisors. In addition, the training offered to new recruits appears to focus on the CALEA standard, which as I stated above, does not meet the requirements of the Human Rights Code.
209If officers are not appropriately trained on what may constitute racially biased profiling or investigation, they may consciously or subconsciously engage in this form of discriminatory conduct.
210I find that the following remedies are appropriate in order to prevent future discriminatory practices of a similar nature to the ones found in this complaint.
211I will not make any orders with respect to minority recruitment, screening of recruits or the maintenance of race based statistics on police actions as these remedies are not proportionate to the findings of discrimination I made in this case.
ORDER
212The Tribunal orders:
(1) Peel shall develop a specific directive, separate and apart from its Race Relations and Anti-Discrimination Directive, prohibiting racial profiling under the Human Rights Code. The definition should be clear that if race plays any irrelevant part in the police decision (to stop/detain/investigate and/or the manner of the investigation), the action is prohibited.
(2) Peel shall prepare training materials on racial profiling for new recruits, current officers, and supervisors. I leave it to the discretion of Peel to determine whether the materials should be the same for each group or should be tailored more specially to the needs of each group. The training materials shall include a discussion of the Anti-Racial Profiling Directive, above, the social science literature on racial profiling, and the current caselaw. Preferably, although this is not required by my order, there should be a video or mock fact situation, followed by a discussion of the indicia of inappropriate profiling. If the existing video currently in use for the new supervisor training module discussed earlier is deemed by the consultant (see below) to be appropriate that video may be used.
(3) Peel shall hire an external consultant (not an employee of Peel) with expertise in racial profiling to assist in the preparation of the above Directive and training materials.
(4) Within six months of the date of my decision, Peel shall provide the name and credentials of the expert, a copy of the Anti-Racial Profiling Directive, and the training materials to the Commission. If the parties cannot agree whether items 1 to 3 have been complied with in good faith, either party may seek to bring the matter back to me. My intention is that Peel take the initiative in this regard and that the Commission's role be limited to determining whether the above orders have been complied with in good faith.
(5) Peel shall ensure that within one year of the development of the Directive and training materials, above, all new recruits, current officers, new and current supervisors shall be trained on the Anti-Racial Profiling Directive (such training to last not less than two hours). The session may be modified as appropriate to suit the differing needs of new recruits versus experienced officers or supervisors.
(6) Peel shall report to the Commission once all officers and supervisors have been trained. I leave it to the discretion of Peel to determine how and when such initial training should be reinforced in subsequent training sessions.
(7) Peel shall publish a one-page summary of this decision (names may be omitted) in the Hot Sheet, Peel's monthly police bulletin, outlining my findings and orders.
(8) Officer Elkington shall attend one of the training sessions for current officers described above.
(9) Peel and Officer Elkington are jointly liable for the payment of general damages in the amount of $20,000, plus pre-judgment interest from the date of Ms. Nassiah's original complaint and post-judgment interest from the date of my decision on this amount, in accordance with section 127 the Courts of Justice Act, R.S.O. 1990, c. C43.
213I will remain seized of this matter for a period of twelve months from the date of this order, so that I may deal with any implementation issues.
Dated at Toronto, this 11th day of May, 2007.
Kaye Joachim Member