HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brian Kampe
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Toronto Police Services Board
Respondent
DECISION
Adjudicator: Mark Hart
Indexed As: Kampe v. Toronto Police Services Board
APPEARANCES
Brian Kampe, Complainant ) On His Own Behalf
Toronto Police Services Board, Respondent ) Michele Wright, Counsel
Ontario Human Rights Commission ) Bay Ryley, Counsel
1The complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on December 11, 2006, and alleges discrimination because of race, colour, ancestry and ethnic origin contrary to the Ontario Human Rights Code R.S.O., c. H.19, as amended, (the “Code”) in relation to an incident on June 12, 2006 in which the complainant was stopped by the police while he was riding a bicycle in downtown Toronto and was subsequently arrested for possession of drugs. The complainant self-identifies as a Black African man.
2There are two issues in this case:
Whether the complainant experienced racial discrimination when he was stopped by the police in the early hours of June 12, 2006; and
Whether the complainant experienced racial discrimination in relation to how he was treated by the police after he was stopped, including allegations that he was physically assaulted.
3The respondent’s position is that the complainant was initially stopped and charged with having improper bicycle lighting and for not having a horn on his bicycle, and that subsequent to being stopped, the complainant attempted to flee and was arrested, charged and convicted of cocaine possession. The respondent denies any racial discrimination and any improper use of physical force.
4In his hearing brief, the complainant also raised various other issues, including allegations of negligence by the police officers, allegations of excessive use of force, and alleged violations of the Canadian Charter of Rights and Freedoms which are unrelated to any alleged violation of the Code. These are not issues that are within my jurisdiction to determine under the Code. The only issue before me is whether the complainant experienced racial discrimination in relation to the incident in question in violation of the Code.
BACKGROUND
5The complaint was referred by the Commission to the Tribunal on December 18, 2007, and the Initial Conference Call to commence the hearing was held on January 23, 2008. After some delays at the request of the Commission while it sought production of documents from the respondent, the Commission’s hearing brief was filed on June 2, 2008, taking the position that there was no reasonable prospect of establishing a breach of the Code and that the appropriate order in this case is that the complaint be dismissed. As a result, while the Commission did attend the hearing, the Commission did not call any evidence or make any submissions.
6After some further delay while the complainant sought his own legal counsel, which he did not ever retain, the complainant ultimately filed his hearing brief on July 13, 2008. The respondent filed its hearing brief on August 11, 2008. A pre-hearing conference call was held on August 13, 2008 to set dates for the hearing in this matter, and the hearing proceeded on October 28 and 29, 2008.
7The complainant testified on his own behalf. He gave his evidence initially in narrative form, and then I asked some further questions to ensure that he had a full opportunity to present his evidence in support of his allegations. The complainant was unable to locate two witnesses he had hoped to call in support of his case, and so did not present any further evidence.
8The respondent called four witnesses: the two arresting officers, Constable Hawley and Constable Ramphal; the booking sergeant, (now) Detective Wright; and another officer who was at the scene, (now) Detective Constable Kijewski. As the complainant indicated that he was uncomfortable directly cross-examining these witnesses, I asked him to indicate to me the questions or area of questioning that he wanted to pursue and I directed the questions to these witnesses on his behalf. In addition, in the absence of any counsel for the complainant and given the Commission’s non-participation in the hearing, I took an active role in questioning the respondent’s witnesses, in order to ensure that I had a full evidentiary record upon which to base my decision.
ANALYSIS
9I will first address the complainant’s allegation of racial discrimination in relation to his initial stop by the police, and will then address his allegations in relation to the events subsequent to the stop and the alleged physical assault.
The Initial Stop
10The complainant was riding his bicycle southbound on George Street in the early morning hours on June 12, 2006. There is no dispute that the complainant was riding his bicycle on the sidewalk on the east side of the street, and that he did not have a back light on his bicycle. Constables Hawley and Ramphal were on general patrol that night, and were driving southbound on George Street when they stopped the complainant just north of Dundas Street.
11In her closing submissions, counsel for the respondent argued that it was sufficient to withstand an allegation of racial discrimination or racial profiling if there was an “articulable reason” for the stop, in reliance upon the decision of Justice O’Connor in R. v. Singh, 2003 CanLII 20804 (Ont. S.C.).
12Justice O’Connor, in making a determination in a criminal case as to whether the accused’s constitutional rights had been infringed, relied upon the decision of the Ontario Court of Appeal in Brown v. Durham Regional Police Force (1998) 1998 CanLII 7198 (ON CA), 131 C.C.C.(3d) 1, in which a “pretext stop” is defined as “the use by the police of legitimate powers to stop a vehicle (. . .) but in doing so they have an additional improper purpose”, which can include selecting persons to be stopped based on their colour. In other words, even if the police have an “articulable reason” to stop a person on the basis of the exercise of their legitimate powers, this will not preclude a finding of racial discrimination or racial profiling, for example, if the police select an individual from a particular racialized group to be stopped while not stopping others in similar circumstances or if the police have an ulterior motive in stopping the person premised upon assumptions made about that person because of the person’s race or colour.
13In the instant case, there is no doubt that the police had an “articulable reason” for the stop: namely the absence of a back light on the complainant’s bicycle. That, however, does not end the inquiry. I need further to consider whether there was an “additional improper purpose” in the decision to stop the complainant, and in particular whether the complainant’s race or colour was a factor in the decision to make the stop.
14There are two primary bases upon which the complainant alleges that his race or colour was at least a factor in the decision to stop him. The first basis is that there were other cyclists present on George Street without any back or front lights, whom the complainant alleges these officers had to have passed as they drove southbound on George Street. The complainant’s evidence also is that there was another cyclist who turned off Dundas Street and was proceeding northbound on George Street just before the complainant was stopped and another who did the same while the complainant was stopped, both of whom the complainant states did not have any lights on their bicycles.
15The evidence of both officers is that they do not recall seeing any other cyclists as they proceeded down George Street, nor do they recall the two cyclists that the complainant states turned northbound on George Street just prior to and during the stop.
16Even if I were to accept the complainant’s evidence, I do not find that it provides a sufficient basis upon which to infer that race was a factor in the decision to stop the complainant. The complainant’s evidence about the race of the other cyclists without lights on George Street is that they were “black, white and brown”. With regard to the cyclists without lights who turned northbound on George Street, the complainant’s evidence is that the cyclist who turned northbound just prior to the stop was “black” and the one who turned northbound during the stop was “brown”. On this evidence, no clear or discernable pattern emerges, other than that the complainant was stopped while other cyclists without lights some of whom were “black”, some of whom were “brown” and some of whom were “white”, were not. While the complainant no doubt feels that he was unfairly singled out, that does not provide a basis upon which to infer racial discrimination.
17The second basis upon which the complainant alleges that race was a factor in the stop is that he believes that an assumption was made that he was involved in some kind of illegal activity, such as drugs, based upon the colour of his skin, and the bicycle violation was merely a pretext to stop him.
18The evidence of the officers is that the complainant was stopped solely because of the bicycle violation. Their evidence is that when they were proceeding southbound on George Street, they saw a person on a bicycle on the sidewalk without any back light, and that they could not discern this person’s race or colour at the time the decision was made to stop the complainant.
19Their evidence further is that, at this time, Constable Ramphal was a new police officer and he was being mentored for several weeks by Constable Hawley as his “coach officer”. Both officers testified that one of the things a new police officer is required to learn is how to write Highway Traffic Act tickets. Constable Hawley’s evidence is that at the time in question, there were no radio calls requiring response and they were on general patrol and he was actively looking for a Highway Traffic Act violation by a motorist or cyclist in order to allow Constable Ramphal to practice writing tickets. The fact that this is one of the responsibilities of a coach officer was supported by the evidence of Detective Constable Kijewski.
20Both Constable Hawley and Constable Ramphal were questioned extensively about whether there was any other or ulterior motive behind their decision to stop the complainant. The complainant’s suspicions in this regard were heightened by a number of factors, including the length of time it took to write the ticket, the questions he was asked by Constable Hawley, and the fact that another police car arrived at the scene of the stop and one of the newly arrived officers got out of the car. The complainant’s evidence is that it was when this officer got out of the car that he got scared, and fled on his bicycle.
21On a careful and thorough consideration of all of the evidence, I do not find that there was any other or ulterior motive beyond stopping the complainant for the bicycle violation. I accept Officer Ramphal’s evidence that if there had been an ulterior motive for the stop, for example if the officers suspected that the complainant was trafficking or in possession of drugs, then the officers would not have remained in their car.
22With regard to the complainant’s suspicions, I find that the police officers have provided reasonable explanations to account for what happened. There is no question that the tickets for the bicycle violations (after being stopped, the officers also noted that the complainant did not have a bell or horn on his bicycle) took longer to prepare than may be the norm. The evidence indicates that the initial stop was made at 12:30 a.m. and the second car arrived at the scene at 12:44 a.m., and the tickets still had not been issued. However, I accept Officer Ramphal’s evidence that the delay in preparing the tickets was due to his inexperience and need to look up the information required to complete the tickets, including the section numbers for the Highway Traffic Act violations.
23With regard to the questions asked by Officer Hawley, I accept Officer Hawley’s evidence that it is standard procedure to check to see whether there are any outstanding arrest warrants for individuals who are stopped. Officer Hawley’s other questions were directed toward ascertaining what the complainant, who resided in North York, was doing in that area on a bicycle. But I do not find that the complainant was stopped for the ulterior purpose of conducting this questioning or to try to ferret out whether he was committing some other illegal activity. I accept Officer Ramphal’s evidence that the officers would have gotten out of their car if that was their purpose in stopping the complainant.
24I also accept the evidence of all of the police officers who testified that, in 51 Division and particularly in the George Street area, it is common practice for a second police car to “roll by” when other police officers have made a stop, to make sure that everything is okay. I also accept the evidence of Detective Constable Kijewski, who was riding in the second car, that her partner got out of the vehicle solely for the purpose of brushing some pastry crumbs off his pants, and not to involve himself in any interaction with the complainant.
25In the end, I find that the officers did not have any other or ulterior motive to stop the complainant beyond the bicycle violation, and accordingly do not find that the complainant’s race or colour was a factor in the decision to make the stop.
Events Following The Stop
26After the complainant was stopped and specifically after the second police car pulled up, the complainant fled south on George Street on his bicycle and was pursued by Officers Hawley and Ramphal in their police car. The complainant dropped the bike and ran east on Dundas Street. While he was running, the police officers state that the complainant was reaching into and out of his jacket pocket and pants in a motion like he was trying to get rid of something or reaching for a weapon. The complainant states that he was trying to keep his cellphone from falling out of his pocket.
27The complainant ultimately ran into an area where he became trapped by surrounding fences. The complainant states that when he realized he was trapped, he dropped to the ground and effectively surrendered to police. In contrast, both Officers Hawley and Ramphal and Detective Constable Kijewski state that when the complainant realized he was trapped, the complainant turned around and tried to run past the officers and was tackled to the ground and handcuffed. On this point, I prefer the evidence of the officers and find that the complainant did try to run past the officers, and was physically tackled or taken down, and that there was a struggle to get the complainant handcuffed.
28After he was on the ground, the complainant states that he was physically beaten by Officer Hawley, who first stomped on the complainant’s back six or seven times with his full body weight, then grabbed the complainant’s hair one way and smashed his face into the ground five times and then did the same thing with the other side of the complainant’s face, then delivered “body shots” to the complainant’s midsection with full force, and then stomped on the complainant’s back a few more times. While the officers acknowledge that there was a physical struggle when the complainant was taken down, they deny that the complainant was physical assaulted in the manner he describes.
29The complainant was taken to the back of a police car, where he was asked to get down on the trunk of the car and spread his legs so that he could be searched. The complainant states that he was left in that position for a prolonged period, and when he would lift his head up, it would be smashed back down onto the car and he would be told to stay down. The officers acknowledge that the complainant was initially searched for weapons following the take-down and then a further search was conducted at the back of the car, but deny that the complainant’s head was smashed as he alleges. The officers state that they found a small quantity of crack cocaine on the ground near where the complainant was taken down, and found a further quantity when the complainant was searched at the back of the car. While the complainant states that these drugs were planted by the police, he was subsequently convicted of cocaine possession and fined.
30After the complainant was taken to the station, a Level 3 search (commonly known as a “strip search”) was conducted by the arresting officers. While the complainant in his evidence raised concerns about the manner in which this search was conducted, I am satisfied on the evidence that a Level 3 search, while undoubtedly unpleasant, is standard procedure in light of the nature of the offence with which the complainant was charged and that there was nothing unusual in the manner in which the search was conducted.
31I do not find the complainant’s evidence of his alleged assault by police to be credible for several reasons. First, all witnesses are in agreement that the ground where the complainant was taken down was a hard surface, with the complainant testifying it was concrete while Officer Hawley states that it was asphalt. In either event, if both sides of the complainant’s face had been smashed repeatedly into either concrete or asphalt in the manner alleged, the complainant’s face necessarily would bear visible abrasions from repeated contact with a very hard surface. I was shown the booking video that records the complainant’s arrival at the police station following his arrest, and his face is clearly visible and shows no signs of the kind of trauma that one would expect.
32Second, on the booking video, the complainant moves without any signs of physical distress. Following the kind of brutal assault that he describes, one might have expected him to be doubled over in pain. Third, after he arrived at the station, the complainant was expressly asked by the booking sergeant, “do you have any mental problems or medical problems that we should know about?” to which the complainant answered no, and then “you’re in good health?” to which the complainant answered yes. The booking sergeant further testified that he did not recall seeing any injuries to the complainant, and would have recorded any injuries if he had seen them or if they had been reported to him. The Record of Arrest for the complainant records that no injury report was prepared, which is required if a prisoner has any visible injuries or complains of any injuries.
33Fourth, just prior to being released at approximately 4:00 a.m. on June 12, 2006, the complainant can be seen on the booking video saying to the booking sergeant “look what those guys did to me” and showing the sergeant some sort of injury to his right elbow, to his left “pinky” finger, and to the right side of his face. No actual injury to his face is visible on the tape, and I agree with counsel for the respondent that the injuries shown by the complainant are consistent with the take-down and the struggle to handcuff the complainant. Significantly, in his exchange with the booking sergeant, the complainant does not identify any injuries to his back or midsection, which would have been severely traumatized by the assault that he describes, nor does the complainant make any statement about the alleged beating that he claims to have endured.
34Finally, the complainant did not seek medical attention for his alleged injuries until July 14, 2006, almost a month after his arrest. X-rays and a CT scan of the complainant’s head were performed, which did not provide objective findings to support the complainant’s alleged injuries. While I recognize that soft tissue injuries can occur which cannot be supported by objective medical tests, what I find remarkable is that the complainant could have suffered a severe and vicious physical assault of the manner he describes without seeking medical attention earlier.
35For all of these reasons, I do not find that the evidence supports that the complainant was physically assaulted or beaten by the police when he was arrested on June 12, 2006. Rather, I find that the complainant fled from the police and tried to escape when he found himself cornered, and needed to be physically tackled in order to be apprehended. I further find that the complainant struggled when the officers were trying to handcuff him. I find that any injuries the complainant sustained in the course of his arrest were the result of the take-down and struggle, and not due to any design on the part of the police to injure him.
36Accordingly, I find that there is no basis in the evidence to support the complainant’s allegation that he experienced racial discrimination in relation to the events that occurred subsequent to the stop.
ORDER
37For all of the foregoing reasons, the Tribunal orders that the complaint be dismissed.
Dated at Toronto, this 24th day of November, 2008,
“Signed by”
Mark Hart
Vice-Chair