McKay v. Toronto Police Services Board, 2011 HRTO 499

Human Rights Tribunal of Ontario

Between:

Garry McKay Complainant

-and-

Toronto Police Services Board and Christopher Fitkin Respondents

Decision

Adjudicator: Ena Chadha Date: March 17, 2011 Citation: 2011 HRTO 499 Indexed as: McKay v. Toronto Police Services Board

Appearances

Garry McKay, Complainant Kimberly R. Murray, Mandy Eason and Amanda Driscoll, Counsel

Toronto Police Services Board, Respondent Glenn Chu and Antonella Ceddia, Counsel

Christopher Fitkin, Respondent Melany Franklin, Counsel

William Blair Sie-Wing Khow, Counsel

INTRODUCTION

1This is a Complaint brought under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), dated January 8, 2004, alleging discrimination in policing services on the basis race, colour, ancestry and ethnic origin contrary to sections 1 and 9 of the Code.

2The complainant, Garry McKay ("McKay" or "the complainant"), self-identifies as an Aboriginal man. He alleges that he was subjected to racially biased policing by the personal respondent, Christopher Fitkin ("Fitkin" or "personal respondent"), a police officer with the Toronto Police Service. The Complaint stems from an incident in the early morning hours of July 9, 2003, when police stopped and questioned McKay and a friend while the two men were walking in a laneway. During the encounter, Fitkin investigated McKay and McKay's bike and, soon thereafter, arrested McKay for possession of stolen property (the bike). Eventually, McKay was released, however, McKay alleges that Fitkin threatened to re-arrest him if he did not produce a receipt for the bike.

3The personal respondent submits that, given the time of the day and the laneway location, the police questioned McKay and his friend as a matter of routine patrol. McKay was initially arrested because a police records search indicated that a bike, bearing the same identification number as McKay's, was stolen. Fitkin later released McKay because further searches revealed the bike was reported stolen in Winnipeg. The personal respondent denies the allegations of racial profiling and denies that he threatened to re-arrest the complainant.

4Prior to the commencement of the hearing on the merits, there were several preliminary Requests For Orders During Proceeding resulting in four Interim Decisions: 2008 HRTO 98; 2009 HRTO 342; 2009 HRTO 876; and 2009 HRTO 1220. Although counsel for the organizational respondent, Toronto Police Services Board ("Board") represented Fitkin in the early stages of the proceeding defending against the Complaint, separate counsel later represented Fitkin for the hearing on the merits. While the Board ultimately took no position on the disputed facts, the Board participated throughout the hearing, objected to the complainant's expert evidence, and made submissions with respect to the general approach to human rights cases involving the police.

5In addition to testifying himself, the complainant called two expert witnesses (Charles Smith and Jonathan Rudin) and Frances Sanderson (who had assisted McKay after the incident). The personal respondent testified on his own behalf and called one expert witness (Michael Lenehan), Chad Ramsay (Fitkin's squad car partner), Emily Mutch (a police records specialist) and Shawna Coxon (regarding crime management). The Tribunal heard approximately eight days of evidence and received final written and oral submissions and supplementary written submissions with respect to the Ontario Divisional Court decision in Shaw v. Phipps, 2010 ONSC 3884. For ease of reference, in the balance of this Decision, the cited grounds of race, colour, ancestry and ethnic origin will be referred to collectively as the protected ground of "race".

DECISION

6I find that the personal respondent discriminated against the complainant on the basis of race contrary to sections 1 and 9 of the Code. My reasons are set out below.

STANDARD OF PROOF, CREDIBILITY AND RELIABILITY

7The parties agree about most of the facts. However, some assertions of fact, identified below, are contested.

8The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 ("McDougall") confirmed that the "balance of probabilities" standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be "sufficiently clear, convincing and cogent".

9I note that "credibility" and "reliability" of evidence are distinct concepts: the first relates to the witness's honesty and sincerity, while the latter encompasses the accuracy and fallibility of the evidence. Before I begin, I point out that I did not rely on certain conflicting statements contained in the parties' respective pleadings, which both parties submitted contained inaccurate information. The parties testified that specific information in their pleadings, as prepared by their legal representatives at that time, were inaccurate and, therefore, unreliable due to alleged errors in drafting. The complainant acknowledged that his Complaint misstated the address for his workplace. Fitkin acknowledged that the respondents' Response and Hearing Briefs incorrectly stated that he requested the complainant to produce a copy of the bike receipt within 24 hours. I have not given any weight to these written statements, which were inconsistent with the parties' oral evidence, and, instead, only considered the parties' testimony on these matters.

10In my evaluation of the evidence, I apply the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which summarized the test for credibility as follows:

In short, the real test of the truth of the story of a witness...must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

11The following factors assist in the assessment of reliability and credibility and the application of the 'preponderance of the probabilities' test:

• the internal consistency or inconsistency of evidence
• the witness's ability and/or capacity to apprehend and recollect
• the witness's opportunity and/or inclination to tailor evidence
• the witness's opportunity and/or inclination to embellish evidence
• the existence of corroborative and/or confirmatory evidence
• the motives of the witnesses and/or their relationship with the parties
• the failure to call or produce material evidence

Loomba v. Home Depot Canada, 2010 HRTO 1434 and cases cited at paras 14-18.

12There is no rule as to when the existence of inconsistencies shifts evidence outside the realm of the preponderance of probabilities. In McDougall at para. 58, the Supreme Court advises to:

(...) look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case.

13A finding of lack of credibility or reliability with respect to one aspect of a witness's testimony does not automatically render the entirety of the witness's evidence as incredible or unreliable. See McDougall and Shah v. George Brown College, 2009 HRTO 920. As such, a tribunal is entitled to accept or reject some, all or none of a witness's evidence.

THE FACTS

14McKay is of Oji-Cree descent and he describes himself as visibly Aboriginal in appearance. He grew up in Manitoba and attended residential school until the age of 17. McKay moved to Toronto in 1993 and has been employed by One Plus One Pizza delivering flyers since 2000. McKay testified about his longstanding fear of the police arising from his experience of being a victim of police assault while living in Manitoba. In July 2003, the time of the incident, McKay was 51 years old, wore his hair long, and resided at a rental property of Nishnawbe Homes (Native co-operative housing).

15McKay testified that in the summer months he typically started delivering flyers early in the morning (at approximately 5:00 am) in order to avoid the afternoon heat, as delivery could take 6 to 8 hours. The boundaries for McKay's flyer delivery zone were St. Clair Avenue West (south border) to Rogers Road (north border) and McRoberts Avenue (east border) to Caledonia Road (west border). The parties agree that this zone is located in an area known as Toronto's "Little Italy" and the street signs throughout the neighbourhood are labeled as "Corso-Italia".

16Fitkin joined the Toronto Police Service in February 2000. After graduating from the Ontario Police College and receiving further training at Bick College, Fitkin was assigned as a constable with the Primary Response Unit at 13 Division. On the day of the incident, Fitkin was partnered with Chad Ramsay ("Ramsay"). Ramsay was also a constable with 13 Division's Primary Response Unit, although junior to Fitkin, having been with the Toronto Police Service for only about seven months.

CHRONOLOGY OF EVENTS

17A summary of the chronology of the events is set out below. The parties accept the sequence of events that were traced through an audio recording of Fitkin's communications with police radio dispatch ("dispatch") and through the timing of various Canadian Police Information Centre ("CPIC") records searches. Where the parties diverged in perspective I have indicated so and, later in my reasons, set out the bases for my factual conclusions.

18On July 9, 2003, McKay was unable to do his job delivering flyers because he had undergone hernia surgery the previous week. McKay's friend and housemate, Morris Mack ("Mack"), who also sometimes delivered flyers, agreed to substitute for McKay. McKay described Mack as Aboriginal in appearance, similar to himself, with a dark complexion and long black hair.

19McKay accompanied Mack in order to show Mack the ins and outs of his particular delivery route. McKay walked with his blue Kona 24-speed bike, which he had purchased the previous summer, as he intended to ride home after showing Mack his route. Mack carried a batch of approximately 1,000 pizza flyers in a knapsack. McKay testified that the flyers were visible out of the knapsack. Shortly before 4:40 am, McKay and Mack reached St. Clair Avenue and McRoberts Avenue. The two men turned onto McRoberts and crossed McRoberts towards a laneway located near the start of McKay's delivery route. The parties agree that the St. Clair and McRoberts area was well-lit with lots of business lighting and street lamps.

The Laneway

20The laneway runs east-west connecting McRoberts Avenue to Caledonia Road. McKay testified that he was taking Mack through the laneway in order to go to a coffee shop located at the north-west corner of Caledonia Road on the other side of the laneway. McKay testified that he intended that they would stop for coffee first and then he would show Mack the delivery route.

21Fitkin testified that nothing unusual had occurred on the patrol shift leading up to the laneway stop. There were no specific reports of criminal activity in the area that night, nor had McKay and Mack behaved suspiciously (other than enter the laneway) so as to attract police attention.

22Ramsay testified that he and Fitkin were travelling eastbound in their squad car on St. Clair Avenue when he observed two men (McKay and Mack) on McRoberts Avenue, north of St. Clair, heading westbound. Ramsay recalled that he spotted the two men walking across McRoberts and thought it was strange that the men were heading into a laneway given the early hour.

23Fitkin recalled that he and Ramsay were on general patrol driving along St. Clair Avenue when he glimpsed two figures on McRoberts heading into a laneway. Fitkin testified he could not discern the individuals' genders or races. He recalled that Ramsay also pointed out the two individuals. Fitkin made a U-turn, turned onto McRoberts and then drove the squad car into the laneway. He followed with the intention to speak to the two individuals to determine what they were doing in the laneway.

24The officers testified that, at the start of the shift, their parade sergeant directed them to pay special attention for break and enters ("B&Es") because their patrol area had been increasingly targeted by thefts. However, neither officer asserted that there had been a report of a bike stolen.

25Based on oral and photographic evidence of the laneway, the south side of the laneway is bordered by a low-rise commercial complex, and on the north side by two-storey houses with their fences and backyards. The laneway is wide enough to fit one vehicle only and has two streetlights on the south side adjacent to the commercial buildings. A separate north-south laneway intersects and ends approximately mid-way in the east-west laneway. Both laneways each have a streetlight located near this intersection point.

The Encounter

Approximately 4:40

26Radio dispatch records indicate that the police officers were investigating two individuals in a laneway at approximately 4:40 am. Although the parties disagree about where exactly in the laneways the police approached McKay and Mack, there is no dispute that the squad car drove up behind the two men. After exiting the car, Fitkin questioned McKay at the junction where the two laneways intersect. Ramsay questioned Mack a few yards away. Neither pair could hear the other's discussion, although Ramsay noted he could hear dispatch's radio communications to Fitkin over Fitkin's portable transmitter.

27Fitkin testified that he realized McKay was Aboriginal when he first spoke to McKay. Fitkin asked McKay to identify himself and explain his reason for being in the laneway. McKay provided his name, date of birth and address, but did not have any identification on him. There is no dispute that throughout the encounter Fitkin was polite and McKay was fully cooperative.

28The parties testified to different versions of what McKay said to explain the men's presence in the laneway.

29McKay testified that he felt uncomfortable when he realized it was a police car that had pulled up behind them, and, although he was scared, he answered all of Fitkin's questions because he had nothing to hide. McKay told Fitkin that he was taking his friend, Mack, to show Mack how to do his job for him. He told Fitkin that he delivered flyers for One Plus One Pizza located at Oakwood and Rogers.

30Fitkin alleges that McKay told him he was taking his friend to work at One Plus One Pizza at Caledonia and Rogers. Fitkin testified that, since he knew One Plus One Pizza was located at Oakwood and Rogers, he told McKay that he was going the wrong direction. McKay then replied that they were delivering flyers. Fitkin queried why the men would be delivering flyers in a back laneway, to which McKay had no response. Fitkin testified that he got a "feeling" McKay was lying and became "very suspicious". Fitkin testified he believed McKay's flyer delivery explanation provided a "good cover story".

Approximately 4:42 – 4:44

31At approximately 4:42 am, Fitkin requested dispatch run a CPIC check on McKay. Dispatch reported that CPIC showed a "hit" for Garry McKay as accused of possession of marijuana and awaiting disposition. Under cross-examination Fitkin acknowledged that, since there were no outstanding warrants, McKay's CPIC check was "a clearance" and that he did not have concerns about the charge awaiting disposition. At approximately 4:43 am, Ramsay also requested a CPIC check on Morris Mack. Dispatch reported that there were no CPIC hits for Mack.

Approximately 4:44 – 4:47

32There is no dispute that after confirming McKay's identity through the CPIC check, Fitkin turned his attention to McKay's bike.

33McKay alleges that Fitkin commented "nice bike" and then asked, "whose is it?" McKay replied the bike belonged to him. Fitkin questioned, "are you sure?" and McKay said, "yes I'm sure". Fitkin asked, "where did you get it from?" McKay told Fitkin the name and location of the store where he had purchased the bike. Fitkin asked, "do you have the receipt?" McKay replied that he did not have one with him, but could get it if given time. McKay suggested that since the bike store opened at 10:00 am, Fitkin could pick him up or meet him at the store. Fitkin refused this suggestion. McKay testified that he felt "uncomfortable" and "defenseless" because there was nothing he could do to persuade Fitkin that he was the owner of the bike.

34Fitkin acknowledged that he and McKay had an exchange along the lines alleged by McKay, and that McKay informed him of the name and location of the bike store. However, given McKay's initial misleading answer regarding the location of his work and the fact that flyers could not be delivered in the laneway, Fitkin testified that he became "very suspicious" that McKay was lying. Fitkin stated that he got a "feeling" that Mack was lying and wondered if McKay was lying because the bike was stolen.

35Fitkin testified that he observed McKay's clothes were "dirty" and McKay looked "disheveled", whereas the bike was "expensive looking" and "pristine". Fitkin stated that he believed that someone with a bike in such good condition would take better care of his clothes.

36Fitkin next asked McKay where the bike's serial number was located. McKay told him the serial number was under the sprocket with the pedals.

37McKay testified that Fitkin then ordered him to flip over the bike and McKay complied. Fitkin denies that he directed McKay to turn over the bike. Rather, Fitkin testified that he requested McKay flip over the bike, which McKay agreed to do. This allowed Fitkin to locate two numbers that he surmised were serial numbers for the bike.

Approximately 4:47 – 4:49

38At approximately 4:47 am, Fitkin contacted dispatch and requested a CPIC search for a bike. Fitkin provided dispatch with two different numbers that he had obtained from the underside of McKay's bike, specifically "BI0569" and "00111951" as potential serial numbers. The documentary evidence indicates that dispatch conducted two searches by inputting each number into CPIC as possible serial numbers, but only "BI0569" generated a hit.

39At approximately 4:48 am, dispatch reported to Fitkin that number "BI0569" was associated with a stolen red 21-speed bike:

Dispatch: First time in ten years, but it's coming back as stolen. Should be a Kona bike, Kilo-Oscar-November-Alpha. A red speed bike. 21-speed. Looks like it's a mountain bike.

Fitkin: Can you give me that brand name again?

Dispatch: Sure, it's Kilo-Oscar-November-Alpha...(pause)...

And that's for the serial number Bravo-India-0-5-6-9. The other, uh, serial number you gave me is not on file.

Fitkin: 10-4, and what was the colour again?

Dispatch: Should be red. Says it's a mountain bike, looks like a 21-speed.

Fitkin: 10-4. One under arrest

Dispatch: 10-4. 4:49

40Although at the time Fitkin believed that "BI0569" was a serial number, the parties agree that the number represents a Kona bike model type and not the bike's serial number. As such, all Kona bikes of the same model would bear the same model number. There is also no dispute that "00111951" was the bike's actual serial number.

Arrest

41Fitkin testified that he immediately placed McKay under arrest as soon as dispatch confirmed that one of the numbers came back as a stolen bike. Fitkin explained that he had to arrest McKay based on that information. When questioned about the discrepancy between the colour and speed of McKay's bike (blue 24-speed) and the stolen bike (red 21-speed), Fitkin reasoned that the bike could have been repainted after theft. He acknowledged that did not consider or verify the bike's speed.

42McKay testified that when Fitkin told him he was being arrested for stealing the bike, he was shocked. He objected and again advised Fitkin of the name and location of the bike store where he had purchased the bike. Fitkin handcuffed McKay behind his back and conducted a pat down frisk, retrieving a bike lock key from McKay's pocket. McKay could not recall if he was informed of his rights, however, Fitkin testified that he advised McKay of his right to counsel at this time.

43Fitkin led McKay in handcuffs to Ramsay and Mack. McKay described Fitkin's body mannerisms towards him were now forceful and intimidating. Fitkin denied this allegation.

44At this point, the officers told Mack he should leave. McKay testified that, when his friend left, he was fearful of being alone with the police. Fitkin then placed McKay in the back of the squad car and the two officers sat in the front of the car.

45While handcuffed in the back of the squad car, McKay continued to protest his innocence and threatened to sue the police for false arrest. Both officers described McKay as cooperative through the encounter, but also genuinely upset and adamant that the bike belonged to him. Ramsay recalled that, while in the squad car, McKay mentioned something about the bike receipt. McKay recalled that after listening to his protests, the officers closed the squad car's partition window and talked quietly amongst themselves.

Approximately 4:53 – 4:56

46At approximately 4:53 am, Fitkin called dispatch from the squad car and asked whether there were any reports associated with the stolen bike. Dispatch responded that Winnipeg Police entered the report on June 11, 2001 and that the report included a number "010111129".

47Shortly afterwards, in order to see the stolen bike report for himself, Fitkin initiated two CPIC checks from the squad car's computer searching "BI0569". The first search generated no hit. The second search generated a match with the Winnipeg Police report, dated June 11, 2001, of a stolen red Kona, 21-speed mountain bike.

48McKay recalled that at some point while detained in the back of the squad car he questioned the officers as to where he supposedly had stolen the bike from and was informed by Fitkin that he had stolen the bike from Winnipeg. McKay told Fitkin that it was a crazy idea to think he had stolen the bike because he would never have been able to ride the bike all the way from Winnipeg.

5:09 Release

49Fitkin testified that, sometime after conducting his own CPIC searches, he began to doubt that McKay's bike was the same bike as reported stolen in Winnipeg. His doubt grew because the number included with the Winnipeg report seemed similar to the other identification number on McKay's bike, which had failed to generate a CPIC hit.

50Fitkin testified that, upon deciding that McKay should be released, he removed McKay from the back of the squad car, uncuffed him and apologized. McKay quickly retrieved his bike and rode away.

51McKay was handcuffed and detained in the back of the squad car for approximately 19 minutes. McKay testified that he did not know why Fitkin directed him to exit the squad car and then ordered him to turn around. McKay testified he was so fearful that he prepared himself "to duck" upon exiting the car. Then, to his surprise, the handcuffs were removed and he was told that he was free to go. He recalled very little of what next occurred, other than he located his bike on the ground and rode away.

52At approximately 5:09 am, Fitkin advised dispatch that the subject was released at the scene and that the officers needed a couple of minutes to write it up.

I/CAD Message At 5:11

53Documentary evidence known as I/CAD Narrative Message Report was produced in the hearing. This document tracks messages communicated between squad cars. The I/CAD Narrative establishes that at approximately 5:04 an unknown officer communicated with Fitkin and Ramsay's squad car and asked "What up?" At approximately 5:11 am, Ramsay replied, "Looking for bad guys". The unknown officer communicated back "Too early 4 bad guys" and Ramsay responded "Seems that way".

Returning Bike Lock Key

54Upon discovering that they still had McKay's bike lock key, the officers set off in the car to search for McKay. The parties testified to different versions of what Fitkin said to McKay upon finding him soon afterwards on a nearby road.

55Fitkin testified that he pulled the squad car next to McKay, apologized for holding onto the bike lock key and returned it to McKay through the passenger window. Fitkin alleges that McKay expressed his anger at being arrested and said something to the effect of "I told you it was my bike and I told you I had a receipt." Fitkin further alleges that McKay also stated, "you should have let me produce the receipt".

56Fitkin indicated that, given McKay's upset and earlier threat to sue for false arrest, he decided to give McKay his name and badge number. He testified that he also told McKay that, if McKay wished to bring in the bike receipt, McKay could do so. Fitkin explained that he made this offer as a means to appease McKay's concern that he had not been given an opportunity to prove he had the bike receipt.

57McKay testified that when the squad car pulled up beside him he was surprised to learn that Fitkin was returning his bike lock key because he had not realized it was missing. McKay alleges that after Fitkin gave him the key, Fitkin said something to the effect of "now don't forget to provide the bike receipt or else I'll have to come to your home and arrest you again". McKay testified that Fitkin wrote out his name, badge number and the 13 Division's fax number on a Post-it sticky note. Fitkin instructed McKay to fax the receipt to his attention at the station, stating, "they will know where to put it".

CPIC Searches At Station

58At approximately 5:24 am, Fitkin called into dispatch and advised that the officers were returning to the station. At approximately 5:35 am, back at the station Ramsay conducted six CPIC searches (person and criminal record checks) on McKay. The first two searches were invalid because of incorrect data. Ramsay conducted a third and fourth search with correct data. These searches generated the same information initially provided by dispatch to Fitkin confirming McKay's identity. Ramsay ran a fifth and sixth search identical to the third and fourth and, since the searches were identical, the results repeated the previous findings.

59At 5:54 am, Fitkin also ran a CPIC search for "BI0569". The result corresponded with the same report that he and dispatch had earlier retrieved from the Winnipeg Police regarding the red 21-speed Kona bike. Fitkin testified he ran this number search in order to fill out details in the Record of Arrest and to attach his and Ramsay's CPIC reports to the Record of Arrest. Fitkin testified that he alone authored the synopsis in the Record of Arrest.

Faxed Receipt

60McKay testified that he was anxious that he would be rearrested, so the next day he requested assistance from his "landlady" to fax the bike receipt.

61Frances Sanderson ("Sanderson"), Executive Director of Nishnawbe Homes, testified that McKay called her office on July 10, 2003 requesting to see her for some assistance. McKay attended at the office that afternoon. Sanderson testified that she had known McKay for ten years. She recalled that McKay appeared "nervous" and "in a flap" because he feared the police would come to his home and arrest him if he did not provide the police with proof of the bike receipt. Sanderson testified that McKay was also worried that he could be evicted. Sanderson explained that all Nishnawbe tenants are subject to a lease condition prohibiting criminal activity. Sanderson advised McKay to consult a human rights worker at the Native Canadian Centre around the corner from her office regarding the incident.

62Sanderson arranged for McKay's bike receipt to be faxed later that afternoon. A fax was sent from Nishnawbe Homes to "Police Constable Fitkin #07804", with the notation "Re. Garry McKay", attaching the bike receipt. The receipt, dated August 30, 2002, indicates that McKay purchased a bike with serial number "0111951" for $721.95.

FINDINGS ON THE CONTESTED FACTS

63As noted above, the parties disagree about several important factual points: whether McKay's race precipitated Fitkin to follow the men into the laneway; what explanation was given by McKay for the men's presence in the laneway; whether McKay's clothes were dirty; whether Fitkin requested or ordered McKay to flip over the bike to show the serial number; whether, after the arrest, Fitkin's body language was forceful and intimidating; whether Fitkin directed McKay to fax a copy of the receipt to the police station; and whether that request, if made, was buttressed by a threat of re-arrest for non-compliance.

64The parties obviously also disagree about what conclusions I should draw from both the contested and the uncontested facts. I will deal with those issues in the last part of this decision.

65I note that Mack did not testify at the hearing. In any event, the parties agree that Ramsay and Mack were separate and could not hear what was said between the complainant and personal respondent. In this regard, I do not draw an adverse inference from Mack's absence, and also accept that it was reasonable that Ramsay could offer no evidence of what took place between the parties after the stop and leading up to the arrest. However, I found Ramsay, on certain occasions, reticent to provide details regarding important factual issues, and this, along with the discrepancies and weakness in Fitkin's evidence as discussed below, caused me to doubt certain aspects of Fitkin's testimony.

Decision to Follow the Men

66The complainant alleges that the men were followed because of their Aboriginal ancestry. Fitkin alleges that he did not know McKay's race and contends that the police followed the men because the early hour use of the laneway gave rise to valid policing concerns.

67The parties agree that there were street and business lights all along St. Clair Avenue. The complainant testified, and the personal respondent did not contradict, that there was a streetlight on McRoberts directly across from the laneway. Ramsay's evidence was clear that the officers were travelling eastbound when he saw the two men "walking across" McRoberts heading towards the laneway. Given the direction the squad car was travelling (eastbound) and the direction the men were walking (westbound), the officers would appear to have had opportunity to observe the men from the front.

68However, Fitkin testified that he merely glimpsed at the individuals, whereas Ramsay had actually spotted and commented on the men. Thus, although there is evidence from which it can be inferred that Ramsay may have discerned the men's race, I conclude that, on a balance of probabilities, given Fitkin was the driver, he did not perceive the men's race. Nevertheless, Fitkin acknowledges that he immediately realized McKay was Aboriginal once he spoke to McKay.

McKay's Explanation in the Laneway

69In respect of McKay's explanation for the men's presence in the laneway, Fitkin testified that, at the outset of the encounter, he doubted McKay's answer because McKay stated he was taking his friend to work at One Plus One Pizza at Caledonia and Rogers, which Fitkin knew was located at Oakwood and Rogers. Fitkin testified that when he told McKay he was going the wrong direction, McKay replied that the men were delivering flyers. Fitkin asked how they could be delivering flyers in a laneway, to which McKay did not respond. Fitkin testified that this exchange left him with the strong impression that McKay was lying and prompted him to investigate further.

70However, Fitkin's memobook notes do not reflect his allegation that McKay gave the wrong address for his place of employment. Fitkin's notes read "Male advises he is taking his friend to work at 1 + 1 Pizza at Rogers/Oakwood. Then advises they are delivering flyers." Thus, Fitkin's notes are more consistent with McKay's version of what he said: that he was taking his friend, Mack, to show Mack how to do his job for him, and that he told Fitkin that he delivered flyers for One Plus One Pizza located at Oakwood and Rogers.

71Fitkin testified that he did not document McKay's alleged misinformation about the location of the pizza store (Caledonia/Rogers) in his notes, but rather wrote what he, Fitkin, knew to be correct (Rogers/Oakwood). It is unclear why Fitkin failed to record McKay's alleged misstatement and supplanted his own knowledge into his notes, particularly if McKay's misinformation caused Fitkin to undertake a more probing investigation. I do not accept Fitkin's explanation for the inconsistency between the notes and his testimony and I conclude that his notes are more likely an accurate reflection of what transpired.

72Notably, this finding is further substantiated by the Record of Arrest synopsis, written by Fitkin about an hour later, which stated "[t]he males advised the officers that they were on their way to work to deliver flyers". As explained in my reasons below, I find the inconsistency between the oral and documentary undermines Fitkin's justification for further investigating the complainant.

McKay's Appearance

73In outlining the reasons for his suspicions of McKay, Fitkin testified that he believed McKay's possession of a clean, "expensive" looking bike was incongruous with McKay's dirty clothes, and, thereby, worthy of investigation. It is reasonable to infer that his implication was that the clothes were noticeably dirty.

74There is no evidence that confirms Fitkin's description of McKay's appearance. McKay denied that his clothes were dirty. Ramsay did not recall anything about McKay's appearance. Although Fitkin's notes include details about McKay's attire, specifically a list of exactly what clothing McKay wore, the notes, made shortly after the encounter, make no reference the alleged "dirty" state of the clothes or the "pristine" bike. Obviously, subjective standards can greatly influence whether an individual would describe clothes as "dirty" and, in light of the oral and documentary evidence, I am unable to conclude, on a balance of probabilities, that McKay's clothes were noticeably dirty

Bike Search

75The complainant argues that Fitkin had no legal power to search McKay's bike incidental to the investigative detention, and this illegal search is evidence of racial discrimination. Fitkin alleges that the bike search was lawful because McKay agreed to flip over his bike and, therefore, gave his consent for the search.

76Although the complainant asked that I find the bike search was unlawful, I will not canvass whether the legal criteria of a voluntary and informed consent were satisfied when Fitkin requested, or directed, McKay to flip over the bike in order to obtain the serial number. It is not my role to determine the constitutional/criminal legality of the investigative detention and search. While the evidence regarding those issues may, to a certain extent, overlap, my only task is to assess the question of discrimination under the Code. There is no dispute that Fitkin sought to have the bike turned over, and that McKay, who was fully cooperative throughout the encounter, complied.

Fitkin's Body Mannerisms

77With respect to the complainant's allegations that, after the arrest, the personal respondent's physical posture towards him was forceful and intimidating, I note that, in the absence of Mack's testimony, there is no corroborating evidence. The parties agree that, once handcuffed, Fitkin led McKay to Ramsay and Mack. I accept Ramsay and Fitkin's testimony that it is normal police practice to secure the accused and keep proximity to the accused. While I understand McKay perceived Fitkin's body mannerisms as aggressive, I find that Fitkin maintained close contact with McKay after the arrest as part of police procedure to retain control over an accused and the surrounding space.

Threat to Re-Arrest

78Fitkin denies that he threatened to re-arrest McKay if a bike receipt was not produced within 24 hours. Fitkin notes that, while he initially asked whether McKay had a receipt, he never demanded a receipt, and it was McKay who suggested that a receipt could be produced once the bike store opened. Fitkin contends that he gave McKay the benefit of the doubt and released him unconditionally at the scene, as corroborated by the Record of Arrest. Fitkin alleges that, when he returned the bike lock key at the end of the encounter, he offered to McKay "he could bring in the receipt" as a means to placate McKay's concerns. Fitkin testified that he believed that this would give McKay, who was upset and earlier threatening to sue for false arrest, closure.

79Fitkin asserts that his version of the events is supported by McKay's interview with the Ontario Human Rights Commission, at which time McKay did not specifically remember Fitkin threatening to re-arrest him. I reviewed McKay's witness statement with the Ontario Human Rights Commission. During the interview, McKay did not recall an explicit threat of re-arrest; however, McKay clearly recalled that, upon returning the bike lock key, Fitkin instructed him to produce proof of the bike receipt.

80Ramsay's only memory with respect to the bike receipt did not relate to these final moments of the encounter, but rather that McKay had earlier mentioned a bike receipt while handcuffed in the back of the squad car. Despite the fact that Ramsay was seated in the squad car with Fitkin (on the driver's side) and McKay outside the passenger window next to him, Ramsay offered no information about what Fitkin said to McKay when returning the bike lock key. Ramsay did not confirm McKay's upset demeanour and alleged insistence that he should have been allowed to produce the receipt, nor Fitkin's efforts to appease McKay by giving him his name and badge number. I find it difficult to accept that, as the junior officer, Ramsay would not have noticed how a more experienced officer handled such a situation. I question why Ramsay provided no testimony regarding this matter.

81Fitkin testified in-chief that, because of McKay's avowal to sue for false arrest (documented in Fitkin's notes), he provided his name and badge number to McKay during the final interaction. However, Fitkin did not initially testify about writing down and giving McKay the police station's fax number. The evidence indicates that Fitkin provided his name, badge number and a specific fax number for the police station to McKay. McKay testified that Fitkin told him to fax the bike receipt to the police station, stating "they will know where to put it". Although Fitkin acknowledged under cross-examination that he gave McKay the station's fax number, he did not explain the inconsistency with his earlier testimony that he suggested to McKay he could bring in the receipt to help McKay experience closure. I find that Fitkin's acknowledgement under cross-examination that he provided the police station's fax number to McKay bolsters McKay's version of the events that Fitkin instructed him to fax the bike receipt to the police station.

82In sum, while the evidence does not support McKay's contention that Fitkin expressly issued a threat to re-arrest, the evidence suggests that Fitkin directed McKay to fax the bike receipt to the police station. I accept that McKay interpreted Fitkin's words as authoritative and compulsory, as opposed to an invitation or conciliatory offer, and that McKay believed that he had no choice but to obey the police officer's direction. I further accept that McKay departed the encounter with the real impression that, until he faxed the receipt to Fitkin, he remained a suspect in theft of the bike. Thus, although I am unable to conclude that there was explicit threat to re-arrest, I find that Fitkin instructed McKay to fax the bike receipt to the police station. I conclude that, in the circumstances, it is reasonable that McKay formed the impression that he could be re-arrested if he did not comply.

83The evidence of Frances Sanderson, Executive Director of Nishnawbe Homes, further confirms McKay's belief that he was required to provide the police with proof of the bike receipt. Sanderson was a very credible witness with a clear recollection of the events. As a result of their July 10, 2003 meeting, Sanderson was left with the unequivocal impression that it was necessary for McKay to fax the bike receipt in order to avoid re-arrest. She described McKay as nervous that he would be re-arrested if he did not forward the bike receipt to the police. Further, I understand Sanderson's explanation that McKay's anxiety related, in part, to the fact that an arrest could jeopardize his Nishnawbe housing. Revealing to his "landlady" the potentially compromising information (that he had been already been arrested) in an effort to get her help to fax the receipt is persuasive evidence that McKay sincerely apprehended he was required to fax the bike receipt to the police to avoid the risk of re-arrest.

EXPERT EVIDENCE

84In an earlier Interim Decision, 2009 HRTO 876, I refused the respondents' request to disallow the complainant's proposed expert witnesses. I concluded that concerns over the proposed evidence's alleged lack of relevancy, necessity, and neutrality were better addressed after hearing from the witnesses as to their qualifications and scope of anticipated evidence. I indicated that this would allow for fulsome examinations of (im)partiality.

85The Supreme Court of Canada in R. v. Mohan 1994 CanLII 80 (S.C.C.), [1994] 2 S.C.R. 9 ("Mohan"), identified the following four criteria for determining admissibility of expert evidence:

• the evidence must be relevant;
• the evidence must be necessary to assist the trier of fact;
• there must be no exclusionary rule otherwise prohibiting the receipt of the evidence; and
• the evidence is given by a properly qualified expert.

86The four criteria are case-specific and, even if these requirements are met, expert evidence may be rejected if its prejudicial effect outweighs its probative value. See R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 ("R. v. D.D."). I found the complainant's two expert witnesses, as well as the personal respondent's expert witness, satisfied the Mohan test for admissibility. Although no expert reports were created specifically for this case, all three experts tendered written materials previously published or prepared on the topics of their expertise.

Charles Smith

87Charles Smith ("Smith") is the author of a book entitled Conflict, Crisis, and Accountability: Racial Profiling and Law Enforcement in Canada (2007). He is a lecturer with the University of Toronto and has written and spoken for numerous years on issues of anti-racism, equality and diversity. He served as an equity advisor with the Canadian Bar Association and Law Society of Upper Canada. Smith worked with the Municipality of Metropolitan Toronto with respect to community policing initiatives. He was qualified as an expert on racism in Small v. Stec, 2009 CanLII 3565 (Ont. S.C.J.). The complainant sought to tender Smith as an expert witness with respect to racism, racial profiling, and racial profiling of Aboriginal peoples.

88The respondents objected, arguing that Smith's proposed evidence with respect to racism and racial profiling was unnecessary given the Tribunal's familiarity with these topics and the availability of legal authorities and literature. The respondents further argued that Smith did not have sufficient expertise or experience to testify about Aboriginal racial profiling. Although at the hearing of the motion to disallow, the respondents expressed some concern as to Smith's impartiality because of his appointment as a co-monitor in McKinnon v. Ontario (Correctional Services), 2006 HRTO 20, the respondents did not renew this line of objection.

89I accepted Smith as an expert in the field of racial profiling based on the above-noted credentials. There is no doubt that Smith has written and presented extensively in the area of racial profiling and the prevalence of racial profiling in Canada. I allowed him to testify regarding what is racial profiling and common factors that may indicate racial profiling has occurred. I concluded his testimony may assist me in understanding the dynamics of the concepts given the parties' acceptance that, in the Ontario human rights context, this was a case of first impression with respect to Aboriginal racial profiling. However, I agreed with the respondents' concerns that Smith is less experienced with respect to Aboriginal racial profiling, and as such, I did not hear from Smith in this regard. Smith did not express an opinion with respect to the specific facts of this case.

90Smith testified that racial discrimination can manifest overtly, subconsciously or systemically, and that racial profiling is a form of racial discrimination. Smith explained the current understanding of racial profiling, in the criminal law context, is as articulated by Rosenberg J.A. in R. v. Richards, 1999 CanLII 1602 (ON C.A.):

Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

91Smith testified that a variety of different indicators are suggestive of racial profiling. Two concepts commonly identified with racial profiling are the phenomena of over-policing and pretext policing.

92Over-policing refers to the practice of heightened or targeted policing of a particular group or within a specific geographical area. Over-policing occurs when police focus greater attention on a racialized population or neighbourhood associated with a racialized community. Over-policing of a racialized population may also occur as a secondary consequence of deploying police resources to economically poorer areas where there is higher representation of racialized groups.

93Pretext policing occurs when police ostensibly detain or investigate an individual for one reason when, in reality, there is a secondary purpose or ulterior reason to the interaction. The initial contact in pretext policing, generally associated with police stops or searches, happens for a simple or innocuous reason (e.g., a traffic violation) and then leads to more intense scrutiny (e.g., vehicle search).

94Smith testified that the personal motivation and actions of police can also correspond to the phenomenon of racial profiling; for example, a police officer's comments or conduct may be rooted in a racial stereotype. Further, both over- and pretext policing relate to the notion of 'out of place', which occurs when police focus on an individual who does not fit with the surrounding community demographic, or, in other words, is out of place in the neighbourhood. Smith acknowledged that police would have to perceive an individual's race or ethnic background in order to racially profile an individual.

Jonathan Rudin

95The complainant presented Jonathan Rudin ("Rudin") as an expert on the experience of Aboriginal people in the criminal justice system, and I qualified him as such. Rudin's proposed testimony related to the overrepresentation of Aboriginal people in the justice system, the historical role of police in the Aboriginal community, and resulting perceptions and stereotypes that may be held by the police. Rudin did not seek to advance an opinion with respect to the specific facts of the complaint.

96Highlights of Rudin's background include having been co-author and researcher of Bridging the Cultural Divide – A Report on Aboriginal People and Criminal Justice In Canada for the Royal Commission on Aboriginal People (1995); member of the Ipperwash Inquiry Research Advisory Committee; author of Aboriginal Peoples and the Criminal Justice System (2006), a lengthy research paper written for the Ipperwash Inquiry; and author of various peer reviewed journal articles. Rudin provided social context training about Aboriginal people in the criminal justice system to judges at the National Judicial Institute. He teaches on these topics at York University and Ryerson University. He is the Program Director at Aboriginal Legal Services of Toronto ("ALST") where he assisted with the development of the Gladue (Aboriginal Persons) Court.

97Prior to canvassing the salient points of Rudin's evidence, I note the respondents objected to Rudin's proposed testimony. The respondents argued that Rudin's expertise was limited to the high rates of incarceration of Aboriginal people and that he lacked knowledge about stereotypes. In light of his well-developed work on Aboriginal people in the criminal justice system, including commissioned research for various governments and prominent inquiries, numerous publications and teaching experience, I found Rudin to be amply qualified to provide expert evidence regarding the proposed topics. I also found his anticipated testimony to be relevant and of such a specialized nature that his evidence would likely help my understanding of the issues in the case.

98The respondents further argued that Rudin lacked impartiality because of his contractual relationship with ALST. ALST consists of two distinct entities: a legal clinic that provides client representation ("ALS legal clinic"), and a program clinic that provides community services ("ALS community programs"). One Board of Directors oversees both entities. The complainant is represented by ALS legal clinic and Rudin is retained by ALS community programs to serve as its Program Director.

99There is no question that an expert witness must be objective. See R. v. D.D., supra. However, objectivity does not mean that an expert is devoid of community connections and/or derives opinions in abstraction absent any familiarity with the parties or their counsel. Experts are proffered precisely because they have expansive or deep knowledge of the field and respected reputations and affiliations, which sometimes may relate to, or overlap with, a party, particularly if the dispute comes out of a small or specialized industry. Further, in the human rights context, I am sensitive to the access to justice concerns for marginalized and equity seeking groups that may arise if rules of evidence are rigidly applied to exclude potential experts that have worked within or on behalf of such groups. A Tribunal's inquiry with respect to (im)partiality should focus on whether, considering the nature and degree of association, the expert is able and willing to provide independent, objective and authoritative evidence, not argument, to assist the decision-maker regardless of which side the information favours.

100I do not accept that Rudin's association with ALST constitutes sufficient indicia of partiality in these circumstances. Rudin is not an advocate, nor a party, in this litigation. Rudin is the author of a body of scholarship which existed prior to and separate from this case. There was nothing in Rudin's anticipated testimony or professional experience that suggested the information he intended to share with this Tribunal would be swayed or coloured by his connection with ALST. I also accept the complainant's point that other quasi-judicial fora have allowed Rudin's expert opinion, notwithstanding ALST's participation as legal representative (Barkman Inquest) and as a party (Ipperwash Inquiry) in those proceedings. Further, after hearing from Rudin, I am satisfied that Rudin and his evidence did not evince any taint of partisanship. Rudin was carefully cross-examined about his knowledge and the research/data, or lack thereof, supporting his opinions and his answers disclosed no hint of partiality.

101Rudin testified that there have been over two decades of government studies and reports from across Canada which have documented the history and current reality of widespread racism experienced by Aboriginal communities giving rise to systemic discrimination in the justice system. See Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, (Halifax, 1989); Report of the Osnaburgh/Windigo Tribal Justice Review Committee, (Ontario, 1990); Report of the Aboriginal Justice Inquiry of Manitoba, (Winnipeg, 1991); Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (1991); Report of the Saskatchewan Métis Justice Review Committee (Regina, 1992); Report on the Cariboo-Chilcotin Justice Inquiry (Victoria, 1993); Royal Commission on Aboriginal Peoples, (Ottawa, 1996); and Report of the Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild, (Regina, 2004).

102Rudin explained that these reports highlight some of the major causes of Aboriginal overrepresentation in the criminal justice system. He testified that one factor includes the historical, and from the Aboriginal community's perspective, the problematic role of police as the enforcement arm of government in Aboriginal affairs (such as land rights and residential schools). Other related causes of overrepresentation include the phenomena of over-policing and under-policing of Aboriginal people, which Rudin testified remain a contemporary problem. Rudin explained under-policing as the phenomenon where Aboriginal people are viewed as less worthy victims.

103Rudin emphasized that over-policing causes Aboriginal people to have disproportionately more frequent contact with police, often for less serious matters. He pointed out that an implication of over-policing is not only that it engenders Aboriginal distrust of the police, but also that over-policing perpetuates negative police attitudes about Aboriginal people as dysfunctional, dangerous and prone to criminal behaviour. In particular, Rudin referenced Justice Sarich's findings in the Cariboo Inquiry which identified that negative police attitudes towards Aboriginal people impact how police conduct investigations. Rudin explained that these negative attitudes are exhibited as a lack of sympathy and less willingness to listen, a tendency to discount explanations, and the adoption of an 'arrest first' approach towards Aboriginal people.

104Referencing the research of Professor Tim Quigley, Rudin described how over-policing often manifests in the discretionary enforcement of minor offences, such as public drunkenness, which creates a "self-fulfilling prophecy" of higher criminality among Aboriginal communities. Rudin pointed out that the Supreme Court of Canada has recognized in a series of cases that systemic discrimination against Aboriginal peoples exists in the justice system. See R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 ("Williams"); R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 ("Gladue"); and R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 ("Golden"). Rudin cited Williams for the proposition that mainstream society holds deeply entrenched stereotypes and prejudices about Aboriginal people as drunks and prone to violent or criminal behaviour.

Michael Lenehan

105The personal respondent tendered, and I accepted, Michael Lenehan ("Lenehan") as an expert in the area of police training and general criminal investigations. Lenehan has served as full-time faculty instructor with the Ontario Police College since 1994, providing training in the areas of general investigative techniques, fraud, counter-terrorism and firearms. Previously, Lenehan had 22 years experience with the Windsor Police Service with the criminal investigation branch and drug squad. Lenehan did not provide an opinion with respect to the specific facts of the case.

106Lenehan testified about the law and state of police training with respect to investigative detention during the relevant time period. It was understood by all participating in the hearing that, with respect to certain matters, the concepts and standards of 2003 may no longer be applicable today. Further, it was understood that, in 2003, although new recruits and frontline officers (like Ramsay and Fitkin) were made familiar with the concepts of investigative detention, they did not receive comprehensive training on this topic. Lenehan testified that only officers transitioning into detective (non-uniform) assignments received training regarding investigative detention.

107Lenehan testified that the statutory source of a police officer's duty is section 42 of the Police Services Act, R.S.O 1990, c.P-15, which includes, among other things, the duty to preserve the peace, prevent crime, arrest offenders, assist victims of crime, participate in prosecutions and execute warrants, etc.

108Lenehan testified that a police officer must act reasonably when conducting an investigation, and may detain an individual as part of an investigation if there is "articulable cause" to do so. This investigative detention does not have to be ancillary to a particular offence or specific criminal activity, and may be part of neighbourhood policing. "Articulable cause" is defined in R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] 12 O.R. (3d) 182 ("Simpson") as:

a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in activity under investigation.

109As such, a police officer may detain an individual if the officer has a "reasonable suspicion" the individual is involved in criminal activity. Lenehan explained that "reasonable suspicion" for investigative detention is a lower bar than the threshold of "reasonable and probable grounds" required for affecting an arrest. He elucidated these concepts as follows: "reasonable suspicion" means that, in order to detain for the purposes of an investigation, the officer thinks the individual "might" be involved in criminal activity, whereas "reasonable and probable grounds" means that, in order to execute an arrest, the officer thinks the individual "probably did it".

110Lenehan emphasized that a "reasonable suspicion" for investigative detention cannot be borne from a "hunch", even a hunch from intuition gained from experience, because hunches or instincts can too easily mask discrimination. Rather, the appropriate sources of "reasonable suspicion" for investigative detention are the officer's personal observations and knowledge, other sources of information from police and civilians, and confidential tips.

111Lenehan also testified about a police officer's authority, as it existed in 2003, to search property as part of an investigative detention. Lenehan explained that, as part of an investigative detention, there is no general power to conduct a search of property without a warrant. A police officer could obtain or detain property on consent, or, in other words, a police officer could receive property from an individual who agrees to hand over the property. Lenehan clarified that consent to receive property as part of the investigative detention may be expressed or implied, must be voluntary and informed, and not the product of police coercion. He further explained that a police officer was entitled to conduct a pat down search of a detained individual, incident to arrest, for security purposes.

ISSUES

112The issues to be decided by the Tribunal in this Decision are:

• Has the complainant established a prima facie case of discrimination? In the present Complaint, the nexus between the alleged discrimination and the protected ground of race is the primary question.
• If the complainant establishes a prima facie case, can the personal respondent demonstrate rational and credible justification(s) for the alleged differential treatment?
• If so, can the complainant refute the personal respondent's justification(s) as flawed and/or pretextual?

ANALYTICAL FRAMEWORK & LEGAL PRINCIPLES

113The initial evidentiary burden rests with the complainant to establish a prima facie case that he was discriminated against with respect to policing services. In cases of alleged discriminatory differential treatment, the complainant must demonstrate, on a balance of probabilities, that i.) he is a member of a group protected under the Code; ii.) he was subjected to adverse treatment in policing services; and iii.) the Code-protected ground was a factor in the manner in which he received the policing services. See Shaw v. Phipps, supra.

114Human rights jurisprudence has held that the complainant's burden to demonstrate a prima facie case is not an onerous one. See Ontario Human Rights Commission and O'Malley v. Simpson-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28 ("O'Malley"). Further, there is no requirement that the complainant establish or prove that the alleged discrimination was intentional or motivated by bad faith. See O'Malley at para. 13.

115The law recognizes it is rare for racial discrimination to be overtly displayed, and, in most cases, the nexus between race and the alleged differential treatment will have to be inferred from circumstantial evidence. See Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON S.C.D.C.) at para. 9 ("Smith"). In addition, the complainant need not show that his race was the sole or primary factor in the differential treatment; he only needs to demonstrate that it is reasonable to infer from all the evidence that race was a factor: Smith and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 at 292 (Div. Ct).

116Upon the presentation of a prima facie case, the burden shifts to the respondent to, on a balance of probabilities, present a statutory defence and/or provide a credible and rational explanation demonstrating that the impugned differential treatment did not involve a discriminatory consideration.

117If the respondent is able to rebut the prima facie case, the burden returns to the complainant to establish, again on the balance of probabilities, that the respondent's explanation is erroneous or a pretext masking the discriminatory ground. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent. See Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).

ANALYSIS & DECISION

Prima Facie Case

118The first two parts of the prima facie analysis are easily established in the present case.

119The complainant's Aboriginal ancestry is, in of itself, a protected ground and is associated with the grounds of race, colour and ethnic origin as cited in his Complaint. The Ontario Human Rights Commission's Policy and Guidelines on Racism and Racial Discrimination (June 9, 2005) ("Commission's Guidelines on Racism") discusses the interconnectedness of the grounds of race, colour, ethnic origin, ancestry, place of origin, citizenship and creed, at page 14.

120The alleged police interactions come within the ambit of the social area of "services" of section 1 of the Code. See Nassiah v. Peel Regional Police Services Board, [2007] HRTO 14 ("Nassiah"); Ritlop v. Toronto Police Services Board, [2009] HRTO 307 ("Ritlop"); Abbott v. Toronto Police Services Board, [2009] HRTO 1909 ("Abbott"); and Shaw v. Phipps.

121The contested issue is whether the complainant's race was a factor in the alleged mistreatment.

122The personal respondent argues that the complainant failed to establish a prima facie case and, in particular, did not demonstrate a connection between his race and the alleged discrimination. The respondent submits that there is no direct or objective evidence of racial profiling, nor has the complainant shown any discourtesy or deviation of normal police practice from which racial discrimination can be inferred. See Johnson v. Halifax Regional Police Service, (2003) 2003 CanLII 89397 (NS HRC), 48 C.H.R.R. D/307 ("Johnson").

123The complainant submits that the prima facie case has been made out. The complainant submits that racial discrimination and stereotyping played a significant role in the way Fitkin interacted with McKay at each stage of the encounter, including the initial stop, the CPIC check, the investigation of McKay and search of his bike, the arrest and threat of re-arrest, and post-release conduct.

124Before canvassing the evidence in support of a prima facie case, I pause here to highlight three relevant and important considerations in undertaking a prima facie analysis in the context of a complaint alleging racial profiling. First, as numerous authorities have emphasized, the nature of this type of allegation requires the Tribunal to be attuned to the nuances of racial discrimination. Second, because racial profiling may be a product of systemic or unconscious influences, individual respondents may be "subjectively unaware" of having engaged in racial stereotyping. See R. v. Brown 2003 CanLII 52142 (ON C.A.) at para. 8 ("Brown") and Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON C.A.) ("Peart") at para. 93.

125Lastly, because of these two points, namely the subtle and subconscious undercurrents of racial bias, racial profiling will seldom be proven by direct evidence and often must be established by inference drawn from circumstantial evidence. See Brown at para. 44, and Peart at para. 95. Numerous human rights cases have adopted and applied the preceding principles. See Johnson; Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302, 52 C.H.R.R. D/430; Nassiah; Abbott; and Shaw v. Phipps. As stated in Sinclair v. London (City), 2008 HRTO 48, "[t]he Tribunal must be sensitive to the subtle ways in which race may affect decision making, and attentive to circumstantial evidence that may indicate differential treatment on the basis of race."

126Taking the above into account, my findings on nexus in relation to the initial stop, the CPIC check, the investigation of McKay and search of his bike, the arrest, and the conduct of the personal respondent after release are set out below.

Prima Facie Case Nexus Between Race & Treatment

127The thrust of the complainant's argument is that McKay's race was viewed by Fitkin as a proxy for dishonesty and criminal propensity. However, in closing submissions, the respondents argued that I should not consider the specific stereotype of 'lack of credibility' purportedly because Rudin did not testify on this point. I explicitly find to the contrary.

128I have carefully examined Rudin's expert testimony with respect to the way in which over-policing of Aboriginal peoples perpetuates negative stereotypes. Rudin testified that adverse stereotyping impacts police charging practices. In particular, he pointed to research from the Cariboo Inquiry that indicates negative attitudes cause police to discount the veracity of explanations given by Aboriginal people and adopt an 'arrest first' approach. Rudin's witness summary also noted that over-policing of the Aboriginal community reinforces "insidious" stereotypes and his report for the Ipperwash Inquiry, tendered into evidence in the hearing, discusses various pejorative stereotypes held by mainstream society about Aboriginal people, including lack of credibility.

129Even if Rudin had not testified on this issue, the respondents' proposition overlooks the judicial commentary of the Supreme Court of Canada, where the Court has accepted lack of credibility as a common stereotype applied to Aboriginal people. In R. v. Williams, the Court observed, "[r]acism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity" at para. 58. The Court quoted the stereotypes documented by Canadian Bar Association's report Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988) as follows:

Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.

The Court emphasized that these prejudices and stereotypes have a powerful and pervasive impact on the psyche of mainstream society. Since the Supreme Court's decision in Williams, the Court has routinely taken judicial notice of the reality of Aboriginal over-representation in the criminal justice system. See Gladue and Golden.

130In Gladue, the Supreme Court examined the reality of systemic discrimination that Aboriginal people experience when involved with the criminal justice system. The Court described the magnitude of the estrangement and overrepresentation of Aboriginal people "in virtually all aspects" of the justice system to be "disturbing" and a "staggering injustice". The Court summarized some the social causes to include poverty, substance abuse, lack of education, high unemployment, as well as widespread institutional bias and harsh attitudes and treatment towards Aboriginal people. In Golden, the Court recognized that Aboriginal people are disproportionately represented among those arrested by police and, therefore, overrepresented in the criminal justice system.

131The complainant asserts, as noted in a number of decisions, that a tribunal must be alert, at all stages of the inquiry, to evidence from which stereotyping can be inferred because racial discrimination often manifests at an unconscious level as subconscious stereotyping. See Brown, Peart, and Johnson. I find that the complainant has established a prima facie case of racial bias. Based on the evidence of the alleged interactions, and in the absence of consideration of any explanation from the personal respondent, I conclude there are reasonable grounds to support an inference that McKay's Aboriginal ancestry was a factor in the way he was treated by the police.

Decision To Follow Into The Laneway

132While the evidence establishes that the area where the men were first spotted crossing McRoberts was well-illuminated, I concluded, on a balance of probabilities, that Fitkin did not perceive the men's race as he drove the squad car. Although I understand the complainant's contention that the two men were followed because they were atypical of the "Little Italy" neighbourhood, I do not accept that Fitkin discerned the men's race, and, therefore, find there is insufficient evidence to infer that the initial decision to follow and stop was influenced by racial stereotypes. I also accept the testimony of both officers that their decision to follow the individuals observed entering the laneway was part of routine patrol because of the early morning hour and B&E concerns.

133Nevertheless, it is necessary to look at the specific context of the interactions because police conduct will often be couched in legitimate police purposes, such as crime prevention. Fitkin acknowledged that he discerned McKay was Aboriginal when he first spoke to McKay. The existence of B&E concerns does not address the issue of whether, once Fitkin perceived McKay's race, the subsequent interactions were influenced by racial bias. Thus, while the complainant's entry into the laneway reasonably warranted police surveillance, this does not preclude the possibility that, as Fitkin apprehended McKay's Aboriginal ancestry, this perception may directly or indirectly have affected the ensuing interactions.

The CPIC Check

134There is no disagreement that Fitkin requested the CPIC check after speaking to McKay, ascertaining his name, age, and address, and what the men were doing in the laneway.

135The officers testified that a CPIC check is routine procedure when individuals encountered during patrols are stopped and asked for identification. Both police officers testified that it was prudent police practice to conduct a CPIC check when investigating a person for two purposes: 1) to verify identity and the person's background; and 2) to be alerted to any safety concerns.

136Given this evidence, I am satisfied that the first CPIC check, in and of itself, does not amount to discriminatory treatment. However, while the CPIC check may not constitute a discriminatory act, this does not resolve the issue of whether, having received confirmation of McKay's identity, Fitkin's further investigation was influenced by race.

137Based on Fitkin's own testimony about being "very suspicious" because of his "feeling" of being lied to, I find that, by the time he requested the CPIC identity check, Fitkin had already formed an early apprehension that McKay was untrustworthy. I believe, in the circumstances, that Fitkin's immediate suspicion of McKay was an overreaction, and it can be inferred from this that Fitkin held certain preconceptions about McKay. I conclude that Fitkin's decision to pursue further investigation was most likely shaped by negative stereotypes of Aboriginal people lacking credibility and being prone to criminality. The question that follows is, having been apprised of McKay's actual work circumstances (flyer delivery) and the CPIC confirmation of McKay's identity, did the situation reasonably warrant Fitkin's persistent suspicions of criminal activity. I am persuaded that the events that ensued raise further concerns that Fitkin was operating under the influence of racial bias.

Heightened Suspicions of McKay

138It is unclear why Fitkin remained highly suspicious of McKay despite McKay's cooperation and the CPIC clearance. Fitkin acknowledged that the CPIC check confirmed McKay's identity and, as a result, he did not have doubts about McKay's identity or any concerns regarding the outstanding charge. Fitkin testified that nothing unusual had occurred on the patrol shift leading up to the laneway stop. There were no specific reports of criminal activity in the area that night, nor had McKay and Mack behaved suspiciously when confronted in the laneway. The only issue was McKay's intentions in the laneway, and, in this regard, I have found that McKay did not misstate where he worked and provided a reasonable explanation about his work.

139I find it problematic that Fitkin continued to be suspicious of McKay despite the information available to him substantiating McKay's explanation of his work. There is no dispute that Mack, and the approximate 1,000 flyers in his knapsack, supported McKay's explanation that the men were on their way to deliver flyers. Instead of permitting McKay to depart based on the confirmatory information he had gleaned thus far, Fitkin considered McKay's flyer delivery explanation to be disingenuous.

140The complainant submits that pervasive social prejudices about Aboriginal people relating to lack of credibility and criminal propensity, as well as the "out of place" phenomenon, underpinned Fitkin's quick assumption that McKay was lying. The complainant submits, and I agree, that all the information available to Fitkin supported the complainant's explanation for his presence in the laneway. Given that there is no dispute that the men were not involved in anything untoward when stopped in the laneway, it is unclear why the first CPIC check, which confirmed McKay's identity and yielded no outstanding warrants, did not mitigate Fitkin's concerns.

141In view of all of this, Fitkin's characterization of McKay's explanation as a "good cover story" does not appear to be rooted in the reality of the circumstances and, instead, appears to stem from some preconceptions about the complainant. I accept that the complainant has established a prima facie case that racial bias, emanating from the "out of place" phenomenon and the stereotype of lack of credibility, was likely a factor precipitating Fitkin's decision to investigate McKay further.

142I find it is more in keeping with the preponderance of probabilities that, since McKay was fully cooperative, Fitkin's suspicions would have diminished as opposed to intensified after receipt of the CPIC clearance. I accept that, since nothing nefarious had transpired in their initial exchange and there was proof of McKay's flyer delivery work, Fitkin's intense suspicions evince elements of over-policing. In the absence of any other compelling explanation, the policing concerns giving rise to the initial stop, which I have found to be non-discriminatory, should have been satisfied upon confirming McKay's purpose and plans.

Heightened Investigation and Bike Search

143Notwithstanding that the CPIC check confirmed McKay's identity and that there were no exigent circumstances, Fitkin quickly shifted his attention from McKay's activities in the laneway to investigating whether the bike was stolen.

144The timing of the interactions reveals that within a period of five minutes immediately following the first CPIC check, Fitkin questioned McKay as to the ownership of the bike, conducted a search for the bike's serial number, and initiated a second CPIC check of the bike. The fact that Fitkin's misgivings did not abate after the CPIC identity confirmation and the speed by which he instigated a search of the bike and the second CPIC check is troubling and suggests that he was predisposed to doubting McKay's ownership of the bike.

145I find that the tenor of Fitkin's communication with McKay regarding the bike indicates that Fitkin did not approach the investigation from a position of impartiality, but rather presumed that McKay was lying. Fitkin did not dispute McKay's testimony that, when Fitkin first spoke about the bike, Fitkin asked McKay "whose bike is it?", and McKay replied the bike belonged to him, to which Fitkin countered, "are you sure?" This exchange demonstrates that Fitkin was not open to the possibility that McKay was telling the truth, and instantly, if not intuitively, challenged McKay's veracity and his ownership of the bike.

146This exchange also suggests that Fitkin investigated McKay and his ownership of the bike with a closed mind. McKay testified that he felt "defenseless" because Fitkin was resistant to accepting the information McKay proffered about where he had purchased the bike. I find Fitkin's closed-mindedness is to akin to the facts in Johnson where the police officer's refusal to consider the complainant's explanation demonstrated a closed-mindedness resulting in an unfair investigation process. In Johnson, the Board of Inquiry found this lack of fair process to be evidence of racial profiling.

147Lastly, the evidence also indicates that, from the outset of the investigation, Fitkin's heightened distrust of McKay led him to investigate McKay's bike for little reason except his "feeling" that the bike was stolen. I conclude this evidence suggests that Fitkin's suspicions about McKay were unfounded and derived from a hunch.

148As explained in Lenehan's testimony, suspicions grounded in intuition or a hunch, as opposed to facts and reasonable perceptions, will have difficulty withstanding objective scrutiny. Where the surrounding circumstances provide a sufficient basis for establishing that an irrelevant factor, such as race, contributed to arousing or confirming suspicions, decisions and actions arising out of such a hunch are susceptible to concerns of discrimination. See Simpson.

149I find Fitkin's heightened suspicions are comparable to the situation in Nassiah where the Tribunal found that an unreasonable degree of scrutiny in the circumstances constituted part of the evidence of racial profiling by the police officer. I accept that Fitkin's continued investigation of McKay and his bike establishes, on a prima facie basis, that Fitkin held preconceived notions that McKay, as an Aboriginal man, was involved in criminal activity.

Arrest

150The evidence indicates that, notwithstanding objective facts that supported McKay's claim that he was the rightful owner of the bike, Fitkin had sweeping suspicions, disbelieved McKay's responses, and arrested McKay for the wrong bike based on incomplete and flawed information. I find that Fitkin's handling of the arrest, specifically his indifference to the stolen bike's distinguishing features (colour and speed), again demonstrates a close-mindedness.

151I accept that Fitkin failed to ascertain a definitive CPIC match and verify specific information about the bike (serial number, colour and speed) and, therefore, Fitkin did not have reasonable grounds to proceed to arrest McKay. Fitkin's cursory consideration of the particular features of the bike prior to arresting McKay is similar to Johnson where the Board of Inquiry found the police officer's failure to properly assess information on hand was the result of stereotyping based on race. I find Fitkin's closed-mindedness and inadequate assessment of the available information gives rise to concerns of racial bias.

152In respect of the CPIC check on the bike, I accept that, at this time, Fitkin did not understand the number "BI0569" was a model number rather than a serial number. Nevertheless, the CPIC result only matched one of the two possible identification numbers. Further, the CPIC report indicated that the stolen bike was red and 21-speed. I accept that Fitkin's quick adoption of this equivocal CPIC number match and erroneous bike colour as a basis for confirming his suspicions that the bike was stolen and arresting McKay reveals that Fitkin was influenced by racial bias that McKay was untrustworthy and implicated in criminal wrongdoing.

153I find that the rapidness by which Fitkin arrested McKay suggests that racial stereotypes regarding Aboriginal criminality influenced the incident. As in Abbott, the evidence reveals that what started as a routine matter, an ordinary patrol check with full cooperation on the part of the complainant, rapidly escalated, in less than ten minutes, into an arrest with the complainant handcuffed and detained in the back of a squad car. I accept that the arrest was largely the result of beliefs of Aboriginal criminality based on negative stereotyping.

Bike Receipt

154As noted in my findings of fact, I concluded that, though the Record of Arrest indicated an unconditional release, Fitkin directed McKay to provide the police with proof of the bike receipt. Sanderson's evidence was persuasive and points to McKay's genuine belief that he was required to provide the police with proof of the bike's purchase.

155Fitkin's requirement that McKay produce the bike receipt reveals that he remained suspicious, and until he obtained further corroboration, he would not accept McKay's claim that he was the owner of the bike. No evidence was offered indicating that it is standard police practice, after arresting and releasing someone for possession of stolen property, to require the individual to furnish additional proof of ownership.

156As such, I find that Fitkin's requirement that McKay submit further verification of his bike ownership corresponds with a negative attitude regarding Aboriginal credibility. The Commission's Guidelines on Racism highlights common misconceptions prevalent in mainstream society regarding racialized people, including the stereotype that "racialized people are less credible and their assertions must be more carefully scrutinized and investigated or corroborated" at page 16. I am satisfied that Fiktin's requirement that McKay produce the bike receipt post-release is evidence supporting a finding of racial bias.

I/CAD Message

157Fitkin did not testify about the ICAD message. Ramsay provided no evidence regarding the "bad guys' comment other than to acknowledge that he made the remark.

158Although explicit comments about an individual's race need not be present in an interaction to demonstrate racial discrimination, I am not certain that anything adverse can be extrapolated from Ramsay's "looking for bad guys" statement given it is the task of police to apprehend offenders. As such, I am not prepared to impute prejudice to Fitkin from Ramsay's message. However, I accept the complainant's position that the timing of the comment, which was made immediately upon McKay's release, may suggest that notions of criminal wrongdoing continued to linger after McKay's release.

Post Release Searches

159The evidence indicates that a total of 13 searches were conducted of McKay and the bike: four by dispatch and nine by the officers. Seven of these searches (two invalidated by errors) were run by the officers immediately upon returning to the station after McKay was released. If McKay was released unconditionally, it is unclear why these multiple searches of McKay's background were conducted. I find the repeated criminal checks of McKay after his release is evidence that the officers remained unconvinced of McKay's innocence. I accept that the repeated searches are likely indicative of a racial bias about Aboriginal dishonesty and criminality.

Summary of Prima Facie Findings

160In summary, the evidence indicates that Fitkin's instant distrust of McKay exerted a powerful hold over how the encounter evolved, and led Fitkin to arrest McKay for the wrong bike. In particular, it appears that Fitkin's heightened suspicions derailed consideration of the available information that substantiated McKay's explanation and established that McKay's bike was not the reported stolen bike. I find that Fitkin hastily arrested McKay based on erroneous and deficient information. I also find that McKay was required, despite being released, to submit proof of the bike receipt. I further find that the officers undertook unnecessary and multiple criminal records searches of McKay post release.

161I conclude Fitkin's investigation and the arrest were shaped by negative stereotypes of Aboriginal people being untrustworthy and involved in criminal activity. I reach this conclusion based on the specific and overall circumstances of the case against the backdrop of the social context evidence confirming the pervasive negative stereotypes about Aboriginal people lacking credibility and prone to criminality. See Williams. I am persuaded that, taken as a whole and/or at the individual stages of the encounter, there is a prima facie case that the interactions between Fitkin and McKay were permeated by racial bias and stereotyping, now necessitating an explanation from the respondent.

162I accept that McKay's perception that he was subjected to unfair treatment and was unduly scrutinized. I found McKay to be a respectful and sincere witness. He provided his testimony in a clear, honest manner, and he had a reasonably good memory of the alleged events, which, based on his evidence, clearly affected him. I accept that McKay felt especially vulnerable and targeted because of the arrest and his fear of re-arrest.

163Set out below are the personal respondent's submissions presenting the non-discriminatory accounts for Fitkin's conduct. In canvassing the personal respondent's explanations, I address the complainant's counter arguments as to why the personal respondent's rationales are faulty and pretextual. I also provide my conclusions as to the evidence and my reasons regarding why I find the personal respondent has not put forward a credible and non-discriminatory explanation for the impugned events.

Reasonableness of Police Conduct

164Before reviewing the personal respondent's explanations, I highlight that both respondents submit that I need to be aware of the unique dimensions of human rights complaints in police services. They assert that the unique common law and statutory law duties of police officers necessitate that my assessment of Fitkin's conduct incorporate consideration of the standards of the profession, i.e., what would a reasonable officer do in the same situation, as articulated in Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 ("Hill").

165In Hill, the Supreme Court of Canada established a duty of care between a police officer and a suspect. The Supreme Court found that recognition of tort actions for negligent police investigation may assist in responding to problems in the criminal justice system, including persistent institutional bias against Aboriginals. McLachlin C.J., on behalf of the majority, held that an assessment of alleged negligent police investigation requires that the standard of care be evaluated from the perspective of a reasonable officer in comparable circumstances. This assessment must give due acknowledgement to the inherent discretion in policing. As such, the personal respondent argues his conduct was objectively reasonable by the standard of a reasonable police officer in similar circumstances and, therefore, not discriminatory.

166I recognize that discretion is an important and necessary element of policing and it has a place, as Lenehan testified, particularly when performing the duties of crime prevention and crime investigation, although less so with respect to executing arrests. However, I am also mindful of the Divisional Court's caution in Shaw v. Phipps, against the importation of criminal law and negligence law concepts into a human rights cases. I do not accept that the legal standards of "articulable cause" and "reasonable and probable grounds" are stand-alone or appropriate measures of analysis for human rights cases in the policing context.

167I further recognize that various human rights decisions have been careful to highlight that police should not be held to a standard of perfection and that the propriety of investigative techniques on their own are not the subject of Code review. See Ritlop and Johnson. In Nassiah, the Tribunal reflected, at para. 165, that:

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.

168I proceed on the basis that the reasonableness of the personal respondent's actions, as against standard police practices, is one factor among the various evidentiary and human rights considerations in assessing discrimination. An officer's reliance on "articulable cause" or "reasonable grounds" as explanations for the impugned actions, while relevant, are not definitive and form part of the overall factual matrix of the case that a tribunal must weigh and consider. An awareness of the need for rapid decision-making in urgent situations, and the risky environment of front-line policing, as well as consideration of what the officer knew and believed at the time of the investigation, also properly form part of the analysis.

Personal Respondent's Explanations

169I found the personal respondent to be respectful and generally straightforward in his testimony. However, there were critical points when Fitkin's evidence did not accord with the preponderance of probabilities. On certain topics, his explanations presented internal inconsistencies and incongruity with common sense that were problematic. Further, as previously noted, Ramsay was not always forthcoming about certain factual issues, which gave rise to doubts about some of the personal respondent's version of the events.

Initial Stop

170The personal respondent argued that 13 Division's implementation of a specific crime management strategy to address growing theft activity in the area refuted the complainant's position that race was a factor in the encounter. In this regard, the personal respondent called Shawna Coxon, a police sergeant, to testify about how crime management strategies are generally developed and implemented.

171I found Coxon's evidence offered little support for the proposition that an official crime management strategy was underway in July 2003. She was unable to confirm that that 13 Division had, in fact, implemented a formal strategy regarding thefts in the relevant geographical area at the relevant time. She acknowledged that the crime management document tendered into evidence was an undated, unsigned draft only, and no final document could be produced. Further, the draft document was very general in nature and, notably, neither Fitkin nor Ramsay testified that they were aware of any specific strategy document.

172Although I reject the evidence of a specific crime management strategy, I have already accepted that the officers were required to keep an eye out for B&Es, and that the sight of two individuals entering a laneway at 4:40 am reasonably drew police attention. Nevertheless, these concerns do not detract from the prima facie evidence indicating that racial stereotyping influenced the interactions that followed the initial stop.

Initial Investigation

173Fitkin rejects the proposition that he was operating under racial bias leading him to investigate McKay. He submits that he had reasonable cause to probe and investigate McKay because McKay's dubious explanation for being in the laneway made him "very suspicious".

174As previously noted, I do not accept Fitkin's evidence that McKay provided misinformation about where he was headed and what he was doing. Further, even if McKay had initially misstated the whereabouts of his work, I question why Fitkin's suspicions instantly intensified by this brief exchange. Why had Fitkin concluded that McKay was deliberately lying as opposed to genuine confusion, or perhaps nervousness, engendered by suddenly being stopped by two police officers? McKay testified that he was uncomfortable when the squad car pulled up behind him and was scared when Fitkin started to question him.

175It is a point of human experience that unexpectedly being stopped and questioned by police would be disconcerting for any ordinary person. In Shaw v. Phipps, Justice Nordheimer described being stopped and questioned by the police as a universally "uncomfortable" experience at para. 171. It appears that Fitkin's swift appraisal of McKay's explanation as suspicious and embedded in some deeper falsehood in relation to the bike, without considering this natural human discomfort as the basis for the alleged address misstatement, reinforces the finding that there was an underlying bias about McKay's lack of credibility.

176Still, if, at first, it seemed to Fitkin the men were heading in the wrong direction, there is no doubt McKay soon clarified, as documented in Fitkin's notes and the Record of Arrest, that the men were delivering flyers. However, instead of assuaging Fitkin's suspicions, it appears that McKay's explanation of delivering flyers magnified and hastened Fitkin's alertness for criminal activity because he believed flyer delivery offered a "good cover story".

177Several things trouble me about Fitkin's statement that he considered delivering flyers to be a "good cover story". First, as Fitkin acknowledged, nothing untoward had occurred on the patrol shift leading up to the laneway stop to cause the police to suspect that criminal activity had occurred or was taking place. Second, McKay was fully cooperative and the first CPIC check indicated there were no concerns of safety or flight.

178Third, it appears that Fitkin's theory that the flyers were a "good cover story" pre-empted his consideration of the fact that Mack and the 1,000 flyers in Mack's knapsack substantiated McKay's explanation that the men were on their way to deliver flyers. There was no indication that Ramsay received inconsistent information from Mack as to why the men were in the laneway. Fitkin did not refute that Mack was carrying flyers and that the flyers were visible. Therefore, the existence of both Mack and the flyers corroborated McKay. However, rather than accepting the flyers as verification of McKay's story, Fitkin construed the flyers as something that discredited McKay's explanation and reinforced Fitkin's feeling that McKay was lying and that the deception had something to do with the bike. I find that Fitkin's explanation that the flyers may have been a "good cover story" does not counter the prima facie evidence indicating that racial bias influenced Fitkin's suspicions.

Heightened Investigation and Bike Search

179Fitkin argues that he had reasonable cause to investigate whether McKay was involved in any criminal wrongdoing and to concentrate his investigation on McKay's bike. Fitkin's belief that McKay had initially lied to him about his work address raised questions in Fitkin's mind about whether the bike was stolen. Fitkin relied on his personal observations of McKay's appearance as a basis for his opinion that he had sufficient cause to detain and question McKay about the bike. Fitkin contends that his search of the bike was within legal bounds because he received McKay's consent to examine the bike to locate the serial number.

180I find Fitkin's preceding explanations for undertaking further investigation of McKay and his bike to be lacking. As previously noted, although McKay's identity was confirmed, and there was no urgency or other exigent conditions, Fitkin, nevertheless, quickly shifted his focus to McKay's bike. Fitkin offered no particulars as to why he felt McKay was lying about the bike except to testify that he believed McKay was being deceptive about the bike because he "got a feeling that [McKay] was lying to me".

181This testimony evokes the idea that Fitkin was pursuing a hunch based on intuition. This hunch appears to flow from Fitkin's immediate mistrust of McKay, as demonstrated in Fitkin's initial questions and remarks doubting McKay's ownership of the bike. At this point Fitkin had no concrete reason, other than his impression of McKay's alleged unkempt appearance, for his precipitous disbelief of McKay's ownership of the bike.

182Fitkin asserts that his suspicions were well founded in his observations of McKay's dirty and disheveled appearance, which contrasted the pristine and expensive bike in McKay's possession. The complainant counters that Fitkin's description of McKay associates with negative stereotypes of Aboriginal people as indigent and uncivilized, which has been the subject of Supreme Court commentary in Williams, Gladue, and Golden. I have found that there is no objective evidence confirming Fitkin's description of McKay's dirty appearance. I have also considered Fitkin's testimony regarding McKay's disheveled appearance serving a reasonable indicator that McKay stole the bike and conclude that this too is problematic. I do not accept that any alleged degree of dishevelment logically correlates with the bike being stolen.

183Although there is no clear evidence about McKay's appearance, it is apparent from Fitkin's testimony that his suspicions arose not just from McKay's alleged dirty clothes, but also more specifically because of a disconnect between this alleged appearance and the "expensive looking" bike. I find the disconnect Fitkin experienced between McKay's alleged appearance and the "expensive looking" bike linked to stereotypes of Aboriginal people. I accept the complainant's contention that Fitkin's depiction of McKay as dirty and disheveled is a proxy for degrading racial stereotypes of Aboriginal people and that Fitkin's inability to reconcile McKay as the owner of an expensive and well-maintained bike is a product of such stereotyping. I conclude that, in the absence of any other tangible reason, Fitkin's suspicions doubting McKay's ownership of the bike were the culmination of various stereotypical notions of Aboriginal people being poor, uncivilized, lacking of credibility, and prone to criminality.

184I note that at this juncture of the encounter, Fitkin had accumulated several pieces of information that reasonably should have alleviated his concerns. He knew McKay and Mack had said that they were en route to deliver flyers for a local pizza business. The CPIC check confirmed McKay's identity and that there were no outstanding warrants for him. Fitkin observed that while McKay was fully cooperative, he also adamantly claimed ownership of the bike and provided particulars of his ownership. Fitkin's notes document that McKay advised him of the name and location of the store where he had purchased the bike. Fitkin gave no, or only cursory, consideration to this confirmatory information, as well as to McKay's indication that he could produce the receipt if given time. Instead, Fitkin promptly decided to initiate a CPIC check of the bike and, in order to do so, directed McKay to help locate the bike's serial number, including turning the bike over to find it. The rapidness by which Fitkin proceeded with the bike search and second CPIC check reveals Fitkin's settled mind, even before completing his investigation, that McKay was implicated in wrongdoing surrounding the bike. Accordingly, I do not accept the personal respondent's explanations for his heightened suspicions and conclude that Fitkin was acting based on racial stereotypes of criminal propensity among Aboriginal people.

185I conclude that the decision to continue to treat McKay as a "suspect", in the absence of any information other than the fact that he was an Aboriginal man with a bicycle that Fitkin thought was too expensive for McKay to own, was founded, in part, on discriminatory considerations. In reaching this conclusion, I infer, on a balance of probabilities, that racial stereotyping was at least one of the reasons for Fitkin's continued suspicions of McKay.

Arrest

186Fitkin submits that he had reasonable and sufficient cause to arrest McKay for possession of stolen property based on the CPIC check that indicated a Kona bike bearing identification number "BI0569" was reported stolen. Fitkin testified that this positive CPIC check was the only ground he needed to make the arrest.

187I find that the arrest itself is a conspicuous example of the absence of a rational and credible explanation for Fitkin's conduct. It is worth recalling the sequence of events immediately prior to McKay's arrest: Fitkin requested a CPIC check on the bike's two identification numbers ("BI0569" and "00111951") at 4:47 am. At 4:48, dispatch reported to Fitkin that one number ("BI0569") came back stolen for a Kona, red, 21-speed bike. Dispatch then advised the bike's second number ("00111951") was not on file. Notably, at this time, Fitkin specifically sought re-confirmation of the bike colour and was, again, informed by dispatch that the bike was red. Notwithstanding the colour discrepancy and that only one identification number from McKay's bike linked with a stolen bike, Fitkin immediately arrested McKay. The arrest was effected at 4:49 am.

188The arrest culminated approximately nine minutes after Fitkin first approached McKay in the laneway and only seconds after Fitkin was twice advised the bike was a red, 21-speed. I question why Fitkin pressed ahead with the arrest in such a hasty manner in spite of only one number match, an entirely different bike colour, as well as absent any knowledge of the bike speed. By his own account, Fitkin conceded he did not consider or confirm the bike's speed and, as such, undertook no investigation of this particular distinguishing feature of the bike.

189Fitkin's explanation for the bike colour discrepancy is also revealing. He testified that because he knew McKay's bike was blue, he asked dispatch to reconfirm the colour. However, once dispatch reiterated the stolen bike was red, he testified that he considered the discrepancy to be a mere curiosity and theorized the bike was likely re-painted after theft. Thus, Fitkin analyzed this objective piece of information (bike colour) to support his predisposition that McKay's bike was stolen. Fitkin testified that early in the encounter he believed McKay was lying and "wondered if he was lying about the bike being stolen". Because of his preconception that the bike was stolen, Fitkin ignored the disconfirming aspects of the CPIC check (red colour) and re-interpreted the information to validate his feeling that he was being lied to about the bike. As a result, the colour discrepancy became part of Fitkin's self-narrative for why he should continue to believe the bike was stolen. Thus, even when presented with information that countered his suspicions, Fitkin speculated an explanation that reinforced his suspicions. Fitkin's rationalization that the stolen red bike had likely been repainted blue, as opposed to this being a different bike, is neither logical, nor in harmony with preponderance of probabilities which a practical and informed person would readily recognize is reasonable in the circumstances.

190The Board of Inquiry in Johnson, following the guidance of the Ontario Court of Appeal in Brown, held it necessary to hypothesize whether the events would have similarly unfolded if the suspect were a non-racialized person. As such, I query whether a non-Aboriginal person would be arrested in similar circumstances. I am doubtful that police would arrest a White man with a blue 24-speed bike for possession of a stolen red 21-speed bike.

191I appreciate that the speed of the bike, unlike colour, may not be easily discernable and will also consider this issue as part of the hypothetical. For example, would police arrest a non-Aboriginal driver of a 4-cylinder car for possession of a stolen 6-cylinder car without checking the car type? While some characteristics, like the speed of a bike, may not be readily apparent, it is nevertheless incumbent on the officer to make best efforts to resolve any ambiguity and verify that the subject item is correct before arresting an individual. Rather than asking for any such clarification, Fitkin immediately arrested McKay. I conclude on a balance of probabilities, it is reasonable to infer that racial bias was a factor in Fitkin's rush to arrest McKay, and Fitkin's explanation for failing to ascertain accurate information about the bike's specific features is not rational or reasonable.

192I accept the complainant's submission that, given all the evidence, McKay was treated differently than a non-Aboriginal person would have been treated in the same circumstances. In reaching this conclusion, I am cognizant of the social context evidence that indicates that Aboriginal people are especially vulnerable to over-policing. Rudin's expert evidence regarding the types of negative attitudes held by police is pertinent to a fulsome understanding of how the circumstances unfolded. As highlighted in Golden, and discussed in Rudin's Ipperwash Inquiry research paper, Aboriginal people are disproportionately more likely to be arrested than non-Aboriginal people, and negative police attitudes about Aboriginal credibility and criminality is one cause for this overrepresentation. I find that Fitkin adopted an 'arrest first' approach as described in Rudin's expert evidence; namely, he instigated a premature arrest in disregard of the information provided by McKay and without adequate consideration of the information before him.

193I conclude that Fitkin's justification for promptly arresting McKay, in the face of only one number match, a different bike colour, and without confirmation of the bike's speed, does not accord with the reality of the circumstances. McKay was fully compliant and the situation was not highly charged, as there were no concerns of safety, urgency, or flight. I am not convinced that the personal respondent's explanations were harmonious with the preponderance of probabilities, which a practical and informed person would readily recognize as reasonable in these circumstances. Accordingly, I find, on balance, that the complainant's race was a factor underlying the misguided arrest and the circumstances leading to it.

194Citing Hill, the respondents submit that the Tribunal cannot hold police to a standard of perfection in their investigations. I appreciate that police are not immune from making mistakes, however, neither are they immune from stereotyping. Fitkin's arrest of McKay was not simply an error in judgment, but rather, based on the totality of the evidence, an exercise of rash judgment stemming from inadequate efforts to obtain accurate and complete information, likely due to the influence of prevailing racial stereotypes about Aboriginal credibility and criminality.

Bike Receipt

195As noted in my findings of fact, I accepted that Fitkin directed McKay to provide proof of the bike receipt and gave McKay the police station's fax number in order to do so. Although I did not conclude that this direction was coupled with an explicit threat of re-arrest, I found the evidence indicated that McKay departed the encounter with the real impression that he was required to fax the receipt to Fitkin or else he would be re-arrested in the theft of the bike.

196Fitkin testified that he believed that telling McKay to bring in the bike receipt would give McKay, who was upset and threatening to sue for false arrest, closure on the incident. I do not accept that it is in keeping with the preponderance of probabilities that Fitkin would offer McKay an opportunity to produce the receipt and give him the station's fax number simply to placate him. In my view, it is not a reasonable or probable response that, in an effort to calm an angry person asserting false arrest, to suggest to the person, after they have been unconditionally released, that the person could produce further evidence to reaffirm their innocence.

197Thus, although I am unable to conclude that there was direct threat of re-arrest, I find that Fitkin instructed McKay to furnish proof of the receipt because he continued to suspect McKay was involved in criminal wrongdoing in relation to the bike. I conclude that Fitkin's requirement that McKay fax or bring in the receipt after being released at the scene is part of the heightened investigation of McKay and evidence of a racial discrimination.

Post Release Searches

198The personal respondent explained that the criminal records searches carried out by the officers back at the station were innocuous. Fitkin testified that Ramsay helped him run the searches in order to get details to fill out the Record of Arrest and so that copies of the search reports could be attached to the Record of Arrest.

199Although I appreciate the personal respondent's position that the criminal records search were re-run in order to complete the Record of Arrest, I do not understand why multiple, and some identical, searches were necessary. The repeated searches appear to suggest that the officers were not satisfied with the results or were looking for something. Further, the evidence does not bear out Fitkin's explanation that the searches were conducted in order to attach printed copies of the reports to the Record of Arrest. The Record of Arrest tendered into evidence in the hearing did not include any attachments and did not appear to indicate there were attachments.

200I find that the repeated criminal records searches underscore my findings in the previous section; namely, that despite releasing McKay at the scene, Fitkin remained suspicious of McKay and required McKay to provide proof of the bike receipt. It is reasonable to infer from the numerous searches that the officers continued to have doubts about McKay and that the suspicions of Aboriginal criminality, which permeated the encounter, continued even after McKay was released.

CONCLUSION

201To sum up, I reject the personal respondent's explanations and conclude that Fitkin treated McKay in a racially biased manner because of the following factors:

• Fitkin's instantaneous disbelief of McKay's explanation of his presence in the laneway;
• Fitkin's disregard of the fact that Mack and the flyers corroborated McKay's explanation and his interpretation of flyer delivery as a good cover story;
• Despite CPIC clearance, Fitkin's further investigation of McKay on what was effectively a hunch;
• Fitkin's investigation was imbued with unfounded and heightened suspicions;
• Fitkin's discounting of McKay's assertion of ownership and details of the bike store demonstrated a closed mind;
• Fitkin disregard of the bike's actual blue colour and rationalization of the colour discrepancy to support his suspicions disconfirming McKay's ownership of the bike;
• Fitkin's acceptance of one out of two possible number matches as a sufficient basis to arrest McKay;
• Fitkin's indifference of, and failure to, verify the bike's speed;
• Fitkin's hasty arrest of McKay;
• Fitkin's requirement that McKay provide proof of the receipt after the release; and
• The multiple criminal records searches of McKay after release.

202In conclusion, I find that the complainant's race was a factor in his arrest, and that the personal respondent's treatment of him was influence by an underlying racial bias, which shifted the encounter from a routine patrol stop to an incident of racial discrimination.

203The hearing was bifurcated and, as such, the issue of Board liability and remedies remain outstanding. The hearing will be reconvened by teleconference call to determine and schedule next steps.

Dated at Toronto, this 17th day of March, 2011.

"signed by"_______________

Ena Chadha Vice-chair