HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allan Byaruhanga
Applicant
-and-
Toronto Police Services Board, Daryl Cherry,
Richard Haines, and William Blair
Respondents
DECISION
Adjudicator: Catherine Bickley
Indexed as: Byaruhanga v. Toronto Police Services Board
APPEARANCES
Allan Byaruhanga, Applicant
Self-represented
Toronto Police Services Board, Respondent
David Gourlay, Counsel
Daryl Cherry, Richard Haines and William Blair, Respondents
Naomi E. Calla, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, colour, ancestry, place of origin, citizenship, ethnic origin and reprisal or threat of reprisal.
2The applicant self-identifies as a Black African (Ugandan) Canadian Citizen.
3On the evening of March 9, 2009, the applicant was walking from his home to Weston Road to catch a bus that would take him to his workplace. At the same time, two police officers in an unmarked car were searching the area for suspects fleeing after robbing a nearby convenience store. The police officers stopped and questioned the applicant, an interaction which led to this Application. The applicant alleges that the grounds he identifies were factors in the officers’ decision to stop and question him. He further alleges that Officer Haines inappropriately asked him where he was born and commented on his accent. Finally, he alleges that he experienced a reprisal or threat of reprisal.
4For the reasons set out below, the Application is dismissed.
the applicant’s evidence
5The applicant testified that at or shortly before 9:15 p.m., after he walked past a police car with flashing lights, an unmarked (“civilian”) car pulled quickly into a driveway in front of him and two men jumped out, yelling at him to put his hands up. He took his earphones out of his ears. At this point his hands were held and he heard “You are going to be thrown on the ground and handcuffed and find yourself in the back of a Toronto Police car.”
6The applicant’s response was “What the hell? What have I done?” According to the applicant, the officers then said, “We are members of the Toronto Police Service, there has been a robbery in the area and we are going to do a pat down search” and opened his jacket and began to search him. He asked to see their badges and name tags. They refused and told him that they had the right to search anyone at any time, to “shut [your] hole” and that he was being investigated for a robbery.
7The applicant also states that the officers told him they were looking for five black guys all dressed in black. He states that he was wearing a grey T-shirt, black hoodie, sweater, dark green winter coat, blue jeans and black shoes.
8Officer Haines checked the applicant’s wallet, pulled out his driver’s licence and called dispatch. He then asked the applicant “where I was from, where was I born to have an accent like that”.
9The applicant testified that Officer Haines returned from the car and gave him back his driver’s licence and wallet. Although the applicant asked both officers for their police IDs, they ignored his request and walked back to their car and drove away.
10The applicant recorded the number of the car and later filed a complaint under the Police Services Act.
11The applicant agreed, on cross-examination, that the length of his interaction with the officers was approximately 10 minutes.
the respondents’ evidence
Richard Haines
12Officer Haines testified that at approximately 9:05 p.m., he heard over the radio that there was a robbery in progress at a convenience store on Finch Avenue West. There were three black males and three white males involved. Some were reported to be running southbound on Rumike Road and others running westbound on Finch Avenue.
13At approximately 9:20 p.m., Officer Haines saw a black male between 25 and 30 years old, wearing a green coat with a black hoodie and blue jeans, walking eastbound on Lanyard toward Weston Road. The applicant’s clothing fit what Officer Haines remembered from the radio description of the suspects, i.e., black hoodie and dark jacket. The location was also, in Officer Haines’ view, a distance from the location of the robbery that a person on foot could have reached in the time since the robbery.
14Officer Haines pulled into a driveway so that the car blocked the applicant’s path, got out of the car, pulled out his police badge, held it up and said, “Police, hold up”.
15Officer Haines testified that the applicant told him the officers “did not have the right to stop him and that we did not have the right to tell him what to do”. He told the applicant that they were stopping him because of a robbery in the area and asked him to take his hands out of his pockets to make sure he didn’t have a weapon. When the applicant did not take his hands out, Officer Haines decided to do a “pat-down” search to ensure that the applicant did not have any weapons.
16After the search, he tried to explain to the applicant the reason for the stop: “that a robbery had just occurred around the corner and that I am not arbitrarily stopping him, that there was a reason behind my stop. And he refused to listen. He kept saying things along the lines of, ‘I can’t believe this is happening in Canada’, and so forth.”
17The personal questions that the applicant was asked, including where he was born, were in order to complete a Field Information Report. Officer Haines recalls the applicant objecting to being asked where he was born, saying “Why could I not have been born in Canada?” Officer Haines replied, “I can hear an accent in your voice. I am just simply wondering where you were born.”
18Officer Haines denies that he or his partner threatened to handcuff the applicant. He also denies that he or his partner told the applicant to “shut your hole”.
19After this, Officer Haines returned to the car while Officer Cherry remained with the applicant. Officer Haines spoke with the dispatcher and obtained more detailed descriptions of the suspects still at large. He concluded that the applicant did not fit these descriptions. When Officer Haines returned, the applicant was released.
Daryl Cherry
20Officer Cherry testified that he heard over the radio that there was a robbery in progress at Finch Avenue West by six males (three black, three white) and that some of the suspects were heading southbound on Rumike and some westbound on Finch Avenue West. There were several descriptions of what the suspects were wearing. He recalled one particular item was a hoodie.
21Officer Cherry denies that he or his partner threatened to handcuff the applicant. He also denies that he or his partner told the applicant to “shut your hole”. He does not recall the applicant asking for identification. His testimony in general was consistent with that of Officer Haines.
Toronto Police Services Board
22Counsel for the Toronto Police Services Board (the “TPSB”) entered into evidence a number of documents related to the TPSB’s ongoing efforts on compliance with the Code. However, my task in this case is not to assess the overall performance of the TPSB or comment on any of its initiatives, but to determine whether the interaction of Officers Cherry and Haines with the applicant breached the Code.
issues
23This Application raises three issues:
Were the applicant’s race, colour, ancestry, place of origin, citizenship, or ethnic origin factors in the police officers’ decision to stop and question him?
Did the police officers’ treatment of the applicant while questioning him amount to a breach of the Code?
Did the applicant experience any reprisal or threat of reprisal as a result of claiming his rights under the Code?
24The relevant Code provisions are:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
Every person has the right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.
analysis
25The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46. In this case, the applicant must show that the actions of the respondent officers were discriminatory based upon one of the grounds upon which he relies.
26In a case like this, my ultimate conclusion depends upon the reasons that the officers took the actions they did. This is ultimately a question of the officers’ credibility, rather than that of the applicant. In other words, even if I accept everything the applicant says, it may well be that there was no discrimination. The issue before me is only whether the officers violated the Code by stopping or questioning the applicant because of prohibited grounds, not whether they engaged in good investigative practices or conducted themselves properly.
27The general principles relevant to these issues were reviewed in Abbott v. Toronto Police Services Board, 2009 HRTO 1909, which also involved circumstances where there was no direct evidence that the applicant’s race or colour was a factor in the incident at issue. The Tribunal summarized the relevant principles as follows at paragraphs 30-32:
The relevant principles that apply in cases where an allegation of racial discrimination has been raised have been usefully summarized as follows:
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and,
(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para.482; Pritchard v. Ziedler(2007), CHRR Doc. 07-527 (Sask. H.R.T.).
In this case, as in many cases alleging racial discrimination, there is no direct evidence that the complainant’s race or colour was a factor in the incident at issue. As a result, the issue of whether the respondents’ actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the well-established principles applicable to circumstantial evidence cases. In the instant case, as in many circumstantial evidence cases, the determination comes down to whether an inference of racial and/or gender discrimination is more probable than the respondents’ explanation for Sergeant Ruffino’s conduct: 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.).
In determining whether an inference of racial discrimination is more probable than the explanation offered by the respondents, I need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14; R. v. S. (R.D.) 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 46; R. v. Parks, 1993 CanLII 3383 (ON CA), 1993 CanLII 3383 (ON C.A.), (1993) 15 O.R. (3d) 324 (C.A.) at p. 342.
28As there is similarly no direct evidence that the applicant’s race, colour, ancestry, place of origin, citizenship or ethnic origin were factors in his treatment by Officers Haines and Cherry, the issue before me in this case is whether or not an inference of discrimination is more probable than the respondents’ explanation for the individual respondents’ conduct.
Reasons for Stopping the Applicant
29Both police officers testified that there were on the lookout for three black males and three white males and that if they had seen a white male who matched the description of any of the suspects, they would have stopped him. The applicant did not challenge this testimony on cross-examination.
30The map of the area introduced into evidence shows that the point of interaction between the applicant and the officers was a few blocks south and slightly east of the convenience store where the robbery took place. This supports the respondents’ contention that the applicant was spotted by the officers in a place where and at a time when a suspect fleeing the robbery might reasonably have been found.
31I accept the officers’ testimony that they would have stopped any males on foot who appeared to be moving away from the scene of the robbery. Their testimony regarding the description of the suspects, including race, was consistent with the dispatch recordings that were entered into evidence.
32There was some dispute between the parties as to the exact time when the officers stopped the applicant. The applicant testified that he was stopped shortly before 9:15 while the officers testified that the time of the stop was about 9:20. The difference, however, is not material to my findings as either suggested time is consistent with the applicant being not far from the robbery site at a time which made it possible that he could have been one of the fleeing suspects. The distance from the robbery to the spot where the stop took place was less than a kilometre, a distance that an individual on foot could have easily covered within 10 minutes.
33The applicant argued that he was not dressed identically to the suspects. He stated that it was hard to understand how the officers could not tell the difference between a blue puffy coat and a green puffy coat. However, it is not unreasonable that the officers, while driving along a street after dark, could mistake the colour of the jacket, and in any event, the fact that the jacket was a different colour does not suggest that it was inappropriate to stop the applicant in these circumstances.
34To show that the stop violated the Code, the applicant must prove, on a balance of probabilities, through evidence or through inference, that one of the factors in the decision to stop him was a ground he has relied upon. He has not done so. Given all the circumstances and the testimony of the officers, I find that the applicant was stopped because he was in a location near the robbery and generally met the initial description of one or more of the suspects in a robbery. It has not been shown that the stop and questioning was discriminatory, given all the circumstances.
35The applicant testified that the officers did not show their badges, were rude and threatening, searched him without his permission and asked him an inappropriate question about his place of birth.
36The respondents assert that the applicant was stopped, searched and questioned according to Toronto Police Service policy and the law on investigative detention: R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Clayton 2007 SCC 32, [2007] 2 S.C.R. 725. They assert that his race was not a discriminatory factor in their treatment of the applicant.
37At the hearing, the applicant testified that Constable Haines asked “where I was from, where was I born to have an accent like that”. In his Application, he alleged that the comment was “I hear an accent, you were not born or lived in Canada to get one like that where are you from shut your hole.”
38Constable Haines acknowledges that he asked the applicant where he was born. He stated that he did so in the context of completing a Field Information Form which asks for several items of personal information including birth place. Constable Haines testified that the applicant objected to being asked where he was born, saying “Why could I not have been born in Canada?” Constable Haines said he replied, “I can hear an accent in your voice. I am just simply wondering where you were born.”
39With respect to what was said about the applicant’s place of birth and his accent, I prefer the evidence of Constable Haines. The applicant’s testimony at the hearing as to exactly what was said in this regard was quite different than in his Application. The Application suggests an unsolicited comment about accent and place of birth by Constable Haines combined with the command to “shut your hole”. In contrast, the evidence at the hearing was that the question regarding place of birth was asked by Constable Haines along with other questions seeking personal information in the course of completing a Field Information Form and that Constable Haines’ reference to the applicant’s accent was in response to a question from the applicant. The applicant did not cross-examine Constable Haines about either the question or the comment.
40In addition, this was not a case of a random stop and completion of a Field Information Form commonly known as “carding”. The applicant was stopped in the moments after a robbery at a time when some of the participants in the robbery had been seen fleeing in the direction of the location where the applicant was stopped.
41In this context, the mere mention of an accent or the questioning of the applicant about his place of birth, and the obtaining of various personal information required by the relevant form does not amount to a breach of the Code. In the course of completing the necessary work to ensure public safety and keep appropriate information and statistics to ensure public safety and police accountability, a police force must sometimes obtain personal information. Simply asking for such information is not, itself, discriminatory, and I have heard no evidence in this case that goes beyond the simple assertion that the applicant was asked questions. Nothing I have said, however, precludes the possibility that in another case, there may be systemic arguments, with appropriate evidence, about such practices.
42The applicant’s principal complaint was that he was asked where he was born, and that the officer did so on the basis that he detected an accent. The officer was required to include the place of birth on the form, and Officer Haines testified that he was trained to obtain the answers to every question on the form. The officer would have asked the applicant his place of birth in any event. Merely noting that the applicant had an “accent” in response to a question from him does not suggest that he was treated in a discriminatory fashion on the basis of any of the grounds in the Code. In this context, there was nothing to suggest that the mention of the accent was discrimination contrary to the Code.
Reprisal
43The applicant did not explain at the hearing the basis for his allegation that he had experienced a reprisal and I heard no evidence that would support a finding of reprisal. To prove a reprisal, an applicant must show that an action was taken because he or she exercised or sought to exercise a right under the Code, and that there was intention to reprise. The applicant has not shown these elements. Accordingly, I find that the applicant has not met his burden of proof with respect to the allegation of reprisal.
Conclusion
44In sum, the applicant has not met his burden of establishing that he experienced discrimination in receipt of services during his interaction with Officers Haines and Cherry. Having reviewed all the evidence, I have found that the applicant was stopped for a valid, non-discriminatory reason and that his treatment while detained did not amount to a breach of the Code. The applicant has also not established that he experienced a reprisal or threat of reprisal.
45In making these findings, I do not intend to minimize the impact of this incident on the applicant. Through no fault of his own, the applicant was caught up in the investigation of a robbery. He understandably found the experience very upsetting. Nonetheless, the evidence does not support a finding that any of the respondents breached the applicant’s rights under the Code.
decision
46For all of the reasons set out above, this Application is dismissed.
Dated at Toronto, this 7th day of June, 2013.
“Signed by”
Catherine Bickley
Member