Smith v. Toronto Police Services Board, 2013 HRTO 2103

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Smith Applicant

-and-

Toronto Police Services Board, John Powrie and the Chief of Police/Toronto Police Service Respondents

DECISION

Adjudicator: Eric Whist Date: December 19, 2013 Citation: 2013 HRTO 2103 Indexed as: Smith v. Toronto Police Services Board

APPEARANCES

Peter Smith, Applicant Michelle Mulgrave, Counsel

Toronto Police Services Board, John Powrie and the Chief of Police/Toronto Police Service, Respondents David Gourlay, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services. The Application arises from a single incident that occurred on September 10, 2010.

2The Application alleges that the applicant was outside an LCBO store on Danforth Ave. in Toronto when he was stopped by the personal respondent, Police Constable John Powrie, then questioned, handcuffed and searched. The Application alleges that the applicant was singled out by P.C. Powrie and subject to unnecessary aggressive behaviour, harassment and intimidation because of his race, colour, ethnic origin and/or place of origin.

3The respondents submit that P.C. Powrie’s actions in stopping and detaining the applicant were reasonable. They submit the applicant was stopped because he matched the initial description of a suspect in a robbery that had just taken place in the vicinity. They submit that the applicant was confrontational and uncooperative in responding to P.C. Powrie and that it was the applicant’s actions that led to him being briefly detained. They submit when a further, more detailed description of the robbery suspect was issued, it eliminated the applicant as a possible suspect and he was released shortly after being stopped.

4The hearing took place over two days. I heard evidence from the applicant and P.C. Powrie. I also heard testimony from P.C. Zhang, who along with his partner P.C. Bhimji, arrived outside the LCBO store on Danforth Ave. in time to witness some of the interactions between P.C. Powrie and the applicant. I also heard evidence about the September 10 robbery that gave rise to P.C. Powrie’s decision to stop and question the applicant, including recordings of the police response to this crime. Both parties entered documents into evidence during the hearing and provided case law for my consideration.

5The hearing was also bifurcated in response to a request from the respondents (and with the consent of the applicant). Accordingly, the purpose of the hearing was to decide whether the applicant’s rights under the Code were violated on September 10, 2010, with the understanding that only if I found a Code violation would the hearing resume to consider evidence and submissions relating to remedy.

DECISION

6The Application is dismissed. I do not find that, on a balance of probabilities, the applicant’s rights under the Code were violated when he was stopped, questioned and detained on September 10, 2010.

SUMMARY OF THE EVIDENCE

The September 10, 2010 Robbery and Police Response

7At the hearing the respondents played an audio recording of the police 911 telephone calls and radio transmissions that took place as the police responded to a robbery on September 10, 2010. I also had before me a related “I/CAD Event Details Report”, a paper record of the Computer Assisted Dispatch messages which were exchanged by police personnel as they responded to this robbery. Both P.C. Zhang and P.C. Powrie provided oral testimony to explain police communications practices and how the police specifically responded to the September 10 robbery.

8According to the audio recordings (and the I/CAD Event Details Report) the police received several related 911 calls at approximately 8:20 p.m. on September 10, 2010, reporting that a robbery had taken place at a convenience store close to the intersection of Logan and Withrow Avenues, a location within the area covered by the Toronto Police Service’s 55 Division. The police were told that the robbery suspect was a tall Black male wearing a black hoodie who had used a red scarf or bandana to cover his face. They were told the suspect also wanted the wallets of two females who had been in the store. This information was communicated to police officers in the field over police radio and by means of the ICAD system. I heard evidence that this robbery was considered to be a “Priority 1”, an urgent matter requiring available police units to respond.

9P.C. Zhang testified that once this type of information goes over the air a police unit, usually in the closest available police car, will “accept this event” and will be dispatched to the scene of the crime to speak to the victims and look for witnesses. Other police units in the vicinity, if they are available, are expected to respond to this priority call by checking the area for suspects.

10P.C. Powrie testified that he was on shift in a traffic response vehicle on the evening of September 10, 2010. He testified that although he was on traffic response duty he would be expected to be available to respond to a priority situation such as a robbery in the area if he was not involved in another priority. He testified that he heard the information that had been issued over the radio, namely that there had been a robbery in a store at Withrow and Carlaw, that the suspect was a tall Black male wearing a black hoodie who had used a red bandana to cover his face and that the suspect had wanted the wallets of two females in the store.

11At approximately 8:26 p.m. P.C. Powrie radioed in that he was “just approaching male Black, dark coloured hoodie, wallet in his hand, Danforth and Greenwood, eastbound, in front of LCBO”.

The Distance between the Site of the Robbery and where the Applicant was Stopped on Danforth Ave.

12At the outset of his testimony the applicant reviewed a number of the maps he had disclosed showing the location of the robbery and where he was stopped by P.C. Powrie on Danforth Ave. and the bus routes and possible bicycle and driving routes between the two. According to these maps the distance between the location of the robbery and where the applicant was stopped was generally 2.1 to 2.4 kilometers, depending on the route taken.

13The applicant testified that he does not drive and does not own a bicycle. He did testify that in his view it was possible that a person could travel from the site of the robbery to the LCBO store on Danforth Avenue in the time that elapsed from when the robbery took place (it was reported at approximately 8:20 p.m.) to when he was stopped (approximately 8:27 p.m.).

14P.C. Powrie testified that he did not know the distance between the robbery site and the LCBO on Danforth Ave where he stopped the applicant but he felt it was within 15-20 blocks or about one kilometer. He testified that he was of the view that a suspect could have travelled this distance by the time he stopped the applicant, particularly if the suspect had a car.

15P.C. Zhang testified that he was of the view a person could travel from the robbery site to the LCBO on Danforth Ave by car in four or five minutes. P.C. Zhang later qualified this by testifying that he did not think it likely that the applicant would have been able to travel this distance at the time he was stopped.

The September 10, 2010 Incident

The Applicant’s Evidence

16The applicant was 46 years old at the time of the incident that gave rise to this Application. He self-identifies as being Black, of Caribbean decent and 5’ 11” in height.

17The applicant testified that he was walking eastbound on Danforth Ave. shortly after 8:00 p.m. on his way to the LCBO store located on the south side of Danforth, east of Donlands Ave. He testified he was wearing a blue top with a hood (a “hoodie”) and washed out jeans. He testified he was not sure whether the hood was up at the time. He testified he was not wearing or had in his possession a red scarf or bandana.

18The applicant testified he sensed that someone was following him and glanced behind him and saw a vehicle moving slowly next to the curb. He testified that a couple of seconds later he saw P.C. Powrie, in uniform, out of the vehicle and approaching him. He testified that P.C. Powrie was pointing a finger at him and moving quickly. He testified P.C. Powrie’s first words were to tell him in a loud, threatening tone of voice to turn around.

19He testified that he asked P.C. Powrie what this was about. He testified that P.C. Powrie told him that he matched the description of a robbery suspect. The applicant stated he was nervous and stunned by the accusation. He testified that P.C. Powrie grabbed his arm and asked him if he was going to co-operate before forcing the applicant against the wall (it appears of a building beside the LCBO store). He testified that P.C. Powrie told him that he saw him put something in his pocket. The applicant testified this was not true, that he had had his wallet in his back pants pocket, not out and that he responded to P.C. Powrie by saying did he not have the right to put his hands in his pocket. Of note, he testified that P. C. Powrie did not order him to remove his hands from his pockets. He testified P.C. Powrie asked him to spread his legs before he handcuffed the applicant. He testified that P.C. Powrie proceeded to go through his pockets throwing the contents of the pockets, including the applicant’s keys and wallet, onto the ground. He testified that P.C. Powrie asked him where he lived. He testified he responded by saying he had not done anything wrong and that he was just going about his business. He testified that P.C. Powrie proceeded to take his wallet and identification back to his car.

20The applicant testified that he initially had raised his voice in response to P.C. Powrie’s actions (i.e. when asking what this was about) but maintained he did not shout and was not belligerent. He testified that when he asked P.C. Powrie whether he did not have the right to have his hands in his pockets he was speaking in an average voice. He testified that as the incident proceeded he co-operated in order get through the experience.

21The applicant testified that while he was handcuffed and facing the wall two other police officers arrived. He testified that the officers spoke to P.C. Powrie, after which P.C. Powrie removed the handcuffs. He testified that one of the officers apologized to him, saying that there had been a robbery in the area. He then told the officers he would be filing a complaint because of the way he had been treated and asked for their names. He testified that one of the officers, P.C. Zhang, gave him his name and that P.C. Powrie gave him his card.

22He testified that a couple of days later he went to 55 Division to file a complaint and while explaining what had happened was told by a police officer that the applicant had been in the wrong place at the wrong time. The applicant testified that he eventually decided not to file a complaint with the police but to file an Application with the Tribunal.

23The applicant testified that he was upset by P.C. Powrie’s actions, that he felt he had been treated like a criminal, that he had been harassed. He testified that he felt being Black was a factor in the treatment he received, that if he had been White he would not have been treated in the way he was. He further testified that he would have responded to questions from P.C. Powrie if he had been approached politely but that was not what happened.

24The applicant also testified that this was the third time he had been stopped by the Toronto police and that he was of the view that all three instances were ones of racial profiling.

P.C. Powrie’s Evidence

25P.C. Powrie was a police officer for two years at the time of the September 2010 incident. He had worked exclusively in 55 Division. He testified that he was driving westbound on Danforth Ave. (on the north side) in a marked police car when he saw the applicant on the south side of the street. He testified that the applicant was looking at the police car intently. He testified that the applicant continued to stare. He testified he felt he was being tracked and the applicant’s behaviour was out of the ordinary. He testified that he did a U-turn and began approaching the applicant who continued to stare at the car. He testified that he felt the applicant met the description of the robbery suspect that had been just issued and it appeared he was carrying a wallet in his hand. He testified that it was at this point in time he called in to say that he had seen a Black male meeting the description of the robbery suspect, carrying a wallet.

26P.C. Powrie testified that he did not consider waiting for “back-up” even though he was proceeding to stop and question a robbery suspect who could be armed. He testified that it was part of his practice to approach persons for questioning even in instances in which they could be armed. He testified that he could always back out of the situation and that he knew back-up was likely available.

27P.C. Powrie testified that as he approached the curb he rolled down his window and motioned for the applicant to come towards the car. He testified that the applicant remained where he was, notwithstanding that, in P.C. Powrie’s view, the applicant had seen P.C. Powrie motion to him to approach the car. P.C. Powrie testified that he then got out of the car and as he approached he saw the applicant put his hands into the pockets of his hoodie. He testified that the applicant had a wallet in his left hand when he put his hands into his pockets. He testified that he told the applicant that he was in the process of investigating a robbery. He testified he told the applicant to take his hands out of his pockets. He testified that it was good police practice to have the hands of a person being questioned out of their pockets (i.e. in sight).

28He testified that the applicant did not take his hands out of his pockets but rather demanded why he was being investigated. He testified that the applicant was talking a lot, that he was being argumentative, and that it was difficult to get a word in. He testified that the applicant continued to demand in a loud voice why he was being investigated, saying he had had no role in a robbery.

29P.C. Powrie testified that it was not unusual for a person to deny any involvement in a criminal activity. He testified that he was of the view that the situation was escalating, given the tone and volume of the applicant’s voice and his refusal to listen to P.C. Powrie and to take his hands out of his pockets. He testified that he felt the situation was intense and that he decided to take physical control of the applicant. He testified he held the applicant’s upper left arm, that he took the applicant’s left hand out of his pocket, and that it was at this point he physically turned the applicant to face the wall. He testified that the applicant physically resisted, and in a loud voice the applicant accused him of assault. He testified that he was continued to explaining to the applicant that this was part of a robbery investigation.

30He testified he told the applicant he was putting him under investigative detention. He testified that the applicant physically resisted and continued to shout. He testified that he felt situation was becoming riskier, that he had an increasing belief that the applicant might be carrying a weapon and/or be involved in the robbery. He testified that he then moved to a “higher level of physical control” by handcuffing the applicant. He testified that he had force the handcuffs onto the applicant’s hands and that the applicant was resistant not compliant. He testified that the applicant continued to speak in a loud voice and that he had not calmed down. He testified that the applicant was clearly angry that he was being detained and, in his view, being accused of robbery. He testified then told the applicant he was being subject to a pat down, a procedure P.C. Powrie testified can be conducted as part of an investigative detention. He testified he proceeded to remove the applicant’s keys and wallet from his pockets.

31P.C. Powrie testified that P.C. Zhang and P.C. Bhimji arrived just as he was turning the applicant to the wall and that these officers assisted him in handcuffing the applicant. He testified that he was with the applicant for approximately 60-90 seconds before P.C. Zhang and P.C. Bhimji arrived. P.C. Powrie testified that it was P.C. Bhimji, not himself, who returned to his vehicle to confirm the applicant’s identification and address (based on identification obtained from what was the applicant’s wallet.)

32P.C. Powrie testified that he then held a conversation with P.C. Zhang and P.C. Bhimji during which they discussed the distance between the scene of the robbery and the LCBO on the Danforth. He testified that he thought there would have been enough time for the applicant to have travelled from the scene of the robbery to the present location on the Danforth, but that P.C. Zhang thought it less likely. The applicant testified that he deferred on this point given P.C. Zhang’s greater experience in working in 55 Division. However, he testified that, more importantly, he was also told by the other police officers that a further description had been issued of the robbery suspect with a more detailed description of the suspect’s clothing which did not match what the applicant was wearing. It is noted here that the police records before me indicate that at approximately 8:28 p.m. a description was issued over the radio (and by the I/CAD system) to indicate that the robbery suspect was a Black male, 25 years old, wearing a black hoodie with white designs on the sleeves and red pants, armed with a knife. P.C. Powrie testified that it was decided that they would release the applicant in light of this new description.

33P.C. Powrie testified that he believed he told the applicant that he was not a suspect before removing his handcuffs. He testified that P.C. Zhang and P.C. Bhimji apologized to the applicant for the inconvenience and for having been detained. He testified that the applicant was still angry and asked for all their badge numbers.

34P.C. Powrie testified the applicant was a tall black man wearing a dark hoodie, and while he was not wearing a red bandana, he sufficiently met the description that was initially issued of a suspect in a robbery that had just taken in the vicinity to justify P.C. Powrie stopping the applicant. He testified that seeing the applicant stare at his police car and seeing the applicant with a wallet, in light of the description of the robbery that he heard over the radio, also contributed to his decision to stop the applicant. He testified that his subsequent actions were reasonable given the applicant’s behaviour, most notably the applicant’s raised voice, and his refusal to respond to P.C. Powrie’s directions to take his hands out of his pockets.

P.C. Zhang’s Evidence

35P.C. Zhang testified that he had been a police officer since 2006 and had worked exclusively in 55 Division. He testified that on the evening of September 10, 2010, he and P.C. Bhimji were on patrol when they heard over their police car radio that a robbery had taken place. He testified that he subsequently heard P.C. Powrie on the radio stating that he had seen a possible suspect and was at Danforth and Greenwood. This was close to where Officers Zhang and Bhimji were at the time.

36P.C. Zhang testified that when he and P.C. Bhimji approached the LCBO store on Danforth Ave. in their car, he saw P.C. Powrie and the applicant standing on the sidewalk facing each other. He testified that he could see the applicant was talking loudly and trying to pull away from P.C. Powrie. He testified he made a U-turn, got out of his vehicle, and approached the two men. P.C. Zhang testified that he arrived before the applicant was handcuffed (but it appears it was after he applicant was facing the wall). He testified that the applicant was very agitated. He testified that he approached to make sure of P.C. Powrie’s safety and to de-escalate the situation by calming the applicant down. P.C. Zhang testified that he was of the view that P.C. Powrie was trying to de-escalate the situation but that the applicant was very upset that he had been stopped.

37P.C. Zhang testified that when looking for a suspect the police will be looking for anyone suspicious matching the description of the suspect in question. He testified that the goal when questioning a suspect, usually under circumstances in which there is not a clear description, is to obtain an identification and information that may to assist with the investigation. He testified that the interaction with a person stopped for questioning is usually brief and that usually there is no resistance. P.C. Zhang testified that it was generally his practice to wait for back-up in cases in which a suspect might be armed.

38P.C. Zhang testified that he does not recall the exact words exchanged between P.C. Powrie and the applicant but that he does recall that P.C. Powrie repeatedly explaining the reason the applicant had been stopped (there had been a robbery). He testified that the applicant was continuing to speak very loudly to the extent that he attracted lots of attention from passersby. He testified that P.C. Powrie wanted to check the applicant’s pocket for a weapon, but that the applicant refused a pat-down search. He testified that the applicant attempted to physically move away from P.C. Powrie and continued to loud make comments to the effect that he was being harassed and that he had been stopped just because he was Black. He testified that the applicant was then handcuffed.

39P.C. Zhang testified that applying handcuffs is done for an officer’s safety and to allow for a search. He was of the view that if the applicant had complied with P.C. Powrie’s commands to calm down and for P.C. Powrie to conduct a pat-down search he would not have been handcuffed. He testified that the applicant was belligerent and aggressive, that he was yelling at P.C. Powrie and Zhang notwithstanding efforts to calm the applicant down. He testified that P.C. Powrie’s voice was lower than the applicant’s and that it was professional but assertive. P.C. Zhang testified that the whole incident may have taken four minutes. He testified that he did not recall whether the applicant’s hands were in his pockets. He testified that he did not recall a wallet being removed from the applicant, but noted that removing a wallet for the purposes of identifying a person is common practice when a person has been detained and handcuffed.

40P.C. Zhang testified that he, P.C. Bhimji and P.C. Powrie met after the exchange and discussed both the distance from the robbery site to the LCBO. He testified that the further description of the robbery suspect had been issued by the police dispatcher and heard by P.C. Zhang and P.C. Bhimji. He testified that they decided to release the applicant on the basis that the applicant did not match the further description that had been issued. He testified that this decision was not because they concluded that the distance was too far for the applicant to have travelled, although P.C. Zhang was of the view, based on his experience, that this was likely the case.

41P.C. Zhang testified he apologised to the applicant for the inconvenience caused to him and did so in a loud voice so persons who had gathered to watch what was happening would hear as well.

THE APPLICANT’S SUBMISSIONS

42The applicant submits that P.C. Powrie’s decision to rely on the description of robbery suspect being a tall black man wearing a hoodie to single out and stop the applicant was unreasonable. The applicant submits that the reference to the robbery suspect being “tall” was both a subjective and unhelpful descriptor, and that the reference to the robbery suspect wearing a hoodie was also not particularly helpful in locating a robbery suspect, as it was an article of clothing that could well have been discarded by the robbery suspect. The applicant submits that these descriptors are so general and lacking in specifics that the key descriptor that P.C. Powrie relied on and acted on to stop the applicant was the reference to “Black male”. The applicant submits that when race becomes the predominant reason for a police action that action constitutes racial profiling. The applicant referred to “Rethinking the Use of Race in Suspect Descriptions”, an academic article that notes the less detailed, specific and significant the non-racial identifiers, the more likely that race will be used as the dominant feature to identify a suspect (p.168). The applicant submits that any Black male walking on Danforth Avenue that Saturday night could have potentially been stopped as the robbery suspect.

43The applicant submits that the further indicators P.C. Powrie allegedly relied on to stop and question the applicant were not reasonable. He submits that the applicant’s actions that P.C. Powrie claims he saw, namely the applicant allegedly looking at P.C. Powrie in his police car and the applicant holding a wallet in his hand, would have been perceived as innocent behaviours, not suspicious ones, in a White suspect. The applicant referred to R. v. Campbell, 2005 CanLII 2337 (QC CQ), a case in which the Court of Quebec determined there was nothing objectively suspicious about the behaviour of the accused, a young Black man who was seen bending over in a taxi, and that the police’s contention that they had reason to stop the applicant because of his behaviour was unfounded and was an instance of racial profiling.

44The applicant further submits that this case is similar to Maynard v. Toronto Police Services Board, 2012 HRTO 1220, a case in which a police officer began following the applicant, a Black male driving a black sports car, after hearing over the police radio that there was a Black male suspect driving a black sports car away from the scene of an incident involving a gun. The Tribunal found in Maynard that the police officer cast his investigative net so wide that the applicant’s race was the predominant factor that led the police to follow and investigate the applicant and that if the suspect had been described as a Caucasian man in the same circumstances, the officer would not have chosen to follow the car in question. The Tribunal found the police officer’s decision to follow a Black man driving alone in the area of a reported crime and to consider him a viable suspect was, under the circumstances, an instance of racial profiling.

45The applicant also submits that this case is distinguishable from Pierre Louis v. Ottawa Police Services Board, 2011 HRTO 280, a case in which the Tribunal determined that a police officer’s decision to stop and question a Black man as a possible robbery suspect was not discriminatory. The applicant submits that in Louis, unlike the present case, the police officer was acting on a much more detailed description of a suspect that made the subsequent decision to stop and question the applicant in Louis reasonable.

46The applicant also questions why P.C. Powrie would have even approached the applicant rather than waiting for back-up from another police unit if he was of the view that the applicant was a suspect in a robbery and consequently someone who may be armed. The applicant noted that P.C. Powrie’s practice differed from P.C. Zhang’s, who indicated that he waits for back-up if a suspect might be armed.

47The applicant submits that P.C. Powrie could have just continued to observe the applicant and if he had done so he would have heard the further police description of the robbery suspect that was issued (that the suspect was wearing a hoodie with white stripes and had red pants) that would have eliminated the applicant as a suspect.

48The applicant submits that he was credible when he testified that in quick succession P.C. Powrie exited his car, pointed his finger at the applicant, approached the applicant, forced the applicant to turn around and then handcuffed and searched the applicant notwithstanding the applicant’s efforts to explain that he was not involved in any robbery. The applicant submits that while he voiced his concerns about what was happening he was not argumentative or uncooperative. He denied P.C. Powrie ever directed him to remove his hands from his pockets or that he refused to respond to such an order (he did acknowledge that he refused to respond to P.C. Powrie’s questions as to where he lived).

49The applicant submits it is not credible that P.C. Powrie would have motioned the applicant to approach his police car, as claimed, if P.C. Powrie was, in fact, of the view that the applicant was a robbery suspect. He submits that P.C. Powrie’s claim that he initially spoke to the applicant in a cordial manner was not credible in light of the fact that neither P.C. Powrie nor P.C. Zhang were able to recall what P.C. Powrie may have said to the applicant that was cordial or was intended to calm the applicant down when the applicant expressed his concern that he was being stopped by the police. The applicant submits that there were inconsistencies with P.C. Powrie’s and P.C. Zhang’s accounts, perhaps most notably when P.C Zhang stated that the applicant voiced a concern that he was being stopped because he was Black, and P.C. Powrie testified that he did not recall the applicant making any such statement. The applicant asks that the Tribunal prefer his account of events.

THE RESPONDENTS’ SUBMISSIONS

50The respondents submit that it was reasonable for P.C. Powrie to stop to question the applicant in light of all the circumstances. The respondents submit that the applicant met the description that had been issued, in that he was both a tall Black male and was wearing a dark hoodie. They submit he was stopped at a location in the vicinity of a recently committed robbery. They submit the applicant’s noted behaviour, namely staring at the police cruiser, was unusual and the further fact that the applicant was holding a wallet were further reasons that made P.C. Powrie’s decision to stop the applicant reasonable and non-discriminatory. The respondents referred to the Supreme Court’s decision in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, which states that in assessing the reasonableness of a police officer’s conduct the standard is not perfection or even the optimum but that the conduct needs to be judged in the circumstances prevailing at the time it took place; circumstances that may include urgency and deficiencies in information. The respondents further submit that the decision to stop the applicant was only a request to talk to him and to ascertain whether he was a possible suspect, a not unreasonable request under the circumstances.

51The respondents submit that P.C. Powrie’s account should be preferred, that he did initially motion the applicant to approach his police car and that when the applicant did not come forward, he got out of the car and approached the applicant, explaining that he was investigating a robbery. They submit that the evidence establishes that P.C. Powrie’s initial interaction with the applicant was face to face, that the applicant was loud and argumentative, and that P.C. Powrie tried to calm the applicant down. They submit the applicant was not credible when he stated he was calm and rational, that he raised his voice once, and denied being belligerent and argumentative. They submit that it was the applicant’s behaviour, particularly his refusal to respond to his request to take his hands out of his pockets that gave rise to his concern that the situation could escalate. He maintained it was because of a concern that the situation could become unsafe that led him to take the applicant by his left shoulder, to turn him to face the wall and to put him under investigative detention. They submit that the applicant continued to resist which is what led to P.C. Powrie taking the further step of handcuffing the applicant.

52The respondents submit that this case is similar to the facts in Louis where the police stopped a suspect based only on a partial description (which included a reference to the applicant’s race) at a location some distance from the scene of an alleged crime and that the Tribunal was satisfied that under such circumstances the police’s decision to stop the applicant was reasonable and not discriminatory.

53The respondents submit that police officers are expected to respond quickly in urgent situations and there was no compelling reason or requirement for P.C. Powrie simply to have remained in his car and waited for back-up before approaching the applicant. They submit that P.C. Powrie and P.C. Zhang may have different practices regarding waiting for back-up but that does not mean P.C. Powrie’s practice was improper or unreasonable. The respondents submit that it was mere coincidence that a fuller description of the suspect was issued shortly after P.C. Powrie stopped the applicant that would have eliminated a need to stop and question him.

ANALYSIS

54Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race … place of origin, colour, ethnic origin …

55The applicant has the onus of proving that a violation of the Code has occurred. The standard of proof is on the balance of probabilities, which means that the Tribunal must determine whether it is more likely than not that the violations of the Code alleged by the applicant occurred. The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent”.

56This is a case, like many cases alleging racial discrimination, in which there is no direct evidence that the applicant’s race (or colour, ethnic origin and/ or place of origin) were improperly considered such that the applicant was treated differentially because of his race, by being treated differently than a White suspect might have been. Accordingly, I will need to determine whether an inference of racial discrimination is more probable than the respondents’ non-discriminatory explanations for P.C. Powrie’s actions. In determining whether an inference of discrimination is more probable or not I am mindful of the principles the Tribunal summarized in Phipps v. Toronto Police Services Board, 2009 HRTO 877:

(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.

57This is a case in which an assessment of credibility is also required given that there was conflicting evidence about key aspects of the interactions between P.C. Powrie and the applicant. In assessing credibility I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), including:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions …:

58Both the applicant and the respondents submit that the reasonableness of P.C. Powrie’s actions should be a key consideration for the Tribunal. The applicant submits that a determination by the Tribunal that P.C. Powrie acted unreasonably in his treatment of the applicant could assist the Tribunal in finding that his actions were discriminatory because it would be indirect evidence from which an inference could be drawn that the applicant’s treatment was motivated by his race. The applicant referred to the Tribunal’s decision in McKay v. Toronto Police Services Board, 2011 HRTO 499 (para. 164-168), which identifies that the reasonableness of a police officer’s actions as against standard police practices is a factor (among other evidentiary and human rights considerations) in assessing discrimination.

59The respondents submit that P.C. Powrie acted reasonably and in a non-discriminatory manner. They submit that in assessing whether P.C. Powrie acted reasonably in carrying out his duties, the Tribunal needs to be mindful of the particular circumstances P.C. Powrie was facing when he stopped and questioned the applicant. The respondents rely on the Supreme Court of Canada’s decision in Hill, above, which states that the standard of care required of a police officer in carrying out his or her duties is not perfection but rather to act as a reasonable officer would, judged in the circumstances, prevailing at the time they acted.

60I agree with the parties that considering the reasonableness of P.C. Powrie’s actions in the context of his role as a police officer is helpful. And my determination that P.C. Powrie’s actions were indeed reasonable, as discussed below, leads me to conclude that he did not discriminate against the applicant when he stopped, questioned and briefly detained him on September 10, 2010.

Decision to Stop and Detain the Applicant not Discriminatory

61I do not find that P.C. Powrie arbitrarily chose to stop the applicant because he was Black. P.C. Powrie did not, to use the Tribunal’s language in Maynard, cast his investigative net so wide that it was the applicant’s race that was the predominant reason that led to his being stopped. I find that P.C. Powrie had reasonable grounds for stopping the applicant.

62I find that the applicant did match the initial, albeit general, description issued of the robbery suspect, namely that the suspect was a tall Black male wearing a black hoodie. I accept that the applicant’s height, 5’ 11”, can be considered tall and that it was reasonable that the applicant’s blue hoodie, seen at night, matched the description of what the applicant was wearing. I do note here the applicant did not contend that his blue hoodie was of a lighter shade or that it could not be seen as matching the description of the suspect’s hoodie at the time of night he was stopped.

63I find that the applicant was stopped at a location he could have travelled to in the time that elapsed since the robbery took place. While I did not have clear evidence about exactly when the robbery concluded, it appears that it was at least seven minutes before P.C. Powrie first saw the applicant. It was the evidence of P. C. Powrie and P.C. Zhang that a person could have travelled from the scene of the robbery to the LCBO store on Danforth Ave, where the applicant was stopped, in 3-4 minutes by car. The applicant also testified that, in his view, a person would have had time to travel between the two places. I do note that P.C. Zhang qualified his assessment by later testifying that he was of the view that it was less likely a person could have travelled this distance, but I am satisfied, based on all the evidence, that it was reasonable for P.C. Powrie to have considered the applicant as a possible suspect given the location where he was stopped.

64I find it significant that before approaching the applicant P.C. Powrie radioed in that he believed he saw the applicant with a wallet in his hand. This was after having heard that that the robbery suspect had been attempting to steal two wallets. This, in my view, is clearly a further reason P.C. Powrie chose to stop and question the applicant as a possible suspect.

65I am also satisfied that the applicant was looking at P.C. Powrie’s police car prior to being stopped, as was maintained by P.C. Powrie. I find P.C. Powrie credible when he maintained that the applicant was looking intently at his police car, that he was “tracking it” and in a manner that P.C. Powrie considered unusual. I generally found P.C. Powrie’s testimony to be credible. I also find the applicant’s account of events not credible on several important points, as I will detail later, and this contributes to my preferring P.C. Powrie’s testimony to the applicant’s as to whether the applicant was looking at his car prior to being stopped.

66While the applicant has raised substantive issues about the dangers of police officers relying on general descriptions of suspects, of perceiving innocent behaviours of Black males as suspicious, and of racial profiling, I am satisfied, given the information before me, that P.C. Powrie had sufficient reason in his role as a police officer investigating a recently committed crime to stop and question the applicant.

67I have also not been persuaded that P.C. Powrie’s decision to proceed to stop and question the applicant rather than wait for back-up was, in any measure, discriminatory. Even if this differed from P.C. Zhang’s practice or was not the most prudent police practice, there is no persuasive evidence to suggest that this decision was tainted by conscious of unconscious stereotypes of the applicant or is, by itself, enough to give rise to the inference of discrimination.

68I prefer P.C. Powrie’s version of events of what happened next. I do not find the applicant’s underlying narrative that P.C. Powrie moved quickly and forcefully to turn the applicant towards the wall before even providing an explanation for why he was stopping the applicant probable under the circumstances or credible. I do not find the applicant credible when he claims he was not argumentative and that P.C. Powrie never asked him to remove his hands from his pockets. I prefer P.C. Powrie’s account that he invited the applicant to approach his car, that his initial interaction with the applicant was face to face, during which time he told the applicant that he was investigating a robbery suspect, that he told the applicant to remove his hands from his pockets, and the applicant refused to. I prefer P.C. Powrie’s account that the situation was becoming increasingly tense and that this is what led to P.C. Powrie’s decision to take the applicant by his left shoulder, to turn him to face the wall and to put him under investigative detention, and it was the applicant’s continued vocal and physical resistance that led to his being handcuffed.

69P.C. Powrie’s narrative was sufficiently corroborated, in my view, by P.C. Zhang’s testimony that while he and P.C. Bhimji were approaching the scene he saw P.C. Powrie and the applicant interacting while standing face to face. P.C. Zhang also testified that the applicant was loud and argumentative and that this behaviour continued throughout the incident. P.C. Zhang also testified that P.C. Powrie was attempting to calm the applicant down, to de-escalate the situation. I prefer this evidence to the applicant’s claim that he raised his voice once and otherwise spoke in a normal tone of voice.

70I do not agree with the applicant that it was not believable that P.C. Powrie would invite the applicant to approach his car, given if he was being stopped as a possible robbery suspect. I accept P.C. Powrie’s contention that this was a reasonable measure given that the applicant was only a possible suspect and that he could always take measures to protect himself. I do not find the fact that P.C. Powrie and P.C. Zhang were unable to recall what might have been specifically said to the applicant to calm him down is persuasive evidence that nothing was said or that P.C. Powrie acted in a pre-emptive manner by immediately and forcefully ordering the applicant to turn around. The fact that P.C. Zhang recalls the applicant making a statement about being stopped because he was Black and P.C. Powrie did not recall such a statement is not necessarily a contradiction. In any event it is P.C. Powrie’s claim that he first approached the applicant and was in a face-to-face discussion before he took any further steps, a claim that is corroborated by P.C. Zhang that is key to my finding that he acted reasonably and in a non-discriminatory way when he questioned and then detained the applicant.

71I do think that this was an instance in which matters escalated quickly. I note P.C. Powrie was of the view that his interactions with the applicant took 60 to 90 seconds. This may contribute to the applicant’s views that P.C. Powrie was unnecessarily aggressive. However, importantly I find that P.C. Powrie did not act with a premeditated intention to detain the applicant, to intimidate him, as the applicant suggests. I do not find that P.C. Powrie’s decisions involved unconscious stereotyping of the applicant that, for example, he posed a threat because he was a Black man. In my view P.C. Powrie began by trying to engage with the applicant and that it was the applicant’s attempts to resist engaging with P.C. Powrie, and to resist P.C. Powrie’s directions to take his hands out of his pockets, that led to the subsequent detaining of the applicant.

72The applicant submits that P.C. Powrie should have recognized that the applicant, as a Black man, may have reason to be upset at being stopped by the police and to react in an angry and assertive manner, and that it would have been reasonable for him to have exercised greater tolerance and tact. The applicant refers to Johnson v. Halifax Regional Police Service (2003), 2003 CanLII 89397 (NS HRC), 48 C.H.R.R. D/307 (N.S. Bd. Inq.), a decision in which it was determined that a police officer failed to display the reasonable tact and tolerance required of someone in his position and from this finding it was inferred that race was a major factor in this professional failing.

73I find in the present case the applicant not only forcefully expressed his concern that he was wrongly being stopped but also refused to remove his hands from his pockets. I find, under the circumstances of this case, that it was reasonable that P.C. Powrie considered this to be a potential threat to his and others’ safety that warranted his further actions including physically taking the applicant by the arm and placing him against a wall for the purposes of putting him under investigative detention. I accept P.C. Powrie’s testimony that the applicant physically resisted which led to the further decision to handcuff the applicant.

74I accept that the applicant’s experience in being stopped by the police questioned and subsequently placed under investigative detention and handcuffed on September 10, 2010 was unexpected, unpleasant and distressing. However, I am not persuaded, given all the circumstances of this case that the actions of Police Officer Powrie were because of the applicant’s race, colour, ethnic origin or place of origin and contrary to the Code.

75For all of these reasons the Application is dismissed.