Human Rights Tribunal of Ontario
B E T W E E N:
Selwyn Pieters
Applicant
-and-
Toronto Police Services Board and William Blair
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Pieters v. Toronto Police Services Board
APPEARANCES
Selwyn Pieters, Applicant
Self-represented
Toronto Police Services Board, Respondent
Antonella Ceddia, Counsel
William Blair, Respondent
Naomi Calla and Adam Guy, Counsel
Introduction
1In June 2010, a few days before the G-20 summit, the applicant, who is a Black man and a lawyer, had two separate interactions with police officers in the city’s downtown Entertainment District, which resulted in him filing an Application with this Tribunal. The purpose of this Decision is to decide whether the police officers racially profiled and discriminated against the applicant during their interactions with him.
2The Application is dismissed. I have decided that the applicant has not proven, on a balance of probabilities, that the police officers racially profiled and discriminated against him during their interactions with him. The following are my reasons.
BACKGROUND
3On July 23, 2010, the applicant, who identifies as a Black, African Canadian man with dreadlocked hair, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which named the Toronto Police Services Board (the “respondent TPSB”) and William Blair (the “respondent Blair”), who is the Chief of the Toronto Police Service (the “TPS”), as respondents. He alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, ethnic origin, and association with a person identified by a Code ground.
4The first alleged incident occurred on the evening of June 20, 2010. The applicant alleged that while he was walking on a crowded sidewalk, a police officer from the TPS punched him in the back from behind and pushed her bicycle on him. He alleged that when he asked the officer why she was acting so aggressively, she responded that he was in her way.
5The second alleged incident occurred a few hours later in the early morning of June 21, 2010. The applicant alleged that he was in the same area, and saw police officers from the TPS and the Royal Canadian Mounted Police (the “RCMP”) removing two Black men from the front of a club. He alleged that the police officers then began assaulting the two men. He alleged that one of the men was forced to the ground and continued to be assaulted, despite the fact that he was not resisting. He alleged that the man was handcuffed and made to stand, and was then choked by one of the officers, despite the fact that he was not resisting. He alleged that he yelled at the officer to stop assaulting the man who was not resisting. He alleged that a TPS officer and three RCMP officers then accosted him, and the TPS officer told him not to say anything or he would be arrested and charged with obstructing police. He alleged that the TPS officer refused to take his business card to be called as a witness, and then had the RCMP officers surround him in an attempt to block his view of what was taking place.
6The applicant alleged that in both the above incidents he was treated the way he was because he is a Black, African Canadian man with dreadlocked hair. He described the police officers’ conduct as “racial profiling”.
7In his Application, the applicant did not explain how the respondents discriminated against him because of his association with a person identified by a Code ground. However, he subsequently filed written submissions with respect to the second alleged incident, which alleged that the police officers surrounded him because they believed that he was associated with the two Black men because he is also a Black man.
8On October 6, 2010, the respondent TPSB filed a Response, which stated that it should be removed as a respondent to the Application because the applicant’s allegations relate to the particular conduct of individual police officers, and that the Board has no liability for their conduct. The respondent TPSB subsequently filed an email, which retracted this position, and stated that it accepts that it will be liable if there is a finding of discrimination by the Tribunal.
9On October 29, 2010, the respondent Blair filed a Response, which denied the allegations of discrimination. With respect to the first alleged incident, the respondent Blair denied that the police officer punched the applicant in the back or pushed her bicycle on him. With respect to the second alleged incident, the respondent Blair stated that TPS officers had dealings with two men, that one of the men was arrested and charged with public intoxication, and that the man actively resisted arrest and was taken to the ground.
10The Tribunal issued two Interim Decisions, 2012 HRTO 1863 and 2013 HRTO 1987, which addressed a number of preliminary issues raised by the parties.
11The hearing of the merits of the Application took place on December 2, 5 and 6, 2013. During the course of the hearing, I made a number of oral rulings, and provided oral reasons for my rulings. Having reviewed my notes and the transcript of the hearing, I have decided that it is not necessary to provide written reasons for those rulings.
12I heard the oral testimony of four witnesses: the applicant and three police officers (Detective Constable (“DC”) Tracey Garrison, Police Constable (“PC”) Lauren Hassard, and PC Panagiota Retsinas). I also admitted into evidence a number of documents and things tendered by the parties, including Twitter tweets, letters, memo book notes, video stills and footage, and policies.
13In his testimony, the applicant self-identified as “Black” and “African Canadian”, and identified DC Garrison, PC Hassard, and PC Retsinas as “White”. In their testimony, the aforementioned officers did not self-identify by race, but the respondents never disputed the applicant’s characterization of them as “White”.
EVIDENCE
14The applicant is a lawyer whose main areas of practice have included human rights and criminal law. His office is located in downtown Toronto near the Entertainment District. He sometimes works late into the evening, including after midnight.
15The Entertainment District has a high concentration of bars and nightclubs, and there is a significant influx of people into the District at night, particularly on the weekend and in the summer. During these times, the District is more heavily policed because of the number of intoxicated people, and associated anti-social behaviour, such as fights.
16On the evening of Sunday, June 20, 2010, the north part of the Entertainment District around Queen Street West was even more busy than usual because the MuchMusic Video Awards (the “MMVA”) were being held, and there was a stage for the performers. The police presence in the District was also higher than usual because of the G-20 summit, which was starting a few days later. The police presence was mainly composed of TPS officers, but also included officers from other police services, such as the York Regional Police and the RCMP.
First Alleged Incident
17The first alleged incident occurred between 8:00 and 9:00 p.m. on June 20, 2010 in the vicinity of the intersection of Queen Street West and John Street.
18The applicant testified he had worked out at a fitness club, and was walking west on the sidewalk to get food at a variety store on the corner of Queen Street West and John Street before returning to his office. He stated that, because the MMVA were happening, there was a barricade blocking access to the street, and the sidewalk was packed and congested with people.
19In cross-examination, the applicant admitted that, because of the crowd, there was the potential to be jostled and bumped.
20The applicant testified that as he was walking, the barricade was to his left, and people were walking single file in both directions. He stated that a long, tight line of police officers pushing their bicycles then came along his right hand side. He stated that four or five police officers passed him with no problems, but that DC Garrison then pushed him in the back and rolled her bicycle on him.
21In cross-examination, the applicant stated that he believed that DC Garrison had pushed him with her hand. When asked whether it was possible that it was the handlebar of her bicycle, he responded: “I don’t know.”
22I asked the applicant how it was possible that DC Garrison rolled or rode her bicycle on him given that he was to the left of her, her bicycle was on the right side of her body, and it was crowded, which would have made it difficult for her to turn the bicycle. The applicant responded that he understood the logistical issues that I was raising, but that police officers were doing amazing things around the time of the G-20 summit.
23The applicant testified that after DC Garrison made contact with him, he turned around, and said, “Excuse me, why would you hit me?" He stated that she responded, "Well, you are in my way,” and kept on walking.
24The applicant testified that he then went to the variety store, got his supplies, and went to John Street where the police officers were assembled, and got DC Garrison’s name from the tag on her uniform.
25The applicant testified that he went back to his office, and tweeted about what had happened because he was upset. The tweets were entered into evidence, and are largely consistent with the applicant’s oral testimony, except that they are a more brief account of the incident, and allege that DC Garrison punched him in the back rather than pushed him in the back.
26As will be set out below, the applicant faxed a letter to the respondent Blair about the second alleged incident, and requested that the video footage from the police camera at the location of that incident be preserved. However, the letter did not mention the first alleged incident, or request that any video footage in the vicinity of Queen Street West and John Street be preserved.
27DC Garrison testified that on June 20, 2010, she was on bicycle patrol as part of the TPS’s Community Response Unit. She stated that she was assigned to work in the Entertainment District to assist with crowd control and G-20 issues. She stated that she was in a platoon with 10 TPS officers and five York Regional Police officers, and that she was the only female police officer in the platoon.
28DC Garrison testified that around 8:00 p.m., the platoon was dispatched to the MMVA to assist with crowd control. She stated that the platoon walked their bicycles on Queen Street West through the crowd to the stage, which was about 20 metres east of John Street. She stated that the platoon walked in single file, and the front tire of her bicycle was almost touching the back tire of the bicycle of the police officer in front of her. She stated that her bicycle was to the right of her body, and that both her hands were on her handlebars. She stated that it was very crowded, and that people were almost shoulder to shoulder.
29DC Garrison testified that after the platoon reached the stage, four or five police officers remained to assist with crowd control, and the rest of the platoon did a U-turn, and walked west on Queen Street West in the same single file formation through the crowd. In cross-examination, she denied that she and her platoon were walking on the sidewalk, and maintained that they were walking on the street.
30In her testimony, DC Garrison denied that she intentionally hit or punched the applicant, or that she intentionally pushed her bicycle on him. However, she stated that, because the crowd was compact, it is possible that she hit him unintentionally with her handlebars or another part of her bicycle. In cross-examination, when asked why she did not apologize to the applicant after he told her that she hit him, she responded that he did not tell her that.
31DC Garrison testified that when she was exiting the crowd at Queen Street West and John Street, a man was yelling at her. She stated that she does not recall what he was yelling about, but she knew that he was upset with her. She stated that she does not recall responding to him. She stated that she and other police officers in the platoon then went and stood on John Street, and the man who yelled at her came out of the crowd, and tried to take her picture. In cross-examination, when asked whether she saw a camera, she responded that she does not recall 100 percent if there was a camera, but she thought the person was trying to take her picture for a complaint.
32The TPS’s Policy and Procedure on Memorandum Books and Reports was entered into evidence. The Policy states that the memo book is the first method of recording investigations, arrests, and other significant events, and is also a record of the conduct of a member during a tour of duty. DC Garrison’s memo book pages for her shift on June 20, 2010 were entered into evidence. Her notes do not mention the incident at issue. She testified that she did not take any notes in her memo book because she did not feel that anything had happened. She stated that it was a non-event.
33In cross-examination, when asked whether a complaint against a police officer would be a significant event, DC Garrison responded that if a complaint goes in, it would be significant. She stated that she did not make any note of the incident in her memo book because she did not think that there would be a complaint.
Second Alleged Incident
34The second alleged incident occurred between 2:00 and 2:30 a.m. on Monday, June 21, 2010 approximately one block south from where the first alleged incident occurred. Specifically, it occurred in the vicinity of Richmond Street West between John Street and Widmer Street.
35The applicant testified that he was still in his office in the early morning, and went to the store again to get some food. He stated that on his way back from the store, he saw a group of police officers grab a Black man from a nightclub on the corner of Richmond Street West and John Street, and push him aggressively westbound towards a parking lot near Widmer Street. He stated that another Black man, who was with the first man, was walking along with the officers. He stated that when the officers reached the parking lot, they stopped and had a conversation with one of the men.
36The applicant testified that the police officers then began assaulting one of the men. He stated that he saw an officer punch and kick the man without any provocation. He stated that he was concerned and fearful for the man’s safety, so he shouted in a commanding voice, "Stop. The man is not resisting. Stop assaulting him." In cross-examination, the applicant denied that he objected to the arrest of the first man. He stated that he only objected to the use of excessive and unreasonable force that he saw.
37The applicant testified that a group of RCMP officers then surrounded him. He stated that PC Hassard, who is a TPS officer, approached and asked him if he knew the two men whom the police officers were interacting with. He stated that he responded, “No”, and she then said, "Well, if you say another word you are going to be arrested." He stated that he attempted to give PC Hassard his business card, but she refused to take it.
38In cross-examination, the applicant admitted that PC Hassard did not raise her voice when she spoke with him, but he denied that she told him that he was inflaming the situation, that he could file a complaint about the arrest, and that there were surveillance cameras in the area that were likely capturing the incident.
39The applicant testified that he was then surrounded by a mixture of TPS and RCMP officers. He stated that the officers were physically and psychologically detaining him because they formed a perimeter around him and were surrounding him on all sides. He stated that he sat down on a ledge, and was compliant. In cross-examination, he denied that PC Hassard asked him to leave the area. He stated he could not have left even if he wanted to because he was surrounded.
40The applicant testified that the police officers then brought the first man, who had been arrested, to three different police vehicles. He stated that they initially brought him to a cruiser in front of where he (the applicant) was sitting. He stated that a wagon then came, and the man was moved to the wagon. Finally, he stated, a van came, and the man was moved to the van.
41The applicant testified that during this process, the arresting police officer recognized him and called out his name. He stated that he responded by telling the officer that he hoped that the man was not going to be charged with assaulting police or resisting arrest. He stated that the officer then told him that the man would not be facing such charges. He stated that the officer may have also told him that the man would be charged with a liquor offence. He stated that he was free to walk after his chat with the officer.
42I asked the applicant whether he was able to move around when the arrested man was handcuffed but not yet secured in a police vehicle. He responded that when the man was moved to the wagon, he sat down in the back, and at that point, the police officers who were surrounding him all broke off. He stated that he was then able to move as he wished.
43The applicant testified that he returned to his office, and wrote and faxed a letter to the respondent Blair about one hour later. The letter was admitted into evidence. The letter was only about the second alleged incident, and requested that the video footage from the police camera in the vicinity of Richmond Street West and Widmer Street be preserved.
44The letter’s account of the second alleged incident is similar to the applicant’s oral testimony, but there is no allegation that police officers “detained” him. Rather, the letter alleges that PC Hassard and several RCMP officers accosted him, and that PC Hassard subsequently had the RCMP officers surround him in an attempt to block his view of what was taking place. Based on my review of the materials before me, it appears that the applicant did not raise his allegation that officers “detained” him until October 31, 2013 (more than three years later) when he filed a will-say statement in advance of the hearing as required by the Tribunal’s Rules of Procedure.
45The letter requested that the respondent Blair disclose the letter to the Crown Attorney prosecuting the charges against the arrested man, and that the applicant be called as a witness to the events.
46PC Hassard testified that on June 21, 2010, she and her partner, PC Retsinas, were on patrol in a black, unmarked van as part of the TPS’s Toronto Anti-Violence Intervention Strategy (“TAVIS”). She stated that they were assigned to provide logistics assistance (batteries, supplies and water) to police units for the G-20. She stated that at some point, they were deployed to the Entertainment District to assist police units dealing with drunkenness and fights.
47PC Hassard testified that she had her window rolled down, and heard and saw the applicant yelling. She stated that he was sitting on a curb near a parking lot, which is on the north side of Richmond Street West, and directly across from Widmer Street. She stated that she also saw some RCMP officers there, and an arrest taking place. She stated that she and PC Retsinas decided to get out of the van, and see if the officers needed any assistance.
48PC Hassard testified that as she approached the applicant, she noticed that whatever he was yelling was inflaming the situation. She stated that she cannot recall what he was saying, but she stated that he was upset, loud, and agitated. She stated that she asked the applicant if the man who was being arrested was his friend, and the applicant responded, no. She stated that she then asked the applicant to stop yelling, and to leave because there was no reason for him to be there. She stated that she told him that he could go in any direction except towards where the arrest was taking place. She stated that the applicant yelled again, so she “cautioned” him by stating, "If you continue to involve yourself or go over and involve yourself with the arrest, if you obstruct that arrest, then you can be arrested."
49In cross-examination, when asked about her failure to note her “caution” to the applicant in her memo book, PC Hassard contradicted her testimony in chief by denying that she had “cautioned” the applicant. She stated that she was merely telling him what an officer might or could do, not what an officer would do, if he involved himself in the arrest.
50In cross-examination, PC Hassard also denied that she had approached and spoken to the applicant because she assumed that he was associated with the two Black men because he is also a Black man. Rather, she stated, people generally visit the Entertainment District with friends, and she believed that the applicant might have been upset because his friend was being arrested.
51PC Hassard testified that the applicant then told her that he is a lawyer, and that she responded by telling him that there were cameras everywhere, and that he was free to complain if he did not like what he saw. She stated that the applicant then asked her to take his business card and hand it to someone because he wanted to be called as a witness. She stated that she responded by telling the applicant that she was not going to do that because she had nothing to do with the arrest, and that he could take the card over to the officers himself once the arrested man was safe and secure in the back of a police vehicle. In cross-examination, when pressed on why she refused to take the applicant’s business card and failed to take notes in her memo book about her refusal, she stated: “I am not there to solicit business for lawyers.”
52PC Hassard testified that she, the applicant, PC Retsinas, and four RCMP officers were in the immediate vicinity. She denied that they were surrounding the applicant or detaining him. In cross-examination, she admitted that there were a lot of officers there, but she stated that there was no strategy to surround or detain the applicant. In response to my questioning, she also stated that she may have chatted with the RCMP officers, but she denied that she told them to watch or detain the applicant. In cross-examination, when pressed further on this matter by the applicant, she stated: “I needed to speak to you, and we spoke, and then, at that point, I am, like, okay, there is no big deal.”
53PC Hassard testified that when the arrested man was brought to be put in the police car, she and PC Retsinas left. I asked her if she had gone back to her van before the arrested man had been secured in a police vehicle, and she responded that she had because the applicant was no longer yelling and causing a disturbance, and he had calmed down and understood that he was not to interfere with the arrest.
54PC Hassard’s memo book pages for her shift on June 21, 2010 were entered into evidence. Her notes do not mention the incident at issue. She testified that she did not take any notes in her memo book because she was not investigating or arresting the applicant, and she did not deem the incident to be a significant event. In cross-examination, she also admitted that she did not inform the TPS dispatch that she was on the scene, and did not log the incident on her mitre (police radio). She stated that she did not do so because she was not involved in the arrest, and was merely speaking to a man on the sidewalk who was yelling.
55PC Retsinas testified that in the early morning of June 21, 2010, she and PC Hassard were on patrol in a black, unmarked van as part of the TAVIS. She stated that they were assigned to provide logistics supplies (water, drinks, snacks, and emergency equipment) to police officers because of the G-20. She stated that they had been assigned to the Entertainment District late in the evening on June 20, 2010.
56PC Retsinas testified that she was driving the van westbound on Richmond Street West from John Street, and saw a large crowd on Richmond Street West, which included uniformed TPS officers trying to effect an arrest. She stated that she and PC Hassard exited their vehicle. She stated that because there were enough police officers effecting the arrest, her job was just to stand by and make sure that the officers were able to effect the arrest safely without being obstructed or jumped by anybody in the crowd or a passerby.
57PC Retsinas testified that the arrest was taking place on Richmond Street West, and the applicant was on the sidewalk. She stated that the applicant was dressed nicely in a suit, and was being loud. She stated that she cannot remember exactly what he was saying, but it was along the lines of making comments towards the officers who were effecting the arrest that they were harassing the man and had no right to arrest him, and of police brutality. In cross-examination, when asked whether the gist of what the applicant was saying was, "Stop assaulting the man. He is not resisting," she agreed that he may have said that.
58PC Retsinas testified that she saw PC Hassard approach the applicant, but she could not hear their conversation.
59PC Retsinas denied that PC Hassard and the RCMP officers detained the applicant. She stated that the reason that they were at the scene was not to let anyone get close to the arresting officers, and interfere with their arrest and safety. She stated that their goal was to keep people moving along because if people gathered, the officers’ safety would be compromised. In response to my questioning, PC Retsinas denied that PC Hassard told her to detain the applicant or stop him from going anywhere.
60PC Retsinas testified that police transportation came to take the arrested man away, and that she and PC Hassard then left because things had calmed down and the arrest had been effected.
61PC Retsinas’ memo book pages for her shift on June 21, 2010 were entered into evidence. Her notes appear to mention being on Richmond Street West because of a drunk man, but there is no mention of the applicant. She testified that there was no mention of the applicant’s presence because she did not believe that it was significant. She stated that he was not part of the arrest, was not a friend of the arrested man, had nothing to do with the arrest, and was just a passerby. She stated that he was basically told to stay out of it and keep moving. In cross-examination, she admitted there is also no indication in the TPS’s Event Details Report on the arrest that she informed dispatch that she was on the scene, or logged the incident on her mitre (police radio).
62Video footage from a police camera in the vicinity of Richmond Street West and Widmer Street, as well as video stills from the footage, were entered into evidence. The footage does not capture the entire interface between the applicant and the police officers on the scene because, initially, the camera was making a 360 degree rotational pan of the area, and then, when it stopped making a broad pan, it focused on the man being arrested. In addition, the footage does not have any sound.
63During their testimonies, the applicant, PC Hassard, and PC Retsinas all identified themselves on the video footage. In the footage, the applicant is dressed in shorts and a cut-off t-shirt, and PC Hassard and PC Retsinas are dressed in police uniforms.
64I have reviewed the video footage several times, including with the parties at the hearing, and, in my view, it shows the following:
The first point of significance is when the camera is panning, and on two rotations, several police officers can be seen entering and in a parking lot north of Richmond Street West.
The camera continues panning, and the next time it shows the parking lot, the applicant can be seen standing near a ledge/curb bordering the south end of the parking lot. He is watching what is happening in the parking lot. There are several police officers near him. An unmarked black van is parked on the street close to him.
The camera continues panning, and the next time it shows the parking lot, the applicant can be seen sitting on the ledge/curb with several police officers near him. The black van is still parked on the street close to him.
The camera continues panning, and the next time it shows the parking lot, the applicant can still be seen sitting on the ledge/curb with several police officers near him, including to his left, right, and in front of him. The black van is also still parked on the street close to him. At this point, two police officers have a man in handcuffs at a police cruiser, which is approximately 10 feet in front of the applicant. The officers to the left and right of the applicant are looking straight ahead, and not facing him. At various points, two different officers in front of the applicant face him directly, and at other points, they do not face him. At one point, no officers are facing the applicant. A police wagon then arrives behind the cruiser, and the officers begin moving the man towards the wagon. PC Hassard and PC Retsinas can then be seen to the right of the applicant. At one point, PC Hassard turns her back to the applicant. PC Hassard and PC Retsinas then walk in the direction of the black van, and leave the frame of the camera. The camera then shows the black van, and the driver’s door being shut by a person inside.
The police wagon then parks in front of the cruiser, and the man in handcuffs is brought to the back of the wagon. A police van then arrives, and parks in front of the wagon. The man in handcuffs is then brought to the back of the van. Before the man is put in the van, the applicant walks by the van a few feet away from the man, and then turns around and walks back in the direction that he came from. The man in handcuffs is then put in the back of the van. Before the back doors of the van are closed, the applicant walks by again.
65I asked PC Hassard if she would ever turn her back to a person whom she was detaining, and she responded, no.
ANALYSIS
Applicable Law and Issues
66The Application relates to ss. 1, 9, and 12 of the Code, which provide:
- 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.
(...)
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(...)
- A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
67The 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 at para. 46.
68With respect to allegations of police misconduct, this Tribunal has no role in addressing such misconduct unless it can be connected to a prohibited ground of discrimination. See C.G. v. Timmins Police Service, 2013 HRTO 1268 at para. 14.
69In order to establish a case of discrimination, the applicant must prove that (1) he is, or was perceived to be, a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155, and Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.
70In the case at hand, there was no dispute that the applicant is a Black/African Canadian man. The main dispute was whether he received adverse treatment, and, if so, whether his race, colour, ancestry, ethnic origin, and association with other Black men were factors in the adverse treatment.
71In assessing allegations of racial discrimination, the following principles are applicable:
(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.
See Peel Law Association v. Pieters, 2013 ONCA 396, 116 OR (3d) 81 (Ont. C.A.) at paras. 111-114.
72Furthermore, anti-Black racism and its subtle manifestations are well-recognized in Canadian law, including the recognition that racialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal. See Sinclair v. London (City), 2008 HRTO 48 at paras. 17-18.
73Racial profiling is a form of racial discrimination. See Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 at para. 112. In Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), 43 CR (6th) 175 (Ont. C.A.) at paras. 93-96, the Ontario Court of Appeal made the following comments about adjudicative fact finding where there are allegations of racial profiling:
Racial profiling may be the product of overt, subconscious, or institutional racial bias. An individual police officer engaged in racial profiling may be subjectively unaware that he or she is doing so: see R. v. Brown, supra, at para. 8. Indeed, racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates: see R. v. Singh (2003), 2003 CanLII 20804 (ON SC), 15 C.R. (6th) 288 at para. 18 (Ont. S.C.J.). Regardless of the connection, if any, between racial profiling and racial bias, racial profiling cannot be tolerated. It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling. Racial profiling will also ultimately undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race: see David M. Tanovich, “E-Racing Racial Profiling” (2004) 41 Alta. L. Rev. 905 at 916; David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40 Osgoode Hall L.J. 145 at 161-65.
The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system: see e.g. R. v. S. (R.D.), supra; R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.). With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it. Indeed, as the evidence in this case indicates, police forces, including the Board, acknowledge the existence of racial profiling and accept that it has no place in law enforcement. The Board has designated racial profiling as a prohibited practice for which officers are subject to disciplinary action.
Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling. The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct: R. v. Brown, supra, at paras. 44-46.
The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case. Those indicators, sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings of adjudicative facts, that is the “who”, “what”, “why”, “when”, and “where” of any given case, grow out of the trier of fact’s assessment of the evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to provide the appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 56-58 (S.C.C.).
74A number of the key facts in the case at hand are in dispute. In assessing the credibility and reliability of the testimonies of the parties’ witnesses, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A):
(...) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor 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 as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
75I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
76In this case, the two main issues to be decided are the following:
Did DC Garrison racially profile and discriminate against the applicant during her interactions with him in the evening of June 20, 2010?
Did PC Hassard and other police officers racially profile and discriminate against the applicant during their interactions with him in the early morning of June 21, 2010?
Did DC Garrison racially profile and discriminate against the applicant during her interactions with him in the evening of June 20, 2010?
77In my view, the applicant established that DC Garrison treated him adversely during her interactions with him in the evening of June 20, 2010, but he did not meet his onus of proving, on a balance of probabilities, that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment.
78The first matter to be addressed is the applicant’s suggestion that an adverse inference be drawn against the respondent Blair because he failed to produce video footage from the police camera in the vicinity of Queen Street West and John Street. The respondent Blair submitted that no such inference should be drawn because police surveillance videos are recorded over every 72 hours, and the applicant did not file a timely request for the footage to be preserved.
79I am not prepared to draw the adverse inference suggested by the applicant because he did not request in his June 21, 2010 letter to the respondent Blair that the footage in this location be preserved, and he did not request that the Tribunal order the respondent Blair to produce this footage prior to the hearing.
80I now turn to my findings of fact. I found the applicant’s basic factual account of what occurred to be more credible than DC Garrison’s. His testimony was generally forthright and detailed, and was not shaken in cross-examination.
81DC Garrison’s testimony was also generally forthright and detailed, but less so than the applicant’s. I also found it problematic that she did not take any notes whatsoever in her memo book about her interactions with him. I was particularly troubled that in cross-examination, she stated that she thought that the applicant was trying to take her picture for a complaint, but then, when pressed to admit that a complaint would be a significant event that should be noted in a police officer’s memo book, she contradicted her prior testimony by stating that she did not think that there would be a complaint.
82Accordingly, where there are differences between the applicant’s testimony, and DC Garrison’s testimony about the basic facts of what occurred, I prefer the applicant’s testimony. That is not to say, however, that all of the applicant’s testimony was reliable, and that the inferences that he has asked me to draw are reasonable and supported by the evidence.
83Some of the basic facts are not in dispute. Specifically, the vicinity of Queen Street West and John Street was very crowded because of the MMVA, the applicant was walking westwards, DC Garrison was pushing her bicycle westwards in a tight line of approximately 10 police officers with bicycles, DC Garrison’s bicycle was to the right of her, DC Garrison was somewhere between the front and back of the line of officers, and DC Garrison was the only female officer in the line.
84I prefer the applicant’s testimony over DC Garrison’s with respect to whether they were walking on the sidewalk or the street. His testimony was more forthright and detailed than hers, and, given that there was a stage with performers on the street, his testimony was more logical and made more sense than hers. Therefore, I find that the applicant was walking on the sidewalk, there was a barricade to his left blocking access to the street, people were walking single file in both directions, a line of police officers pushing their bicycles came along his right hand side, and four or five police officers passed him without making contact with him.
85In view of the fact that the applicant testified that DC Garrison made contact with him from behind, and DC Garrison admitted that it is possible that she made contact with him, I also find that DC Garrison made contact with the applicant when she was passing him on the sidewalk. I also prefer the applicant’s testimony over DC Garrison’s with respect to whether or not they then had a verbal dispute about the contact. His testimony, again, was more forthright and detailed than hers, and, given that they appear to agree that he approached her to obtain her identity shortly after they both exited the crowd, it seems logical and makes sense to me that some kind of verbal dispute had occurred following the contact. Therefore, I find that the applicant turned around, and said, “Excuse me, why would you hit me?" and DC Garrison responded, "Well, you are in my way,” and kept on walking.
86The applicant argued that I should draw the inference that DC Garrison made contact with him on purpose because she did not apologize to him. He stated that if the contact had been accidental, she would have apologized to him. DC Garrison’s position, on the other hand, is that, because the crowd was compact, it is possible that she hit him unintentionally with her handlebars or another part of her bicycle.
87I am not prepared to draw the inference that DC Garrison made contact with the applicant on purpose because I do not accept that it is a reasonable inference to draw based on the evidence. To start out with, I do not agree with the applicant that a person who accidentally makes contact with another person will always apologize. Some people may apologize, but other people may become defensive and try to shift blame, particularly if, as in the case at hand, the person whom they made contact with confronts them.
88Furthermore, the applicant’s back was to DC Garrison when she made contact with him, and even he appears to be unsure what exactly hit him. He variously described the contact as a “punch” and a “push”, and, although he stated that he believed that DC Garrison had made contact with him with her hand, when asked whether it was possible that it was the handlebar of her bicycle, he responded: “I don’t know.”
89Finally, given the fact that it was very crowded, DC Garrison passed to the right of the applicant, DC Garrison’s bicycle was to the right of her, and the handlebars of DC Garrison’s bicycle would have been in front of her body and sticking out, I find that it is most likely that the left handlebar of DC Garrison’s bicycle accidentally hit the applicant’s back.
90I also cannot accept as reliable the applicant’s testimony that DC Garrison rolled or rode her bicycle on him. Given the set-up described in the preceding paragraph, it seems implausible.
91I now turn to consider whether DC Garrison treated the applicant adversely by responding, "Well, you are in my way,” to his question, “Excuse me, why would you hit me?" In my view, DC Garrison’s response was definitely not very helpful because it escalated rather than de-escalated the incident. Furthermore, given that DC Garrison is a public servant and the applicant is a member of the public, that she hit him from behind, and that he would have experienced some pain and shock from being hit, her response was also somewhat rude. Therefore, I find that DC Garrison treated the applicant adversely by being rude to him.
92The applicant argued that I should draw the inference that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment because DC Garrison is White and he is Black, she did not apologize and was rude to him, and she did not take notes in her memo book about her interactions with him. The applicant argued that DC Garrison would have apologized and not been rude to a White person in the same circumstances.
93I am not prepared to draw such an inference. Police officers, like other service providers, are sometimes rude to members of the public, and I do not accept that the above evidence presented by the applicant is sufficient to prove, on a balance of probabilities, that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment. Human rights jurisprudence recognizes that rude behaviour and deviation from normal practices can be indicators of racial profiling and discrimination, but in cases where racial profiling and discrimination have been inferred, the rude behaviour and deviation from normal practices have tended to be more serious than in the case at hand, and/or there have been additional indicators of racial profiling and discrimination. See, for example, Peel Law Association, above, and Johnson v. Halifax Regional Police Service (2003), 2003 CanLII 89397 (NS HRC), 48 C.H.R.R. D/307 (N.S. Bd. Inq.).
94The applicant also argued that DC Garrison’s behaviour towards him should be assessed within the context of the G-20, and he specifically mentioned the assault on Adam Nobody by a TPS officer. See R. v. Andalib-Goortani (September 12, 2013), (Ont. C.J.) [unreported]). When I pointed out that, as far as I know, Adam Nobody is White, and a significant number of White people had alleged that they were assaulted and unlawfully arrested by the police during the G-20, the applicant made a number of arguments in response, but ultimately retracted his initial argument by stating that the behaviour of TPS officers towards him should be assessed within the context of the Entertainment District rather than the G-20.
95In any case, the applicant’s argument that DC Garrison would have apologized and not been rude to a White person in similar circumstances is too speculative, and I am not prepared to draw such an inference.
96Accordingly, the applicant’s allegation that DC Garrison racially profiled and discriminated against him during her interactions with him in the evening of June 20, 2010 is dismissed.
Did PC Hassard and other police officers racially profile and discriminate against the applicant during their interactions with him in the early morning of June 21, 2010?
97In my view, the applicant established that PC Hassard treated him adversely, during her interactions with him in the early morning of June 21, 2010, but he did not establish that any other police officers treated him adversely, and he did not meet his onus of proving, on a balance of probabilities, that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment.
98The first matter to be addressed is the reliability of PC Retsinas’ testimony. PC Retsinas did not interact directly with the applicant, did not take any notes in her memo book about the applicant, and testified that there was a large crowd on Richmond Street West and the applicant was dressed nicely in a suit, which, as evidenced by the video footage, was not true. My impression was that PC Retsinas had a spotty recollection, at best, of what happened, and testified about what she thought might have happened, rather than what she actually remembered. As such, I did not find her testimony to be reliable, and have disregarded it in its entirety.
99I now turn to my findings of fact. The applicant and PC Hassard’s factual accounts of what occurred are similar in many respects, and although the video footage is incomplete and limited (it does not show the entire incident and there is no sound), it does confirm some of the facts.
100The applicant’s testimony was generally forthright and detailed, but I have serious concerns about the credibility of his allegation that PC Hassard and other police officers detained him. The applicant did not raise this allegation in either his letter or his human rights Application, and then only raised it after a significant amount of time had passed and shortly before the hearing.
101PC Hassard’s testimony was also generally forthright and detailed, but I have some credibility concerns with respect to her contradictory testimony about whether or not she “cautioned” the applicant, and the fact that she did not take any notes in her memo book about her interactions with him.
102The following facts are not in dispute. The applicant saw an interaction between a group of police officers and two Black men, one of whom was being arrested, in the vicinity of Richmond Street West between John Street and Widmer Street. When the officers and the two men were in a parking lot north of Richmond Street West and the applicant was standing on the sidewalk, he saw, what he believed to be, excessive and unreasonable force being used by the officers on one of the men in particular. In response, the applicant shouted at the officers to stop assaulting the man because he was not resisting.
103At that time, PC Hassard and PC Retsinas were approaching the scene in an unmarked, black van. PC Hassard saw the arrest of a man taking place, and heard the applicant shouting. PC Hassard and PC Retsinas stopped near where the applicant was, and exited the van. PC Hassard approached the applicant, asked him if he was associated with the two men, and, when she learned that he was not, warned him about his conduct. PC Hassard then became aware that the applicant was a lawyer. The applicant asked PC Hassard to take his business card to be called as a witness, but she refused to take it. Several police officers were near the applicant at that time.
104Two police officers then brought one of the men in handcuffs to a police cruiser, which was approximately 10 feet in front of the applicant. Several police officers, including PC Hassard and PC Retsinas, were still near the applicant. A police wagon then arrived, and the officers began moving the arrested man towards the wagon. PC Hassard and PC Retsinas then went back to their van. The arresting officer then recognized the applicant, and had a discussion with him. A police van then arrived, and the arrested man was brought to the back of the van. Before the man was fully secured in the van, the applicant walked by it a couple of times.
105I prefer the applicant’s testimony over PC Hassard’s with respect to what she said to him when she warned him about his conduct. I did not find PC Hassard’s testimony about this matter to be credible because she provided contradictory testimony about whether or not she cautioned him. In my view, she likely changed her testimony in cross-examination because she realized that if she had cautioned the applicant, it should have been noted in her memo book. Therefore, I find that PC Hassard asked the applicant if he knew the two men whom the police officers were interacting with, and when he responded that he did not, she said words to the effect that if he continued shouting, he would be arrested.
106I accept PC Hassard’s testimony that the applicant told her that he is a lawyer just before he asked her to take his business card. The applicant did not squarely address this point in his testimony, but in his submissions and particularly his cross-examination of PC Hassard, his position appeared to be that another police officer, rather than him, told her that he was a lawyer before he asked her to take his business card. In my view, PC Hassard’s testimony, which was forthright and detailed, was more reliable than the applicant’s position. It seems logical and makes sense to me that the applicant would have told PC Hassard that he is a lawyer just before he asked her to take his business card.
107However, I find it problematic that PC Hassard did not make a note in her memo book that she refused to take the applicant’s business card to be called as a witness. I do not accept that a police officer’s refusal to take the name and contact details of a member of the public who wants to be called as a witness to an arrest is not a significant event. Even if it is true that PC Hassard told the applicant that he could take his card over to the arresting officers once the arrested man was safe and secure in the back of a police vehicle, she would have told him this shortly after she cautioned him that if he continued shouting, he would be arrested. Very few, if any, members of the public, including lawyers, would approach arresting officers after receiving a caution about being arrested themselves.
108Furthermore, it is not difficult, from a number of different angles, to see how PC Hassard’s refusal could have had negative repercussions down the road. For example, if the arrested man had been prosecuted, and had alleged that he had been beaten up by the police during the arrest, he may have been deprived of the testimony of an independent witness to corroborate his allegation. Alternatively, if it had been disclosed during the trial that a police officer on the scene had refused to take the name and contact details of an independent witness who would have corroborated the man’s allegation, the prosecution of the case could have been derailed.
109Turning to the detention issue, I prefer PC Hassard’s testimony over the applicant’s with respect to whether or not she and other police officers detained the applicant. I did not find the applicant’s testimony to be credible because in his June 21, 2010 letter to the respondent Blair and his July 23, 2010 human rights Application, he only alleged that PC Hassard and several RCMP officers accosted him, and that PC Hassard subsequently had the RCMP officers surround him in an attempt to block his view of the assault that was taking place. There was no allegation that PC Hassard and other police officers detained him.
110Furthermore, in the Application, the only clear allegation of discrimination with respect to the June 21, 2010 incident is that PC Hassard threatened to arrest the applicant unnecessarily for obstructing the police (paras. 24 and 31 of the narrative of the Application).
111Based on the materials before me, it appears that the applicant did not raise his allegation that he was detained until, at the earliest, October 31, 2013 (more than three years later) when he filed a will-say statement in advance of the hearing as required by the Tribunal’s Rules.
112In view of the fact that the applicant is a lawyer whose main areas of practice have included human rights and criminal law, I believe that if, in fact, he had been detained, he would have mentioned it in his letter to the respondent Blair and his Application with this Tribunal. With respect to the latter, in the narrative section of the Application form, applicants are instructed to “[d]escribe each event below you believe was discrimination,” to “[b]e as complete and accurate as possible,” and to “[b]e sure to give details of every incident of discrimination you want to raise in the hearing.” At the end of the Application form, applicants must also sign a declaration acknowledging, among other things, that “[t]o the best of my knowledge, the information in my Application is complete and accurate.”
113I also do not accept the applicant’s argument that the video footage from the police camera in the vicinity of Richmond Street West and Widmer Street shows PC Hassard and other police officers detaining him. In support of his argument, the applicant focused on certain video stills and parts of the footage where there are police officers around him, including in front of and facing him. However, in my view, when all the available footage is viewed, the reasonable inference to be drawn is that PC Hassard and other officers did not detain the applicant.
114Specifically, the video footage shows that when the arrested man was only about 10 feet away from the applicant at a police cruiser, there were officers to the left and right of the applicant, but they were not facing him. There were also two different officers in front of the applicant facing him directly, but at some points, only one of them was facing him, and at one point, neither one of them was facing him. At one point, PC Hassard also turned her back to the applicant. I accept her testimony, which was logical and made sense, that she would not turn her back to a person whom she was detaining.
115The video footage also shows that before the arrested man was secured in a police vehicle, PC Hassard and PC Retsinas walked back towards their black van. Although the footage does not show them entering their van, it does show the driver’s door being closed by someone inside. I accept PC Hassard’s testimony, which was not contradicted by the applicant, and which was supported by the footage, that, although the applicant was still at the scene, and the arrested man had not yet been secured in a police vehicle, she and PC Retsinas left the scene and drove away. I find it implausible, given these facts, that the applicant was being, or had been, detained.
116For all the above reasons, I find that PC Hassard and other police officers did not detain the applicant. I have no doubt that some of the officers were watching the applicant because he had been shouting, but that this is markedly different than detaining him.
117All that said, I do accept that PC Hassard treated the applicant adversely by telling him that if he continued shouting that he would be arrested, and by refusing to take his business card to be called as a witness.
118The applicant argued that I should draw the inference that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment because PC Hassard is White and he is Black, she believed that he was associated with the two Black men because he is also a Black man, and she did not take notes in her memo book about her interactions with him. The applicant suggested that PC Hassard would not have treated a White person the same way that she treated him.
119I am not prepared to draw such an inference. I do not accept that the above evidence presented by the applicant is sufficient to prove, on a balance of probabilities, that his race, colour, ancestry, and ethnic origin were factors in the adverse treatment. To start out with, it is not in dispute among well-informed, reasonable persons that for a variety of reasons police officers do not like it when bystanders of any race shout at officers during an arrest.
120Moreover, I do not accept that PC Hassard believed that the applicant was associated with the two other Black men because he is also a Black man. The first question that PC Hassard asked the applicant when she approached him, and before she warned him that if he continued shouting that he would be arrested, was whether he was associated with the two men, which, in my view, clearly shows, she was not assuming that he was associated with them. She also provided testimony, which was logical and made sense, that people generally visit the Entertainment District with friends, and she believed that the applicant might have been upset because his friend was being arrested.
121Therefore, while I appreciate that PC Hassard’s warning upset the applicant, particularly if it is true, as he alleged, that he saw police officers using excessive and unreasonable force in their dealings with the two men in the parking lot, I do not see how the warning was related to the applicant’s race, colour, ancestry, and ethnic origin.
122Furthermore, in a lengthy cross-examination, when the applicant pressed PC Hassard to provide a reason why she had refused to take his business card, she eventually stated that she was “not there to solicit business for lawyers.” This comment, which, in my view, was unguarded and not contrived, indicated that the applicant’s identity as a lawyer was probably a factor in her refusal to take his business card. Obviously, a police officer should not refuse to take a potential witness’s name and contact details because of her personal opinion about his motives, but I do not see how this reason was related to the applicant’s race, colour, ancestry, and ethnic origin.
123I agree with the applicant that PC Hassard’s failure to take notes about their interactions could be an indicator of racial profiling and discrimination because it was a deviation from normal practices. However, in cases where racial profiling and discrimination have been inferred, the deviation from normal practices has tended to be more serious than in the case at hand, and/or there have been additional indicators of racial profiling and discrimination. See, for example, Peel Law Association, above, and Johnson, above.
124In my view, the applicant’s suggestion that, in similar circumstances, PC Hassard would not have warned a White man that if he continued shouting that he would be arrested, and that she also would have agreed to take his lawyer’s business card to be called as a witness, is too speculative, and I am not prepared to draw such an inference.
125Accordingly, the applicant’s allegation that PC Hassard and other police officers racially profiled and discriminated against him during their interactions with him in the early morning of June 21, 2010 is dismissed.
ORDER
126The Application is dismissed.
Dated at Toronto, this 1st day of December, 2014.
“Signed by”
Ken Bhattacharjee
Vice-chair