HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joel-Pierre Jean
Applicant
-and-
Ottawa Police Services Board and Constable Tim J. Karwaski
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: Jean v. Ottawa Police Services Board
APPEARANCES
Joel-Pierre Jean, Applicant
Self-represented
Ottawa Police Services Board and Tim J. Karwaski, Respondents
David Patacairk, 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 on the basis of race, colour, ethnic origin and age in the context of a police traffic stop.
2The traffic stop took place in Ottawa, Ontario on November 15, 2010 at approximately 8:40 a.m. in the middle of rush-hour traffic near the downtown core. For Constable Karwaski (the “officer”) it was a routine traffic stop which followed from his observation that the applicant was holding his cellphone while driving. For Mr. Jean (“the applicant”), who self-identifies as a young, Black man of Haitian ethnicity, and who denies that he was holding his cellphone, it was an experience of racial profiling.
Decision
3For the reasons that following, I find that there is insufficient evidence to establish that the applicant’s race, colour, ethnic origin or age were factors in why he was stopped or how he was treated by the officer.
Procedural Issues
4There was a significant delay between the filing of the Application and the hearing of this matter. The Application was initially set down for a preliminary hearing to determine whether a complaint (the “complaint”) with the Office of the Independent Police Review Director (“OIPRD”) had appropriately dealt with the applicant’s allegations. On April 23, 2012, the Application was placed in abeyance on consent of the parties pending the release of the Tribunal’s decision in Claybourn v. Toronto Police Services Board, (“Claybourn”) which was issued in 2013 (2013 HRTO 1298). On November 20, 2012, the Tribunal advised the parties that the Application would continue to remain in abeyance and that the panel in Claybourn was awaiting the Supreme Court of Canada’s Decision which was ultimately issued in Penner vs. Niagara Regional Police Services Board, 2013 SCC 19.
5On October 29, 2013, the Application was reactivated and the parties were invited to make submissions on the impact of the decisions in Claybourn and Penner on the issue of whether the Application should be dismissed pursuant to section 45.1. The parties agreed that the Application should proceed and the Respondent was directed to file a Response.
6By Interim Decision 2014 HRTO 515, issued on April 11, 2014, the applicant’s request to amend his Application to add further respondents was denied.
7On October 23, 2014, the Tribunal granted part of the applicant’s request for the production of further documents from the respondent.
8Following the hearing the Tribunal issued directions associated with the production of two further documents arising from the testimony of the officer. Final evidence and submissions were heard on May 8, 2015.
9The applicant, who was unrepresented, produced a significant number of well-organized documents during the hearing. Some of those documents were uncontested and admitted as exhibits while others were not admitted as exhibits but moved to the book of authorities. Some documents were not referred to and not included either as exhibits or authorities. I prepared an exhibit list and circulated it to the parties primarily to ensure that the applicant had a clear record of what was admitted into evidence at the hearing.
10There was a dispute about one document on the exhibit list - the text of a speech which appears to have been given by a Carleton University Professor, at a public meeting on December 4, 2011. It was circulated by the Civil Liberties Association National Capital Region. The material expresses the author’s opinion on some policing issues in the city of Ottawa. The respondent’s recollection is consistent with my notes that this document was not included as an exhibit nor was it moved to the book of authorities. The applicant’s recollection is that he asked to have the document included in his book of authorities. I have included the material in the applicant’s book of authorities which contains a number of newspaper articles and other material along with academic articles. However, this material was not the subject of a peer review process and I would attach little if any weight to it as a result.
11I also indicated to the parties that I did not agree with the applicant that I could determine whether there was a failure to properly investigate his complaint by the OIPRD. It is not my role to sit in review of the OIPRD process. Having said that, I permitted the applicant to describe his involvement in the process and to refer to his complaint and the decision in order to have the full context for the applicant’s experience and to better understand his perceptions.
Evidence
The Applicant’s Perspective and Evidence
12The applicant’s perspective is that on November 15, 2010 he was stopped by the officer on the pretense that he was holding a cellphone while driving. The applicant believes that he was stopped because he was a young Black man driving a nice vehicle in the downtown core and was stereotyped by the officer as someone likely to be involved in drug trafficking or associated with a street gang.
13On November 15, 2010, the applicant, who was 26 years old at the time, was at a kiosk in the St. Laurent Mall in Ottawa, Ontario renewing the sticker for his licence plate. While he was there, he spoke briefly with his sister by cellphone and made arrangements to pick her up near the corner of Laurier Street and Lyon Street. His cellphone records indicate that this call took place at 8:26 a.m. The receipt from the kiosk indicates that the applicant completed his transaction at 8:33 a.m. The applicant went immediately to his car and set out west-bound on highway 417.
14The applicant took the Metcalfe Street exit and turned westbound onto Catherine Street. He was in the middle lane and there were multiple cars around him. As he approached Bank Street he noticed a fully-marked police cruiser ahead of him and to his right. The police cruiser was stopped at the red light approximately one or two car lengths ahead of him on his right.
15The applicant looked into the officer’s left side mirror and saw the officer looking at him. The officer “swivelled” his head to the left, “locked eyes” with the applicant and nodded his head up and down. The applicant estimated that this exchange took approximately five seconds. As the light turned green and the traffic began to move, the officer waited for the applicant to pass and turned in behind him. The applicant knew at that point that he was going to be pulled over.
16The applicant continued along Catherine Street, through Bank Street to the next light and turned right onto Kent Street which runs one way, north bound with three lanes of traffic. The applicant, who was in the middle lane on Catherine Street, merged into the far left lane on Kent Street. The officer followed and shortly after the applicant made the turn the officer turned the lights of his cruiser on. The applicant switched into the middle lane and then into the far right lane and stopped his car where he felt it was safe to do so. There was no dispute that the applicant took steps to stop safely.
17The officer approached the applicant’s vehicle. The applicant opened his sunroof to explain to the officer that he had just recently had his windows tinted and had been advised not to roll them down. The officer advised the applicant to go ahead and open his door instead of his window. The applicant described the officer’s tone as “elevated” and “aggressive” - it was as if the applicant had already aggravated the situation by making the request to open his door.
18The officer asked for the applicant’s licence, registration and proof of insurance. As he was retrieving his documents the applicant asked the officer what was wrong. The officer responded that the applicant was talking on the phone at Bank and Catherine. The applicant was stunned and told the officer he had not been on his phone.
19At the same time, the applicant observed that the officer was bent down and looking into the back seat of his car. The applicant stated that at this point he knew there was some other reason for the stop.
20The applicant took the phone from the centre console in his car and offered it to the officer so that the officer could check the call log. The officer refused to look at the phone. The applicant recalled the officer saying something about what might constitute a reasonable excuse for being on a cellphone, like taking a call from a child’s daycare. While the applicant was urging the officer to look at the call logs the officer asked the applicant to “look into his eyes” and tell the officer the truth. The applicant found this request demeaning and suggestive of him lying to get out of what was ultimately a $155.00 ticket.
21At some point the officer also stated that the tint on the applicant’s windows was too dark and that he would be giving him a ticket for that infraction as well. Ultimately the applicant did not receive a ticket for the tinting on his windows.
22The officer went back to his cruiser. The applicant called his sister to tell her he had been delayed. The cellphone records indicate that this call took place at 8:54 and lasted one minute or less.
23The Officer returned to the applicant’s vehicle, gave him a ticket and explained how to either pay or contest the ticket. The applicant said something to the effect of “it’s nice to see that racial profiling is still prevalent in Ottawa”. The officer turned around, pointed his finger and said to the applicant: “are you calling me a racist? You’re a racist.”
24The applicant felt that his interaction with the officer was escalating and so he told the officer he would see him in court, shut the door, and drove off to pick up his sister.
25As soon as the applicant dropped his sister off at her office, he drove to Ottawa Police Headquarters on Elgin Street, parked his car and walked into the station. He wanted to speak with the officer’s supervisor. He was upset and could not believe what had happened to him. However, the applicant decided to leave before he spoke with anyone because he was so upset and thought if he spoke with a supervisor it would quickly escalate. He did, however, think about how he could fight the ticket and he contacted Bell Mobility about receiving an itemized list of his calls that day. He was told that the itemized list would appear on his December, 2010 statement. The cellphone records indicate that a *611 call was made by the applicant to Bell Mobility on the day of the incident at 12:43. The applicant also produced a record from Bell Mobility indicating that his cellphone number has remained unchanged for many years.
26When the applicant was cross-examined he stated that he did not know why the officer was nodding his head and the applicant did not recall the officer using a finger and thumb gesture signalling him to hang up a phone. He was driving a Nissan Maxima which was described as a luxury, mid-sized, family sedan with rims and tinted windows. The window tint was described by the applicant as “practically transparent” at 30 to 35 percent. He acknowledged that the cellphone was in the centre console within reach.
27The applicant also stated that when he made the comment about racial profiling the officer was very angry – a ten on a scale of ten. The applicant denied that he was accusing the officer of being overtly racist. He stated that he thought the officer might not be conscious of what he was doing and the applicant was trying to make him aware. The applicant also stated that he was in shock that the officer would call him a racist.
28When the applicant was asked by counsel for the respondent what it was about this stop that caused him to believe he had been the victim of racial profiling he responded that it was the tone of the interaction, the comments made by the officer and how it first commenced. The applicant stated that he was in “contempt for looking at a cop”.
29The applicant acknowledged that he was not dressed as a stereotypical gang member and he no reason to believe that Catherine Street was a gang area as opposed to a main artery for people travelling to work.
30The applicant reiterated his belief that the stop was a pretext for a criminal investigation. However, he acknowledged that he was not asked to get out of the car, no search was conducted of his person or his vehicle and the officer did not inspect his phone when it was offered. The applicant stated that from the officer’s demeanour and the way he was “sweeping his eyes” into the applicant’s car, the officer gave the applicant the impression that he was looking for something more.
31The applicant contested the ticket. He received a Notice of Trial in early December, 2010. In early January, 2011, he went to the courthouse and made a request for disclosure. He made a follow-up call to the prosecutor but never received the disclosure he requested.
32On February 2, 2011, the applicant filed a complaint with the OIPRD alleging racial profiling. The complaint was disposed of as unsubstantiated.
33The applicant attended court for his trial on February 7, 2011. The officer did not attend and the case was dismissed.
34During his testimony before the Tribunal, the officer explained that he had requested vacation leave which was approved before the trial date was set. He was never aware of the trial date and was on vacation at the time of the trial. The applicant indicated that he accepted this evidence. His impression had been that the officer intentionally failed to appear at trial because he had insufficient evidence to obtain a conviction.
The Respondent’s Perspective and Evidence
35The perspective of both respondents is that this was a routine traffic stop and that the only time race became a factor was when the applicant accused the officer of engaging in racial profiling.
36Officer Karwaski testified on his own behalf and on behalf of the Ottawa Police Services Board. At the time of the hearing the officer was in his 11th year. It had been almost four years since the incident and as a result, the officer acknowledged that he did not have an independent recollection of all of the details. However he denied that his recollection of the events was vague. He stated that this was a routine traffic stop, one of hundreds he had initiated before and after and that apart from the fact that the applicant was holding his phone next to a fully marked police car, the incident did not stand out.
37The officer relied on his notes, which are time stamped 8:57 a.m. and which were made immediately after the interaction with the applicant. The officer stated that he was not required to take handwritten notes for this traffic offence. Instead, he entered the information about the stop into the computer in his car. When he finished the notes were locked. The officer stated that he was certain about the accuracy of his notes with the exception of the one notation about the applicant holding his phone to his right ear with his left hand. This issue is discussed more fully below.
38The notes contain only the most basic details of the traffic stop:
DRV ID ON DL;
OBS DRV W/B MIDDLE LANE ON CATHERINE AT BANK RED LIGHT;
PHONE LEFT HAND RIGHT EAR;
STOPPED AT RED LIGHT STILL HAS PHONE TO EAR;
PROCEEDS THROUGH INTERSECTION PHONE STILL TO RIGHT EAR;
JUST BEFORE KENT HANGS UP TURNS RIGHT ON KENT AND PULL VEH OVER;
SOLE OCCUPANT OF GREY MAXIMA (LICENSE NUMBER);
MALE STATED THAT HE WAS PULLED OVER BECAUSE HE IS A BLACK DRIVER;
PHONE WAS A BLACKBERRY;
OFFENCE TIME APPROX 0845HRS.
39On the day of the incident the officer was on general duty leaving 474 Elgin Street which is Central Division for the Ottawa Police Service. He was on the 7 a.m. to 5 p.m. shift. The officer did recall leaving the station westbound on Catherine Street (which runs one way westbound) but he did not recall what he had been doing at the station prior to encountering the applicant. The station is located very close to the spot where the applicant first saw the cruiser on Catherine Street.
40The officer was travelling on Catherine Street in the midst of morning rush hour. There was a lot of traffic and he was in the far right lane with vehicles in front, behind and to his left.
41The officer did not make notes about all of the things he observed but he was looking around at his surroundings at the time which he described as typical. He recalled seeing the applicant’s vehicle to his immediate left.
42The officer was stopped at the red light and not looking anywhere in particular. What caught his attention was not the applicant’s vehicle or his race, but the fact that he was beside a fully marked police car holding a cellphone to the right side of his head. The officer was taken aback. He is used to observing people looking down and texting on their phones. He could not recall if the applicant was actually talking on the cellphone but he was holding the phone to his ear in plain view of a fully marked police car and the officer found that surprising.
43The officer recalled looking directly at the applicant but with the tint on the window he could not be completely sure that the applicant could see him clearly. The officer put his hand up and using his thumb and baby finger like a phone, gestured to the applicant to hang up his cellphone.
44During his cross examination, the officer stated that he did not specifically recall seeing the applicant behind him at the red light. The officer stated that they were in rush hour traffic and at one point he and the applicant were side by side just east of Bank Street. The officer acknowledged that it was possible that the applicant was behind him at some point but he did not recall seeing the applicant behind him.
45The officer was asked when he determined the race of the applicant. He stated that it was probably when they were side by side.
46The officer could not recall swivelling his head. He thought that his view would be obstructed by the metal bar and plexiglass behind his seat although he did acknowledge that it was possible to lean forward and swivel his head to look at a car immediately behind and to his left. The officer also acknowledged that he uses his mirrors to scan the environment but he had no recollection of seeing the applicant in his mirror.
47The officer was questioned about the notation he made in his notes indicating that the applicant was holding the cellphone “left hand to right ear.” The officer stated that he recalled seeing the applicant holding the device but he could not recall at the time of his testimony whether the applicant was holding it in his right or left hand. He acknowledged that his notes could be wrong on that particular issue but he was not sure. He also stated that he was certain about the accuracy of his notes with the exception of that one notation. The officer stated that he saw the applicant holding the phone through his tinted side window. He could not recall ever seeing him through the windshield.
48The officer observed the applicant both moving and stopped. The officer was stopped when he first observed the applicant. He described the applicant as stopped or freshly stopped. The officer also observed the applicant when they were both moving in traffic. The officer stated that it was approximately 10 to 15 seconds before the light turned green and they were underway.
49There is no dispute between the parties that if the cars were side by side, the officer would be able to see into the vehicle and determine that the applicant was on the phone.
50The light turned green. The traffic moved forward. The applicant proceeded ahead of the officer and the officer turned in behind him. In front of him the officer could see the back of the applicant’s headrest and the silhouette of the applicant still holding the phone to his ear. The officer recalled the applicant driving ahead of him and crossing Bank Street. He could see the reflection of the cellphone screen and the silhouette of the applicant still holding the cellphone.
51During his cross-examination, the officer stated that the applicant was holding the phone at Bank Street and a bit beyond. He did not have an independent recollection of the applicant holding his phone when he made the turn from Catherine Street to Kent Street. He could also not recall without using his notes where and when he observed the applicant putting the phone down.
52The officer followed the applicant on to Kent Street for a short distance, activated his roof lights and pulled the applicant over. The officer described this as a very routine traffic stop. The only thing that drew his attention to the applicant was how close he was to the applicant when he observed the applicant on his cellphone.
53The officer stated that it would not have been safe to stop the applicant at the red light on Catherine Street. He acknowledged that some of the same traffic issues existed on Kent Street but at some point the officer had to make a choice. He felt comfortable that no one was going to be in jeopardy with the two of them stopped on Kent Street.
54The officer made an inquiry on the applicant’s plate and nothing came back. The officer approached the applicant from the driver’s side of the car. He was scanning the immediate area as is his practice. He was looking at people on the sidewalk, the traffic, inside the vehicle, at the driver, all in an effort to be cautious and aware of his surroundings.
55The officer recalled that the applicant had his sunroof open. He could not recall the discussion or what he said first but he understood that the windows were freshly tinted and as a result he told the applicant to go ahead and open the car door.
56The officer requested the applicant’s licence, ownership and insurance. He observed a blackberry in the console beside the applicant. While the applicant retrieved his documents, the officer explained that he had observed the applicant on his cellphone at Catherine and Bank Streets.
57At this point the officer had not decided whether he was going to give the applicant a ticket. The officer recalled that the applicant denied being on the phone which the officer described as a common response. The applicant was in a seated position with his leg outside the door to keep it from closing while he was looking for his documents. He was not looking directly at the officer and so the officer asked the applicant to “look me in the eyes” and “be honest with me” and “tell me you were not on your cellphone” or words to that effect. The officer stated that he was not accusing the applicant of lying. The officer stated that he did not expect everyone to look him in the eye and that he was aware that in certain cultures it is a sign of disrespect to look someone directly in the eye. He does not conclude that they are lying.
58There is no dispute that the officer explained to the applicant that he had discretion and that in some circumstances he might not issue a ticket. He gave the applicant an example of someone taking an emergency call from their child’s daycare as a reasonable excuse. However, the officer stated that he would not exercise his discretion to give a warning if the person did not acknowledge that they had been holding a cellphone.
59The officer did recall the applicant offering him his cellphone. The officer declined to look at the phone. He stated that he did not need to see whether a transmission was sent or received. He also indicated that he did not take the phone because some people are very sensitive about privacy and could, for example, have pictures of their children on the screen.
60The officer recalled a discussion about the tint on the applicant’s windows. The officer told the applicant that there is a certain level of tint that you can get a ticket for and explained that the officer must be able to identify the driver through the tint.
61The officer returned to his car with the applicant’s documents and swiped the applicant’s driver’s licence and noted that the system did not return anything out of the ordinary.
62The Maxicad Activity Logs Report shows the officer running the applicant’s plate at 8:44:35 and then the applicant’s name at 8:55:04. His notes are time-stamped 8:57.
63The applicant noted that at 8:42:57, the Maxicad records a message from the dispatcher “no PH there”. The applicant alleged that this stood for “police history” and that the officer checked the applicant’s police history because he had stereotyped him as a potential drug dealer or gang member. However, the officer denied this and noted that the PH message preceded the officer running the applicant’s plate or his driver’s licence. He stated that PH stood for “premise history” and not “police history” and that it did not relate to the applicant’s stop.
64The process of printing the ticket takes approximately four minutes. During that time the officer sent a message to the dispatcher advising that everything was “ok”.
65The officer returned the documents to the applicant. He stated that typically he explains the different processes available to pay or contest the ticket. The applicant acknowledged that he did so in these circumstances.
66The officer estimated that his explanation to the applicant took approximately thirty seconds. He then turned to return to his car when the applicant said something like “good to see that racial profiling is still prevalent in Ottawa”. The officer stated that this was not the first time he had been challenged by someone on a call. He described it as part of the job and indicated that he receives training in dealing with situations like this. The officer felt it was necessary to challenge the applicant’s comments so as to not leave the impression that he agreed. His response to the applicant was to ask “are you calling me a racist?” He believes that he did point his finger at the applicant but denies that he was angry. The officer could not recall the specifics of his response but it was something to the effect of: “you are making a racial comment.”
67The officer stated that this was not an “eye-raising” event for him. It was a common traffic stop and not the first time someone had said something insulting to him. His approach has been to learn to absorb it and reaffirm the nature of the traffic stop. However, the officer stated that on this occasion he felt the need to reply because it was an allegation of racial profiling. He felt it was important to challenge the applicant’s statement and not let it go. He acknowledged that there is a possibility that the applicant’s version is correct – he could not be sure of exactly what statement he made. The point he was trying to make was that it was the applicant who was making a racial comment.
68The officer recalled that the applicant said something like “I will see you in court”. The officer did not want to engage any further and so he went back to his car. He made the right turn onto a quiet street and started writing his notes. The entire interaction would have taken approximately nine minutes from when he initiated the stop.
69The officer addressed the applicant’s suggestion that the officer treated him as if he was a potential gang member. The officer acknowledged that he had spent four weeks shadowing an officer in the guns and gangs unit of the police service. The officer stated that he was on general patrol on the day of the incident and would not be looking for gang activity at 8:45 on a Monday morning on Catherine Street. He also stated that neither the applicant nor his car matched any of the stereotypes of a gang member or drug dealer.
The Arguments of the Parties
70In his closing submissions, the applicant argued that this is an intersectional case of race, age and ethnicity. He argued that the evidence substantiates his belief that he was targeted by the officer when they “locked eyes” in the mirror of the officer’s car. The applicant argues that the officer engaged in an unwarranted traffic stop and made two inappropriate comments: “look into my eyes”, which is culturally insensitive, and “you’re a racist” after the applicant challenged the officer. The applicant argued that he had a right to challenge an unwarranted stop and one he viewed to be discriminatory.
71The applicant argues that he was not holding his cellphone and therefore the officer had no “articulable reasons” for pulling the applicant over. The applicant does not allow for the possibility that the officer was mistaken. He argued that because he was not holding his phone at the time, the only possibility was that he had been stereotyped as a potential drug dealer or gang member and that the officer made up the story about the cellphone as a pretext.
72The applicant argued that the direction to look the officer in the eyes was demeaning and culturally insensitive. He argued that in Haitian culture it is considered confrontational to look at an authority figure directly in the eyes. The respondent objected to this argument noting that the applicant had not lead any evidence which would support a finding that he was personally affected by this cultural phenomenon. I agree with this objection. The applicant did not lead evidence which would suggest that he was avoiding the officer’s gaze because of cultural reasons and that he was disadvantaged as a result of this.
73The respondent argued that there was insufficient evidence to establish that the applicant was targeted in any way. This was not a case where the stop escalated or was used to justify a more intrusive investigation. The applicant had requested and received information from the respondent that the officer had no record of race-based complaints made against him. He could not have seen what the applicant was wearing beyond a button-down shirt and leather jacket. The officer responded to the applicant when he was challenged about racial profiling but there were no consequences to the applicant for doing so. The officer believed that he had observed the applicant holding his cellphone and that was the sole reason for the traffic stop.
74The respondent argued that there was no evidence to support what are essentially perceptions and suspicions on the applicant’s part about what motivated the traffic stop. The respondent accepts the possibility that the officer was mistaken about the applicant holding his cellphone, particularly since he was viewing the applicant through tinted windows. The respondent argues that this finding, without further direct or circumstantial evidence, is insufficient to support an inference of racial profiling or any other form of discrimination.
ANALYSIS
Applicable Legal Principles
75It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.
76The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41 (“McDougall”) confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”.
77Discrimination is not defined in the Code, however, it is found where a protected characteristic is connected to some form of adverse treatment experienced by the applicant. Where the applicant proves this connection and the respondent is unable to provide an appropriate justification, discrimination will be found to have occurred. Moore v. British Columbia (Education), 2012 SCC 61.
78In many human rights cases, the analysis turns on whether there is evidence of a connection between the prohibited ground and the adverse treatment. The Ontario Court of Appeal, dealing with a claim under the Code, affirmed that the ground of discrimination must somehow be a factor in the adverse treatment: Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 59. In this case, the primary question is whether the applicant’s age, race, colour or ethnicity were factors in the decision to stop him and how he was treated during the stop.
79The Tribunal in Phipps v. Toronto Police Services Board, 2009 HRTO 877 endorsed a set of important principles from previous decisions which should be considered in cases engaging allegations of racial discrimination in the policing context:
The grounds alleged by the applicant do not need to be the sole or the major factor in the actions taken by the respondents; it is sufficient for him to prove that one or more of the prohibited grounds was a factor;
There is no need to prove intention - the focus is on the effect of the respondent’s actions on the applicant;
The evidence supporting the explanation must be credible on all the evidence;
Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices;
When assessing the respondent’s explanation, the ultimate question is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent;
Discrimination will more often be proven by circumstantial evidence inference rather than direct evidence;
80In Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (“Nassiah”) at paragraph 134 the Tribunal noted that social science evidence speaks also to the level of scrutiny applied to Black suspects after they are stopped:
I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black. (Emphasis in original)
81There is no direct evidence in this case that the applicant’s identity was a factor in the interaction between himself and the officer. The question here is whether an inference of racial discrimination is more probable than the respondents’ explanation for the officer’s conduct: see Abbott v. Toronto Police Services Board, 2009 HRTO 1909 (“Abbott”).
82As the Tribunal found in Abbott, in determining whether an inference of racial discrimination is more probable than the explanation offered by the respondents, I need to be mindful of the nature of racial discrimination as it is understood today. It will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah; R. v. S. (R.D.) 1998 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 46; R. v. Parks 1993 CanLII 3383 (ON.CA.) 15 O.R. (3d) 324 (C.A.).
83To the extent that this case requires me to assess the credibility of the witnesses who testified before me, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 356-357:
(…) 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 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 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.
84I am also guided by factors considered by the Tribunal in assessing credibility in the case of Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.
85A finding of lack of credibility or reliability with respect to one aspect of a witness’ testimony does not automatically render the entirety of the witness’ evidence incredible or unreliable. See Shah v. George Brown College, 2009 HRTO 920. As such, the Tribunal is entitled to accept or reject some, all or none of a witness’ evidence.
CONCLUSIONS
86My conclusions are not meant to reflect in any way on the applicant’s sincerely held belief that he was the victim of racial profiling. I have found that there is insufficient evidence to support that belief in this particular case. However, the applicant’s sense of outrage and victimization is genuine and I can understand why he believes that there was a pretext for the stop when he is firmly of the view that he was not holding his cellphone. He spoke about the profound effect this incident has had on him and on his view of law enforcement.
87As a White woman, someone who is not a member of a group that has experienced the kind of historic disadvantage and stereotyping the applicant has experienced, I could accept that an officer might mistakenly believe that I was holding a cellphone and have no ulterior motive for doing so. For the applicant, the only explanation he can accept is that the officer manufactured the evidence to justify stopping him. The applicant’s perception is grounded in his life experience and the prevalence of racial profiling in our society. It is not my role to try to dislodge the applicant’s truth about his experiences or the connections he made between his own experience and more recent and traumatic incidents involving Black suspects and White officers.
88The question I am called upon to answer is not whether racial profiling is a possible explanation for what the applicant experienced, but whether there is sufficient evidence to draw the inference that it is more probable than the officer’s explanation for the stop.
89There is no dispute that the provision of policing services is a service within the meaning of the Code.
90I agree with the applicant that the prohibited grounds he has relied on, namely race, colour, ethnicity and age, should be treated as intersectional in nature to capture his self-identification as a young black man of Haitian ethnicity.
91I also agree that he had a right to expect a reasonable level of tolerance when he challenged the officer about his belief that he had been the victim of racial profiling. The Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination, which was approved in June 2005 addresses this issue:
Racialized persons who reasonably believe that they are being racially profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner. A person’s use of abusive language requires reasonable tolerance and tact and cannot form the basis of further differential treatment.
92I also note here that the descriptions by both the applicant and the officer about what they were feeling during this exchange were not compelling. Both the applicant and the officer resisted any suggestion that they were upset or angry. The applicant stated that he was not calling the officer a racist but rather trying to make the officer aware that racial profiling happens at an unconscious level. This is at odds with the applicant’s testimony about the words he used and the fact that he knew an escalation was occurring between himself and the officer. It is also inconsistent with his evidence that he was so incensed by what had happened that he drove immediately to the police station and then decided he was too upset to speak with anyone. The officer’s explanation that he was simply trying to point out to the applicant that it was not the officer who first brought up the applicant’s race is at odds with his admission that he pointed his finger at the applicant and may have accused the applicant of being a racist.
93I found the analysis in Abbott useful in considering the elements of this case which could give rise to an inference that the applicant’s perception that he was the victim of racial profiling is the most likely inference to be drawn from the evidence.
94As was the case in Abbott, both parties recorded their recollections. The officer’s notes were contemporaneous with the incident. The applicant recorded his recollections in two documents: a complaint to the OIPRD dated February 2, 2011 (the “complaint”), and his Application to this Tribunal dated one year after the incident. The officer’s statement to the OIPRD was recorded in the decision dated May 26, 2011. As was the case in Abbott, I am not convinced that either party has given an account of the incident which is 100% accurate.
95The officer’s testimony contained details which were not in the notes he recorded at the time of the stop. Those details were somewhat inconsistent with his statement that this was a routine traffic stop, one of hundreds he had initiated before and after and that apart from the fact that the applicant was holding his phone next to a fully marked police car, the incident did not stand out. The officer could not recall which hand the applicant was using to hold the blackberry but he recalled seeing the silhouette of the applicant and the light from the blackberry screen through tinted windows as he was following him from behind. He also recalled that he motioned to the applicant to hang up the phone using his thumb and baby finger although this detail is not contained in the notes.
96The applicant also raised a concern that the officer’s testimony was not consistent with the details in the OIPRD decision. The decision states that the officer observed the applicant directly in front of him, holding the cellphone in his right hand to his right ear, he pulled up beside the applicant’s car and was able to get an unobstructed view of the applicant through the windshield and the applicant’s lips appeared to be moving. During his testimony he stated that he could no longer recall which hand the applicant was holding the cellphone in, whether his lips were moving, whether he saw him through the windshield in addition to the side window and where he observed the applicant hang up the phone.
97The inconsistencies in the officer’s testimony appeared to me to be rooted in the passage of time, rather than in any attempt to mislead the Tribunal or cover-up a lie about the reason for the traffic stop. The officer readily admitted those details that he could not recall, acknowledged that he may have made a mistake in recording the applicant holding the phone in his left hand to his right ear and did not resist the suggestion that it was the applicant who had a better recollection of their final exchange of comments.
98While the applicant’s testimony was more consistent with the details in his complaint and Application, it was inconsistent in one important respect. The applicant testified that as soon as he approached, the officer’s tone was “elevated” and “aggressive” and that it was like the applicant had already aggravated the situation by making the request to open his door rather than roll down his window. However, this detail is not included in either the Application or the complaint. What the applicant stated in those documents as well as in his testimony is that he explained his concern about the tinting on his windows and the officer’s response was to tell him to “go ahead” and open his door rather than roll down his window.
99In another case this discrepancy might not be considered important enough to mention. However, in this case, it is critically important because the applicant’s entire case rests on the Tribunal drawing the same inference from the officer’s posture and tone as the applicant did.
100In Abbott the Tribunal found that the salient feature of that case was that a fairly routine traffic encounter escalated quickly into an arrest where both parties were injured. The Tribunal also found that the officer did not appear to have taken any steps to try and de-escalate the situation. He did not, for example, try to allay the applicant’s concerns, explain why he wanted to speak with her, or take any other action to try to defuse the situation.
101Escalation was also an important feature in Maynard v. Toronto Police Services Board, 2012 HRTO 1220, but that is not to suggest that evidence of an escalation is an essential feature in a racial profiling case. See for example R. v. Brown, 2003 CanLII 52142 (ON CA) (“Brown”).
102I find some similarities between Abbott and the case before me. The officer testified that he saw the applicant on his cellphone, that he motioned to him to put it down and that the applicant continued driving and holding his cellphone. During his discussion with the applicant after the stop, the officer made a comment about the applicant’s window tinting and according to the applicant, indicated that he would be giving the applicant a ticket for that as well. He asked the applicant to “look into his eyes” and tell him the truth and also responded to the applicant’s final comments by pointing his finger and accusing the applicant of being racist or making a racial comment.
103At the same time, there are significant differences. The applicant explained his difficulty with the window tinting and the officer permitted the applicant to go ahead and open his door. The officer explained to the applicant the reason for the stop. He also explained to the applicant that the cellphone law was new and that if the applicant had a reasonable explanation he may receive a warning rather than a ticket. When the officer returned to the applicant he explained how to pay or contest the ticket. The officer was leaving the scene when the applicant initiated their final exchange which did not escalate beyond that one exchange of comments.
104In my view, the most reasonable inference I can draw from the evidence is that the applicant was not holding his cellphone. The applicant’s reaction at the time of the stop in accusing the officer of racial profiling, the fact that he drove to the station to speak to a supervisor and called his service provider to ask for his phone records, are all consistent with the actions of a person who believes that he has been wrongly accused.
105This leaves the applicant’s assertion that the officer lied about the applicant holding the cellphone in order to justify pursuing and investigating him. Here the applicant raises a legitimate question: how could the officer, with whom the applicant had direct eye contact, be mistaken about him holding his cellphone?
106The interaction between the parties at the traffic stop lasted mere seconds and they do not agree on when they first noticed one another. The applicant believes that it is when he observed the officer looking at him in the side mirror, however, the applicant also stated that he was behind and to the right of the officer by 1 or 2 car lengths. The officer acknowledges that he was likely looking around him and may have been using his mirror to scan the area but he does not recall seeing the applicant at that time. The officer believes that he first noticed the applicant when they were closer to side by side.
107The parties agree that the applicant’s windows were tinted 30 to 35 percent. They also agree that the exchange took mere seconds. And they agree that the officer was nodding and the applicant acknowledged that he did not know why the officer appeared to be nodding at him. In my view, this evidence supports the officer’s testimony that he thought he observed the applicant on his cellphone and was attempting to get his attention. The blackberry was also within reach in the console of the applicant’s car. I do not believe that the officer was lying but I do believe that he was mistaken.
108The applicant suggested a number of possible reasons for the officer choosing to stop him and then lying or covering up the reason for the stop. The first was that the applicant was “in contempt” of the officer by virtue of the fact that he met his gaze in the rear-view mirror. The second is that the officer stereotyped him as a person who was likely to be involved in gang activity or drug dealing. The third is that the officer stereotyped him as a young Black man driving a nice car which was likely to have been acquired through the proceeds of crime.
109In Brown, a young Black man who played for the Toronto Raptors was stopped on the Don Valley Parkway while he was driving a very expensive car. In that case, the Court of Appeal described the meaning of racial profiling at paragraphs 7 and 8:
There is no dispute about what racial profiling means. In its factum, the appellant defined it compendiously: "Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group" and then quoted a longer definition offered by the African Canadian Legal Clinic in an earlier case, R. v. Richards (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286, 42 M.V.R. (3d) 70 (Ont. C.A.), as set forth in the reasons of Rosenberg J.A. at p. 295 C.R.:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping.
110In that case, the Court of Appeal was satisfied that there was evidence before the trial judge which was capable of support an inference of racial profiling. That evidence included the fact that the applicant was a young Black man wearing a baseball hat and jogging clothes and driving an expensive car. The Court also considered the respondent's evidence that the officer looked into Mr. Brown’s car before following and stopping him; the evidence of the second set of notes prepared by the officer to firm up his reasons justifying the stop after he became aware the person under arrest was a well-known sports figure likely to undertake a defence of the charge against him; a licence check that the officer made before he stopped the respondent; and discrepancies between the times recorded in his notebook and those which he gave to the breathalyzer technician.
111In considering the meaning of racial profiling and how it manifests, I have found that there is insufficient evidence in this case to support the applicant’s perception that the officer was consciously or unconsciously influenced by a criminal stereotype when he chose to stop the applicant and ticket him for a cellphone infraction.
112With respect to the applicant’s impression that he was stopped because he had looked the officer directly in the eyes at the traffic stop, this is clearly insufficient to establish conscious or unconscious criminal profiling based on race.
113With respect to the applicant’s second impression that he was stereotyped as a potential gang member or drug dealer, again, there is insufficient evidence to support this impression. Both parties acknowledge that nothing about the applicant’s clothing, his car, the time or area he was travelling in, corresponded with the profile of a drug dealer or gang member.
114The third impression, which is related to the second, is that the applicant was stereotyped because he was driving a nice car. The applicant was driving a four-door, Nissan Maxima which was described by the respondent as a family sedan and supplemented by the applicant as a “luxury” sedan with tinted windows and rims. While I am prepared to agree that the applicant was driving a nice car, I am not prepared to accept that this is sufficient evidence that the applicant was criminally profiled on the basis of his race.
115In addition, other features of the Brown case are absent here: There was no evidence that the officer did anything before the stop other than to gesture to the applicant in attempt to get his attention. The officer knew when he prepared his notes that the applicant was likely to complain about being racially profiled and yet his notes contain only the bare essentials and not an elaborate defence of his actions. The officer also provided an explanation for running the applicant’s plate before he approached the vehicle.
116Even taking into consideration the prevalence of racial profiling in our society, the heightened scrutiny and zero margin for error that young Black men are subjected to at times by law enforcement, there is insufficient evidence to find that conscious or unconscious stereotypes were at work in the brief moments when the officer decided to stop the applicant.
117With respect to how the applicant was treated during the stop, I accept that the comment about the window tinting was unnecessary and perhaps even antagonistic. Certainly the request to “look into my eyes” could reasonably have been experienced as demeaning to any citizen in that situation. However, I do not accept that the officer was aggressive from the outset. I also accept the officer’s testimony that he was not investigating the applicant but rather scanning the area including the applicant’s vehicle as a standard precaution. I have also concluded that the final exchange between them was a product of frustration on the part of both the applicant and the officer but it did not lead to an escalation or any further consequences for the applicant. In my view, there is insufficient evidence to establish a link between how the applicant was treated during the stop and his race, colour, ethnic origin and age.
118As was observed by the Nova Scotia Board of Inquiry in Johnson v. Halifax Regional Police Service, (2003) 2003 CanLII 89397 (NS HRC), 48 CHRR D/307 at para. 51:
in order to consider if differential treatment occurred, the board must necessarily hypothesize about how events would have unfolded if the driver…of the vehicle had been white rather than black.
119Can I hypothesize, as the applicant did in his final submission, a White woman driving in rush hour traffic being pulled over by an officer in the same circumstances? I have no difficulty hypothesizing both the reason for the stop and the officer’s interaction with a White woman in similar circumstances who was denying that she was holding a cellphone. Having said that, I indicated earlier in my decision that I also accept that a White woman and a Black man, who are both falsely accused of holding a cellphone, could have a different perspective on the possibility that the officer made a mistake.
120In my view, the evidence in this case does not, on a balance of probabilities, support an inference that the applicant was the victim of criminal profiling on the basis of his race. I also find that there is insufficient evidence to establish that the applicant’s race, colour, ethnic origin or age were factors in why he was stopped or how he was treated by the officer.
121Accordingly, the Application is dismissed.
Dated at Toronto, this 4th day of November, 2015.
“Signed by”
Leslie Reaume
Vice-chair