Policing Racial Profiling in Police Services in Toronto, Ontario

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)

The Toronto Police Services Board, Race and Ethno cultural Equity Policy, Board Authority: Min. No. P115/05 provides that:

It is the policy of the Toronto Police Services Board that:

1. Discriminatory treatment of members of the public or of the Service based on race, sex, place of origin, sexual orientation, age, disability and socio-economic status will not be tolerated;

2. Practices that may be racist, as well as behaviours that underlie and reinforce such practices, will not be tolerated; and

3. The Chief shall develop procedures to implement this policy. These procedures shall cover, but will not be limited to, the following areas:

September 27, 2013 marks the release by the Toronto Star of yet another series on the Toronto Police Service that shows the widespread practice of racial profiling by the Toronto police Officers entitled Known to Police. This series shows that precisely 500 officers mostly comprising the TAVIS Units and Community Response Units were responsible for "carding" or otherwise collecting data from thousands of citizens in a manner in most case which involves duress, coercion, discrimination and intimidation. A previous edition of the series of articles published in early February 2010 in the Toronto Star was called Race Matters. 

In Toronto the crime rate is very low, particularly for violent crimes. In nine months for 2013 we have less than 45 homicides. There is absolutely no justification that could be rationally sustained for Toronto Police carding and mapping entire communities of young men between the ages of 15 to 24 who are Black and Brown except that race, colour, class and privilege are operating. It is apparent that the majority of the people carded, or stopped and frisked (under the pretext of "Officer Safety") are not connected to any organized crime activities; not involved in any gang related activities; not connected to the drug and/or the gun trade and do not have a criminal record. How then can such a practice be endorsed by the powers that be including the Ontario Human Rights Commission? Such a practice makes the persons subject to it victims of racial profiling. Racial profiling offends against a person's equality right as it allows Toronto Police officers to deliberately subject him/her to differential and unequal treatment without sufficient evidentiary basis.

The factual matrix of the cases profiled by the Toronto Star goes to the core of racial profiling, racial stereotyping and racism. Toronto Police Service has failed to correct most police racial misconduct that requires training, supervision and accountability. The Toronto Police Services Board has failed to do what is necessary to prevent this type of misconduct from occurring in the future.

I am concerned about this practice that continues unabated but unfortunately there has not been much litigation on the issue and few positive decisions supporting victims of the practice: See, Maynard v. Toronto Police Services Board, 2012 HRTO 1220. The quantum in Maynard was the highest awarded by the HRTO in a substantiated racial profiling case: Nassiah v. Peel Police Services Board, 2007 HRTO 14 ($20,000), Phipps v. Toronto Police Services Board, 2009 HRTO 1604, 2009 HRTO 1604 ($10,000); Abbott v. Toronto Police Services Board, 2010 HRTO 1314 ($5,000); Pieters and Noble v. Peel Law Association, 2010 HRTO 2411($2000.00 each). And, without a lithany of litigation this carding issue will continue. In New York City a judge recently rule carding to be unconstitutional and awarded damages. I wonder when such litigation will be prosecuted with vigour here.

Litigating such cases against Toronto Police or any other police service is expensive, time consuming and unpredictable. It is likely that the person who wishes to challenge the practice is not able to fund the litigation whilst the Police respondents are ably defended. Thus, it is important to hire a lawyer with the requisite cultural competency and undersanding of how race and racial stereotyping infects certain decisions within the criminal justice system particularly and the system of law enforcement generally. Lawyers who have the lived experience of racial profiling is the best bet and value for money as such a lawyer is able to identify and deal with such issues experientially and not using an approach that is considered "boiler-plated" or "cookie-cutter" since that lawyer can actually put himself/herself in the client's shoes or position. 

In a recent case in which I was counsel the police were defended by at least three lawyers from the City and a private law firm. The lithany of reported decisions generated at the Ontario Court level and Tribunal speaks to the extent to which these cases are hotly contested:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349

R.M. v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

Hiring the wrong counsel or representation could be detrimental to your case. It is therefore very important in hiring representation that you seek out a lawyer that is experienced, knowledgeable in human rights adjudication on all subjects including  established legal principles and jurisprudence on racial harassment and discrimination, racial profiling, police practice and procedure, criminal law and technical legal issues that are raised at the Human Rights Tribunal of Ontario, by way of Request for Order During Proceedings or Requests for Summary Hearing, in order to wittle down or have the claim dismissed without a hearing on the merits.

The only carding decision that has been litigated thus far and all the way to the Court of Appeal is Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) in the context of two Black lawyers and an articling student being profiled in a Lawyers' Lounge. The Pieters in that case is the author of this article. That case was highly contested and litigated as well. Peel Law Association incurred over $200,00.00 costs for their legal representation and paying a Damage Award and Cost Award to us. I incurred as well a substantially cost burden in funding the litigation all the way to the Court of Appeal: See, Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII)  (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII)  (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, [2013] 116 O.R. (3d) 312 (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204  (Cronk, Juriansz and Pepall JJ.A.). The Court of Appeal decision in this case that upheld the Tribunal's findings and rationale for those findings has wider implications for the law on discrimination in Ontario since in cases of stop, search and carding without reasonable and/or probabe grounds it will be more difficult for police officers, security guards and other service providors  who would engage in profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour:

[72]      And so it is in discrimination cases. The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

[73]      In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

[74]      If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.

…

[77]     The shifting of the evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else – namely, why they made a particular decision or took a particular action. [Emphasis added.]

In racial profiling cases the first step, which is crucial is establishing liability, if a case is successful at that point then the next step is to argue for a variety of other legally appropriate remedies, financial and non-monetary.

If you have experienced racial harassment and discrimination, racial profiling, please feel free to contact my office to learn more about your rights and remedies: 4 1 6 -  7 8 7  - 5 9 2 8.

Copyright: Use of this article or its derivative content is to be cited as: Pieters, Selwyn  "Policing Racial Profiling in Police Services in Toronto, Ontario" Posted on September 28, 2013 online <http://selwynpieters.blogspot.ca/2013/09/policing-racial-profiling-in-police.html> (date accessed: )

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Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 at the HRTO; Civil Rights lawyer Charles Roach in the Oath case of Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry.  Selwyn is the litigant in the recent human rights case of Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, [2013] O.J. No. 2695.