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80,000.00 damages plus $20,000.00 costs against Toronto Police for Racial Profiling

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)
Pieters Law Office
Created April 06, 2017

In Elmardy v Toronto Police Services Board, 2017 ONSC 2074 (CanLII), <http://canlii.ca/t/h314g>, a Divisional Court panel awarded $50,000.00 Charter damages and $25, 000.0 punitive damages award plus $20,000 costs against Toronto Police Services Board and Police Constable Pak.

This was a typical carding case: [11] The police gave the Appellant no reason for his detention and he was not advised of his right to counsel. During the incident, the police filled out a card, known as a 208 card or field information report, for the Appellant. Part of the information to be included on the card was the Appellant’s skin colour, which was filled in as “black,” and his birth place, which was filled in as “Sudan.” The police did not explain to the Appellant that he was being “carded.”


The analysis in this case showed the Divisional Court was alive and in tuned to the dynamics of racial profiling:

[19]           The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis, suspected the Appellant of criminal behaviour, is that their views of the Appellant were coloured by the fact that he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal behaviour. This is the essence of racial profiling.
[20]           In this case, the officers’ unreasonable beliefs about the Appellant caused them to assault the Appellant, unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the Appellant’s skin, caused them to blatantly and aggressively violate the Appellant’s constitutional rights.
[21]           The trial judge found that the officers’ real motivation for stopping the Appellant was so that they could “card” him by filling in information on a 208 card. This begs the question of why the officers would single the Appellant out for “carding.”
[22]           However, the trial judge also found that the officers lied about why they stopped the Appellant and “backfilled” a purpose after the fact. Lying about the real reason for a stop is another basis for drawing the inference that what motivated the stop was the Appellant’s race and colour. As noted in Brown, at para. 45, the inference that a police officer is lying about why she or he singled out an individual for attention is a circumstance that is “capable of supporting a finding that the stop was based on racial profiling.” Such a finding becomes even more compelling when, as here, the “lies” that the police chose to tell about why they stopped the individual are based on racial stereotypes, such as the belief that black men are more likely to be on bail and more likely to be carrying weapons.
[23]           Contrary to the finding of the trial judge that there is no evidence from which one can draw the inference that the conduct of the police officers was racially motivated, there is no other reasonable inference that is available from all of the evidence. The explanation the officers gave for their behaviour was both rejected by the trial judge and infected with racial stereotypes. Given this, there can be no issue that the Appellant’s right to equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter was also violated.

"The Appellant was an innocent man who had fled his country looking for a society in which his rights would be respected. Instead of finding the respect to which he is entitled, he was subjected to humiliating, violent and oppressive behaviour from one of this city’s police officers, all because of the colour of his skin. Further, when questioned about their behaviour the police officers were found to have lied to the Court, conduct that can seriously undermine the administration of justice."

Hopefully the Human Rights Tribunal would take note of this decision and start to up its awards in these cases.