Phipps v. Toronto Police Services Board released last week marks the second positive finding of racial profiling by the Ontario Human Rights Tribunal.
Phipps, a Canada Post mail carrier, was delivering mail on March 9, 2005 in the Bridle Path neighbourhood in Toronto. It is Toronto's most affluent neighbourhood. It was only his second day on the route. He was wearing his Canada Post uniform. Michael Shaw, a police constable who had patrolled the area for years, and Diane Noto had been asked to patrol the area for suspects described as Male, White and Eastern European, who were using a vehicle.
Shaw noticed that Phipps was engaged in what he believed to be “unusual activity,” namely, travelling back and forth across the street. Shaw also noticed that he was not the usual postal worker and was not delivering mail at every house. The officers observed Phipps knocking on a door, speaking with the woman that answered, but apparently not delivering anything. After inquiring with the resident, the officers learned that Phipps had advised her that he had misdelivered something, which Shaw found suspicious. The officers subsequently stopped Phipps who provided identification which, after a check, revealed nothing. They released him. Soon after, the officers encountered another mail carrier and inquired about Phipps, and the carrier confirmed that Phipps was a temporary carrier in the area.
And so, because of stereotypical assumptions about African Canadians, Phipps was not only constructed as a suspect but his explanation and official uniform did not satisfy the police that he was not a criminal.
Phipps later hailed the police officers and asked why they had stopped him. Phipps believed that the officers stopped him because of his skin colour, and noted that a white male delivering water in the area had not been stopped, nor were any white construction workers questioned.
"1. 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;
2. 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;
3. 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;
4. There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
5. Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices."
" In my view, the above chronology, as described by the respondent Shaw is more consistent with a finding that the applicant’s skin colour played a role in his actions than the applicant’s alleged unusual activity.
 First, the fact that the applicant was not the usual letter White male letter carrier is surely not a suspicious circumstance. Letter carriers take vacation, retire, and/or switch routes, so the fact that another letter carrier was delivering the mail on that particular day cannot explain Constable Shaw’s heightened alertness. I find significant that he did not respond in a similar way to an unfamiliar White male delivering water in the area.
 Second, Constable Noto testified that immediately upon turning onto Vernham Avenue, Constable Shaw pointed out the applicant as a person of note. It is not likely that Constable Shaw had already noticed the applicant’s alleged crossing back and forth across the street in an unusual manner as soon as they turned the corner. Whether or not Constables Shaw and Noto noticed a figure in the distance when they turned onto Vernham Avenue, I do not accept their evidence that the figure was crossing back and forth across the street in an unusual manner.
 Third, it is not in keeping with the preponderance of probabilities that the applicant was constantly crossing back and forth across the street. The applicant could not recall whether or how often he crossed the street that day. However, he testified and his evidence is in keeping with the preponderance of probabilities that while letter carriers usually deliver their mail on one side of the street and then the other, if they make a mistake in preparing their mail they might cross the street mid-street, occasionally. Since there is no dispute that the applicant was, in fact, a legitimate letter carrier, either he made an unusual number of mistakes and crossed the street an extraordinary number of times on that day, or in the usual manner of letter carriers, he may have crossed the street once or at most twice. I do not accept Constable Shaw’s evidence as in keeping with the preponderance of probabilities that the applicant was crossing the street back and forth in an unusual fashion.
 Fourth, Constable Shaw in his original response to the complaint, his will say statement and his evidence at the hearing, noted the fact that the applicant did not stop at every house as an unusual circumstance. However, the evidence of the applicant and Mr. Finlay was that it is not unusual for a letter carrier to skip houses if there is no mail to be delivered and the householder has asked not to have flyers delivered. Indeed, Constable Shaw conceded in cross examination by the applicant that he had in the past seen letter carriers skip houses. In my view, it is in keeping with the preponderance of probabilities that Constable Shaw was well aware that letter carriers do not stop at every house.
 Accordingly, I conclude that it was not unusual behaviour on the applicant’s part that caused Constable Shaw to decide to place the applicant under surveillance but rather the fact that he was an African Canadian male in an affluent neighbourhood. His suspicions were not alleviated by the Canada Post uniform, mailbag or mail delivery. It is also noteworthy that the Directed Patrol Assignment related to suspicious persons in the neighbourhood with entirely different characteristics: White, Eastern European, using a vehicle. The fact that it was an African Canadian male without a vehicle that attracted Constable Shaw’s attention is what is unusual."
This case comes more than two years after a finding a racial profiling by the same adjudicator in the case of Nassiah v. Peel (Regional Municipality) Services Board. In that case, the applicant was accused of stealing a bra from Sears. Joachim concluded that Officer Elkington of Peel Regional Police Services consciously or unconsciously discriminated against Ms. Nassiah on the basis of race. Ms. Nassiah was detained for almost 2 hours based on shaky video footage, verbally abused by the officer with regards to her race, prohibited from calling anyone but a lawyer, and humiliated when she actually committed no crime at all.
Posted by Ashley Paterson (Law II) (LEAP Summer Intern)