Thursday, November 19, 2009

Globe and Mail carrier's encounter with police was impacted by race and gender rules Human Rights Tribunal

On March 26, 2007, the applicant, a Black woman, was delivering newspapers along her route in the early hours of the morning when she was stopped by a police officer for what he described as erratic driving. As the officer approached, she pulled out her cell phone and began trying to call her husband. The applicant stated that she was fearful of stories she had heard of women being assaulted by men posing as police officers and she wanted her husband on the phone as a “witness”. The officer testified that he repeatedly asked her to put down the cell phone and produce identification documents, which he alleges that she refused to do. The officer stated that he warned the applicant that she would be placed under arrest if she failed to do so. The applicant denied ever receiving such a warning.

The officer then proceeded to place the applicant under arrest and a struggle ensued. They both fell to the ground. The applicant testified that she was thrown to the ground while the officer testified that they both lost their balance and fell. There is no dispute that the officer pinned the applicant to the ground to handcuff her and then grabbed her by the belt and put her in his patrol car. The applicant suffered an abrasion over her left eye, cuts on the inside of her lip and bruising from the handcuffs as a result of the struggle. The applicant was acquitted of all of the charges.

In Abbott v. Toronto Police Services Board, the Ontario Human Rights Tribunal was faced with competing versions of the incident and decided that “[i]n the instant case … the determination comes down to whether an inference of racial and/or gender discrimination is more probable than the respondents’ explanation for Sergeant Ruffino’s conduct.” The Tribunal explained that it is not necessary to show that the officer intended to discriminate against the applicant as racial discrimination and bias often operates at a subconscious level. Instead, it would have to examine whether the applicant’s race and/or gender was a factor in the events that unfolded.

In order to decide the case, the Tribunal hypothesized whether the same events would have unfolded had the woman been White. In this instance, the Tribunal found it “hard to imagine that Sergeant Ruffino would not have made different choices if the applicant had been white.” In particular, the Tribunal was of the view that the officer could have done a lot more to effectively defuse the situation before it escalated to the level it reached:

"In saying this, I am not at all suggesting that Sergeant Ruffino made the choices that he did on the conscious basis that the applicant is a Black woman. As stated above, and as confirmed by the Supreme Court of Canada in R. v. S. (R.D.), supra, that is not how racial discrimination most often operates. Most often, racial discrimination emanates from unconscious attitudes and belief systems. In a historical context, some of these attitudes and belief systems include that Black persons (and other groups) are expected to “know their place” and that any Black person who talks back or refuses to comply is to be regarded as “uppity” and needs to be dealt with harshly. There is no evidence before me that Sergeant Ruffino consciously subscribes to any such attitudes or belief systems. But these kinds of attitudes and belief systems are part of our historical and social fabric, and are imbued in all of us through social interactions, the education system, the media and entertainment industries, and other means."

Mark Hart, the adjudicator, then concluded:

"On the basis of my consideration of the totality of the evidence, I draw the
inference that the applicant experienced discrimination because of her race and gender in relation to her encounter with Sergeant Ruffino on the basis of the following findings:

a) I find that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding;

b) I find that when Sergeant Ruffino got out of the patrol car and went to speak with the applicant, her attention was focused on calling someone on her cellphone and she was distracted from hearing and responding to Sergeant Ruffino, and this was apparent to him at the time;

c) I find that the applicant, as a woman of relatively small stature and as a Black woman being approached by Sergeant Ruffino in the wee hours of the morning, was fearful and confused, and this ought reasonably to have been apparent to Sergeant Ruffino;

d) I find that, on Sergeant Ruffino’s evidence, he was aware that the applicant wanted to have a witness on the phone before she would speak with him, and Sergeant Ruffino ought reasonably to have appreciated that the applicant’s desire was related to her confusion and fearfulness and was linked to issues of distrust between the Black community and the police;

e) I find that, notwithstanding the presence of these factors, Sergeant Ruffino unreasonably persisted in making demands for the applicant’s documents and name, without taking any steps to try to defuse or deescalate the situation;

f) I find that Sergeant Ruffino’s actions in this regard are consistent with a manifestation of racism whereby a White person in a position of authority has an expectation of docility and compliance from a racialized person, and imposes harsh consequences if that docility and compliance is not provided;

g) I find that Sergeant Ruffino’s actions led directly to his decision to place the applicant under arrest, which I find was unjustified and unnecessary in the circumstances;

h) I find that a White woman would not have been treated in the same manner in similar circumstances;

i) I find that the harsh consequences imposed upon the applicant by Sergeant Ruffino include not only his decision to arrest the applicant, but also his decision to lay the number of charges he did against the applicant, and particularly the charges for failure to identify herself or provide her documents when he had the applicant’s name and documents at the time the charges were laid and was aware or ought to have been aware of the applicant’s state of distraction, confusion and fearfulness at the time he was demanding this information from her."

The Tribunal also found, that based on past precedents, the Toronto Police Services Board and Chief of Police Bill Blair were also to be held liable for the actions of Sergeant Ruffino. The applicant was $5000 in damages.

Posted by Martin Mendelzon (Law II)

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