Friday, March 18, 2011

First human rights finding of Aboriginal profiling

In a landmark decision, the Ontario Human Rights Tribunal has concluded that the police treatment of Garry McKay during a bike and id check constituted racial profiling. Some of the relevant excerpts of the tribunal's decision include:


[2] The complainant, Garry McKay (“McKay” or “the complainant”), self identifies as an Aboriginal man. He alleges that he was subjected to racially biased policing by the personal respondent, Christopher Fitkin (“Fitkin” or “personal respondent”), a police officer with the Toronto Police Service. The Complaint stems from an incident in the early morning hours of July 9, 2003, when police stopped and questioned McKay and a friend while the two men were walking in a laneway. During the encounter, Fitkin investigated McKay and McKay’s bike and, soon thereafter, arrested McKay for possession of stolen property (the bike). Eventually, McKay was released, however, McKay alleges that Fitkin threatened to re-arrest him if he did not produce a receipt for the bike. 

[3] The personal respondent submits that, given the time of the day and the laneway location, the police questioned McKay and his friend as a matter of routine patrol. McKay was initially arrested because a police records search indicated that a bike, bearing the same identification number as McKay’s, was stolen. Fitkin later released McKay because further searches revealed the bike was reported stolen in Winnipeg.


Summary of Prima Facie Findings
[160] In summary, the evidence indicates that Fitkin’s instant distrust of McKay exerted a powerful hold over how the encounter evolved, and led Fitkin to arrest McKay for the wrong bike. In particular, it appears that Fitkin’s heightened suspicions derailed consideration of the available information that substantiated McKay’s explanation and established that McKay’s bike was not the reported stolen bike. I find that Fitkin hastily arrested McKay based on erroneous and deficient information. I also find that McKay was required, despite being released, to submit proof of the bike receipt. I further find that the officers undertook unnecessary and multiple criminal records searches of McKay post release.

[161] I conclude Fitkin’s investigation and the arrest were shaped by negative stereotypes of Aboriginal people being untrustworthy and involved in criminal activity. I reach this conclusion based on the specific and overall circumstances of the case against the backdrop of the social context evidence confirming the pervasive negative stereotypes about Aboriginal people lacking credibility and prone to criminality. See Williams. I am persuaded that, taken as a whole and/or at the individual stages of the encounter, there is a prima facie case that the interactions between Fitkin and McKay were permeated by racial bias and stereotyping, now necessitating an explanation from the respondent.

[162] I accept that McKay’s perception that he was subjected to unfair treatment and was unduly scrutinized. I found McKay to be a respectful and sincere witness. He provided his testimony in a clear, honest manner, and he had a reasonably good memory of the alleged events, which, based on his evidence, clearly affected him. I accept that McKay felt especially vulnerable and targeted because of the arrest and his fear of re-arrest.



[201] To sum up, I reject the personal respondent’s explanations and conclude that Fitkin treated McKay in a racially biased manner because of the following factors:

• Fitkin’s instantaneous disbelief of McKay’s explanation of his presence in the laneway;
• Fitkin’s disregard of the fact that Mack and the flyers corroborated McKay’s explanation and his interpretation of flyer delivery as a good cover story;
• Despite CPIC clearance, Fitkin’s further investigation of McKay on what was effectively a hunch;
• Fitkin’s investigation was imbued with unfounded and heightened suspicions;
• Fitkin’s discounting of McKay’s assertion of ownership and details of the bike store demonstrated a closed mind;
• Fitkin disregard of the bike’s actual blue colour and rationalization of the colour discrepancy to support his
suspicions disconfirming McKay’s ownership of the bike;
• Fitkin’s acceptance of one out of two possible number matches as a sufficient basis to arrest McKay;
• Fitkin’s indifference of, and failure to, verify the bike’s speed;
• Fitkin’s hasty arrest of McKay;
• Fitkin’s requirement that McKay provide proof of the receipt after the release; and
• The multiple criminal records searches of McKay after release.

[202] In conclusion, I find that the complainant’s race was a factor in his arrest, and that the personal respondent’s treatment of him was influence by an underlying racial bias, which shifted the encounter from a routine patrol stop to an incident of racial discrimination.

[203] The hearing was bifurcated and, as such, the issue of Board liability and remedies remain outstanding. 

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