Federal Court Overturns RCMP Discrimination Case

Law enforcement accountability applies to all areas of law including labour law. The following is a decision I came across that relates to the RCMP. More specifically, it identifies concerns regarding discrimination and the attrition rate of cadets.

In Canada (Attorney General) v. Tahmourpour, the Federal Court overturned the Canadian Human Rights Tribunal's ruling that an Iranian-born Muslim RCMP cadet was singled out for harsh and discriminatory treatment by his trainers on the basis of religion, national or ethnic origin, and race, contrary to the Canadian Human Rights Act. The judge found that the Tribunal made errors of fact and law in reaching its conclusions, and sent the matter back to be heard by a different Tribunal member because he found some of its findings to be unreasonable.

In October 1999, Ali Tahmourpour was dismissed from the training program prior to completing it, and a note was placed in his file to the effect that he should never be permitted to re-enroll. He filed a complaint in 2001 with the Canadian Human Rights Commission alleging that his unsuccessful career as a cadet was due to violations by the RCMP of the anti-discrimination provisions of sections 7 and 14 of the Canadian Human Rights Act.

The Tribunal found that the effect of the RCMP's policy with respect to dress and hygiene and the instructor announcing to the group that there was an exception to the rule for Mr. Tahmourpour's religious pendant was to adversely differentiate him on the basis of his religion. His instructor also, watched Tahmourpour sign his name on a form from right to left in the Persian style that he learned as a child in Iran, and asked, "What kind of f**king language is that, or is it something that you've made up?" the Tribunal found that it was more likely than not that Corporal Boyer treated racialized cadets differently and more negatively than White candidates. It also found "it more probable than not that Corporal Boyer was verbally abusive and hostile towards Mr. Tahmourpour at least in part on the basis of his race, religion, ethnicity or national origin."

The Tribunal ordered the RCMP to offer Tahmourpour an opportunity to enroll in the next available cadet training program and awarded him a package of compensation for lost salary and other damages that his lawyer estimated could in total exceed $500,000, as a remedy. The RCMP applied to the Federal Court of Canada for judicial review of the Tribunal's decision, alleging serious errors of fact and law.

Justice Zinn agreed with the RCMP that "the Tribunal erred in law in holding that a complainant's own perception of differential treatment is sufficient to find there was discrimination." He held that "[a] finding of discrimination must require more than just a complainant's own perception that he has been identified as different. If it were otherwise, there would be no need to adjudicate complaints as every complaint would be well-founded because every complainant perceives that he or she has been treated differently on the basis of one or more of the prohibited grounds of discrimination." I propose that this “something more than perception” is social context evidence. Courts need to look at the experiences of other racialized cadets, and truly understand the “culture” at the RCMP.

The Tribunal attempted to look at the bigger picture in accepting the statistical evidence showing that the attrition rate for racialized cadets was 16.98% while only 6.88% for White cadets. The statistical evidence was criticized by Justice Zinn because he believed that the Tribunal erred in applying this statistical evidence to Mr. Tahmourpour's situation without considering that the data “was not adjusted for cadets who left training for personal reasons, i.e. family illness, injury, medical conditions, a change of mind” and whose contracts were not terminated by the RCMP. “The only evidence that the Tribunal ought to have considered was that of visible minority candidates who were in the same position as Mr. Tahmourpour – those whose contracts were terminated by the RCMP.”

Is the assumption that racialized cadets leave training for personal reasons at a higher rate than White cadets in order to account for this huge discrepancy? Assuming the assumption is correct, is it not reasonable to conclude that racialized cadets are leaving the RCMP training because of personal reasons, i.e. stress, depression, and “change or mind” because of discrimination?

Posted by Qadira Jackson (Windsor Law, 2008)

Windsor student acquitted of assaulting a police officer and resisting arrest at Passa Passa campus event

On November 2, 2009, Yared Bogale, a 24-year-old University of Windsor student was acquitted on charges of assaulting a police officer and resisting arrest following a Passa Passa social event at the University pub early last year.

In the early hours of January 20, 2008, more than twenty Windsor police officers, including the canine unit, responded to a call from Campus Police to disburse the crowd at the conclusion of a Caribbean-themed campus event. It still remains unclear why so many officers responded when there was no evidence of any weapons, drugs or other security risk. What ensued was a confrontation between the police officers and several students who were arrested. The cellular footage of one student arrest has been posted on You Tube. [A number of students reported that officers tried to stop them from recording the event.] Most of the students were released from custody without charge or later had their charges withdrawn. Yared's case proceeded to trial.

In the wake of this incident, a group of Windsor students formed the grassroots organization Students Against Anti-Black Racism (SAABR) to address racism on campus.

In acquitting Yared, Justice Micheline Rawlins concluded that the officer in question was operating under an "erroneous frame of reference" and was "primed and predisposed" to confrontation when he responded to the Campus Police call to disperse the crowd. She found that Yared was "defending himself" against someone he did not know to be a police officer.

The next stage is a human rights complaint involving four students. See Chan v. Windsor Police Service. Mediation was held on November 4, 2009 in Windsor. All students are now represented by Selwyn Pieters, a well-known human and civil rights lawyer in Toronto.

It should be noted that following the incident, then President Ross Paul filed a complaint with the Windsor Police Service regarding the incident. Chief Gary Smith conducted an investigation and prepared a report. However, the report has not been released because of ongoing human rights litigation.

Additional information about the human rights case can be found by reading Chen, "Students, police try to talk out problems" Windsor Star (4 November 2009).

Posted by Minoo Alipour (Law III)

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)

Racial profiling complaints by Halifax Police Service officers against their force filed in Nova Scotia

According to a CBC story published in early June, Constable Charles Bruce of the Halifax Police Service has filed a complaint against the HRP alleging racial discrimination. It is the third such complaint filed within the last year. Const. Bruce alleges that he was not considered for promotion and transfer because of his skin colour. He also alleges that systemic racism within the force is a continuing problem.

Const. Bruce’s complaint arrives on the heels of similar complaints filed against the HRP by Sgt. Robyn Atwell and former police officer Lewis Cain in December 2008. Further, such incidents of internal racial discrimination do not seem to be isolated. Halifax Regional Municipality is currently dealing with several racial discrimination complaints filed by black firefighters with Halifax Fire Services.

The complaints of the three officers with the HRP are detailed on a website that has been developed to draw attention to these issues, http://halifaxregionalpoliceracediscrimination.com/index.htm. Robyn Atwell, HRP’s first black female Sergeant, claims that she has experienced racism since first becoming a member of the force in 2003. Atwell alleges that she has had a knife pulled on her by a member of the force. Cain, the other officer who has filed a complaint, was terminated just 15 months after he was hired due to what he alleges was racial discrimination by both higher ranking officers and his supervisor.

The three officers are represented by Rocky Jones, a prominent lawyer in Nova Scotia who has represented several complaints involving racial discrimination, perhaps the most well known of which is R. v. S.(R.D.).

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Racial profiling in Toronto's Bridle Path

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.

In her reasoning, the adjudicator noted 5 principles that that apply in cases where racial profiling is alleged:

"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."

Based on these factors and the circumstantial evidence, Joachim found that on a balance of probabilities, he was the victim of racial profiling. Her reasons include the following observations:
"[23] 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.
[24] 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.
[25] 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.
[26] 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.
[27] 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.
[28] 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)

Montreal taxi driver allegedly pulled over and fined on account of race

After David Bastien, a 25-year-old Haitian taxi driver in Montreal, was pulled over and allegedly “unfairly handcuffed” and fined by Constable Jean-Francois Croteau, concerns about why this happened and why it has happened more than once are surfacing.

On April 5, 2009, David Bastien reports that he was ordered by Croteau to pull over and provide his driver’s license. He further alleges that Croteau pulled him out of his car and handcuffed him. Croteau proceeded to issue four fines against Bastien, reports the Montreal Gazette. The fines included:

-“$638 for ‘having refused to produce for examination by a peace officer a (driver’s) permit’”; -“$169 for ‘being the driver and not behaving in a dignified or civil manner’”;-“$100 for ‘not ensuring that the inside of the taxi is clean’”;-“$169 for ‘being a driver and raiding with the taxi,’ trying to pick up another’s fare.”

Since the incident, Bastien has gone to the Quebec Human Rights Commission and the Police Ethics Commission with his case against Croteau, but both Commissions are yet to hear it. According to the Gazette the complaints filed by Bastien state, among other things, that “most taxi drivers are afraid of reprisals by police and do not have confidence in the complaint procedure.” The precise evidence that Bastien has to substantiate this claim, if any, is unknown. However if proven to be true, it is a powerful proposition, especially considering that this is not the first time recently that a Montreal taxi driver has been detained and issued what seems to be an outrageous amount of tickets at once. In March and May, respectively, another officer, Constable Pierre Belanger, issued $600 in tickets to one cab driver and $2,310 in tickets to another. Both Croteau and Belanger work out of Station 21. When asked about these incidents, Commander Alain Simoneau replied that “[t]his is not a situation of racial profiling in any way,” but “application of the highway code, pure and simple.” Whether such a response will placate taxi-drivers in Montreal is yet to be seen. However, with the recent incident in Ottawa regarding an alleged police attack on a taxi-driver, drivers are being given more and more reasons to distrust the police. It seems too coincidental that all four taxi drivers in these two cases are racialized.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Crown Attorney files racial profiling human rights complaint against Toronto police officers

A Toronto Crown Attorney with the "Guns and Gangs" project has filed a human rights complaint against the Toronto Police Service and a number of its officers. Roger Shallow alleges that he was unlawfully arrested and strip searched following a confrontation with two police officers in Toronto's Entertainment District. As he put it in his complaint, "the unspoken message to me was: lawyer, Crown, or whatever, you're still just a black guy so know your place boy." The charges of causing a disturbance and assault resist arrest against Shallow were withdrawn by an independent prosecutor brought in from London, Ontario. In an extraordinary move, the Toronto Police Association has filed a complaint with the Law Society of Upper Canada concerning the decision of Jeanine LeRoy, a London defence lawyer, to withdraw the charges. One of the officers involved in Shallow's arrest is currently facing possible dismissal from the force following her conviction for impaired driving.

There are a number of racial profiling complaints pending before the Ontario Human Rights Commission. In a 2007 decision (Nassiah v. Peel Regional Police Services Board), the Tribunal found that a Peel Regional police officer had engaged in a discriminatory investigation following a shoplifting complaint because Ms. Nassiah was Black. The Tribunal ordered Peel to pay Ms. Nassiah $20,000 and ordered the Service to take systemic steps to address racial profiling.

Posted by Professor Tanovich