PUSHING RACIAL PROFILING COMPLAINT TOO FAR

The change in background colour is not significant with respect to the meaning of the text. It is an anomaly.

Racial profiling takes place when someone of one colour stops and questions another person of a different colour and does this because the person being stopped and questioned is of a specific colour and for this reason alone, is presumed to being committing or having committed a wrongdoing. 

The following incident occurred in the City of Brampton, Ontario, a small community just west of Toronto.

The Peel Law Association (PLA) operates a lawyers’ lounge and library in the Brampton Court House. The policy of the lounge and library is that only lawyers and law students are permitted to use the facilities.  Paralegals and the public are not.  A sign posted on the premises stated “lawyers only”.  

The librarian, Ms. Firth, has a primary responsibility for ensuring compliance with the policy.  Ms. Firth approached three blacks on May 16, 2008 who had entered the lounge. They were; Selwyn Pieters, Brian Noble and Paul Waldon who is a law student employed by Pieters. They were wearing business suits. Ms Firth asked them to confirm that they were lawyers or law students (and therefore admissible to the lounge). They actually had a right to be in the lounge and they were in the court house that day  since they were acting as counsel in a proceeding being heard in that court house.

Shortly after Ms. Firth approached the three men, Mr. Pieters stated explicitly to Ms. Firth, in the presence of Mr. Noble and Mr. Waldron that this was an incident of racial profiling. 

After some discussion, Mr. Pieters and Ms. Firth agreed to exchange business cards.  Ms. Firth went to her office in the library to obtain a business card to give it to him.  Mr. Pieters followed her there.  He then then proceeded to a courtroom to retrieve a business card for Ms. Firth.  Ms. Firth followed him there. Mr. Pieters testified at the hearing that he felt Ms. Firth’s decision to accompany him to the court room while he retrieved his business card was unnecessary, treated him as suspect and subjected him to further humiliation.

The librarian had the right to question anyone who entered the lounge no matter what colour their skin was but what the three men complained about was that Ms. Firth singled them out simply because they were black.

The Human Rights Tribunal of Ontario (the Tribunal) reviewed the complaint of Pieters and Noble on December 3, 2010.  In the decision, the Vice chair of the Tribunal found that Ms. Firth  had discriminated against the two complainants, Selwyn Pieters and Brian Noble, in the provision of services, goods and facilities on the basis of race and colour, contrary to section 1 of the  Human Rights Code.

Section 1 of the Code provides as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

The Vice Chair ordered that the PLA and Ms. Firth were liable to both black men for a compensatory award of $2,000 to each of the two men for violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect.   

The PLA and Ms. Firth requested an order from the Divisional Court quashing the decision of the Tribunal and an order substituting a decision dismissing the two black men’s applications before the Tribunal.  The Divisional Court hears appeals from Tribunals and lower courts. It is the buffer between Tribunals and lower courts and the Ontario Court of Appeal.  The two men argued that that the decision of the Vice-Chair was reasonable and correct on the facts and law and that it should not be overturned by the Divisional Court.

The evidence from Ms. Firth was that she routinely, at least 8 – 12 times a week, requests identification from individuals and asks those who are not lawyers or law students to leave the lounge and library. She said that other staff do likewise.  She has made identification requests to hundreds of people since 2004.  She testified that in the days prior to the incident, she had requested identification from several persons she identified as being White.  Earlier that same day, she had asked for identification from a lawyer who had visited the lounge/library on numerous occasions.  This lawyer became upset about her request for identification.  Ms. Firth described the lawyer as being White.  Other witnesses confirmed that Ms. Firth regularly asked persons she and other staff did not recognize, for identification.  The Vice-Chair of the Tribunal accepted these facts.

Ms. Firth had the authority to ask for ID from people who came into the lounge, to show that they are a lawyer or a law student no matter what colour they were in order to make sure that they were lawyers and/or law students and no one else. The only concern I have is that I am not convinced that she should have followed Mr. Pieters into the court room. Her authority to question or demand ID from anyone ended at the door exiting the lounge. Perhaps she wanted to make sure that the ID he was going to present to her was really from his overcoat he left in the court room. I can appreciate her concern with respect to his overcoat because lawyers and law students can hang them up in the lounge rather than leave them on a bench in a court room. Maybe she wanted to make sure that it was his ID he was going to give to her and no one else’s ID.

The Vice-Chair ruled that the lack of a credible and rational explanation for why Ms. Firth stopped to question the individuals as and when she did, along with “all of the surrounding circumstances”, was sufficient for him to infer that the decision was “in some measure, because of their race and colour.”

Other than her following Mr. Pieters into the court room, I can’t see where she was racial profiling the three Black men when they entered the lounge.

The Vice Chair noted that Ms. Firth had indicated that she knew everyone else in the lounge at the relevant time was a lawyer and that is why she approached the respondents.  However, that was not true, given that one individual in the lounge was not, in fact, a lawyer, and one lawyer in the lounge had never been there before.  The Vice-Chair also found that Ms. Firth was “blunt and demanding” in the way she approached the two Black complainants and Mr. Waldron (who didn’t file a complaint), which he held to be consistent with research on patterns of racial profiling. Certainly lying in court or at a tribunal hearing is not a good way to get the results one desires.

Although the Vice-Chair found discrimination in the approach made by Ms. Firth to the respondents, he rejected their allegations that following Mr. Pieters to obtain his business card, constituted an act of discrimination.

The Human Rights Code establishes that the complainant in a human rights complaint bears the enormous burden of proving a prima facie case of discrimination.  A prima facie case of discrimination “is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent.” 

In order to prove a prima facie case of discrimination, there must be evidence to support the following findings:

a.   a distinction or differential treatment;

b.   arbitrariness based on a prohibited ground;

c.    a disadvantage; and

d.    a causal nexus between the arbitrary distinction based on a prohibited  ground and the disadvantage suffered.

The Divisional Court hearing the appeal of the PLA and Ms. Firth quoted in part from Supreme Court ruling which said in part;

“There is a difference between discrimination and a distinction. Not every distinction is discriminatory.  It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group.  Such membership alone does not, without more, guarantee access to a human rights remedy.  It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.” unquote

What this meant with respect to the appeal of the PLA and Ms. Firth is that discrimination is what follows in some instances because of the distinction between two persons such as between a white person and a black person. It wasn’t enough to impugn the librarian’s conduct on the basis that was done had a negative impact on an individual in as protected group. Her actions would have had the same negative impact on any white persons that she demanded present to her ID showing that he or she was a lawyer or law student. Being Black doesn’t automatically guarantee success to a human rights remedy. It is what occurs between the two different people such as the arbitrariness of the conduct against the other person that triggers the remedy sought

At all times, the complainant bears the burden of proving discrimination on a balance of probabilities.  While the complainant is not required to prove intent or motive, “mere speculation” as to the existence of bias is insufficient to establish a prima facie case of discrimination. 

It is only when a prima facie case of discrimination has been demonstrated that the burden shifts to the respondent to provide a non-discriminatory explanation for the conduct.  As such, while the respondent bears the onus of proving any defence(s) it wishes to raise, the respondent is never required to disprove discrimination per se: “If a claimant can prove the existence of discrimination on a balance of probabilities and the responding party fails to prove a statutory defence or exemption, then the claimant will have proved a violation of the Human Rights Code.

The crux of the Tribunal’s conclusion that a prima facie case of discrimination was established was rooted was as follows;

There were a number of persons in the lounge on May 16 who would have been unknown to the personal respondent.  The applicants and Mr. Waldron were the only Black men and the only persons that Ms. Firth chose to question.  She had interrupted her planned trip to the robing room to stop and question the three Black men and proceeded to do so in an aggressive and demanding manner.  No one else in the lounge was questioned, including two White women and another racialized male who would have been unknown to the personal respondent.  Those facts were sufficient to require Ms. Firth to provide an explanation for her action to support her position that the decision to question the applicants was not tainted by race or colour.

The basis upon which the Vice-Chair found a prima facie case of discrimination rests on his findings that there were a number of persons in the lounge on May 16 who would have been unknown to Ms. Firth.  The three aforementioned men were the only Black men in the lounge at that particular time of the morning and the only persons Ms. Firth chose to question. She interrupted her planned trip to the robing room to stop and question the three Black men and proceeded to do so in an aggressive and demanding manner. No one else in the lounge was questioned, including two White women and another man of a different colour who would have also been unknown to Ms. Firth.

However, it is noteworthy that the Vice-Chair made findings of fact that were inconsistent with these conclusions. They were;

Firstly, there was clear evidence, which the Vice-Chair accepted, as to why Ms. Firth approached the complainants for identification rather than anyone else.  In particular, that they were situated nearest to the door from which she entered the lounge.  Accordingly, they were the first persons she would have encountered when she stopped in the lounge on her way to the robing room.  The Vice-Chair noted the layout of the lounge and where persons were situated when the incident occurred. 

The lounge was not busy at the time of the incident with perhaps a total of twenty persons present.  The applicants were seated in an area of the lounge just outside the doors to the library.  Mr. Pieters was in a chair talking on the telephone to his assistant, Michael Roberts.  Mr. Noble and Mr. Waldron were on a sofa perpendicular to where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters and Mr. Waldron was closest to the library door.

Ms. Firth came through the library doors and approached the applicants and Mr. Waldron. The Vice-Chair appears to have ignored the fact of the complainants’ location when holding that “the applicants and Mr. Waldron were the only Black men and the only persons the personal respondent chose to question” as a factor in establishing a prima facie case of discrimination by Ms. Firth.

As to the fact that Ms. Firth did not confirm the others’ identification, the Vice-Chair stated in his ruling;

“I find the personal respondent’s (Firth) contention that her focus on Mr. Pieters accounts for why she did not confirm the others’ identification to be credible. The fact that her overall credibility was ‘undermined’ by her explanation that she knew everyone else in the room to be lawyers which was found not to be credible, does not change the finding that her focus was on Mr. Pieters at the time, and that this focus was a credible explanation for the fact that she did not check the identification of other persons in the lounge.” unquote

The three-judge panel of the Divisional Court ruled;

“Clearly, the actions of Ms. Firth on the day in question had to be viewed in the context of the above-noted policy, her job responsibilities in regard to this, her established practice to ask for identification, the incident that had occurred earlier that day and the fact that the complainants were the first people she encountered upon entering the library. In those circumstances, there was insufficient evidence for the Vice-Chair to determine that Ms. Firth stopping on the way to the robing room and questioning the respondents constituted differential treatment.(Racial profiling) Further, even if Ms. Firth was aggressive and demanding to Mr. Pieters initially, such conduct does not establish differential treatment since it is undisputed that her requests to others for identification have also resulted in contentious situations.

“Moreover, the Vice-Chair’s conclusion that “These facts are sufficient to require the respondents to provide an explanation for their actions to support their position that the decision to question the applicants was not tainted by race or colour.” in effect, wrongfully reverses the onus of proof. (since the onus is on the person who files the complaint) By improperly reversing the burden of proof, the Tribunal placed her in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race and colour. The undisputed evidence was that Ms. Firth’s duties included asking for identification to confirm the admissibility of persons in the lounge and library.  Her position at the hearing was that she acted on this occasion in the context of those duties.

“Ms. Firth had authority and power under the Trespass to Property Act to stop persons, request identification and preclude individuals (who had no right to be there) from entering the lounge and library. 

“These principles may well apply in some circumstances to matters involving human rights.  However, in this case, the Vice-Chair used the police cases in a context in which they do not apply. While (the) police have authority, power and control over citizens, Ms. Firth is a librarian, employed to provide library services to lawyers, and she had no legal authority or power to detain, pursue or investigate the complainants.  I agree with the applicants (Ms. Firth and the PLA) that the reliance by the Vice-Chair on law enforcement cases was misconceived. 

“While racial profiling may be established by circumstantial evidence or by inference drawn from the evidence, it must still be established.  A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination.

“In summary, the Tribunal erred in determining there was a prima facie case of discrimination.  No evidence was adduced that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour. Moreover, by failing to require the complainants to satisfy the nexus (same) requirement, the Tribunal improperly reversed the burden of proof placing an impossible onus on the applicants to disprove discrimination.” unquote

Mark Freiman, a former deputy attorney-general of Ontario and an expert in discrimination law, who argued the appeal on behalf of the PLA and Ms. Firth, said that the ruling strikes an important note of caution, which is especially important in a legal system that views discrimination as subtle, hard to prove, and even sometimes unconscious and unintentional. He said the court rightly followed the advice, written by Supreme Court Justice Rosalie Abella when she ruled that “not every distinction is discriminatory.”

The Divisional Court ordered the two Black men that filed their complaint and the Tribunal to pay legal costs of $20,000 to the librarian and to the Peel Law Association, which runs the library.

Filing an unjustified complaint is not unlike stepping on a scorpion to crush it and then in the process, getting stung.