Detained for Being Black

By: Yonique Brown

In a city as diverse as Toronto, individuals of varying backgrounds come before the courts each day. One of the disturbing reasons that causes some individuals to come in contact with the criminal justice system is the fact of their race. In reviewing cases on the issue of racial profiling, I came across the case of Elmardy v. Toronto (City) Police Services Board, [2017] O.J. No. 1640 (ONSC).

In Elmardy v. Toronto (City) Police Services Board, the Appellant, a black man, was stopped by the police on a winter’s evening in Toronto as he was walking downtown. There was nothing remarkable about what he was doing, or so it seemed. The evidence at trial was that on January 15, 2011 two officers were driving in a police cruiser and saw the Appellant walking in the opposite direction and on the opposite side of the street. One of the officer’s immediate observations was that the Appellant was a black male. The simple act of the Appellant walking alone on a street was enough for this officer to suspect that the Appellant might be violating his bail terms. The officer believed that a person on bail would usually have to be accompanied by their surety. Both officers noted that the Appellant looked at them. The second officer was of the belief that the Appellant might be carrying a weapon because he had his hands in his pockets. What took place after the officers got out of their vehicle and engaged the Appellant ended with him being knocked to the ground and handcuffed to his back as he was left lying on wooden decking covered with ice, with his hands exposed against the ice for 20 to 25 minutes.

As stated in R. v. Mann, 2004 SCC 52, in order to detain an individual for investigative purposes, the police must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. Were there any such grounds in these circumstances? Or was the Appellant stopped solely as a result of racial profiling?

The Ontario Court of Appeal in R. v. Brown (2003), 64. O.R. 3(d) 161 (C.A.), defines racial profiling in the following manner (para 7):

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to the phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

Consider the actions that led the officers to suspect the Appellant of criminal wrongdoing in this case:

First, the Appellant was walking alone. For Constable Pak to have formed the suspicion that the Appellant was violating the conditions of his bail by doing nothing more than walking down the street alone, the officer would have had to have assumed that this black male had outstanding charges and was on bail. This assumption had to have been made solely on the basis that the male was black and the officer had to have believed that black individuals are more likely to have criminal charges and are more likely to be on bail. Despite the fact that the majority of criminal offences are not perpetrated by black individuals, some individuals continue to believe that black individuals are more involved in criminality.

The unfortunate reality is that racialized individuals are overrepresented in the criminal justice system and this is perpetuated by systemic racism. When black individuals do come in contact with the criminal justice system, racism plays a role in how discretion is applied and impacts on decisions such as whether the individual will be released on a promise to appear or by way of judicial interim release. There are racial disparities that result in racialized individuals being more likely to require a form of judicial release. These individuals are then more likely to come in contact with officers who suspect them to be in breach of their release conditions.

Second, the Appellant looked at the officers. Third, the Appellant had his hands in his pocket. This was enough for one of the officers to suspect that he had a weapon. The Appellant’s explanation as to why he had his hands in his pocket was simply that it was cold outside and he was not wearing gloves. A reasonable explanation, given it was the middle of winter.

Professor David Tanovich, in his paper, “Applying the Racial Profiling Correspondence Test”, (LSUC: The Six Minute Criminal Lawyer 2017 (8 April) (Toronto)), discusses how racial profiling manifests itself. One of the ways racial profiling manifests itself is in interpreting ambiguous behavior as incriminatory. Recall the Appellant’s actions above. When it comes to litigating cases involving racial profiling, one of the central issues is establishing a record that allows a judge to find that the stop was based on racial profiling. Since it will rarely ever be the case where an officer admits to have acted under the influence of racial biases, the evidence that will be relied on will in large part be circumstantial.

This case is but one example of the many incidents of racial profiling and racial discrimination perpetrated against individuals who are supposed to have the same rights and protections that our Charter guarantees. Fortunately, in this case the appeal to the Ontario Superior Court resulted in a finding that there was in fact circumstantial evidence from which it could be inferred that it was more probable than not that the officers’ actions towards the Appellant was influenced by the fact that he was black. The court found that (para 20):

In this case, the officers’ unreasonable beliefs about the Appellant caused them to assault the Appellant, unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the Appellant’s skin, caused them to blatantly and aggressively violate the Appellant’s constitutional rights.

The court awarded punitive damages in the amount of $25,000 as a form of punishment for the officer’s misconduct and as a form of deterrence. The court also awarded $50,000 in damages for the Charter breach. These amounts were in addition to the $5000 previously awarded by the trial judge for the battery claim.

Accused individuals who face criminal charges as a result of circumstances where they are racially profiled are able to bring Charter challenges at trial and request remedies that include staying the proceedings or the exclusion of evidence. In order to be effectively represented in the complex area of criminal proceedings, a criminal defendant needs counsel who will examine and expose the actions of the police in detaining and arresting the defendant. As the case above demonstrates, there are also civil remedies that can be pursued for individuals who have been racially profiled and criminally charged as well as for those whose interaction with the police does not lead to criminal charges. These civil remedies are just as important in ensuring that individuals who suffer as the result of police misconduct have avenues open to them where they can seek redress for any harm caused and to ensure that police act in conformity with the Charter.