Racial Profiling And The Human Rights Tribunal Of Ontario: The Jurisdiction Question

By Ernest J. Guiste
Pride Columnist

In this, my follow-up post on the question of the propriety of the Human Rights Tribunal of Ontario (HRTO) adjudicating claims involving claims of racial profiling, I assert that this inferior tribunal has no jurisdiction to deal with such claims when the police are executing their common and statutory law duties of enforcing the criminal law.

The argument is very succinct and is based on a plain reading of the word “services” in s.1 of the Human Rights Code, R.S.O. Ch H.19. The following is what the Code provides:

Services

“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, gender identity, gender express, age, marital status, family status or disability.”

What are “services”? The Concise Oxford Dictionary provides some useful guidance on this point. It states, “benefit conferred on or exertion made on behalf of someone..” For example, as a lawyer I provide a service to my clients in the form of legal representation.

When I have a toothache I go to see my local dentist. My local dentist provides a service to me in the form of assessing and treating my dental problem. After a long hard day of court I may decide to go to my local Irish pub and have a pint of Guiness. My local bartender provides a service to me in terms of listening to my chit-chat and pouring me a proper pint. When I wore my hair in dreadlocks I regularly visited my hairstylist — who provided me a service of styling and grooming my hair. I believe you see my point. In all of these circumstances it is I who requests the service and the service-provider confers a benefit on me.

In the context of racial profiling cases where the police actually arrest and charge a person it is simply unreasonable and wrong to suggest that this person is requesting a service. On the other hand of the equation, the respondent police personnel do not ask this person, “How would you like to be arrested today — by way of take-down or voluntary submission? Would you like to be held for a bail hearing or released on your own recognizance?”

In my 20-some years of providing legal services this sort of interaction between police and defendants does not happen. It does not happen because the police are not providing any service to the defendant. The police are executing their common and statutory powers of enforcing the criminal law. During such encounters the defendant is protected by various fundamental common law and rights under the Canadian Charter of Rights and Freedoms which govern and dictate the nature and scope of the police personnel’s acts and omissions.

In assessing and evaluating the question of whether or not the defendant was discriminated against based on race one simply cannot divorce the contextual nature of the interaction from the analysis as the HRTO has been known to do. (See for example Dungus v. Toronto Police Services Board 2011 HRTO 366) The legality of the stop and the propriety of the criminal charge are all highly relevant to the question of whether or not the police acts and omissions were in part motivated by a racial animus.

Now, this is not to say that there are never any circumstances in which the police can be brought into the definition of “services” under s.1 of the Code. One which comes to mind is where someone calls the police for police assistance.  If the police refuse the call because the call was from a person of certain racial or religious group that would clearly engage s.1 of the Code. The caller is requesting a service and the police are supposed to confer a benefit on the caller,  that is, respond to his or her call.

But, Mr. Guiste, the Court of Appeal heard Shaw v. Phipps 2012 ONCA 155!

The fact the Court of Appeal for Ontario heard and ruled on the issue of racial profiling in Shaw v. Phipps 2012 ONCA 155 does nothing to detract from the argument advanced here. That case involved a situation where a uniformed letter carrier of African-Canadian racial background was approached and investigated by police while doing his route in an upscale Toronto neighborhood.  Mr. Phipps was never charged criminally.  He was questioned but it is debatable as to whether one could find this to constitute an arrest.

Note: This piece is written for the sole purpose of drawing attention to what is clearly an issue of public importance — the proper adjudication of racial profiling cases as I have defined that term elsewhere – i.e. where persons get arrested and charged criminally as a result of their race. This is a matter for the Superior Court and not the HRTO as they are not equipped to adjudicate such claims and in doing so there is a concern that they may be doing more harm than good to the victims.

Ernest J. Guiste is a trial and appeal lawyer in Toronto. He represent clients in the areas of criminal law, high-handed wrongful dismissals, negligence and administrative law. He can be contacted at: ejguiste.rightslawyer@gmail.com or by phone at: (416) 364-8909.