The B.C. Human Rights Tribunal has been ordered to hear the case of a black man who said he was a victim of racial stereotyping.
Jason Troy was surrounded by police, their guns drawn, while waiting for a friend in the parking lot of a Vancouver Petro-Canada station in July 2000.
Police had been called by the station attendant, who claimed an attempted robbery or drug deal was taking place.
Troy, who has no criminal record, complained he was a victim of racial profiling, but his case was dismissed by an officer of the Human Rights Commission, who said there was no basis to justify referring the case to the commission's tribunal.
A second person, acting as a delegate for the Commissioner of Investigation and Mediation, also dismissed Troy's complaint for a different reason.
But Justice Linda Loo of the B.C. Supreme Court ruled there is a basis to Troy's complaint and has ordered a human rights tribunal to hear the allegations.
"In my opinion, there were issues in dispute which should not have been evaluated or determined by the commission, but referred to the tribunal for hearing," Loo wrote in her judgment.
Loo said that in dealing with Troy's complaint, the commission failed to ask some key questions.
One question that should have been asked was why did the gas station attendant tell the 911 dispatcher that Troy had been at the service station for a few hours but later conceded he had been there for less than half an hour.
Loo said the commission should also have asked why the attendant told 911 that Troy appeared to be "casing the place," and why she claimed it "could possibly end up being a drug deal by the looks of it."
Though police departments across Illinois launched a state-mandated racial profiling study on New Year's Day, many law-enforcement officials remain unclear about its scope and their legal obligations to collect data under the new law.
Police officers performing traffic stops anywhere in Illinois now must record the name, address, sex and race of the driver--whether they issue a ticket or not.
This data and other information will be sent to the Illinois Department of Transportation for a four-year study that lawmakers believe will determine whether police engage in racial profiling--targeting people because of their perceived race or ethnicity when making traffic stops.
But even as departments geared up for the study, police criticized IDOT's handling of it as confusing and cumbersome. And rather than adopting IDOT's longer "stop sheet" questionnaire, some departments are choosing to meet only the letter of the law by gathering limited data.
"We will comply with the law, and we're trying to do it in the least bureaucratic way possible. But, quite frankly, it has been very difficult," said Naperville Police Chief David Dial.
"What has happened is that for the last several months, [IDOT officials] have been changing things almost on a weekly basis about what they want to see. [At one point] they wanted to know how many minutes we spent on a car stop. That's not something the law requires," he said.
IDOT officials counter that they met with law-enforcement officials in the fall and their final list of questions comes after significant comments from local chiefs.
"We have overwhelming support for how we've handled this, from Cairo to Rockford," said Brad Alewelt, bureau chief of safety data and data services for IDOT's traffic safety division. "I'm confident that, at the end of this study, it's going to be a model for the country."
"Not all forms are going to work for everyone, but [IDOT's stop sheet] works best for Illinois," he said.
The law creating the racial profiling study was passed in mid-July, but IDOT did not complete specifics about what data police are to collect until Dec. 10. Under the law, IDOT's stop sheet is supposed to serve as the standard form for collecting data.
But Dial and other suburban police officials said this didn't leave enough time to train their patrol officers before Jan. 1. So rather than answering at least 17 questions on the IDOT survey, police from Wheaton to Evergreen Park will provide information for only the 10 questions spelled out by law.
"We're disappointed that we're trying to hit this moving target," said Roselle Police Chief Thomas Roman. "From a police perspective, these things should have been decided long [ago]."
As specified by the law, officers will have to include name and badge number, reasons for making the stop, time and place it was made, the make and year of the driver's car and whether a search was performed.
Police will be expected to judge a driver's race based on the following list--Caucasian, African-American, Hispanic, Native American/Alaska Native, or Asian/Pacific Islander. The officer will not be required to ask the driver's race.
State Sen. Barack Obama (D-Chicago) said the law's intent was to provide a foundation for an accurate and reliable picture of who gets pulled over in Illinois and why.
"The primary concern was that there is some record of all the stops that are made," said Obama, who was a key sponsor of the law. "Our objective was to have law enforcement work with IDOT to come up with a system that would be as unobtrusive as possible."
Beginning in March 2005, all police departments in Illinois will be required to submit their traffic stop data annually to IDOT, which will compile the information and pass it on to Northwestern University researchers.
Researchers will look for "statistically significant aberrations"--including high numbers of stops involving minority motorists in predominantly white neighborhoods or municipalities, or a higher number of traffic tickets issued to minority drivers than white drivers.
The first report from Northwestern is due by July 1, 2005. Reports will follow in 2006, 2007 and 2008.
A similar statewide study is under way in Missouri, while more limited racial-profiling surveys have been conducted in Washington, Michigan, Ohio, New Jersey and Florida, an IDOT spokesman said. Rhode Island also recently performed a statewide survey, the spokesman said.
Illinois law-enforcement officials complain the state study--in any form--simply adds more paperwork and expense at the local level. Because of its length, the IDOT stop sheet adds even more time and paperwork to a patrolman's day, officials said.
"It's basically a non-funded mandate," said Evergreen Park Lt. Wayne Gutkowski. "The law states one thing, and IDOT is asking for other information. We're going with whatever the law requires."
Privately, many law-enforcement officials chafe at the law, saying racial profiling is an overhyped and politically exploited bugaboo. Many believe the study will bear them out--and all say they'll comply with the law.
Some municipalities were collecting racial data during traffic stops before the new law took effect. Officers in Highland Park and Mt. Prospect--both of which have been sued by minority drivers alleging racial profiling by police--already record a driver's race. Highland Park, which has collected racial data for every traffic stop for the last two years, also requires that officers videotape traffic stops.
"It's a way for us to quantitatively show what Highland Park and many other departments have been saying for a long time, that there are no particular problems with the way officers are making their stops," said Patrick Brennan, assistant city manager.
Chicago police officials say they began a departmental awareness campaign about the law last month. The department already tracks most of the data sought for the study and will add a sticker with additional questions to officers' ticket books.
A department spokesman said Chicago police may not use the IDOT form, but officers will collect the more detailed information sought on the state's stop sheet.
"It's important that departments educate [officers] and let them know that we're mandated by state law to collect this information," said Chicago police spokesman David Bayless. "When you're adding something, there's a learning curve there. But we have every reason to believe that our officers will be ready."
The Ontario Human Rights Commission said Tuesday that the time has come to deal with the problem of racial profiling that exists in many of the province's institutions.
In its report Paying the Price: The Human Cost of Racial Profiling, the commission says racial profiling must be acknowledged and dealt with immediately.
As the first step in that process, the commission is calling on the government to establish a Racial Diversity Secretariat with a mandate to report annually on issues of racism in Ontario and promote racial diversity and equality in all government initiatives.
"We cannot afford to allow racial profiling to be tolerated and practised in this province," chief commissioner Keith Norton said. "We really do need to take some action."
"... If each of us explored our own assumptions and biases, many of us would realize that at some point or other we too have stereotyped people. The harmful impact of such stereotyping arises when it has a negative impact on others."
The commission's report is based on more than 400 personal accounts of that individuals shared with the commission during its Racial Profiling Inquiry earlier this year.
Mr. Norton described the process as extremely emotional for those who had experienced profiling.
"Our objectives were to give Ontarians who experience racial profiling a voice to express how it affects them," Mr. Norton said. "We wanted to provide analysis of the effects of this practice and to illustrate the costs to society at large.
"We also wanted to raise awareness among the public and the decision makers of the harmful effects of profiling because if we all better understand how profiling undermines our social fabric we are better suited to take steps to deal with the problem more effectively."
Mr. Norton also spoke of the importance of starting "constructive dialogue" that could bridge the divide between people who deny the existence of racial profiling and the communities who have long felt that they are targets.
"We are recommending that people in Ontario, particularly those in positions of leadership, acknowledge the problem of racial profiling, take steps to address it and send a strong message that this practice will not be tolerated in this process," Mr. Norton said.
The commission defines racial profiling as any action taken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin, rather than on reasonable suspicion.
"Typically, profiling is carried out by persons in a position of authority," Mr. Norton said. "Regardless of whether they do so consciously or unconsciously, in exercising their authority when dealing with racialized persons, they need to be especially vigilant in curbing their assumptions and biases.
"Organizations need to acknowledge that just as each of us can stereotype, so too can their members, even if there is an institutional policy that forbids it."
Racial profiling became front page news in Toronto after a newspaper series accused the city's police officers of stopping black drivers solely on the colour of their skin.
Toronto Police Chief Julian Fantino, who plans to respond to the report Tuesday afternoon, has angrily denied those charges, saying the force has made great strides in race relations.
While the report released Tuesday does not single out any institution as profilers, it does contain stories of numerous questionable brushes with the law.
Mr. Norton also pointed out that a number of people involved in the inquiry praised the work of the Toronto Police Service.
OFFSITE: Text from Ontario appeal court
Steven Skurka was scrutinizing a police videotape for the umpteenth time when he suddenly noticed a detail that took his breath away.
The officer responsible for arresting his client -- Toronto Raptors basketball star Dee Brown -- was depicted on the videotape reading a chronology of the arrest.
Inexplicably, the phrases the officer was uttering didn't correspond with photocopies of his notebook Mr. Skurka had been given. It could mean only one thing. The officer had embellished a second set of notes to conceal the fact that he lacked sufficient grounds to pull Mr. Brown over for a breath test.
You might call it a eureka moment.
"It was the first time it really crystallized for me that the defence could succeed," recalls Mr. Skurka, a prominent Toronto criminal lawyer. "The officer understood that since it was a high-profile athlete he had arrested, there would be a vigorous defence. He would be challenged over making an indiscriminate stop. It created a need for him to embellish a second set of notes."
The rest is the stuff of legal folklore -- and casebooks. Mr. Brown's trial took place in July, 2001. For two days, Mr. Skurka maintained his client had been stopped simply because he was a young black man in a fancy car. He argued that the Breathalyzer evidence should be excluded on the ground that it was obtained during an unreasonable search and seizure.
Ontario Court Judge David Fairgrieve wasn't buying it. On appeal, Superior Court Judge Brian Trafford ruled that Judge Fairgrieve displayed a reasonable apprehension of bias. He ordered a new trial.
Two weeks ago, the Ontario Court of Appeal upheld that decision. In doing so, it became the first appellate court to acknowledge the existence of racial profiling by police.
Looking back, the timing of the case is fascinating. When it began, racial profiling was a non-issue. "I spoke to a number of lawyers I respected and got the sense this was going to be a bumpy ride," Mr. Skurka recalls. "Bumpy" was right. It would eventually combine two extraordinarily explosive issues -- racism and judicial bias.
Looking back, Mr. Skurka ranks his two-day trial before Judge Fairgrieve amongst his most distressing experiences as a lawyer. Early on in the proceeding, he resigned himself to absorbing a verbal bruising in order to create an appeal record. He knew it was vital not to lose his cool, lest it later cloud the issues.
Judge Fairgrieve cannot be dismissed out-of-hand as a crotchety judge with blinkers on. A former senior Crown counsel, he is known for a sharp mind and a keen grasp of the law.
While some observers have chosen to interpret his conduct in the Brown case as indicative of a pro-police bias, it is more likely that Judge Fairgrieve was simply unconvinced that the arresting officer had acted wrongly -- and was in no mood for what he perceived as a contrived defence. More's the pity, since it meant that Judge Fairgrieve missed the opportunity of a lifetime to move the law forward.
Whatever the case, Regina v. Decovan Brown is destined to become Exhibit A at future judicial seminars, illustrating the lesson that even good judges cannot afford to have a bad day. You never really know where a case may end up.
Soon after the Trafford ruling, a landmark series of racial profiling stories in the Toronto Star enraged police and forced people to take sides on the issue.
It all set the scene for the Ontario Court of Appeal to swoop down with a ruling that fits a compelling pattern of race-based jurisprudence.
For years, the court has been quietly leading the country on issues involving race. In its Regina v. Parks ruling several years ago, the court took challenge for cause into a whole new realm by allowing jurors to be questioned about their racial views.
More recently, in Regina v. Borde, the court stated that mitigating factors from the background of a black offender can potentially be taken into account on sentencing.
Its ruling in the Brown case vindicated not only the defendant and Mr. Skurka, but also Judge Trafford and prosecutor James Stewart, who conceded during the appeal that police do engage in racial profiling.
Mr. Stewart's concession had been both honourable and deft. By acknowledging the existence of racial profiling, he had enhanced his credibility prior to arguing the second pillar of his position -- that the facts of the Brown arrest just didn't support a finding of racial profiling.
The court did accept Mr. Stewart's concession. It never did have to decide whether the arrest was based on racial profiling, since it could order a retrial based solely on the apprehension-of-bias issue. However, its ruling nonetheless leaves an impression that it found the defence persuasive.
"The court seemed to decide independently to make this reverberating finding of racial profiling -- when it was certainly open to them to avoid the issue and decide the case on narrow issues," says Mr. Brown's appellate counsel, Phil Campbell.
"It's not easy for a court to ring the bias bell," Mr. Skurka said. "Any notion that they were being politically correct is absurd."
Mr. Skurka has been denounced in some quarters as being anti-police. It is a conclusion he feels is illogical and unfair. He was simply a lawyer doing his job -- defending the client to the best of his ability.
"I've defended about 25 police officers, and all of them successfully," Mr. Skurka said.
"I have a tremendous amount of respect for the challenges police face. This was never an attack on the police."
Meanwhile, the official police overreaction has been startling. Toronto Police Association president Craig Brommell exceeded even his own subterranean standards by referring to it as "crap."
However, the sky will not fall. It will be very difficult to prove racial profiling in future trials -- particularly after police officers inclined to carry out dubious stops learn new tactics to cover their tracks.
"At the threshold, counsel won't start hurling around allegations of racism unless there is an evidentiary foundation," Mr. Campbell added. "That should serve as a check on the alarmism about the reach of this case."
The Crown now has the option of either moving toward a retrial or quietly dropping the Brown matter, avoiding the deluge of media coverage it would provoke. Whatever the case, Mr. Brown has forever left a mark in Canadian jurisprudence.
"He was really the catalyst for this whole issue," Mr. Skurka said. "If Dee Brown hadn't stood on principle, we wouldn't be here talking about this. I was proud just to play a small role in it."
Racial profiling by police exists, the Ontario Court of Appeal concluded yesterday in a major judgment cutting the ground from under police assertions that they are colourblind.
The court ordered a new trial for former Toronto Raptors basketball star Dee Brown, who maintains that he was pulled over in 1999 simply for being a black man at the wheel of a snazzy vehicle.
A 3-0 court majority said that Ontario Court Judge David Fairgrieve had sufficient evidence to conclude that racial profiling was at play in Mr. Brown's arrest, but he found the allegations too distasteful to consider.
Several testy comments from Judge Fairgrieve were "somewhat like conversation-stoppers, and served mainly to indicate the judge's general antipathy to the application and not to elicit helpful responses," the court said.
While there was no need for the appellate judges to decide whether racial profiling actually lay at the heart of the Brown case, they noted that there was ample "foundation" for Judge Fairgrieve to have done so. They also commended Crown counsel James Stewart for acknowledging the existence of the practice during the appeal.
Mr. Brown said yesterday that he was extremely pleased the Canadian courts have corrected an injustice.
"We're not judging the entire Toronto police department, but these incidents do happen in Canada, and people had better wake up and realize it soon," Mr. Brown said in an interview conducted through his lawyer, Steven Skurka.
However, Toronto Police Association president Craig Bromell angrily attacked the appeal court ruling as "politically correct" nonsense, saying it means that black motorists can now commit driving infractions without fear of consequence.
The Toronto Police Service said it all came down to judicial errors during the trial - not racial profiling. It put out an official statement yesterday on the ruling pointing out that "there is no finding of racial profiling or misconduct on the actions of the involved police officers."
The ruling was sweet vindication for lawyers who have fought a four-year battle to have racial profiling recognized as a socially divisive scourge.
"This ruling is huge," Mr. Skurka said. "It really closes the door on any more silly debate about the existence of racial profiling. It is confirmation from the highest court in this province that it exists and that we, as a society, are going to have to deal with it. Racial profiling is real, it's ugly and it scars the people it affects."
Mr. Brown was stopped while driving his new Ford Expedition on Toronto's Don Valley Parkway on Nov. 1, 1999, while returning home from a Halloween Party. He was arrested after blowing over the legal alcohol limit in a breath test.
Mr. Skurka and co-counsel Phil Campbell produced evidence at his trial that Mr. Brown had not been speeding, but Judge Fairgrieve gave it short shrift. The judge referred to their defence at one point as being "quite nasty, malicious accusations based on, it seems to me, nothing. . . ."
However, the appeal court said that Judge Fairgrieve tarnished his impartiality by denigrating and demeaning Mr. Brown's defence.
"I need not labour the point that the open indication of distaste or - to use a synonym, aversion - during the presentation of a case is utterly inconsistent with the duty of a judge to listen dispassionately with an open mind," Mr. Justice John Morden wrote.
"It could reasonably have signalled to the respondent that the trial judge had a fixed and negative view of the defence raising issues of race."
Judge Morden said Judge Fairgrieve was particularly out of line when he suggested at the end of the trial that Mr. Brown apologize to the police.
"It can only be seen as being demeaning to the appellant who had given evidence that, if accepted, supported a finding of racial profiling," he said, writing on behalf of Mr. Justice John Laskin and Madam Justice Kathryn Feldman.
The appeal judges conceded that Judge Fairgrieve was fair in letting the defence assemble its evidence, but they said his conduct toward the end of the trial raised the question of whether his mind had ever been truly open.
"The reasonable observer could take from these words that the trial judge was strongly disposed against the application, and that the most significant factor for him was the impact of the application on the officer," the court said.
Julian Falconer, a lawyer for the Urban Alliance on Race Relations and the African Canadian Legal Clinic, said yesterday that no further action is warranted against Judge Fairgrieve.
"This is not about a witchhunt for a particular judge," he said. "In my view, judges have the right to be wrong."
injusticebusters.org Editorial: Judges do not have the right to be wrong. They apply the presumption of innocence. [The Constitution Act, 1982 section 11d]
Mr. Falconer said the lasting legacy of the judgment will be a recognition that racial profiling is a valid defence.
In its ruling, the court said: "Racial profiling provides its own motivation - a belief by a police officer that a person's colour, combined with other circumstances, makes him or her more likely to be involved in criminal activity.
"The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping."
Mr. Falconer said not every police officer engages in racial profiling, nor will there be a flood of acquittals - since racial profiling is very difficult to prove.