Tribunal rules racial profiling in case against Peel Police

For immediate publication

Toronto - The Ontario Human Rights Commission was successful in a significant racial profiling case under Ontario’s Human Rights Code. The complaint was filed by Ms. Jacqueline Nassiah against the Peel Regional Police Services. The Commission thoroughly investigated the matter finding evidence indicative of racial profiling. Attempts to mediate and settle the case with Peel Police were unsuccessful. In a decision released on May 11, 2007, the Human Rights Tribunal of Ontario has found that a Peel police officer subjected Ms. Nassiah, a Black woman, to a more intensive, suspicious and prolonged investigation because of her race.

In February 2003, Peel Police were contacted to investigate a possible shop-lifting allegation at a large department store in Mississauga. The Tribunal found that Ms. Nassiah had been wrongly apprehended by store security on suspicion of stealing a low-priced item despite her repeated and impassioned denials. The Tribunal further found that Richard Elkington, a Peel police officer, conducted a discriminatory investigation that included:

• Stereotypically assuming that a Black suspect might not speak English,
• Assuming that the White security guard was telling the truth and that the Black suspect was not, without properly looking at all the evidence, including a videotape of the alleged theft, which exonerated her,
• Adopting an “assumption of guilt” approach to the investigation by immediately demanding that Ms. Nassiah produce the missing item,
• Unnecessarily arranging for a second body search after the first one had demonstrated that she did not have the allegedly stolen item,
• Continuing with the investigation, rather than releasing Ms. Nassiah, even after the second body search confirmed that she did not have the stolen item,
  Spending up to one hour pursuing an allegation of theft, in the face of fragile evidence, for an item worth less than $10.

In it's decision, The Tribunal also found that the police officer subjected Ms. Nassiah to verbal abuse, including calling her a “f---ing foreigner” during the investigation and threatened to take her to jail if she didn’t produce the missing item. The police and store security ultimately released Ms. Nassiah after they concluded that they had made an error.

The Tribunal accepted the evidence of the Commission regarding social science research that supports the existence of racial profiling by police, not only at the initial decision to “stop” a suspect, but also the general phenomenon that scrutiny applied to the subsequent investigation is different, more heightened, and more suspicious, if the suspect is Black.

The Tribunal found that racial profiling is a form of racial discrimination, and that it is contrary to the Human Rights Code for police to treat persons differently in any aspect of the police process because of their race, even if race is only one factor in the differential treatment. The Tribunal noted the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual ‘bad apples’ but part of a systemic bias in many police forces. The Commission defines “racial profiling” as any action undertaken for reasons of safety, security or public protection, that relies on stereotypes about race, colour, ethnicity, ancestry, region or place of origin.

In addition to awarding Ms. Nassiah $20,000.00 in damages, the Tribunal’s decision requires Peel Regional Police Service to take the following systemic steps to address this racial profiling incident and to prevent future discriminatory practices of a similar nature:

• Peel must develop a specific directive prohibiting racial profiling, which should make clear that if race plays any irrelevant part in the police decision, the action is prohibited;
• Peel must hire an external consultant with expertise in racial profiling to assist in the preparation of the new directive and training materials
• Peel must provide the name of the expert and the contents of the new directive and training materials to the Commission for its review to confirm compliance with the Tribunal’s orders;
• Peel must ensure that all new recruits, current officers, the officer in this case, Mr. Elkington, new and current supervisors are trained on the new directive, the social science literature on racial profiling and the current caselaw, and advise the Commission when such training is complete;
• Peel must publish a one-page summary of this decision in its monthly police bulletin, outlining the Tribunal’s findings and orders.

Commenting on this landmark case, Chief Commissioner Barbara Hall stated, “Ms. Nassiah’s experience reveals the unfortunate reality of racial profiling in our society. The decision supports the results of the Commission’s inquiry into racial profiling, subsequent policy work, and use of litigation in the public interest. The Commission is always willing to work with police services to effect change. But when such change is not forthcoming, the Commission will pursue similar public interest remedies as ordered by the Tribunal in this case.”

The Commission’s Report on Racial Profiling and Policy and Guidelines on Racism and Racial Discrimination can be found on its Web site.