Racial discrimination can often be subtle and difficult to detect, particularly in fluid and dynamic situations such as those involving law enforcement. But as a recent Ontario Human Rights Tribunal decision indicates, police action that is ostensibly intended to maintain public safety can nonetheless amount to race-based discrimination.

Background

The Tribunal in JKB v. Peel (Police Services Board)¹ examined the actions of two Peel Regional Police officers, and their treatment of a six-year-old Black girl (the applicant, as represented by her litigation guardian). The officers were called to her school in response to behavioural issues that she was exhibiting towards other students and administrators.

The applicant alleged that by handcuffing and “shackling” her, the involved officers did not treat her in the same manner that they would have treated a White child. She asserted that an inference of racial bias could thereby be made, amounting to discrimination in the provision of services, contrary to section 1 of the Human Rights Code.²

The respondent, Peel Regional Police, denied that the officers’ actions were influenced by the applicant’s race, and stated that its officers responded in a way that preserved the safety of the applicant and others around her.

A central question in this case related to the manner in which the applicant was handcuffed. The witness evidence from a behavioural teaching assistant (referred to as “DP” in the decision) was that the officers placed the applicant facedown on a bench, handcuffed her ankles and her hands behind her, and left her in that position for 28 minutes.

The officers denied placing the applicant on her stomach or handcuffing her behind her back. They acknowledged that at two separate points, they handcuffed her ankles, and her hands in front of her body, but stated that she was in a seated position while handcuffed.

Notably, one officer stated during his cross-examination at the Tribunal, “I would never put a child on a point where she could possibly asphyxiate herself on a couch, or a soft bench. I would not have done that, no.”

The Events Leading Up to the Applicant’s Handcuffing

Prior to the police’s arrival, the school had contacted 911 to request police assistance. Through the dispatcher, the officers were advised that teachers were trying to restrain a six-year-old whom the school was unable to calm down. Upon attending the school, the officers were informed about the applicant’s behaviour on that day, which included running away, throwing various objects, and hitting students and staff.

When the two officers arrived on scene, the applicant again ran away, and kicked and screamed as she evaded the officers. The officers chased her for some time until they were eventually able to carry her to the school office; during this time, she continued to kick and scream. Once in the office, the applicant began spitting, headbutting and kicking. One officer cautioned her that if she did not stop these behaviours, she would be handcuffed. It was at this point that DP and the two officers diverged with respect to how the applicant came to be handcuffed.

Credibility Assessments and Factual Findings

For the following reasons, the Tribunal preferred DP’s evidence over the two officers with respect to how the applicant was handcuffed.

The Tribunal noted that the officers’ notes from this incident were sparse, and lacking in detail. DP had made detailed notes about the incident within 24 hours, the accuracy of which was not challenged during the hearing.

The Tribunal also took into account the fact that DP was an observer, rather than directly involved with what was a chaotic and dynamic situation. As such, he would have been better able to observe what was taking place.

Lastly, as a disinterested party, DP “had no reason to mislead.” Conversely, the officers had a direct interest in a case that was not optically favourable to them. As such, they had reason to present themselves in a positive light, and to be less than candid in their evidence.

In light of the above considerations, the Tribunal accepted DP’s evidence and found that the officers placed the applicant on her stomach and handcuffed her hands behind her back. She was then kept in that position, where she continued to try to bite, scratch and flail, until the paramedics arrived 28 minutes later. It was noted that before and during this time, the officers made verbal attempts to de-escalate her behaviour.

Legal Principles and Expert Opinion Evidence

The Tribunal’s analysis considered whether the officers’ actions amounted to racial discrimination. In doing so, it noted the following legal principles specifically regarding racial discrimination in policing:

• Where there is no direct evidence of differential treatment by a police officer, consideration must be given to how events may have unfolded if the subject were White.
• The fact that an individual exhibits aggressive, inappropriate, or challenging behaviour does not eliminate the possibility that race can play a role in how an officer responds to them.

The Tribunal also referred to expert opinion evidence from two witnesses regarding implicit racial bias and dynamic encounters with law enforcement. Of particular relevance was the expert evidence that our implicit biases can become activated once it registers that an individual belongs to a “different group” from ourselves. Specifically, the negative characteristics and stereotypes associated with that group become triggered, thereby impacting how that individual is viewed and treated, particularly in a dynamic situation.

The expert witness evidence also suggested that Black children may be perceived as older, bigger, stronger, faster and/or more of a threat than they in fact are, simply because they are Black. These perceptions could thereby lead to a belief that more force is needed to control a Black child versus a White child.

Additionally, the Tribunal outlined general principles regarding racial discrimination, outside of the specific context of policing. Specifically, it noted that race need not be the only, or even the primary, factor in discriminatory behaviour, and that discrimination will more often be demonstrated by inference, rather than direct evidence. For a more in-depth discussion regarding legal principles in discrimination investigations, I recommend my colleague Liliane Gringas’ recent blog post.

Analysis

The officers had denied placing the applicant on her stomach with her wrists and ankles handcuffed, and leaving her in that position; as such, they were unable to provide an explanation for doing so. However, their general explanations regarding their treatment of the applicant related to the need to minimize the risk of injury to herself or others.

The Tribunal took into account the size discrepancy between the two officers and the applicant.  At the time of the incident, the applicant was 3 to 4 feet tall, and about 48 pounds, while the officers were around 6 feet tall and 200 pounds. It was also noted that there were two other adults present with the officers: DP and the school principal. It was held that it would have therefore been highly unlikely that the applicant could have escaped all four adults, or that all four adults would have been unable to defend themselves against the applicant’s behaviour should it have escalated.

The Tribunal acknowledged that some degree of control over the applicant was necessary in order to maintain safety. Nonetheless, it was a “clear overreaction” in the circumstances to have placed the applicant on her stomach, handcuffed her ankles and wrists behind her back, and kept her in that position for 28 minutes. Notably, the Tribunal gave particular consideration to the officers’ denial of their actions:

[165]   [One officer] said that he would never place a child on her stomach because it would put her at risk of asphyxiation. However, [the officers] did just that. The clear difference between the applicant and a typical child, from the perspective of two White police officers, is her race – as a Black person, the applicant is a member of a ‘different group’. While I do not believe that it was the intention of these officers to discriminate against the applicant based on her race, it is clear that their focus throughout was on controlling her. Their overreaction can only be explained by the inference that because of implicit stereotypical associations that arose because of the applicant’s race, they saw her, as a Black child, being more of a threat, being bigger, stronger and older than she was and, consequently, of being more in need of control than they would have seen a White child in the same circumstances

Accordingly, the applicant’s right to equal treatment in the provision of services under the Code was deemed to have been violated.

What Does This Mean For Investigators?

As noted in my colleague Michelle Bird’s recent blog post, anti-Black racism can manifest in various, subtle ways. This case represents another example in which implicit racial bias impacted how an individual was perceived and thereby treated; namely, the perception that she was bigger and stronger led to the application of more force against her.

The Tribunal’s decision imparted some key takeaways that workplace investigators may wish to consider when examining allegations of racial discrimination, particularly in the context of action taken by law enforcement personnel:

• Inconsistent evidence can be an indicator of bias. Investigators may wish to pay close attention to inconsistencies in the evidence that they gather. Notably, one officer’s statement that he would “never” place a child on their stomach formed part of the Tribunal’s reasoning that it was not necessary, and thereby an overreaction, for him to have done so.
• The presence of some positive treatment, or the absence of extreme negative treatment, will not negate racial bias. It was noted that the officers were not aggressive or overly authoritative in their interactions with the applicant. Nor was any evidence presented to indicate that the applicant was in pain, or hurt by the officers. It was also noted that the officers continually attempted to verbally de-escalate the situation, and behaved professionally throughout. Nonetheless, the Tribunal found that notwithstanding the totality of their behaviour, the level of force that they applied was discriminatory.
• Challenging behaviour does not remove the possibility of a racially biased response. The applicant’s aggressive behaviour did not ultimately negate the fact that the officers were motivated, at least in part, by an implicit racial bias when responding to her.
• Consider the bigger picture. Behaviour which may seem justified in isolation (i.e., for the preservation of safety) can nonetheless amount to discrimination when considering a broader issue: namely, would a White child have received similar treatment? In this instance, the Tribunal was prepared to find that they would not have been.

Concluding Thoughts

This case demonstrates that a lack of credibility, coupled with the absence of a reasonable explanation for the impugned behaviour, can lead to an inference of racial discrimination. Investigators are therefore encouraged to take a critical approach when analyzing the facts and evidentiary inconsistencies, and be prepared to make inferences where warranted.

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¹  2020 HRTO 172.

² The applicant further raised an allegation regarding the respondent’s decision to file a report with the Children’s Aid Society. The analysis of that allegation falls outside the scope of this blog post.