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September 2004: Landmark
Toronto case | "Gangsta"
profiling | Jerome Almon
brings border profiling to Canadian Human Rights Commission |
Text
from Ontario appeal court | Racism:
RCMP | Racism Saskatoon
| Racism USA | Tulia | Darrell
Night | Stacey Dodd
Dee Brown and
Jason Troy:
Racial profiling
Decision
Racial profiling complaint
to be heard by rights panel
Canadian Press, Friday,
January 02, 2004
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."
© Copyright 2004 Vancouver Sun
Police balk at new study of profiling
- State seeks more
data on traffic stops
By Brett McNeil, Chicago
Tribune staff reporter, January 4, 2004
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."
Copyright © 2003, Chicago
Tribune
Commission calls for
action on racial profiling
By DARREN YOURK, Globe
and Mail, Dec. 9, 2003
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.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
Racial profiling case
one for history books
KIRK MAKIN - Globe and Mail,
, April 28, 2003
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."
Police use racial profiling,
appeal court concludes
By KIRK MAKIN, Globe
and Mail, Apr. 17, 2003
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."
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.
© 2003 Bell Globemedia
Interactive Inc. All Rights Reserved.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
