The following is taken from the judgment of the Ontario Human Rights Commission in Phipps versus Toronto Police sevrices Board, Shaw and Blair.
The facts are summarized in the Toronto Star article here. Phipps, the black postman, was asked for identification by the white cop when he was delivering mail inthe Bridle Path area. He gave it, the cop thanked him. Later when the postman saw the cop again, they got into an altercation as to why the postman was asked when other white people in the neighbourhood were not. (Does “you are black in an expensive white neighbourhood” suffice?)
The judgment of the OHRC reads in part as follows.
[16] The relevant principles that apply in cases where an allegation of racial discrimination has been raised have been usefully summarized as follows:
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).
[Note that the citations are not from Courts but from other human rights tribunals. They are making the stuff up as they go along].
[Now comes the part where the standard of proof for rebutting the allegation of racism is set forth:]
[17] In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.
1) Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
2) It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
3) A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
4) There is no requirement that the respondents’ conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.
End of quote
Would the greater likelihood that the postman belonged to a group that numbers 2% of the population, say, but numbers 50% of criminal arrests, prosecutions and convictions not be a reasonable basis of checking his identity? In short, we profile racially, religiously, sexually, ethnically and in every way conceovable, all the time. Why should the police not do so?
Further on, the presiding judge Kaye Joachim writes:
[37] I accept the applicant’s evidence that he felt intimidated by being approached by two police officers, wearing guns, one of whom, Constable Shaw, is a very large man. I note that the applicant has a small stature. I also accept that he perceived that the officers did not treat him respectfully. However, I am not persuaded on a balance of probabilities that Constable Shaw used the police vehicle in an intimidating manner, that he approached the applicant in an intimidating manner or that he spoke rudely to the applicant.
So it does not matter how politely you ask, you are guilty of unconscious discrimination by asking a black man what he is doing in the neighbourhood if you don’t ask some unknown number of other white people.
The decision is being appealed by the police to a real court.
The longer this sort of nonsense goes on, the more the law is brought into disrepute. Black people should not be made untouchable by police, especially as they have such a strong propensity for criminal behaviour.
Again, it is time to start tarring with the same brush. We need more intelligent discriminations, but we need most of all is the right to make them on the basis of observed realities.