ANOTHER DISCRIMINATION CASE “FLIPPED” BY HUMAN RIGHTS COMMISSION INTO A RACIAL PROFILING CASE
Montreal, February 9, 2015 — The Quebec Human Rights and Youth Rights Commission has unilaterally changed another complaint of racial discrimination in policing into a racial profiling case after two years of investigation, without either the victim or CRARR – acting on her behalf – being consulted or informed in advance.
This is the second time in two months that this arbitrary “flipping” of a case by the Commission has been documented by CRARR. This practice changed the course of the investigation, allows the Commission to ignore pertinent evidence and can lead to the complaint being easily dismissed.
The case involves an English-speaking 16 year-old biracial youth who claimed discrimination based on race, age and social condition when she was interrogated by two Montreal police officers about her possible link with a car theft. She was already held in a youth detention center when she was interrogated by the police officers without the benefit of an adult being in the room during the interrogation.
The key questions raised in the complaint are whether the police officers disregarded a protocol between the Montreal Police Department and the detention center by not allowing an adult present during the interrogation, whether the youth was pressured into waiving her constitutional rights, whether her race was a factor during the incident, how detention staff interacted with the police, and whether the youth’s right to equality has been violated.
In a recent case of race discrimination in policing (see http://crarr.org/?q=node/19654), CRARR and its clients only learned about the arbitrary re-qualification of the case when they received the Commission's decision to dismiss the case, on the basis that the police had a “valid motive” to intervene (it took the Commission five years to complete the investigation in that case, without interviewing a key witness and examining key evidence of racial bias).
In the present case, CRARR and the youth's mother only realized that their race discrimination case had been treated for two and a half years as a racial profiling case upon reading the investigation report received earlier this month.
A “valid motive”, or reasonable suspicion, is a legal standard of proof associated with racial profiling that is effectively a higher and more difficult threshold for victims and complainants to meet in order to support their claim. Once a respondent can show a “valid motive” or “reasonable suspicion” to intercept or intervene a person of color has been established, the racial profiling claim normally fails.
Racial discrimination, on the other hand, does not require evidence of motive or intent to discriminate, but only proof of a link between the action and the person's race, and proof that the action has a disproportionately adverse or negative effect on the racialized person. In the last twenty years, courts in Canada have recognized the great difficulty of proving intent to discriminate and direct evidence of discrimination, especially in race cases. Instead, the courts focus on circumstantial evidence and other contextual indicators of racial bias.
In the present case, the problem does not only lie with the arbitrary switch from racial discrimination to racial profiling. There is the additional problem of the Commission looking for the officers’ intent to discriminate, as reflected in the puzzling questions directed at the youth during the Commission’s investigative interview, such as “What did they do during the interrogation that seems linked to a discriminatory motive?” In other words, the Commission asked the youth to guess or explain the officers’ state of mind and intent to discriminate.
In addition to these two serious legal issues, the investigation report also reveals another major disturbing problem, which is the deliberate omission of a key piece of evidence in the case, namely the protocol between the youth detention center and the Montreal police regarding procedures for interrogation of youth detainees. Not only did the Commission’s investigation completely fail to mention the existence of this protocol (which was explicitly mentioned in the complaint), it also did not examine the officers’ knowledge of such an agreement, or how detention staff dealt with the officers when they decided to interrogate the youth alone.
Yet one of the detention center officials who was told by the two police officers to wait outside the interrogation room stated that it was the first time in 11 years on the job that he was not present during a police interrogation of a detained youth. However, he was never asked by the Commission about protocol procedures, what the center did after the incident, or how the youth’s state of mind was (in fact, one of the two detention officials helped the youth fill out the complaint on the spot).
Finally, despite the fact that the complaint involves the officers’ showing the detainee a mug shot of another racialized youth and allegation of guilt by association (“[he] has the same skin color as you”), there is no indication in the report that the Commission obtained and examined this photo to check the parties’ versions of fact. Instead, the Commission questioned the youth’s credibility by noting that in her complaint filed right after the officers left, she did not mention the photo (even though it was clear that she did not mention many other facts about the interrogation, due to her state of mind when she wrote up the complaint).
“If the Commission wants to switch our case into a racial profiling case, it should have at least the courtesy to inform us at the beginning, not two and half years after,” said the youth’s mother.
“Switching our case is one thing, but the selective use of evidence is more disturbing,” she added.
CRARR has objected in writing to this arbitrary re-qualification of the case as a racial profiling case, since this practice can also violate the complainant and the victim’s right to procedural fairness, a core principle of administrative law, especially when they are not notified or consulted beforehand during the period of two or more years of investigation.
It can also allow the Commission to inflate its data on racial profiling cases. The inevitable dismissal of these cases, due to incomplete investigation and faulty analysis, allows law enforcement and other authorities to claim, as some city officials did during the Commission’s 2010 public consultation on racial profiling, that “it is all a matter of perception.”
In the last five years, the Quebec Human Rights Tribunal has only rendered one decision (in 2012) on racial profiling by the police. Only the Human Rights Commission can refer or allow a complainant to bring a case before this specialized Tribunal, which is part of the provincial Quebec Court.
NOTE: If you have experienced a similar situation with your complaint being changed without prior notice or consultation from a race discrimination case into a racial profiling one, and eventually dismissed on the basis of a “valid motive”, please contact us.