The Phipps case has made some waves in the Human Rights world, and has now reached the Ontario Court of Appeal. It would not surprise me at all if the Supreme Court agrees to hear it, though, due to the size of those waves.
Mr. Shaw is a police officer. Mr. Phipps is a Canada Post employee, and happens to be black. Shaw was patrolling an affluent neighbourhood with an officer trainee. Shaw regularly patrolled that neighbourhood. Phipps was delivering mail in the area, but this was not his regular route.
Shaw recognized that Phipps was not the ordinary mail carrier for the area, and began observing him, and became particularly suspicious when he saw Phipps knock on the door of one house and converse with a homeowner; Shaw then sent the officer trainee to the door afterward to inquire about the conversation, and the homeowner said that Phipps had been inquiring about misdelivered mail. Shaw was doubtful, and was concerned that the postal uniform might just be a ruse.
Accordingly, he stopped Phipps, questioned him, and ran his name through a criminal records search. Nothing adverse came up, so he allowed Phipps to continue delivering the mail, but continued making inquiries, including asking another postal carrier in the area about Phipps' identity.
Phipps brought an application against the police for discrimination.
The Human Rights Tribunal Decision
The hearing was bifurcated. In the Tribunal's decision on liability, the Tribunal determined that race - an African Canadian being present in an affluent neighbourhood - at least contributed to Shaw's actions, whether consciously or subconsciously.
In the decision on remedy, the Tribunal ordered the Respondents to pay Mr. Phipps $10,000.
The Divisional Court
Applications were made to the Divisional Court for judicial review of the decision. There were a number of grounds, but it seems to me that the best one for discussion is that of the 'prima facie case'. Essentially, in a case of this nature, an applicant has to lead evidence capable of supporting a conclusion that unlawful discrimination occurred, and then the onus falls upon the respondent to rebut the evidence, in part by establishing non-discriminatory reasons for the actions in question.
The Tribunal jumped awfully quickly to concluding that a prima facie case had been established, and went to sorting through the non-discriminatory explanations to show why they were not credible. It is concerning. I recognize the unpleasant reality of racial profiling, but I feel that it is no more desireable to presume that every interaction between police and racial minorities are motivated by race.
The majority of the Divisional Court found that that the Tribunal's conclusions were entitled to deference, and dismissed the applications. However, a compelling dissent by Justice Nordheimer drew out the problems with the Tribunal's analysis, including on the absence of a clear prima facie case, but also on flaws in the Tribunal's reasoning for rejecting the non-discriminatory explanations.
Shaw identified several reasons that he found Phipps suspicious, engaging in behaviours which he thought strange of a legitimate postal carrier. He knew that criminals occasionally posed in uniforms to prepare for criminal activities, and was concerned that this was a possibility. There were rational explanations for these purportedly strange behaviours, but the Tribunal's decision sometimes blurred the line between the existence of these explanations and Shaw's awareness of them. The question is not whether Phipps was planning to burgle a house - we can be reasonably confident that this wasn't going on. The question is why Shaw suspected this as a possibility, and to that extent a reasonable explanation beyond his knowledge at the time cannot inform the analysis. For example, Phipps knocked on a door to ask about misdelivered mail...and the homeowner told Mr. Phipps that she had received misdelivered mail the previous day, but had taken the mail to the correct address. That makes the 'misdelivered mail' explanation seem pretty credible. But the trouble is that Shaw didn't know that much. The officer trainee, Constable Noto, knocked on the door, and was told that Phipps had been inquiring about misdelivered mail. Noto then returned to Shaw and told Shaw that. And only that. But the Tribunal rejected Shaw's explanation of this reason for being suspicious because of the other information of which he was not aware. This is of concern to Justice Nordheimer.
The Court of Appeal
The Court of Appeal recently released this decision, upholding the decision of the majority of the Divisional Court.
The argument, again, goes that the adjudicator failed to properly assess the question of whether or not the prima facie case was properly made, and whether or not the onus was improperly reversed.
The Court of Appeal noted that there were three facts contributing to the prima facie case: Shaw questioned Phipps despite the fact that Phipps did not fit the description of persons suspected of criminal activity in the area; Shaw did not question other white contractors/service providers in the same neighbourhood; Shaw subsequently asked a white letter carrier about Phipps.
The Court of Appeal then notes that the Tribunal is entitled to deference in terms of the conclusions it draws from those facts.
Of course, there are problems with those facts - only the second one is even capable of supporting an inference of racial discrimination, and that's pretty tenuous unless you can draw direct comparisons. If a police officer sees something he thinks is suspicious in an affluent neighbourhood, we don't expect him to think, "Well, that's not the burglar we're looking for, so let's ignore him." There are plenty of reasons why you might suspect one person and not another, and race ought to be pretty far down the list for any half-decent police officer. And if you doubt the bona fides of a person in a Canada Post uniform, it kind of makes sense to ask the next Canada Post person you see about it. Now, if there were evidence that Shaw had passed other racial minority postal workers until he found a white one, that would be something. But that's not the evidence.
Regardless, is that enough to satisfy an adjudicator, on a balance of probabilities, that Shaw's intentions were discriminatory? This is a tricky part. The appellants argued that that the adjudicator should have had to find that the prima facie case had been met before calling upon Shaw to present his case, and that requiring him to present a non-discriminatory explanation without so finding is a reversal of the onus.
The Court of Appeal sidesteps this. Procedurally, there's no reason for the adjudicator to have to rule twice on the same question. That's probably true, though in most settings it's possible to move for non-suit or summary judgment if the party bearing the onus has failed to meet it, without prejudicing your ability to present your own case. (It seldom happens in civil proceedings, because if a prima facie case can't be met, the case should never get to a trial.) Then, when ruling at the end of the hearing, the question for the Tribunal to answer is whether or not it's more likely than not that Shaw's actions were motivated in whole or in part by Phipps' race.
I'm concerned about that analysis, because it really does look like an end-run around the burden of proof. It forces respondents to make a strategic decision: Do we decline to lead evidence, let the applicant's evidence go uncontradicted, and simply argue that the applicant hasn't met its burden? Or do we lead our evidence, and risk allowing the applicant to satisfy deficiencies in its case through cross-examination?
That doesn't support a just process, for a couple of reasons. First of all, it encourages applications with a marginal chance of success, by suggesting that an applicant may not have to prove his case to succeed. Secondly, it will result in more cases being decided differently based on strategy rather than on evidentiary merits in accordance with legal principles.
A party bearing the burden of proof should never be able to go on a fishing expedition at the hearing. (In civil trial processes, fishing expeditions are frowned upon even at the discovery stages. You need to make provable allegations supporting your cause of action. You're entitled to documentary disclosure, but this doesn't entitle a party to make broad allegations to seek evidence of wrongdoing they don't already know about.)
If this sort of question arose in a Court proceeding (in theory; this couldn't happen exactly as it is, for jurisdictional reasons), here's what would happen: I would allege that you discriminated against me; we would exchange documents and attend at examinations for discovery. You would explain your non-discriminatory bases for your conduct, and though they might not be credible, they wouldn't stand as admissions of wrongdoing. I would explain my basis for believing that you discriminated against me - you didn't question that guy, and he isn't of the same race as me. You would then bring a motion for summary judgment dismissing my action, on the basis that I can't prove my case. And you'd likely succeed.
The other ground of appeal, also rejected by the Court of Appeal, is that the adjudicator failed to properly consider Shaw's evidence in light of his position as a police officer, and that a degree of deference should be afforded to police officers to use discretion in carrying out their duties.
This is why the decision is concerning: It means that every exercise of police discretion will be open to review by the Human Rights Tribunal. Every time a police officer decides to investigate this person but not that person, to charge this person but not that person, to question this person but not that person, the officer will have to provide and articulate sufficient reasons for exercising discretion in such a manner that the Tribunal can be completely satisfied that prohibited grounds of discrimination did not factor into the decision-making process.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.