Fondé en 1983 --Unis pour la diversité et l'égalité raciale


Montreal, January 25, 2015 — An English-speaking Black mother questions the Quebec Human Rights and Youth Rights Commission’s credibility to protect the rights of victims of racial discrimination in policing when it arbitrarily changed the nature of her complaint after five years, without prior notice, ignored important evidence, and dismissed the case.

Virginia (not her real name, due to the involvement of minors) sought CRARR’s help after the police entered her home in NDG past midnight in July 2009. The police arrived in response to a neighbor’s complaint of disorderly youth conduct. The police attempted to enter Virginia’s home, arrested her 15-year-old son, and then charged him with assault and obstruction. The youth thought the officers needed a search warrant to enter his home and did not want to let them inside.

In their report, the two arresting officers described Virginia’s son as having prevented them from going inside to inquire about the situation and to see “whether everyone was doing ok”, in one officer’s words. The officers also reported “a strong odor of marijuana” and evidence of illegal drug use, as well as “gang symbols” on the walls. Since the oldest son was arrested and taken away, and the other children remaining in the home were under 14, a social worker from Batshaw Youth and Family Center was called to the scene.

Batshaw investigated the family and close the file shortly afterwards. The son was acquitted of the charges in Youth Court in 2011.

The complaint was filed with the Human Rights Commission in December 2009. Both Virginia and her son were met by Commission investigators during investigative interviews in November 2010 and again in November 2013. A Commission investigator interviewed the two police officers involved only in February 2014; no explanation was given as to why the Commission waited three years after the court verdict to interview these officers.

A police ethics complaint was also filed with the Police Ethics Commissioner in 2009. The Commissioner dismissed the complaint against the two officers in November 2011, without interviewing the two officers (who have the right not to cooperate with the Commissioner’s investigation, as conferred to them by the Quebec Police Act).

Last month, the Human Rights Commission dismissed the complaint due to what it said was insufficient evidence. However, a review of the Commission’s Decision by CRARR reveals some disturbing elements.

First, the Commission stated that the police officers had a “valid motive” to intervene due to the neighbor’s complaint, which is a key evidentiary criterion under the Commission’s policy guidelines to dismiss claims of racial profiling. Once an officer’s “valid motive” is established, the claim of racial profiling normally falls. In a case of racial discrimination, however, one does not have to prove “motive” or the intent to discriminate on the part of the author of an act, but only that this act has a discriminatory and disproportionately adverse impact on the racialized person and that race is a factor in the act.

The problem is that the original CRARR complaint claims race discrimination, not racial profiling and that during the five years of investigation, the Commission never gave any hint that the case was treated as a racial profiling case with a higher burden of proof of “valid motive.” In the Commission’s investigation report produced in July 2014 for the parties’ comments and ultimately to inform the decision-making by a committee of three Commissioners, the case was clearly listed as a case of discrimination based on race, gender and age.

“We do not understand on what basis or authority the Commission re-qualified our complaint after the whole investigative process,” wrote CRARR’s Executive Director Fo Niemi to Commission President Jacques Frémont. “This re-qualification, which appears to be improvised at the very end of an investigative process that lasted five years and of which we were never advised, is an unfair, arbitrary and at the least, unethical practice on the part of the Commission.”

A second problem with the Decision is that the Commission seemed to say that in a racial profiling case, once the initial police interception is based on a “valid motive,” anything that ensues is not pertinent even where race discrimination is concerned. In the present case, the allegations which were never confirmed in the officers’ report, namely of “gang symbols” on the walls of the home and evidence of drug consumption in a home with young children and older teen-agers, were obviously not considered pertinent by the Commission.

In fact, the “gang symbols”, according to Virginia and her son, were actually posters of rap icons Tupac Shakur and and Biggie Smalls. As for “a strong odor of marijuana,” neither the Police Ethics Commissioner, nor the Human Rights Commission, interviewed the social worker who arrived and inspected the home that night, despite CRARR’s urging the Commission to do so. In both the human rights and police ethics decisions, the fact that the social worker was never interviewed about these two allegations was never stated, nor was Batshaw ever interviewed as to whether Virginia’s home was indeed a risk for her children’s welfare because of alleged illegal drug use and “gang symbols.”

“The Commission flipped our complaint into a racial profiling case at the last minute,” added Virginia. “I don’t have the money to file for judicial review, which I would certainly win on these points alone. What a a travesty of justice.”

A third major problem with the decision is the reproduction of the officers’ versions of facts in the decision itself. Some of the police officers’ versions of the events were challenged in court during the criminal trial in 2011, because of inconsistencies and contradictions. The decision does not even state that the son was acquitted and ignores the grounds of the acquittal. The Commission did not examine testimonies produced in the criminal trial, despite CRARR’s urging.

The omission of the outcomes of the son’s criminal trial and the unquestioned reproduction of the two police officers’ allegations about “gang symbols” and illegal drugs in the Human Rights Commission’s decision contributes to the image of the Black family’s home as “a disorganized drug-prone, gang-related household characterized with parental neglect and delinquent conduct.”

“Some critical race analysis and race competency would help to recognize anti-Black stereotypes and how criminalization operates, so that one can avoid perpetuating them even subconsciously,” said Lillian Boctor, a CRARR law intern who worked on the case recently.

Recently, the Commission dismissed a racial profiling complaint filed by CRARR on behalf of a Black man who was intercepted in the East end and violently beaten, pepper-sprayed and arrested by Montreal police officers. The Human Rights Commission ruled that the medically certified “slight contusions” on the man’s body do not constitute bodily injuries and a violation of his physical integrity, and that without bodily injuries, the complaint was filed beyond the 6-month limit for civil action. Despite being reminded by CRARR that medical evidence was selectively quoted and that under a Quebec Court of Appeal decision, “slight contusions” should have been qualified as bodily injuries, the Commission still decided to dismiss the complaint.

As a result, the victim filed for judicial review and also sued the Commission for $15,000 for gross negligence. The Commission attempted, and consequently failed, to have the judicial review application thrown out of court.