A three-member panel of Ontario’s Divisional Court has found police conduct amounted to racial profiling and it nearly tripled the damages that had been awarded at trial.
By Mike Novakowski
In Elmardy v. Toronto Police Services Board, 2017 ONSC 2074, two police officers were driving a police cruiser on a winter’s evening when they saw the plaintiff, Mutaz Elmardy, walking in the opposite direction and on the opposite side of the street. Elmardy is a black man and police had a hunch he might be violating bail. They were also concerned he might be carrying a weapon because he had his hands in his pockets. The police made a u-turn and pulled alongside Elmardy. They questioned him but he was somewhat hostile. When he declined to take his hands out of his pockets, an interaction ensued during which one of the officers punched Elmardy twice in the face. He was knocked to the ground, handcuffed and left lying on a wood deck covered with ice. His hands were exposed to the ice for 20 to 25 minutes as he was left handcuffed in the cold. All of his pockets were searched and emptied, as was his wallet. Elmardy was carded and a field information report was completed. He was identified as being “black” and born in “Sudan.” Elmardy brought an action against the Toronto Police Services Board and the officer, suing them for assault, battery, unlawful arrest, and for violating his Charter rights.
An Ontario Superior Court judge concluded that the officer committed battery and awarded Elmardy $5,000. He had also been arbitrarily detained under s. 9 of the Charter and was awarded $2,000. The judge found the police had no reasonable suspicion of criminal activity, the stop was random and there was no right to detain Elmardy for carding alone. As for the unlawful search of Elmardy’s pockets, the judge awarded $1,000. A further $1,000 was awarded for breaches of ss. 10(a) and (b) because the police did not tell Elmardy why he was detained nor provided him with his rights to counsel upon detention. Finally, the judge awarded Elmardy $18,000 in punitive damages. Declarations that Elmardy’s rights were breached under ss. 8, 9 and 10 of the Charter were also made and he was awarded $60,000 for costs of the proceeding. As for a s. 15 Charter claim (equality rights), the judge declined to find that the conduct of the officers was racially motivated because Elmardy had not proven, on a balance of probabilities, that he was profiled.
Elmardy brought an appeal before Ontario’s Superior Court of Justice Divisional Court arguing that the trial judge failed to make a finding that he was a victim of racial profiling.
Justice Sachs, speaking for the three-member panel of the Divisional Court, agreed there was no direct evidence of racial profiling. However, she found there was circumstantial evidence from which an inference could be made that it was more probable than not that the officers’ conduct towards Elmardy was motivated by the fact that he was black:
“The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis, suspected the [plaintiff] of criminal behaviour, is that their views of the [plaintiff] were coloured by the fact that he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal behaviour. This is the essence of racial profiling.
In this case, the officers’ unreasonable beliefs about the [plaintiff] caused them to assault the [plaintiff], unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the [plaintiff’s] skin, caused them to blatantly and aggressively violate the [plaintiff’s] constitutional rights. [paras. 19-21]
The Divisional Court concluded that there was “no issue that the [plaintiff’s] right to equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter was also violated.”
The $5,000 general damage award for the battery was upheld. However, damages for the Charter breaches were increased from the total of $9,000 awarded at trial to $50,000 against the Toronto Services Board. “The driving force behind the Charter breaches – racial profiling – is a phenomenon that has been recognized as a problem in our police services for some time,” Sachs said. “Racial profiling has a serious impact on the credibility and effectiveness of our police services. It has led to distrust and injustice. It must stop.” As for punitive damages, the award was increased from the $18,000 at trial to $25,000 against the individual officer to punish and deter him for his misconduct. “The amount awarded should reflect the seriousness of that misconduct, but not be so large as to remove any realistic possibility that a police officer … would be able to pay those damages,” Sachs said.
“In my view, an award of $25,000 will accomplish these objectives. I appreciate that by reason of [the Police Services Act], the Toronto Police Services Board is also liable to pay this damage award. However, that fact is not determinative of the exercise I must perform in assessing damages, which is to determine the amount that the person who is directly responsible for those damages should pay.”
Elmardy’s appeal was allowed; the trial judge’s award for Charter and punitive damages of $27,000 was set aside and replaced by an award of $75,000. The battery award of $5,000 remained unchanged. The Divisional Court also awarded Elmardy about $20,000 in costs.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org