Can a Librarian Ever Racially Profile? Judicial Review of the Human Rights Tribunal in Peel Law Association v. Pieters
In my last post, I wrote about racism in the legal profession, questioning the degree to which existing institutions and legal tests can meaningfully recognize and accommodate its often systemic nature. This week, another case implicating race came to my attention, reinforcing the argument that meaningful engagement with racism requires something more than lip service. It requires giving one party in a dispute the benefit of the doubt. This is because in many cases involving systemic racism, the facts may not be merely difficult to prove but impossible. In Peel Law Association v. Pieters, 2012 ONSC 1048, the court relied on this impossibility of proof to give the benefit of the doubt to the party accused of racial profiling, not the party accusing it.
The case involved judicial review of a Human Rights Tribunal of Ontario (HRTO) decision which found that the applicants, the Peel Law Association (PLA) and a librarian employee, had discriminated against the respondents in the provision of services, goods, and facilities on the basis of race and colour, contrary to s. 1 of the Human Rights Code (the “Code”). The Tribunal ordered the applicants to pay a $2 000 compensatory award to each of the respondents, Selwyn Pieters and Brian Noble, for violating their inherent right to be free from discrimination.
The facts which gave rise to the dispute are as follows. The PLA operates a library and lounge at the Brampton Courthouse which is restricted to lawyers and law students. The librarian is responsible for ensuring that paralegals and the public do not make use of the facilities, contrary to PLA policy. Acting in this capacity, the librarian makes at least 8 to 12 requests for identification per week, often making such requests to people she identifies as “white.” On May 16, 2008, the respondents (who are lawyers that self-identify as black) were at the Courthouse acting as counsel. Of the people in the lounge at the time, the librarian only requested that the respondents provide identification, leading to a tense exchange between the parties.
In considering the evidence and weighing its credibility, the HRTO concluded that race was a factor in the librarian’s decision to approach the respondents on that day. This conclusion was reached because the respondents were the only ones in the lounge that were asked to identify themselves and because the librarian approached the respondents in a “blunt and demanding” manner. For the HRTO, these facts were sufficient to establish a prima facie case of discrimination, shifting the burden on the applicants to provide a credible and rational explanation for why the respondents were approached. Finding that the applicants had failed to discharge this burden, the HRTO found a violation of s. 1 of the Code.
In reviewing the decision of the HRTO, the court held (and the applicants acknowledged) that the applicable standard of review was reasonableness, or in other words, that “the highest degree of deference should be awarded to the Tribunal in respect of determinations of fact and the interpretation of human rights law.” A court reviewing for reasonableness must determine whether the decisions of an administrative body are rationally supported and fall within a range of possible, acceptable outcomes that are defensible in fact and law.
In applying the standard to the decision of the HRTO, the court concluded that a finding of discrimination, on the facts, was unreasonable. Chapnik J. held that for a prima facie case to be made out, a claimant must establish not only differential treatment but also that the differential treatment created a disadvantage by perpetuating prejudice or stereotyping. So, the court emphasized that it is “not sufficient for a complainant to identify him or herself as possessing a characteristic that is protected under the Code and then to point to an incident with a negative impact on him or her.”
The respondents failed, according to the court, to establish differential treatment. Therefore, it was not necessary to proceed to the second part of the test and to establish a nexus between differential treatment (being the only ones asked to produce identification at the time) and the perpetuation of prejudice or stereotyping (the belief that black people are less likely to be lawyers).
Systemic Racism, Deference, and a Range of Possible Outcomes
The reasonableness standard is premised on the idea that a particular administrative body has more expertise in fulfilling its mandate than the courts. In the realm of human rights, the HRTO is the legislatively crafted body designed to deal with cases raising issues under the Code. A crucial aspect of the reasonableness standard is that if an administrative decision-maker considers all of the relevant evidence, it is up to the decision-maker to make assessments of credibility and to decide how to weigh that evidence.
An important element of the HRTO’s decision was that while it found that none of the witnesses who testified presented a complete story of what had occurred on May 16th, it preferred the testimony of the respondents to that of the PLA. This finding, in other words, is one of credibility. The HRTO considered and rejected the librarian’s claim that she approached the respondents because they were “situated nearest to the door from which she entered in the lounge.” Part of the reason for rejecting this justification was because at the time of the incident, when the respondents asked why they were being targeted, the librarian replied that she knew all of the other people in the lounge to be lawyers (which was untrue).
Consequently, when the court held that “there was clear evidence” pointing to a non-discriminatory reason as to why the librarian approached the respondents, it was in essence recalibrating the HRTO’s findings of credibility and weighing of the evidence. Whatever else may be said about this conclusion, it is certainly not one that can be reached by the application of the reasonableness standard of judicial review. The court’s remedy provided further illumination of its un-deferential posture towards the HRTO; instead of sending the case back to the Tribunal for reconsideration by a differently constituted panel (the normal remedy and the one argued for by the HRTO in this case), the court held that “to send the matter back to the Tribunal would prejudice the applicants and would prove a difficulty for witnesses.”
Finally, before the HRTO, all of the parties agreed on established principles that apply where there is an allegation of racial discrimination: (a) the prohibited ground of discrimination need not be the sole or the major factor leading to the discriminatory conduct; (b) there is no need to establish an intention or motivation to discriminate since the focus of the enquiry is on the effect of the respondent’s actions on the complainant; (c) the prohibited ground need not be the cause of the discriminatory conduct as it will be sufficient if it is a factor or an operative element; (d) direct evidence of discrimination is not required and it will more often be proven by circumstantial evidence or inference; and (e) racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices.
Therefore, in holding that a finding of racial profiling on the facts was not within a range of reasonable outcomes, the court is essentially saying that the operation of even an unconscious racial stereotype could not possibly have been but one factor among others leading the librarian to single out the respondents on that day. Is racial profiling in the legal profession that hard to believe? What does it reveal about the court’s underlying attitudes towards people playing the “race card” if a finding of racial profiling is not even within a range of possible outcomes?
Keep an Eye on the Onus
Where the onus or burden of proof lies in a legal test is indicative of social values underlying the law. It is interesting that in this case, the differences between the HRTO and the court came down to where each placed the burden and how heavy a burden they placed. More specifically, the court held that the HRTO’s finding of differential treatment, requiring the applicants to provide a valid justification for their conduct, essentially amounted to a reversal of the burden of proof. The court held that “by improperly reversing the burden of proof, the Tribunal placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race.”
A crucial aspect of this case is that neither party could prove either the presence or absence of racial profiling. More often than not, this is the reality of racial profiling. Librarians don’t ask, “Can I see your identification because you’re black and black people are less likely to be lawyers?” and police don’t say, “We’re pulling you over because you’re black and black people are more likely to commit crimes.” This reality brings me back to a question posed at the outset: who should have the benefit of the doubt?
Can a Librarian Ever Racially Profile?
In reaching its conclusion, the court emphasized that “the undisputed evidence was that the [librarian’s] duties included asking for identification to confirm the admissibility of persons in the lounge and library… she acted on this occasion in the context of those duties.” This finding begs the question: if a person’s line of work requires asking for identification or detaining or stopping people, can that person ever racially profile? If pointing to employment duties is sufficient justification for singling out certain people and not others, then presumably genuine racial profiling can be anchored in a purpose other than race. Would anything short of an explicit, “I am asking you for your ID because you’re black” be sufficient for a case of racial profiling to be made out? And is this realistic given the often subconscious, latent nature of racism?
Costs as Symbolic Punishment and Deterrence?
A particularly unsettling aspect of the case is the $20,000 cost award that the court made against the respondents (jointly and severally). Although on the facts, there was nothing to suggest that the respondents lacked financial means, perhaps cost awards like these are not justifiable in systemic racism cases, given the overlapping and mutually enforcing issues of race and poverty. On the facts, the costs award was symbolically problematic, lending itself to the view that it was almost a punishment for playing the “race card” (and losing), and could thereby deter prospective claimants from bringing racial profiling claims except in circumstances where discrimination is flagrant. The overriding problem with the decision, therefore, is that it lends itself to people putting racism right where they want it: beneath the surface.