The Ontario Court of Appeal unanimously upheld a Human Rights Tribuanl of Ontario(HRTO)finding of liability for racial profiling against the Toronto Police Service on March 13th, 2012. The case involved an African-Canadian Canada Post employee, Ronald Phipps, who was stopped and questioned while in full uniform and delivering mail by Police Constable Michael Shaw - a 30 year veteran - because he was suspicious and thought that Mr. Phipps may have been wearing the uniform as a disguise. Surprisingly, P.C. Shaw's superiors had instructed him to look out for white Eastern European men with a vehicle.
Lawyers representing the police argued, amongst other things, that the HRTO adjudicator arrived at her conclusion on discrimination based on "unconscious discrimination". According to police counsel this concept improperly imposes a burden of disproof on Constable Shaw. The Court of Appeal correctly rejected this argument. They said:
"However, this was not a case where the Adjudicator
concluded, without supporting evidence, that because
discrimination can be unconscious, Cst. Shaw
unconsciously discriminated against Mr. Phipps. Indeed,
the Adjudicator did not assume discrimination, but drew
an inference of discrimination from a number of different
pieces of evidence. As the Adjudicator observed, in any
event, proof of Cst. Shaw's subjective intention to
discriminate is not a ncesssary component of the test.
There is seldom direct evidence of a subjective intention
to discriminate, because "racial stereotyping will usually
be the result of subtle unconscious beliefs, biases and
prejudices" and racial discrimination "often operates on an