Ruling opens door to consider racial dynamics when assessing police use of force

A recent finding of the Ontario Civilian Police Commission could pave the way for future cases to consider systemic racial dynamics when assessing the reasonableness of a police officer’s decision to use force, say two lawyers from the case.

The Commission recently dismissed the appeals of two Toronto police officers found guilty of misconduct for the unlawful arrest of four Black teenagers, known as “the Neptune Four,” in 2011. The Commission also allowed an appeal brought by the four complainants.

The four had disputed the finding that one of the officers was not guilty of discreditable conduct for pointing a gun at the complainants during the encounter. The Commission has substituted a finding of misconduct on that count, made a finding of misconduct for the officers’ arrest of two of the complainants, and confirmed the misconduct finding for excessive force against one of the officers for punching one of the teens.

The encounter between the police officers and the complainants was a “perfect case study” for racial profiling, says Nana Yanful, co-counsel for the complainants and former founding legal director at the Black Legal Action Centre.

“Every single thing that happened in this case is an example that you see in racial profiling or race-related Charter cases,” she says. “It's a perfect case study for all the things that police do wrong when it comes to dealing with members of the public, specifically young Black men.”

The systemic issues arising in the relationship between the police and the Black community did not form part of the charges against the officers, says Jeff Carolin, co-counsel for the complainants. “But it was our position throughout that it was relevant in terms of assessing the evidence and, in particular, in terms of [pointing the gun] – assessing the reasonableness of the use of force.”

A reasonableness analysis cannot be undertaken without reference to the well-documented increased amount of violence young Black men face at the hands of police, he says.

The hearing officer at the Toronto Police Service’s (TPS) disciplinary tribunal considered whether the evidence could suggest a racial profiling claim. The officers objected to the analysis, arguing it was unfair and improper because conscious or unconscious racial bias was not part of the notices of hearing and the TPS had not charged the officers with biased or discriminatory behaviour. At the hearing, the prosecution said it was not advancing any racial-profiling claims and that there was no evidence to support such a claim. The hearing officer ultimately found that he “could not infer from the evidence” that the complainants’ race influenced the officers’ actions.

At the appeal, the complainants submitted that the hearing officer erred in limiting his analysis to anti-Black bias that may have led to the encounter without taking notice of anti-Black racism in the criminal justice system. They referred to reports and studies and relied on the Supreme court of Canada decision in R. v. Le to argue that there was readily available information, not subject to reasonable dispute, that could inform a reasonable person about the factor of race in police-citizen interactions. The complainants said some of this material established that Black males are subconsciously perceived as “guilty and dangerous, aggressive and possessed of uncommon strength,” as well as often mistaken as being older than they are.

The officers argued at the appeal that it was not open to the hearing officer to consider racial bias. They also said that the “social fact evidence” submitted by the complainants was either not raised or did not exist at the time of the hearing, giving them no way to make submissions on its weight or challenge its accuracy.

The Commission said that it was unaware of a principle prohibiting the hearing officer from “drawing on relevant social context evidence to inform his analysis.” The Commission added that a failure to particularize subconscious racial bias in the notices of hearing did not prevent the hearing officer from taking notice of social context evidence. “The officers incorrectly conflate alleged particulars of misconduct… which are set out in the Notice and define the scope of the hearing, with what evidence may be called or relied upon to prove the elements or particulars of the misconduct counts alleged.”

The hearing officer could have taken notice of, weighed, and relied upon the social context evidence concerning the racial dynamics in the interaction, said the Commission.

But the Commission declined to engage in an analysis of the social conduct evidence. It had already found an error in the hearing officer’s findings on the gun-pointing count, and the Commission agreed with the officers that it was procedurally unfair to consider and apply the social science evidence at the appeal stage.

The application of criminal law principles made the case novel in the police-discipline context and may have application to criminal law decisions going forward, says Carolin.

The case also demonstrates the importance of public funding for legal aid clinics, says Yanful. The Black Legal Action Centre is fully funded by Legal Aid Ontario and made significant contributions to the appeal stage, she says. Legal Aid Ontario’s test case committee also funded the litigation for six years, adds Carolin.

In its ruling, the Commission said that the arrests stemmed from a random stop. The stop did not arise from 911 call or a report of suspicious activity, and there was no identification of the complainants as suspects in any criminal activity. It occurred outside a Toronto housing complex in November 2011. Four Black teenagers around aged 15 and 16 were on their way to an event at a nearby community centre when officers Scharnil Pais and Adam Lourenco pulled into the parking lot. The officers were part of the Toronto Anti-Violence Intervention Strategy and mandated to enforce the Trespass to Property Act in communities with high rates of crime.

After approaching the teens, Lourenco physically separated one – called B.A. in the decision – from the group and placed him under arrest for failing to identify himself. The hearing officer found that Lourenco had “escalated the situation unnecessarily,” that “there was a lack of reasonableness in his actions,” and Lourenco had exceeded his authority.

During the arrest, B.A swore and spat at Lourenco, according to the officer’s notes, which he said then gave him the authority to arrest B.A. for assaulting a police officer. B.A. denied spitting or swearing. Lourenco had also written in his notes that he punched B.A. during the arrest because B.A. was resisting. Video evidence that showed Lourenco punching B.A. twice, once in the side and once in the head, causing B.A. to fall to the ground, led the hearing officer to conclude that B.A.’s resistance did not warrant the punches. He found Lourenco guilty of discreditable conduct for excessive force.

While Lourenco violently arrested B.A., two of the other complainants moved towards them asking Lourenco what he was doing. Lourenco responded by drawing his gun and pointing it at them. He immediately re-holstered it when they stood still.

Once B.A. was handcuffed, the officers placed the other three under arrest for the assault of a police officer.

The issues on appeal were whether the hearing officer erred in finding Lourenco and Pais guilty of misconduct for unlawful or unnecessary arrest, and whether the hearing officer erred in finding Lourenco not guilty of discreditable conduct for use of excessive force.