What is the Cost of Racial Profiling?

Written By Laura J. Freitag and Ranjan K. Agarwal

The Ontario Divisional Court says it’s $75,000.

In Elmardy v Toronto Police Services Board, a significant decision by the Divisional Court, the three-judge panel awarded a victim of racial profiling damages of $75,000. Specifically, the court awarded $50,000 for the breaches of the Canadian Charter of Rights and Freedoms and $25,000 in punitive damages against Constable Andrew Pak and the Toronto Police Services Board.

This decision is the largest damage award in Canadian history for a victim of racial profiling. Prior to this decision, $40,000 was awarded in 2012 in Maynard v Toronto Police Services Board. Additionally, this is a turning point in Charter damages: it is the first time a court has awarded damages for racial profiling-related breaches.

The Charter Breaches

On the evening of January 15, 2011, Mutaz Elmardy—a black man—was on his way home from evening prayers at his mosque. Two Toronto police officers stopped Elmardy. Constable Pak punched Elmardy in the face twice, emptied Elmardy’s pockets without consent, and left Elmardy lying on his hands in the cold. The entire detention lasted approximately 30 minutes. Elmardy was never informed as to why he was detained.

The officers then had Elmardy fill out his information on a 208 card, a practice known as “carding”. Carding is a controversial policy that allows police officers to randomly stop citizens on the street to record personal information. On January 1, 2017, new regulations came into force, limiting police officers’ use of carding to specific situations. These regulations were not in force when Mr. Elmardy was carded—in any event, they have been described as inadequate or a “Band-Aid” solution.

The trial judge awarded Elmardy: $5,000 for battery, $4000 for breach of his Charter rights and $18,000 in punitive damages.

The Appeal

On appeal, Elmardy argued that the trial judge should have made a finding that Elmardy was racially-profiled. Additionally, Mr. Elmardy claimed that the damages failed to give effect to deter and punish police officers who engage in racial profiling.

The Divisional Court agreed. Elmardy’s equality rights had been violated by the defendants’ actions. The only reasonable inference the court could draw from the fact that both officers suspected Elmardy of criminal behaviour is that the officers’ actions were “coloured by the fact that [Mr. Elmardy] was black” and an unconscious or conscious belief “that black men have a propensity for criminal behaviour”, leading them to stop and card Elmardy.

The Divisional Court increased Elmardy’s damages award to $75,000. The court highlighted the need for deterrence and vindication in awarding “public law” damages, which are different than the individualized objective of private law damages.

We don’t know if the defendants will appeal this award. But, for now, it remains a precedent-setting case that will, hopefully, deter racially-motivated police conduct or allow for appropriate redress for victims of racial profiling.

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