Editorial: Shining a light on racial profiling

Amid all of the debate about random stops by police spurred by racial profiling, there was an interesting ruling from the Divisional Court last week that dealt with related issues.

In Aiken v. Ottawa Police Services Board, the Divisional Court considered Chad Aiken’s application for judicial review of a Human Rights Tribunal  of Ontario decision regarding his complaint of racial profiling. He claims Ottawa police stopped him for no valid reason while he was driving a Mercedes in May 2005. The case dated back to the previous regime for dealing with human rights complaints in which the Ontario Human Rights Commission would have carriage of the case after exercising its gatekeeper function in matters before the Human Rights Tribunal of Ontario.

As the parties engaged in settlement discussions, one of the key issues dealt with the specifics of a proposed order requiring Ottawa police to collect race-based data for all traffic stops. At mediation, the commission and police came to an agreement on the data-collection issue, but Aiken wasn’t on board. Among the differences in position was the question of including both pedestrian and vehicle stops in the data collection. As part of the agreement, the commission would withdraw from the proceedings. Despite Aiken’s objections, an adjudicator ultimately decided to dispose of his complaint in accordance with the agreement between the police and the commission.

That was the wrong way to proceed and the Divisional Court ultimately set aside the tribunal’s decision. While Justice Anne Molloy noted the merits in considering alternatives to a full trial-like hearing, she found many of the tribunal’s conclusions were unreasonable. “The Commission’s status as a party was no greater than that of Mr. Aiken,” she wrote. “The Commission chose to accept a compromise on the systemic remedy originally sought. Mr. Aiken is not bound by that agreement. He is entitled to have his complaint heard on its merits, including what type of systemic remedy would be appropriate.”

Given the debate about random stops — whether pedestrian or otherwise — and the Ontario government’s consideration of how to regulate in this area, this is a case that deserves a full hearing. The issue isn’t unique to the Greater Toronto Area, so a full consideration of Aiken’s request and any resulting action by Ottawa police should help shine more light on the matter.
Glenn Kauth

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