Social Justice: Discrimination cases wade dangerously into reversing onus

In order to make a finding of racial discrimination, complainants must establish that their race was a factor in an adverse treatment.

But proving that fact is a difficult task that in one recent case has appeared to involve the imposition of a reverse onus on respondents.

To put the issue differently, there must be some connection between the complainant’s race and the conduct complained of.

Since direct evidence of an intention to discriminate is a rare occurrence, finders of fact often resort to circumstantial evidence and inferences.

Of course, the respondent may then attempt to provide a rational explanation to disprove the connection, but the ultimate issue is whether an inference of discrimination is more probable than the explanation proffered.

The two recent cases before Ontario courts that reached opposite results illustrate the difficulty in attempting to analyze discrimination and racism.

The first case, Shaw v. Phipps, involved a police constable, Michael Shaw, who stopped a black letter carrier in an affluent Toronto neighbourhood.

Shaw was patrolling the area due to reports of break and enters in the neighbourhood by white and eastern European males.

The officer testified he saw an individual engaged in unusual activity at the end of the block. Importantly, Shaw testified he couldn’t discern the gender or skin colour of the individual when he first noted the unusual activity.

Shaw, being familiar with the area, knew its regular mail carrier and saw the individual knock on a door and speak with the person who answered without delivering any mail.

He also observed the individual going to homes without cars in the driveway. Shaw became suspicious. Shaw then approached the individual and asked to see his identification.

Despite corroborating evidence from an assistant officer who testified about Shaw’s suspicions arising before he knew the skin colour of the individual, the Ontario Human Rights Tribunal rejected his explanation and concluded he had engaged in discriminatory conduct by stopping the carrier.

Appeals by the officer to the Ontario Divisional Court and the Ontario Court of Appeal were unsuccessful despite what appears to have been the application of a reverse onus on Shaw.

Contrast that result with the second case, Peel Law Association v. Pieters, that involved a librarian at the courthouse in Brampton, Ont., stopping and asking three black men if they were lawyers or law students prior to entering the lawyers’ lounge and library.

The three men, dressed in suits, were lawyers and a student acting on a case that day. The librarian testified that she “routinely” requested identification from individuals she and other staff didn’t recognize regardless of skin colour.

The tribunal concluded that race was a factor in the decision to approach the men and ordered the librarian to pay $2,000 to each of the three for the violation of their human rights and “for injury to their dignity, feelings, and self-respect.”

But on appeal, the Ontario Divisional Court concluded the tribunal’s decision wasn’t reasonable and that there was no basis to conclude the librarian had engaged in differential treatment based on the colour of the three men.

Most importantly, the court found the tribunal had reversed the burden of proof and placed the librarian in the position of having to prove a negative, “namely, that her conduct in the performance of her routine duties was not motivated by race and colour.”

But isn’t that precisely what the tribunal had done in the Shaw case?
I’m prepared to accept that both the officer and librarian acted somewhat precipitously and hurt the feelings of the men they questioned.

But both were fulfilling what they reasonably saw as their responsibilities and I’m not prepared to accept that either is a racist or guilty of a violation of our Human Rights Code.

I refuse to employ a reverse onus and am willing to provide the benefit of the doubt before labelling someone a racist.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].

For more, see "Fitting honour for rights code's 50th."

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