John v Edmonton Police Service, 2023 AHRC 87 (Ringseis) is an Alberta Human Rights Tribunal decision where it was found that a police constable’s use of force (pepper spray) against two black men was motivated by unconscious bias, and was therefore discriminatory.
This case is important because there are not many like it, and it involves analyzing the actions of a police officer in a fast-paced and stressful situation to determine if some of them were likely motivated by unconscious biases.
Legal counsel for the Director, who was supporting the position of the complainants in this matter, was Bow River Law partner and employment lawyer human rights lawyer Sarah Coderre.
Facts
The following were the facts summarized by the AHRT:
- The complainants Yousef John and Caesar Judianga are two black men of South Sudanese descent. An expert described them as appearing stereotypically black
- The respondents were the Edmonton Police Service and two individual constables, S and F
- The complainants were roommates
- At 3 AM, they saw a woman outside with pink hair (the “Accused”) throw something that looked like a large rock through the window of a car that belonged to someone they know
- The complainants and a third man (Lado) chased her, and when they caught her, Lado restrained her as part of what he believed was a citizens arrest
- They called 911, but the call was chaotic and confusing for the operator. It was classified as “trouble not known”
- When Constable S arrived on the scene alone, it was chaotic, and he was the smallest in size of numerous men present. He called for backup but it had not yet arrived. No one was listening to Constable S
- Constable S thought Lado might be committing a crime in detaining the Accused, and deployed Capsicum Spray (Pepper Spray) on Lado and then the complainants. The Accused was hit with a small amount of it
- Constable S then instructed Lado and the complainants to lay face down and was in the process of handcuffing them. Constable S took a medical form out of the pocket of one of the complainants and took a picture of it, despite protest. His explanation was that he commonly did this: he liked to have correct spelling and would routinely then just delete the picture
- As he was handcuffing them, others present at the scene on bicycles began to leave. Constable S told them to stay but they were not listening
- Then more police officers arrived, including Constable F. They took the Accused into custody and took a statement from her while they gave her water to wash out her eyes
- Soon Constable S began to understand what Lado and the complainants were trying to tell him, he removed their handcuffs and gave them water to rinse out their eyes
- The complainants were angry that they had been pepper sprayed because they were the ones to call 911. Constable F told them they were lucky it was pepper spray because they “could have been shot”
- This was a discrimination complaint under Section 4 of the Alberta Human Rights Act, that the complainant’s race was a factor in Constable S’ choice to deploy pepper spray
Analysis / Conclusion
The AHRT had no trouble finding that there was a protected human rights characteristic (black) and that there had been an adverse effect (pepper spray). The only real question was whether race was a factor in that adverse treatment. The tribunal described the question like this:
[29] The focus of the analysis in the present case is on whether the choice to use the [pepper] spray, the timing and manner in which it was deployed, and the treatment of the complainants following the use of force, was affected by their race.
[30] In determining whether an adverse impact is connected to a protected ground, context must be considered. As has been noted by this Tribunal: “It is well established that discrimination, particularly racial discrimination, is rarely practiced overtly. It will most often be proven through circumstantial evidence and inference.” Indeed, no evidence suggested that Constable [S] or Constable [F] deliberately, consciously or overtly treated the complainants negatively because of their race. Instead, the analysis must focus on whether there existed a subtle, implicit bias. […]
Commission Member Ringseis noted that there was already a competent investigation done by the police service which appropriately determined that the use of pepper spray was reasonable and valid in the circumstances, as was the handcuffing. However, that did not end the matter. The question for human rights was whether the decision to deploy pepper spray “when and how he did, and whether the subsequent behavior of the police officers on the scene, including the manner in which the arrest was conducted, was affected by the race of the complainants”.
The AHRT ultimately concluded that discrimination had occurred in all of the circumstances, noting as follows:
[126] Any single adverse impact described above, taken on its own, perhaps would not appear to be connected to race and would not lead to a finding of a discrimination. In the entire context of the situation, however I find in this complaint that, on a balance of probabilities, race played a role in:
the rapid deployment of OC spray at the complainants without a warning, even though they were not the individuals holding down the Accused or holding a weapon in a threatening manner,
the lack of response to the complainants’ questions and concerns as they writhed in pain,
the use of a medical form for identification against protests,
the inattention to the cell phone that was used to call 911,
the comment about feeling lucky because they had not been shot,
the lack of care by the police, demonstrated by the disparity as compared to the Accused,
the lack of interest shown in the complainants’ accusations against the Accused.
[127] The complainants experienced an adverse impact, they were treated as something less, in part because of the colour of their skin.
[…]
[135] The respondent encouraged the Tribunal to consider whether the outcome would have been any different if the complainants had been White. Thus, if the complainants had been large, strong, White men who were physically intimidating and greater in number than the smaller, lone police officer, would the outcome have been the same? I agree that the following are salient factors that would have contributed to force being used: number of people, confusion at the scene, loud yelling and talking, and a woman being prevented from leaving. But, the timing of the use of force, the manner in which it was deployed and the treatment of the complainants following the OC spray appear on a balance of probabilities to have been affected by their race. [underline added]
Significantly, the AHRT went on to find that the individual police constables were not personally liable for human rights discrimination in these circumstances:
[140] Taking a purposive approach, this Tribunal has found against personal respondents where the individuals are personally implicated or where there is compelling reason to include them to ensure that liability is not avoided, much like piercing the corporate veil in corporate law actions. There is no evidence that the police officers intentionally or consciously discriminated against the complainants. Neither is there any evidence that the police officers acted grossly outside their scope of power or duties. There is no evidence to suggest that either Constables [S] or [F] were acting as directing minds of the respondent Edmonton Police Service. The police officers are not hiding behind a corporate shield to escape personal liability. There is no compelling reason to make a finding of discrimination against the individual police officers.
My Take
Sometimes truth is stranger than fiction. This is a case involving so much confusion and chaos that the police service determined the use of pepper spray against the complainants was appropriate. That finding was not disputed by the AHRT. However, the details of when and how it was deployed, and what followed, were found to reveal an unconscious bias against the complainants as black men.
I think the fact that the police constables were not personally found liable makes sense on the facts of this case. They are public servants who acted without any discriminatory intention.
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