White cops and black men can be an unhappy mix. Last week, all hell broke loose when a white cop intercepted a black man trying to break into a big house near Harvard University. Unfortunately for the cop, the man was Henry Louis Gates, a prominent African-American scholar, and he lives there. Tempers flared. Accusations of racial profiling filled the air. Prof. Gates was promptly arrested for disorderly conduct, i.e., mouthing off. It turned out the cop was a race-relations trainer. Barack Obama got involved, declared them both fine men and invited them to the White House for a beer.
If only things worked that way in Canada, Instead, we have Ontario's Human Rights Tribunal. It has ruled that an individual can be convicted for racism, even when it's totally unconscious.
In March, 2005, Constable Michael Shaw was on patrol in the Bridle Path, an ultra-affluent Toronto neighbourhood he knew well. He was showing a female trainee the ropes. Down the street, he spotted an unfamiliar letter-carrier delivering the mail. He asked him for ID, ran his name through the computer, thanked him for his trouble and verified with a regular postie that the new guy was a fill-in. The letter-carrier was not insulted, detained or charged with any crime.
Innocuous? Not to Ronald Phipps, the fill-in letter-carrier. He is black. The cop is white. Mr. Phipps decided he'd been a victim of racial profiling, and took his case to the Human Rights Tribunal. In a ruling last month, the adjudicator agreed.
The decision makes for scary reading, because it says someone can be found guilty just for making someone else feel bad. "There is no need to establish an intention or motivation to discriminate," it says. "[T]e focus of the enquiry is on the effect of the respondent's action on the complainant."
According to the tribunal, "unconscious" discrimination is no different from "conscious" discrimination. And the onus is on the accused to prove he's innocent. "Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory. ... The respondent must offer an explanation which is credible on all the evidence."
Community policing is a big deal in Toronto these days. Its essence is getting to know the people in the neighbourhood. Mr. Phipps was a stranger there. But the adjudicator didn't buy Constable Shaw's rationale. A white cop had stopped an African-Canadian in an affluent neighbourhood, and "on a balance of probabilities," that made the cop guilty of discrimination.
No one can deny that black men continue to be unfairly singled out because of skin colour. According to one survey, two-thirds of African-American men say they've experienced racial profiling at some time. The only surprise is that the figure isn't higher.
But condemning a police officer as a racist for exercising judgment on the job is not how to improve race relations. As Toronto Police Chief Bill Blair has pointed out, the tribunal has set a standard nobody, however fair-minded, can meet. "You can have the best of intentions and be totally without bias, but none of that matters if someone wants to believe you are biased."
By his own account, Mr. Phipps has suffered grievously since the incident in 2005. He told the Toronto Star he has trouble sleeping, has lost weight and is "teased mercilessly" by co-workers. He wants financial compensation (unspecified) for his pain and suffering, and, for good measure, has also brought a discrimination claim over the same incident against the police chief and the entire force. (It will be heard in September.)
According to human-rights commissioner Barbara Hall, the case sends a message that "systemic discrimination ... requires hard work to get rid of." But it sends another message: The tribunal is an easy mark.
Can't it just buy everyone a beer? That's what Mr. Obama would do.