By Gerald V. Paul

The African Canadian Legal Clinic (ACLC) successfully argued before three Divisional Court judges that a racial profiling settlement between Ottawa Police Service Board and the Ontario Human Rights Commission does not bar a young African-Canadian man from seeking his own systemic human rights remedies independent of the settlement agreement between the other parties.

“This decision affirms that the voice of African Canadians should not be ignored or excluded by the (rights) tribunal when determining appropriate systemic human rights remedies,” Margaret Parsons, ACLC executive director, told The Camera.

Roger Love and Anthony Morgan of the ACLC represented Chad Aiken before the Divisional Court. Love stated “This decision affirms that courts should not rely upon a narrow interpretation of racial profiling in order to eliminate racism in policing and other contexts. Decision-makers should consider robust remedies that attack the full extent of the problem.”

Morgan added, “We’re pleased with the outcome because it increases access to justice to human rights remedies for African Canadians subjected to racial profiling in Ontario.”

In a unanimous decision, Ontario’s Divisional Court overturned the tribunal’s decision. The court vindicated Aiken’s position by noting that if “the practices (of racial profiling) exist in the Ottawa Police Force, it is hard to understand how they would be exhibited only by officers stopping (B)lack men in cars and not by officers stopping pedestrians.”

The court also stated that the tribunal’s decision “cannot be regarded as an acceptable outcome, given the nature of human rights remedies generally and the importance of the public interest issue at stake in this case.”

The case originates from a 2005 racial profiling complaint by Aiken to the police board. Aiken, who was 18 at the time of the incident, made a claim against Ottawa Police for being subjected to discrimination, racial profiling and systemic anti-Black racism after he was stopped while driving his mother’s Mercedes.

The commission became a party when the complaint came before the tribunal. Before the matter was fully argued at the Ontario Human Rights Tribunal, the police board and commission decided to settle. Aiken was excluded from the negotiations that led to this settlement.

In the settlement, the board agreed with the commission to undertake a racial profiling study that included a two-year data collection project which focused exclusively on vehicular traffic stops. Upon reaching this settlement, the commission withdrew as a party in this matter.

Aiken sought to continue the proceedings to argue that racial profiling data-collection should include police pedestrian stops, not just vehicular stops. The tribunal refused to give Aiken a full hearing to make his arguments, instead determining that it would dismiss the rest of Aiken’s claim and close the matter.