The Other Face of Charter Violations

Last week I posted my commentary here on Slaw on the recent decision of the Supreme Court of Canada (SCC) in R. v. Grant.

To recap briefly, Grant was a young black male who aroused the suspicions of some police by staring at them and “fidgeting”. Hardly “reasonable grounds” to conduct an investigative detention, yet that’s exactly what happened. In the course of a ‘conversation’ with police, Grant eventually admitted to being in possession of a small quantity of marijuana and a firearm. Despite finding his detention to be arbitrary and unlawful, the SCC ruled the evidence admissible under a refined test for exclusion of evidence articulated in Grant and three other sister cases released on the same day by the top court.

After posting my article, as is often the case, I received a number of comments from people who suggested that my position supporting exclusion of the gun in this case was needlessly “technical”. The prevailing thinking appears to be that the police stopped Grant on a hunch, but their hunch unquestionably turned out to be correct and we should be applauding them for getting another gun off of Toronto’s dangerous streets.

Now, I will be the first to admit that, having been found carrying drugs and a firearm on a pedestrian sidewalk in the middle of the day, Mr. Grant makes a poor poster-child for my argument. Consider then instead the case of Ron Phipps.

As reported in great detail in today’s Toronto Star, Mr. Phipps was a letter carrier for Canada Post. Back in March of 2005, Mr. Phipps was filling in for the regular carrier on a route that took him through Toronto’s posh Bridle Path. He was riding his bicycle while carrying two mail bags. His path took him criss-crossing across the street. He was wearing his Canada Post coat to shield himself from the March chill. He was, and still is, black.

Toronto Police Const. Michael Shaw was patrolling that same area at the time with a rookie officer he was training. They were on the lookout for a suspect described as male, white, Eastern European, driving a car who may have been involved in cutting telephone lines in the area. Mr. Phipps fit the bill.

The Toronto Star article makes no mention of what happened next yet one can surmise that Mr. Phipps was investigated. It would appear that he was never arrested or charged with any offence. In his complaint to the Ontario Human Rights Tribunal Mr. Phipps describes being traumatized by the incident, suffering from trouble sleeping and weight loss which have affected his other job as a personal trainer. Medication to help him sleep has damaged his eyesight.

In its decision the Tribunal stated the fact that Phipps “was an African-Canadian in an affluent neighbourhood was a factor, a significant factor, and probably the predominant factor, whether consciously or unconsciously, in Const. Shaw’s actions.”

The stench of repugnant racial profiling allegations permeates the Phipps case, but if one strips away any suggestion of race — assume for the moment that Phipps was white or Cnst. Shaw was black — one is left with a vivid reminder of the dangers of permitting the type of police conduct that took place in R. v. Grant. When police interact with the public in the course of an investigation, the very act of treating a person as a “suspect” does violence to human dignity and can have long-term ramifications for the person accused. Even if you question affording the protections of the Charter to Mr. Grant, I would urge you not to lose sight of Mr. Phipps. There are many more Phipps than Grants in this world, and how the law treats one inevitably determines how it will treat the other.

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