Black children matter

In September 2016, Peel Regional Police responded to a call from an elementary school for assistance with a student who was exhibiting significant behavioural challenges: the fourth such call that month relating to this student.

The officers dispatched to the school had no training in dealing with children in crisis. When they were not able to control the student’s behaviour, the officers cuffed her feet together, then cuffed her hands behind her back and placed her on her stomach, in which position they held her for at least 28 minutes, during which time she continued to struggle. They stopped holding her when paramedics arrived on the scene.

The student was a small six-year-old Black girl weighing just 48 pounds. The two police officers were each about six feet tall and weighed between 190 and 200 pounds.

In September 2017, the girl, through her mother, filed an application with the Human Rights Tribunal, in which she alleged discrimination by the Peel Regional Police with respect to services on the basis of race, colour, ethnic origin or ancestry, as prohibited by Ontario’s Human Rights Code.

The application was heard in late May 2019 and a decision on liability was issued in February 2020, in which the police force was found to have violated the child’s right to be free from discrimination in the provision of services.

In October 2020, the Tribunal held a hearing to determine an appropriate remedy. It issued its decision on December 30, 2020.

Polite and professional?

The child sought $150,000 compensation for “injury to dignity, feelings and self-respect” as well as payments to cover counselling and tutoring. She also sought a “public interest remedy:” directions to the Peel Police Services Board to implement training and a police protocol for police response at schools and related measures.

The police services board disputed both elements of the claim.

In coming to its decision to award a total of $35,000 to the child ($30,000 compensation and $5,000 towards the cost of counselling) and not to award the public interest remedy, the Tribunal referred to a number of aspects of the liability decision from February 2020.

Parts of the decision are baffling. How, for instance, could the Tribunal find, as it did, that the officers were professional and polite, even as it also found that they cuffed the child’s legs together, cuffed her hands behind her back and placed her on her stomach, holding her there for 28 minutes?  Just what would two large men professionally and politely cuffing a 48-pound child’s legs and arms and holding her down on her stomach for almost half an hour look like?

Setting aside professionalism and politeness, the Tribunal found that “certain actions of the officers amounted to discriminatory treatment,” noting that race plays a very subtle role and can influence interactions without the knowledge or intention of those involved:

“While I do not believe that it was the intention of these officers to discriminate against the applicant based on her race, it is clear that their focus throughout was on controlling her. Their overreaction can only be explained by the inference that because of implicit stereotypical associations that arose because of the applicant’s race, they saw her, as a Black child, being more of a threat . . . than they would have seen a White child in the same circumstances.”

Putting a dollar value on harm

In coming to its decision about an appropriate financial remedy, the Tribunal had to consider both the objective seriousness of the discriminatory act and the subjective effect on the particular person who was subjected to the discrimination.

From the objective perspective, the Tribunal found that, whether or not the actions were the result of implicit or explicit bias, they were very serious, and that they could be expected to have an impact on the child’s dignity, feelings and self-respect.

With respect to the subjective component of the test, the Tribunal found that the child was frightened by the incident, which has caused her to fear the police, that her dignity was impaired by the event and that she felt shame and humiliation to an extent that her self-confidence was affected.

It also noted that the incident led her to “become aware that as a Black person, she may be subject to different treatment than a white child.. . . It is now part of the applicant’s lived experience and will affect her into the future.”

Systemic change

Before the Tribunal held its remedy hearing, the Peel Police Services Board had entered into a Memorandum of Understanding (MOU) with the Ontario Human Rights Commission about strategies to end systemic racism, promote transparency and enhance the trust of Black and other racialized communities and Indigenous communities in policing in Peel Region.

In its decision, the Tribunal wrote:

“I am satisfied that the respondent has shown a commitment to making substantial changes to the way in which the respondent’s officers provide services to children under the age of 12 years in order to remove systemic racial discrimination. . . . I conclude therefore that this is not a case where the public remedy requested by the applicant is appropriate or required.”

Who’s happy and who’s not?

Presumably, the Peel Police Services Board is reasonably happy, given that its officers were found to have behaved in a professional and polite manner, the monetary remedy is small and there is no public remedy.

The involved officers must be relieved that an investigation by the Office of the Independent Police Review Director did not lead to formal charges of misconduct against them.

Not surprisingly, the child and her mother are happy to leave this four-year journey behind them and begin looking forward. As the child’s mother said:

“I can now focus on what lies ahead, which is making my daughter whole.”

The lawyers for the child and her mother were hoping for a higher monetary award but commented:

“This decision is significant because it’s the only case we know of in the province involving discriminatory police actions against a child.”

Significant, perhaps, but it’s not enough. All too often, we see promises by police systems to change with few meaningful built-in accountability mechanisms. After a few years, public attention moves on to something else, and promises made are forgotten.

Real systemic change needs to happen now, and not on the backs of children.

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