On a Balance of Probabilities, You’re a Racist

There are few miscarriages of justice as profound as the one meted out by the Ontario Human Rights Tribunal in its assault on Constable Michael Shaw.

For those not familiar with Constable Shaw’s predicament, he was hauled into the Ontario Human Rights Tribunal after asking a black man, Ron Phipps for identification in 2005. Phipps was delivering pamphlets in a Canada Post uniform, substituting in for the normal letter carrier on a route in an affluent neighbourhood of Toronto. Constable Shaw didn’t recognize him, and identified some suspicious behaviour. The officer stopped Phipps, asked for identification, and quickly ran it through the police computers. When nothing came up, Shaw thanked Phipps and said he was free to go. Before leaving the area, Shaw spoke with another letter carrier and confirmed that Phipps did indeed work for Canada Post.

Phipps submitted a complaint soon after to the Ontario Human Rights Commission, claiming that he was traumatized by having to give identification to a white police officer. The complaint found its way to the tribunal, who is happy to have unlimited power in re-engineering the Ontario Provincial Police as it sees fit. Constable Shaw, of course, needs to be an example of those who don’t go along with such a restructuring, and is awaiting his “remedy” (a euphemism for fat wads of cash, public humiliation, coerced confessions, forced recantations, speech bans, etc.) to be decided in September.

Tribunal adjudicator Kaye Joachim didn’t need to work very hard to find Shaw guilty. To begin with, a few gems dug up from an old case eased the workload considerably:

First, Shaw’s testimony can be completely ignored by this nugget:

(b) There is no need to establish an intention or motivation to discriminate; the focus of the inquiry is on the effect of the respondant’s actions on the complainant.

Joachim can therefore convict Shaw of being a liar without ever needing to establish evidence against his testimony. Next, Phipps doesn’t need to present any evidence of the discrimination by this whopper:

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference…

The burden of proof is relatively light, since in Human Rights cases a defendant can be found guilty on a balance of probabilities, rather than beyond a reasonable doubt. So, all Joachim has to do is infer a probability that Shaw, who is white, is unconsciously racist, irrespective of evidence or Shaw’s sworn testimony.

Since most who work in the human rights industry are university products of the liberal arts, they were taught to believe that all whites are, by definition, racist. Furthermore, since the HRT believes some officers in the past have participated in racial profiling, that infers that any officer is, by definition, racist. That’s all the inferences that Joachim needs to establish the probability. Indeed, Joachim purports to know the unconscious thoughts of Constable Shaw, in direct contradiction to his testimony:

However, I find that on a balance of probabilities, the fact that the applicant was an African Canadian in an affluent neighbourhood was a factor, a significant factor, and probably the predominant factor, whether consciously or unconsciously, in Constable Shaw’s actions.

In the end, I would infer that Joachim has simply used racial profiling in convicting Constable Shaw of racial profiling. Considering that section 15(2) of the Charter of Rights and Freedoms allows discrimination in favour of races that are deemed “disadvantaged” (Guess who defines “disadvantaged”?), I guess Joachim has nothing to fear from her own Tribunal.

Wonderful system, isn’t it?

Lorne Gunter has more