This decision is the largest damage award in Canadian history
for a victim of racial profiling. Prior to this decision, $40,000
was awarded in 2012 in Maynard v Toronto Police Services
Board. Additionally, this is a turning point in
Charter damages: it is the first time a court has awarded
damages for racial profiling-related breaches.
The Charter Breaches
On the evening of January 15, 2011, Mutaz Elmardy—a black
man—was on his way home from evening prayers at his mosque.
Two Toronto police officers stopped Elmardy. Constable Pak punched
Elmardy in the face twice, emptied Elmardy's pockets without
consent, and left Elmardy lying on his hands in the cold. The
entire detention lasted approximately 30 minutes. Elmardy was never
informed as to why he was detained.
The officers then had Elmardy fill out his information on a 208
card, a practice known as "carding". Carding is a
controversial policy that allows police officers to randomly stop
citizens on the street to record personal information. On January
1, 2017, new regulations came into force, limiting
police officers' use of carding to specific situations. These
regulations were not in force when Mr. Elmardy was carded—in
any event, they have been described as inadequate or a "Band-Aid" solution.
The trial judge awarded Elmardy: $5,000 for
battery, $4000 for breach of his Charter rights and
$18,000 in punitive damages.
On appeal, Elmardy argued that the trial judge should have made
a finding that Elmardy was racially-profiled. Additionally, Mr.
Elmardy claimed that the damages failed to give effect to deter and
punish police officers who engage in racial profiling.
The Divisional Court agreed. Elmardy's equality rights had
been violated by the defendants' actions. The only reasonable
inference the court could draw from the fact that both officers
suspected Elmardy of criminal behaviour is that the officers'
actions were "coloured by the fact that [Mr. Elmardy] was
black" and an unconscious or conscious belief "that black
men have a propensity for criminal behaviour", leading them to
stop and card Elmardy.
The Divisional Court increased Elmardy's damages award to
$75,000. The court highlighted the need for deterrence and
vindication in awarding "public law" damages, which are
different than the individualized objective of private law
We don't know if the defendants will appeal this award. But,
for now, it remains a precedent-setting case that will, hopefully,
deter racially-motivated police conduct or allow for appropriate
redress for victims of racial profiling.
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