Guilty of unintentional intent

Peter Jackson
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What happens when a white cop and a black citizen find themselves in a bit of a tussle?
In the U.S., they both get to have a beer with the president.
In Ontario, the cop is found guilty of racism.
Not in a real court, mind you, but in a human rights tribunal. It's a court of one, an adjudicator who interviews the parties involved, investigates the case, and then acts as judge and jury.
Last week, the Ontario Human Rights Commission released its decision in the case of Ron Phipps, a black letter carrier who was stopped by a white policeman, Michael Shaw, while filling in on someone else's route.
Shaw was found guilty of racial profiling.
The incident happened in March 2005. Phipps was on a route in an affluent neighbourhood in Toronto. Shaw knew the regular letter carrier, and didn't recognize Phipps. He watched Phipps criss-cross the street and, on at least one occasion, return to a house to retrieve mail he had already delivered. Shaw felt Phipps was acting suspiciously and asked him for ID. Another letter carrier eventually vouched for Phipps, and Phipps went on his way. It was all over in a few minutes.
Phipps, however, decided he was the victim of racial profiling. Three years later, human rights adjudicator Kaye Joachim agreed.
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," Joachim wrote in her ruling.
Now, there may be many nuances in this story that don't come across in the telling. But if we start basing intent on some hidden, mercurial state of consciousness, we will surely fall into a judicial abyss.
Racial profiling is a problem in North American law enforcement, but one can't assume de facto that race is the driving factor behind a policeman's actions.
Meanwhile, Americans watched the spectacle last week of U.S. President Barack Obama holding a "beer summit" with a black Harvard law professor and a white police officer. Prof. Henry Louis Gates and Sgt. James Crowley were embroiled in a much more heated encounter than that of their Ontario counterparts. The policeman showed up at the professor's door to investigate a possible break-in. The professor was cranky, the policeman intransigent, and Gates ended up in handcuffs.
Obama publicly - and stupidly - took sides at first, then apologized and asked the two men to drop by the White House for a beer. It was a silly stunt, but you can't help thinking that in a broader, symbolic sense, it was the right approach to take.
With all the despicable, hate-filled discrimination that goes on around us, it serves no purpose to mine people's minds for the minutest trace of prejudice. For one thing, there's a substantial risk of fabricating bias where none exists. More importantly, it generates paranoia and resentment, and allows existing wounds of prejudice to fester.
Along with attempts in recent years to censor free speech, the Phipps incident is one more example of how Canadian human rights tribunals are overstepping their bounds.
They are not fighting real racism. And in some cases, they are fomenting it.

Peter Jackson is The Telegram's editorial page editor.
He can be contacted by e-mail at

Organizations: Ontario Human Rights Commission, Harvard, The Telegram

Geographic location: U.S., Ontario, Toronto

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