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					                    Court of Queen’s Bench of Alberta
Citation: Coward v. Alberta (Human Rights and Citizenship Commission, Chief
Commissioner), 2008 ABQB 455


                                                                                Date: 20080729
                                                                             Docket: 0801 00254
                                                                               Registry: Calgary


Between:

                                        Cephas Coward

                                                                                        Applicant
                                             - and -


      Chief Commissioner of the Alberta Human Rights and Citizenship Commission

                                                                                      Respondent


              _______________________________________________________

                              Memorandum of Decision
                                       of the
                        Honourable Madam Justice S.L. Martin
              _______________________________________________________


I.     Introduction

[1]     Mr. Coward was walking on a busy street at about 5:30 in the afternoon when a police
car blocked his further movement. A police officer approached him and said that Mr. Coward
matched the description of a person seen waving a big knife in a public place. The officer asked
Mr. Coward if he had a knife and Mr. Coward said he did not. The officer asked if he could
search Mr. Coward, Mr. Coward asked some questions of the officer about the alleged offender,
and Mr. Coward refused to consent to a search of his person. The officer detained, arrested,
handcuffed and searched Mr. Coward in public. When no knife was found, Mr. Coward was
released.

[2]     Mr. Coward is black and claims that a factor in his treatment was discrimination on the
basis of race. His complaint on this ground to the Alberta Human Rights and Citizenship
Commission (the “Commission”) was investigated by one person and then dismissed by the
                                              Page: 2

Director. Mr. Coward asked the Chief Commissioner to review the Director’s decision. The
Chief Commissioner agreed with the Director’s dismissal and did not send the complaint to an
Inquiry Panel for adjudication.

[3]    This is an application for judicial review of the Chief Commissioner’s decision. Mr.
Coward was self-represented throughout the complaint, investigation, review and appeal stages,
but had counsel to assist in the application for judicial review.

II     Facts

[4]    On September 3, 2004, Mr. Coward filed a complaint with the Commission against the
Calgary Police Service pursuant to s. 20(1) of Alberta’s Human Rights, Citizenship and
Multiculturism Act, R.S.A. 2000, c. H-14 [AHRCM Act]. He alleged discrimination on the
grounds of race and colour in the area of goods, services and accommodation or facilities
contrary to s. 4 of the AHRCM Act. The Chief of Police concedes that policing is a service within
the meaning of, and subject to, s. 4.

[5]     Under s. 21(2) of the AHRCM Act where a complaint is not settled, the Director may
appoint a person to investigate the complaint, and this was done. The Investigator received
various materials and interviewed Mr. Coward and four officers of the Calgary Police Service.
According to s. 6 of the Alberta Human Rights and Citizenship Commission Bylaws, the duty of
an investigator is to establish the facts and make recommendations to the regional coordinator as
to whether or not there is merit to a complaint. The investigator provided a report on the
investigation to the Director.

The Investigation Report

[6]     According to the Report, the sequence of events began with a call from a transit driver to
the LRT train dispatch. There was no transcript of that call in evidence as it was lost. It appears
the transit driver reported seeing a black man with a large bag of knives selling a knife to another
black man.

[7]     The LRT dispatch called 911. The transcript of that call was available and was in the
Investigation Report. The LRT dispatch said “I guess he’s holding out a big ... a real really big
hunting knife in his hand” at 3rd Street east and 7th Avenue. While he was not going after people,
he was “intimidating people in the area”. The individual was a “black male dressed all in black
with a red Flames hat and near a mountain bike”. The train dispatch reported that the train driver
had seen him and he was “brandishing his knife out in public, a big hunting knife”.

[8]     The Investigator notes the inconsistency between what the train driver reported and what
was relayed by the LRT dispatch to the police. However, the Investigator proceeded on the basis
that the police could act on the information they received.

[9]    As a result of this 911 call, officers of the Calgary Police Service were dispatched both
by radio and computer to the area. The Event Chronology states “male on the S/E corner of A/A,
                                              Page: 3

is waving around a really big knife, off is a blk male, dressed all in blk with Flames hat, called in
by train driver, looks like a hunting knife”.

[10] Constable Demarino, the arresting officer, testified that he heard something different. He
heard that the suspect was a black man in dark clothing. He did not hear about the Flames
baseball cap or the bicycle.

[11] Constable Demarino then received information from a Constable Griffin that there was
an individual who matched the description of the weapons suspect at the corner of 7th Avenue
and 4th Street S.E. This male was Mr. Coward.

[12] It is agreed that Constable Demarino stopped Mr. Coward, pulled his car in front of him,
took him aside and informed him that he matched the description of a man who was waving a
knife and that the police were searching for this man. There were three white people standing at
the same corner who were not questioned.

[13] Constable Demarino and Mr. Coward agree that the officer asked Mr. Coward if he had a
knife on him. Mr. Coward stated that he did not have a knife and that he was a professional who
worked at EnCana. According to Constable Demarino, he asked Mr. Coward if he had a knife on
him. Mr. Coward said he did not have any knife and he was a professional at EnCana. Constable
Demarino told him he was not interested in where he worked but only whether he had a knife on
him. Again, Mr. Coward said he had no knife on him. Constable Demarino demanded to search
him and told Mr. Coward that if no knife was found on him he would be free to go. Mr. Coward
replied that he had a problem with being searched and refused his consent.

[14] Mr. Coward testified that before he refused to be searched he asked Constable Demarino
how he matched the suspect. He was told that the police were searching for a black male who
was wearing a black jacket and waving a knife. Mr. Coward told Constable Demarino that the
description of the subject was vague and that he did not wish to be searched because of his
colour. Constable Demarino did not report or comment on this conversation in the interview with
the Investigator.

[15] At this point the testimony diverges. Mr. Coward says that he took a step back from
Constable Demarino and insisted he would not be searched. Then Constable Demarino did the
following: told Mr. Coward he would be searched; grabbed him, put his hands behind his back
and handcuffed him; patted him down and searched his pockets. The point of difference is that
Constable Demarino told the Investigator that after refusing to be searched, Mr. Coward then put
his hands in his pocket and stepped away from Constable Demarino. The constable said the
combination of Mr. Coward putting his hands in his pockets and stepping back made him think
of safety concerns and that Mr. Coward had a knife on him.

[16] There is therefore a factual dispute, which would turn on credibility, about whether Mr.
Coward put his hands into his pockets. The Investigator notes this dispute, but does not resolve
it, focussing instead on the agreed fact that Mr. Coward took a step backwards.
                                             Page: 4

[17] The handcuffing and pat down process took approximately 15 seconds before it was
confirmed that Mr. Coward was not in possession of a knife.

[18] Two other police officers arrived on the scene shortly after the handcuffing: Constable
Griffin, who had earlier radioed Constable Demarino, and Constable Connor. They had also been
dispatched to investigate the complaint but neither witnessed what occurred between Constable
Demarino and Mr. Coward before the handcuffing.

[19] Mr. Coward was very upset and accused Constable Demarino of only stopping him
because of his colour. Constable Griffin and Constable Connor joined in and tried to explain to
Mr. Coward that the search had nothing to do with his colour and that he was handcuffed
because he did not cooperate with Constable Demarino. They also advised the Investigator that
Constable Demarino was professional in his dealing with Mr. Coward.

[20] Constable Sullivan was also sent to the area. He spotted a black male wearing a Calgary
Flames hat, with a navy jacket and white pants. This second man admitted he had a knife on him
that he had purchased from another man earlier that day. This second man was detained while
Constable Sullivan phoned the train driver to ensure that an offence had been committed before
arresting this man and taking him to the station. The train driver told Constable Sullivan he never
told LRT dispatch that the black male was waving a knife around. He said he told transit
dispatch that he saw a black male carrying a bag of knives and selling a knife to another black
male. Constable Sullivan released this second man as being in possession of a knife is not an
offence. While no offence was actually committed, this was not known by the officers at the
relevant time they responded to the call.

[21]   The Investigator made the following statements in the Investigation Report:
       •      Demarino agreed that he stopped the complainant because he was a black male
              but not for the purpose of racial profiling. Const. Demarino explained that the
              weapons suspect was a black male wearing dark clothing and waving a knife.
              According to Const. Demarino, Const. Connor and Const. Griffin, Mr. Coward
              was a perfect match.” Mr. Coward was black, was in the vicinity within a few
              minutes of when the call came in and wore a long 3/4 black jacket that covered
              most of his pants.

       •       It would have been inappropriate for Const. Demarino to have stopped the male
               Caucasians that were standing with Mr. Coward at the traffic light, since the
               suspect was described as a black and not Caucasian male. Besides, Mr. Coward
               wore a long black jacket and was the only black male in the vicinity where the
               incident allegedly happened a few minutes after the officers were dispatched.

       •       ... both parties testified that Mr. Coward took steps away from Const. Demarino.
               Clearly, taking steps away from an officer, who was investigating a weapon
               suspect and was by himself (without a back up), would have raised safety
               concerns for the officer. At the time Const. Demarino approached Mr. Coward for
               investigation, he undoubtedly believed he might be the suspect. Certainly, being
                                             Page: 5

              faced with Mr. Coward’s opposition would have only convinced Const. Demarino
              that he had the suspect. Arresting and searching Mr. Coward was the only way to
              find out if Mr. Coward was the suspect. Hence, Const. Demarino’s decision to
              handcuff and conduct a pat-down and pocket search of Mr. Coward was rational
              and reasonable in the circumstances he was faced with.

       •      From investigations, it is clear that this was not a case of discrimination based on
              race or colour. The respondent did not make up the tale of a black man dressed in
              black, waving a knife. It was a complaint reported to them and they took
              immediate action because of the notoriety of the neighbourhood in which the
              incident was alleged to have taken place.

Decision of the Director

[22] A Director, Mr. Pardeep Gundara, followed the recommendation of the Investigator and
dismissed the complaint under s. 22(1) of the AHRCM Act.

[23] Under s. 26 of the AHRCM Act, there is an appeal of the Director’s decision to the Chief
Commissioner. Mr. Coward filed a request to review the dismissal and provided additional
information to the Chief Commissioner. Mr. Coward submitted a letter to the Chief
Commissioner dated March 13, 2007 outlining argument in support of his complaint. He
outlined seven issues and made full argument over 12 pages.

The Decision of the Chief Commissioner

[24] The authority for the Chief Commissioner to review the Director’s decision is provided
under s. 26(3) of the AHRCM Act. The Chief Commissioner shall review the Director’s decision
and decide whether the complaint should have been dismissed. Under s. 27(1)(b) the Chief
Commissioner shall appoint a human rights panel to deal with a complaint where the Chief
Commissioner decides under s. 26(3) that the complaint should not have been dismissed.

[25] The Chief Commissioner reviewed the Investigation Report and attachments and further
submissions by both parties and upheld the dismissal by the Investigator stating:

       I have completed a documentary file review. It is my opinion the respondent did not
       discriminate against Cephas Coward in an illegal manner under the Human Rights,
       Citizenship and Multiculturism Act.

       When Cephas Coward was confronted by the police he was unfortunately walking in an
       area being searched by them for a black male dressed in black wearing a red Calgary
       Flames hat who had reportedly been seen brandishing a big hunting knife.

       Although not wearing a red Flames hat or clutching a big knife, Cephas Coward did
       match the general description of the person they were looking for, namely a dark skinned
       man wearing a dark coat.
                                              Page: 6

       There is no evidence in support of Cephas Coward’s contention that he was treated by
       CPS in a manner that was anyway different than a white person in the same situation. It
       was only because he refused to allow a body search that he had the humiliating
       experience of being handcuffed while this was done against his will.

       There is no reason to believe the response by the CPS for the 911 call they received was
       carried out in a discriminatory fashion.

       I see no reasonable basis in the evidence to advance this case to the Panel hearing stage
       and hereby dismiss the appeal.

[26] Section 35 of the AHRCM Act provides for a judicial review of the Chief Commissioner’s
decision:

       A decision of the Chief Commissioner under section 22(3)(a) is final and binding on the
       parties, subject to a party’s right to judicial review of the decision.

[27] As a result of this incident Mr. Coward filed a complaint with the Police Service Board,
which has been dismissed. He has also commenced a civil lawsuit, alleging a breach of various
rights guaranteed in the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. The civil suit
is ongoing.

III    Preliminary Issues

[28] A few preliminary issues arise. First, this is a judicial review of a decision of the Chief
Commissioner of the Commission pursuant to s. 35 of the AHRCM Act and is not a statutory
appeal.

[29] Second, the Chief of Police of the Calgary Police Service was not initially served with
the Notice of Motion for Judicial Review but applied and was added as a party.

[30] Third, on the day of the hearing the Chief Commissioner brought the Court of Appeal
decision of Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 160 [Brewer] to my attention.
This decision limits the role of the Chief Commissioner on a judicial review. Materials were
previously submitted by the Chief Commissioner and delivered to all parties and the Court
before this decision was rendered. At the hearing the City of Calgary sought leave to file the
Chief Commissioner’s brief as a Supplementary Brief. There was no objection and I accepted
such Brief as all parties had prior familiarity with it. Further, the City of Calgary and the Chief
Commissioner had divided the argument between themselves and sought to have the full
argument before the Court in a manner which respected the limited role of the Chief
Commissioner. While Brewer did not address the right of the Chief Commissioner to be heard in
Queen’s Bench during a motion for judicial review of his decision, counsel for the Chief
Commissioner limited oral argument to the content of the Return and jurisdictional issues.
                                             Page: 7

[31] Fourth, Mr. Coward criticizes the absence of the transcript of the call from the transit
driver to the LRT dispatch. In my view, a human rights complaint involving constables of the
Calgary Police Service can proceed without this information and on the basis of the materials
before the Chief Commissioner. It should be noted here that any information obtained by Mr.
Coward during Examination for Discovery in the ongoing civil trial is inadmissible here. See:
Juman v. Doucette, 2008 SCC 8.

Submissions of the Appellant

[32] Mr. Coward argues that the Chief Commissioner has not provided a lawful reason to
dismiss this case and has ignored critical facts. Specifically, that:

       The AHRC ignored the law that I only need raise a prima facie case that racial prejudice
       was a factor in CPS’s action on the date noted.

       An un-reliable third party complaint expressing their guesses and assumptions does not
       constitute an alleged Indictable Offense that would entitle CPS the lawful base to search
       for this alleged suspect let alone to arrest ALL black males in the area.

[33] He questions the Chief Commissioner’s finding that “there is no evidence supporting the
contention that he was treated by the CPS in a manner that was any way different than a white
person in the same situation.” He argued that the initial report form the LRT was on an “I guess”
basis and that it would not have sparked a search for a white suspect. He says the description is
vague as it does not refer to some of the commonplace indicators for identification, for example:
height, weight, age, type of clothing and eye colour. He states that the police targeted all black
males in the vicinity and that this is discriminatory and unreasonable.

[34] To make his point he inserts a white man into what he states are comparable
circumstances and argues that the situation would not have been treated in the same way:

       CPS received a complaint from a third party complainant stating he guesses/assumes that
       a white male dressed all in black with a red Calgary flames hat on, near a mountain bike
       that might be his, waved a knife around. The third party complainant states that he did
       not see this incident, his friend witnesses this act.

       CPS locks down an “area” of Calgary searching for this white male.

       CPS is unable to locate the white male suspect as described in the police report.

       CPS “broadens” their search [which is an indication that the complaint is lacking
       necessary information to locate the specific alleged individual] for this white male, based
       upon their own internal compass.

       CPS forcefully searches and/or arrests ALL white males in the area in an attempt to
       apprehend this suspect, based upon the third party’s guesses and assumptions.
                                              Page: 8

       CPS arrests white males dressed in jeans and t-shirts, CPS arrest white males dressed in
       suits and ties, CPS arrest white males dressed in business attire.

       White males are held by CPS openly in public, similar to a public police lineup, until the
       train driver can get to the location, to affirm or deny the white male presently under arrest
       is the correct individual.

       Train driver then states “I never stated that a white male waved a knife around”.

       Case closed.

IV     Issues

[35]   The relevant issues are:

       a)       What is the standard of review of the decision of the Chief Commissioner?

       b)       Did the decision of the Chief Commissioner to uphold the dismissal of Mr.
                Coward’s complaint meet that standard?

[36] These questions are to be asked in relation to two separate aspects of the Chief
Commissioner’s decision. First, the Chief Commissioner made limited comments which may be
interpreted as touching upon the constitutionality of the police conduct at issue. Second, the
Chief Commissioner made findings in relation to discrimination.

The Constitutionality of the Police Conduct

[37] Mr. Coward alleges discrimination during an unlawful detention, arrest and search
conducted by the police. This claim straddles human rights law and constitutional law, and he
has filed both the human rights complaint under review and a civil law suit alleging various
breaches of his Charter rights.

[38] Submissions made to the Chief Commissioner in Mr. Coward’s letter of March 13, 2007
focussed on both the lawfulness of the search and discrimination and race related arguments.
Many of the nine issues Mr. Coward brought before the court focussed on the legality of the
search, with the materials and argument drawing heavily on case law setting out the
constitutional parameters for police while investigating, detaining, arresting and searching. Mr.
Coward cites R. v. Johnsgaard, 2003 ABPC 165 for the general proposition that any police
power must be based on a clear direction of law.

[39] In relation to his detention and arrest, Mr. Coward cites the following cases: Moore v.
The Queen, [1979] 1 S.C.R. 195 for the proposition the common law does not allow the police to
stop and question citizens and that citizens should be allowed to proceed if they refuse to answer
questions; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 [Mann] cited in R. v. Dykhuizen, 2007
ABQB 489 at para. 44 [Dykhuizen] and R. v. Arabi, 2007 ABQB 303 [Arabi] for the proposition
                                                Page: 9

that there is a common law power to detain an individual for investigative purposes where there
is a clear nexus between individuals detained and a recent or ongoing criminal offence; Hum v.
Canada (Royal Canadian Mounted Police), 1986 CanLII 79 (C.H.R.T.), for the proposition that
an individual cannot be arrested on mere suspicion; R. v. Waterfield, [1964] 3 All E.R. 659
(C.A.), R. v. Knowlton, [1973] S.C.R. 443 and R. v. Long, [1970] 1 C.C.C. 313 (B.C.C.A.) for
the proposition that there must be proved facts from which a breach of peace can reasonably be
anticipated to justify an arrest and that mere anticipation of a breach of the peace is insufficient;
R. v. Roberge, [1983] 1 S.C.R. 312 and R. v. Biron, [1976] 2 S.C.R. 56 for the legal test for
determining if there are reasonable grounds for arrest (i.e. whether the officer believes the person
has apparently committed a criminal offence and whether this belief is reasonable to the extent it
would be apparent to the reasonable person placed in similar circumstances); R. v. Carlson, 2002
ABQB 459 [Carlson] for the proposition that for a 911 complaint to be reliable it must outline
compelling information, rather than simply being conclusionary; R. v. Sattar, 2008 ABPC 115
[Sattar] for the propositions that reasonable grounds for investigative detention based on a tip
and that vague descriptors which could coincidentally apply to many people other than the
accused will generally be insufficient corroboration; and Arabi at para. 2 for the proposition that
detention is only justified if there is an articulable clause for the detention, that this detention can
be for investigatory purposes, and that reasonable cause to suspect that the detainee is criminally
implicated in the activity under investigation must be based on the totality of the circumstances
and cannot be based on the officer’s hunch or intuition.

[40] In relation to the search of his person, Mr. Coward cites the following cases: R. v. Wilson,
[1990] 1 S.C.R. 1291 and R. v. Lal (1998), 130 C.C.C. (3d) 413 for the proposition that if there
are reasonable grounds to stop and detain a person, then the police may search for weapons; R. v.
Davis, 2004 ABCA 33 and Arabi, for the proposition that a search for weapons may be taken for
safety reasons, but, generally, a search for weapons cannot be undertaken to discover evidence;
Carlson at paras. 13, 22, 23, Arabi at paras. 18, 34 and Dykhuizen at paras. 29, 30, 40, 41 for the
proposition that a search without a warrant is prima facie unreasonable; R. v. Collins, [1987] 1
S.C.R. 265 cited in Arabi at para. 34 and cited in Sattar at para. 77 for the three elements
necessary for there to be a reasonable search, namely, that the search be authorized by law, that
the law be reasonable and that the search be carried out in a reasonable manner; Arabi for the
proposition that individuals have a reasonable expectation of privacy in their pockets; and R. v.
Kang-Brown, 2008 SCC 18 [Kang-Brown] for the proposition that reasonable suspicion is
required for the police to perform a search.

[41] The appellant argued that this jurisprudence is relevant to a human rights complaint
because both involve human dignity, individual rights and limits to state power, and s. 11 of the
AHRCM Act cannot be met if there has been a breach of the complainant’s Charter rights. This
latter argument only arises if the complainant has established discrimination, which is the
threshold the Chief Commissioner determined had not been met. At times, the Appellant’s
approach conflates breaches of the AHRCM Act and the Charter. However, Mr. Coward also
claims that the Investigator and the Chief Commissioner were wrong when they gave their
opinion about whether or not his Charter rights had been violated. He asks me to correct their
erroneous conclusion on a standard of correctness and invites me to comment on the legality of
the detention, arrest and search.
                                             Page: 10


[42] The Calgary Police Service argues that the Commission has no jurisdiction over alleged
violations of the Charter and Counsel for the Commission agrees and points to the fact that the
Commission is not a body authorized to decide Charter issues under the Designation of
Constitutional Decision Makers Regulation, Alta. Reg. 69/2006, enabled by the Administrative
Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3.

[43] Under the AHRCM Act the Commission is only granted authority over discrimination in
policing services. The lawfulness of the detention and search under the Charter is a matter
generally reserved for the courts. There is some limited overlap. Human rights decision makers
may need information about police powers to ascertain if certain conduct is discriminatory.
However, this information provides a context only and there is no jurisdiction to make findings
about the constitutionality of a particular detention or arrest. Further, when a court addresses
whether there has been a Charter breach, it may consider claims of racial profiling and
discrimination in assessing whether constitutionally protected rights have been infringed.

[44] The jurisdiction of all persons working for the Commission, including the Investigator,
Director and Chief Commissioner, is limited to the human rights complaint. I take note that the
Investigation Report devotes considerable attention to whether the police have the constitutional
authority to detain, arrest and search for investigative purposes, citing Mann and R. v. Waniandy
(1995), 162 A.R. 293 (Alta. C.A.) to this effect. Contrary to the arguments submitted by the
Chief of Police, I find that the Investigator provided an opinion concerning the reasonableness of
the search when she said:

       At the time Const. Demarino approached Mr. Coward for investigation, he undoubtedly
       believed he might be the suspect. Certainly, being faced with Mr. Coward’s opposition
       would have only convinced Const. Demarino that he had the suspect. Arresting and
       searching Mr. Coward was the only way to find out if Mr. Coward was the suspect.
       Hence, Const. Demarino’s decision to handcuff and conduct a pat-down and pocket
       search of Mr. Coward was rational and reasonable in the circumstances he was faced
       with.

[45] The Chief Commissioner reviewed this Investigation Report, in addition to the other
materials listed in the Return, and made the following statement:

       There is no evidence in support of Cephas Coward’s contention that he was treated by
       CPS in a manner that was anyway different than a white person in the same situation. It
       was only because he refused to allow a body search that he had the humiliating
       experience of being handcuffed while this was done against his will.

It is not clear from this statement if the Chief Commissioner is assuming or addressing the
legality of that search.

[46] The Commission may have needed information on the factually specific context of the
human rights complaint before it, but it simply lacks the jurisdiction to make findings or proffer
                                              Page: 11

opinions on whether the police infringed Mr. Coward’s Charter rights. It is not a court of
competent jurisdiction and has not been included in relevant provincial legislation outlining
which administrative tribunals have decision-making powers under the Charter. Furthermore, its
expertise lies elsewhere and any comment suggesting that refusing to consent to a search
provides sufficient legal grounds to search shows how far removed the decision maker would be
from the Charter jurisprudence.

[47] According to the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9
at para. 59 [Dunsmuir], this portion of the Chief Commissioner’s decision is to be measured
against a standard of correctness as it involves not only a constitutional question, but a true
question of jurisdiction or vires. While I am not convinced that the Chief Commissioner intended
to make a finding or comment on the Charter issue, there is extensive discussion of this ultra
vires question in the Investigation Report. To the extent the Chief Commissioner was influenced
by this discussion and these findings, all such comments and conclusions concerning the
constitutionality of the detention, arrest and search are ultra vires and bind no one.

[48] Mr. Coward invites me to comment on whether the actions of the police infringed his
Charter rights but these matters are best left to the trial judge on full evidence to determine in
the pending civil action.

[49] The Commission does, however, have jurisdiction over the allegations of discrimination
made in the human rights complaint. Even though the Investigator directed her mind to a
question outside of her jurisdiction, the main issue is whether there are grounds to judicially
review the independent decision of the Chief Commissioner that there was insufficient evidence
of race-based discrimination to warrant the appointment of an adjudication panel.

The Chief Commissioner’s Finding of No Discrimination

a. Standard of Review

[50]    The Calgary Police argue that the standard of review on this question is reasonableness.
Mr. Coward submits that it should be correctness because the case involves mixed questions of
law and fact and that reasonableness ought to be measured by reference to s. 8 of the Charter
and a probing analysis of all the circumstances.

[51]     In Dunsmuir, a majority of the Supreme Court articulated the current “standard of
review” analysis and stated that there ought to be only two standards of review - correctness and
reasonableness. There are two steps in the new standard of review analysis. The first requires
that the court ascertain whether the degree of deference is well settled by the case law with
respect to a particular category of question. If not, the court must proceed to the second step of
undertaking a contextual analysis of the four factors identified and applied since Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Not all of these
factors need necessarily be considered if some of the factors are determinative of a
reasonableness standard in a specific case.
                                             Page: 12

[52] Pre-Dunsmuir jurisprudence of the Alberta Court of Appeal established a reasonableness
standard for this type of decision taken by the Chief Commissioner. See, for example:
Gramaglia v. Alberta (Government Services Minister), 2007 ABCA 93 [Gramaglia]; Callan v.
Suncor, 2006 ABCA 15 [Callan]; Calgary (City of) v. Cabalde, 2000 ABQB 712 [Calbade];
Economic Development Edmonton v. Wong; 2005 ABCA 278 [Wong]; Economic Development
Edmonton v. Baah, 2005 ABCA 279 [Baah]. There is therefore no need to consider the specific
factors listed; they produce the same result in any event.

b. Reasonableness of the Chief Commissioner’s Decision

[53] In Mis v. Alberta Human Rights Commission, 2001 ABCA 212, the Alberta Court of
Appeal explained how the Chief Commissioner performs a screening or gatekeeping function, by
way of a paper review. The Chief Commissioner must ask, in deciding whether a complaint is
without merit,“whether there is a reasonable basis in the evidence for proceeding to the next
stage” (at para. 8). The Court noted at para. 9 that the “gatekeeper can be expected to apply his
or her experience and common sense in evaluating the information in the Investigator’s report”.
Although the threshold assessment of merit is low, the Chief Commissioner is given wide
latitude in performing the screening function. Not all filed complaints result in a panel hearing.
See also: Chartrand v. Alberta (Human Rights and Citizenship Commission), 2008 ABQB 207.
Justice Clarke in Duffy v. Alberta (Human Rights and Citizenship Commission), 2001 ABQB 541
stated at para. 24:

       The Act provides a measure of protection for individuals. However, only so much
       protection may be afforded. The administrative structure would break down if the
       administrative body was not able to limit complaints to only those showing a true
       violation. In this way, the Chief Commissioner should be allowed deference to control
       the procedure of dismissing complaints.

See also Justice Mason in G.S. v. Alberta (Human Rights and Citizenship Commission), 2002
ABQB 597 at para. 47.

[54] According to the Court of Appeal in Callan, the Chief Commissioner is entitled to assess
credibility, consider new evidence and screen the matters to be referred for a full hearing. Wong
confirms that the Commissioner is entitled to bring considerations of credibility and fact into his
decision to decide whether the complaint should be referred to a panel. The Chief Commissioner
is to be a neutral arbiter and under s. 22 acts as an appellate body. (Brewer at paras. 64 and 65).
See also: Gramaglia; Callan; Cabalde; Wong; Baah.

[55] Compressing the two reasonableness standards in Dunsmuir into one is not to be seen as
justification for a more intrusive review by courts:

       Reasonableness is a deferential standard animated by the principle that underlies the
       development of the two previous standards of reasonableness: certain questions that
       come before administrative tribunals do not lend themselves to one specific, particular
       result. Instead, they may give rise to a number of possible, reasonable conclusions.... A
                                             Page: 13

       court conducting a review for reasonableness inquires into the qualities that make a
       decision reasonable, referring both to the process of articulating the reasons and to
       outcomes. In judicial review, reasonableness is concerned mostly with the existence of
       justification, transparency and intelligibility within the decision making process. But it is
       also concerned with whether the decision falls within a range of possible, acceptable
       outcomes which are defensible in respect of the facts and the law (at para. 47).

[56] For human rights purposes the question is whether race was a factor in how Mr. Coward
was treated. The threshold is low. In Troy v. Kemmir Enterprises Inc., 2003 BCSC 1947 [Troy],
the British Columbia Court noted that its Human Rights Code, R.S.B.C. 1996, c. 210 recognizes
that there are ingrained patterns of discrimination against certain persons or groups in society. In
that province, a human rights complainant is not required to establish that a decision was based
on a prohibited ground, only that a prohibited ground was a factor in the decision. At para. 25 the
Court said:

        Mr. Troy complained that he was discriminated against based on racial stereotyping. He
       does not need to show that discrimination comprised the sole factor in the conduct
       complained of, and he only needs to raise a prima facie case that it was a factor. The
       burden is not an onerous one. This is because the law recognizes that discrimination is
       rarely openly displayed, and in most cases, must be inferred from circumstantial
       evidence.

[57] The Chief Commissioner did not believe this low threshold was met, even though the
Calgary Police Service admitted in its letter dated July 3, 2006:

       The Calgary Police Service agrees that Constable Demarino stopped Mr. Coward because
       he was black. This is because the Calgary Police Service was searching for a black
       suspect who was wielding a knife in the area of the city where Mr. Coward was stopped.
       It would have been unreasonable for the Calgary Police Service to stop white suspects in
       these circumstances since they had a clear report that the suspect involved was black.

[58] Mr. Coward argues that the entire incident was racialized and racial profiling is not the
only form of race based discrimination prohibited under s. 4 of the AHRCM Act. In his letter to
the Chief Commissioner and in argument before this Court he asks several questions, including:
whether the police would have acted in the same manner on such a vague description if the
suspect had been a white man; would all white men in a certain geographic area have been
stopped for questioning if they were bareheaded and had on some dark clothing; would the
statement of a white man that he had no knife and was a professional have been a satisfactory
response; would there have been a different reaction if a white man had refused to consent to a
search; would the actions of a white man stepping back have been interpreted as raising officer
safety concerns; and were the attitudes of the dispatcher affected by bias.

[59] The role of the Chief Commissioner is to determine whether there is a reasonable basis in
the evidence for proceeding to the next stage based upon an independent review of all facts,
materials and argument before the Chief Commissioner.
                                             Page: 14


[60] In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at para. 55,
Iacobucci J. explained that a decision will be unreasonable:

       ... only if there is no line of analysis within the given reasons that could reasonably lead
       the tribunal from the evidence before it to the conclusion at which it arrived. If any of the
       reasons that are sufficient to support the conclusion are tenable in the sense that they can
       stand up to a somewhat probing examination, then the decision will not be unreasonable
       and a reviewing court must not interfere (see Southam at para. 56). This means that a
       decision may satisfy the reasonableness standard if it is supported by a tenable
       explanation even if this explanation is not one that the reviewing court finds compelling
       (see Southam at para. 79).

[61] The Chief Commissioner is required to and presumed to have conducted his own
assessment, even though the Investigator’s Report was reviewed by him and his letter to Mr.
Coward states: “... I have reviewed the dismissal of the complaint and support the dismissal”. It
is assumed that the Chief Commissioner has expertise in all facets of discrimination, including
the insidious, elusive and corrosive nature of racism as recognized by McLachlin, J. (as she then
was) in R. v. Williams, [1998] 1 S.C.R. 1128. The Chief Commissioner had Mr. Coward’s full
explanation concerning the numerous forms of racism alleged and found no such discrimination.
The reasons provided are somewhat conclusionary, but they show that the Chief Commissioner
focussed on questions of discrimination.

[62] The line of analysis in the Chief Commissioner’s decision in rejecting the discrimination
claim is clear and intelligible: while race is a prohibited ground of discrimination, it may also
operate as a relevant descriptor. As such, it was reasonable for the Chief Commissioner to
determine that there was no generalized heightened suspicion of Mr. Coward on the grounds he
was black: the police received specific information that a described person of a particular race
was engaged in dangerous conduct and they narrowed their search accordingly. This is not like
the Troy case where a person interpreted and reported the equivocal acts of a particular black
person as suspicious and where the Court held, at para. 32, that the Commissioner ought to have
probed whether her beliefs were shaped by unfounded racist assumptions:

       ... In dealing with Mr. Troy’s complaint, the Commission failed to ask itself a number of
       crucial questions that were in dispute, including: why did Stephanie tell 911 that Mr.
       Troy had been at the service station “for a few hours” when even Kemmir contends he
       was there for less than half an hour; why did she say it seemed like he was “casing the
       place”; why did she say that “it could possibly end up being a drug deal by the looks of
       it,” especially if as Mr. Troy says he moved his van only once to the pay phone and not
       three times (even I question whether driving into the station and pulling up to the pumps
       can be counted as one move); why was she suspicious of his behaviour; and would she
       have reacted in the same manner or been suspicious if Mr. Troy instead of being a black
       male, had been a white female?
                                             Page: 15

[63] The decision taken by the Chief Commissioner is the type of question which admits of a
number of possible reasonable conclusions and his conclusion is supported by a tenable
explanation. The decision is not unreasonable and the Court will not intervene.

V.     Conclusion

[64] In conclusion, it should first be understood that there is no jurisdiction in the Chief
Commissioner, or anyone else at the Commission, to comment upon or make findings
concerning the constitutionality of the detention, arrest and search. Nevertheless, on the question
of discrimination, the application for judicial review of the Chief Commissioner’s decision is
dismissed.



Heard on the 16th day of June, 2008.
Dated at the City of Calgary, Alberta this 29th day of July, 2008.




                                                     S.L. Martin
                                                     J.C.Q.B.A.

Appearances:

P.B. McKenna
      Counsel assisting Mr. Coward

J.R. Ashcroft
       for the Respondent

D.D. Merchant
      for Rick Hanson, the Chief
      of Police for the Calgary Police Service

				
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