Allison Hanes: Good intentions clash with political reality in appeal of racial-profiling judgment

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Mayor Valérie Plante and her executive committee decided Wednesday morning to appeal parts of a landmark court ruling holding the city responsible for racial profiling resulting from random interceptions by Montreal police.

But to avoid undermining the administration’s track record on fighting systemic discrimination, the city still plans to pay compensation to thousands of Montrealers who have been accosted by police for driving, taking out the recycling, laughing too loud, eating ice cream, crossing the street, or myriad other innocuous activities while being Black, Indigenous, Latino or Arab.

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The executive committee is engaged in some political contortions in the face of a legal quandary.

On the one hand, the Plante administration has gone to great lengths to recognize the scourge of systemic racism in the city and seems to want to do the right thing by paying reparations to victims of the problematic policy of street checks. On the other, the precedent-setting judgment could have far-reaching financial and legal consequences for Montreal, as well as other public bodies and governments across Quebec and Canada.

Here is Exhibit A of how good intentions often clash with the cold legal realities of civil liability.

In a historic judgment that came down last month in a class-action lawsuit brought by Alexandre Lamontagne and the Black Coalition of Quebec, Quebec Superior Court Justice Dominique Poulin found the City of Montreal is responsible for the actions of police and called the racial profiling resulting from the policy of street checks “systemic.”

Speaking for the Plante administration, Gracia Kasoki Katahwa, the borough mayor of Côte-des-Neiges—Notre-Dame-de-Grâce, said the city agrees with the fundamental conclusions of the ruling, but explained clarity is required on certain points.

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“It’s a partial appeal. We’re in agreement with several elements in the judgment. The mayor has said — and has said many times publicly, and she said it again before the court — that she recognizes the existence of systemic racism and racial profiling,” Kasoki Katahwa said. “We want the victims to be indemnified. We want Mr. Alexandre Lamontagne, one of the plaintiffs with the (Black Coalition of Quebec), we want him to be indemnified as soon as possible. We agree with all of that.

“The reason we have to go to an appeal is that this is a historic judgment. We’re going to set a precedent that is going to impact many courts across the country. That element of the decision that in our view isn’t adequate is the reason we must appeal, because it needs to be clarified. This decision is going to make jurisprudence.”

There are two aspects to the city’s appeal.

Poulin wrote that the city “is responsible for the discrimination against and faults committed toward members of (racialized) groups by police officers exercising their duties. The court also finds the city at fault for contributing to racial profiling through its street checks procedure.

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“The city is contributing to this phenomenon by asking its officers to do prevention and proceed with street checks in a context of systemic racism, where the predictions of police officers are necessarily based on their conscious and unconscious biases and procedures applied that specifically target racialized groups.”

Kasoki Katahwa said that while the city is ready to show accountability, this finding of responsibility is problematic because the Service de police de la Ville de Montréal is governed by provincial statute and is an independent body that the city doesn’t fully control.

“It’s a big question. The judge determined that it’s the City of Montreal that is directly responsible for police practices. We question that conclusion of the judge. We need to clarify that,” she said. “We’re at a moment where we’re discussing reparations, but we’ve also arrived at a moment where we’re discussing who is responsible for police practices in Quebec, and that’s why we have to appeal — to get to the bottom of those questions.”

Poulin ordered city hall to indemnify the victims, whom she divided into four subgroups. The court fixed a prescribed time frame for eligibility. By some estimates, as many as 40,000 people could be entitled to amounts of between $2,500 and $5,000, with claims totalling as much as $170 million.

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But the city is challenging the mechanism for meting out the compensation to the first subgroup, which the judge defines as: “Any racialized person who, in Montreal, between July 11, 2018, and Jan. 11, 2019, as a result of a proactive intervention by a police officer working for the City of Montreal, was stopped without justification and experienced racial profiling in violation of their rights as a citizen and/or in violation of the rights guaranteed by the Canadian Charter of Rights and Freedoms and/or the Charte québécoise des droits et libertés de la personne and whose personal information was registered, excluding members of this group who were targeted by the Eclipse Squad (which focuses on criminal gangs) or as a result of a 911 call.”

Kasoki Katahwa said for this category, money would go into a provincial class-action compensation fund, no matter how many people come forward, rather than be distributed by the city to the victims directly.

“We’re going to appeal because we think there should be individual compensation for the first subgroup, just like for the other three subgroups,” she said. “The difference is, an individual compensation would provide a mechanism so victims can come forward to make claims, versus a collective indemnification, which would require us to set aside an amount, which, yes, a portion would go to the victims, but would include several million for the lawyers and several million for the government of Quebec — a government which, by the way, does not officially recognize systemic racism.”

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For the victims, “this changes nothing,” Kasoki Katahwa insisted.

“The intention is to simplify the process so the victims can be indemnified. But from the point of view of a public institution, in this historic judgment, it’s important that we clarify that it should be individual compensation, not a collective one,” she said, adding that the city is ready, if the other parties are willing, to negotiate a reparations process, even while the appeal is pending.

It’s obvious that the Plante administration is twisting itself into pretzels to justify its decision to appeal. Trying to balance its fiscal and legal responsibilities with maintaining credibility on the anti-racism file leaves the mayor vulnerable to allegations of hypocrisy.

The administration’s sensitivity to such criticism is also evident in its attempts to characterize the appeal as a mere technical matter, focusing on the payout process. But challenging the judge’s finding that the city is responsible for police actions is the crux of this major decision.

Black Coalition of Quebec president Max Stanley Bazin said the city is giving off mixed signals with its appeal.

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“It sends a very, very bad message to the citizens who were victims and still are victims of racial profiling,” Bazin said. “What the city is saying is that it wants to maintain the status quo.”

Perhaps most important, both for eliminating racial profiling and protecting the city from future liability, is what Montreal does next to curb racism against citizens and within the police force.

Patrice Vilcéus, a high-ranking commander who just retired after three decades with the SPVM, made public a departure letter in which he called racism a “cancer eating away at the organization.”

Despite being a pioneer in building relations with diverse communities, Montreal police Chief Fady Dagher has so far declined to outlaw random stops by officers, despite the risk of racial profiling. The Quebec government has also refused to put an end to the tactic while it appeals an earlier court ruling that declared it unconstitutional.

Kasoki Katahwa promised more work will be done with Montreal police.

“A deep reflection is taking place within the SPVM because we have a chief who was chosen, whose values align, who has recognized systemic racism and discrimination and is continuing to work on it,” she said. “So we have to follow up with the SPVM.”

Bazin said that while the class action against the city covers only a limited period in time, it lays groundwork for more suits, decisions and claims against Montreal, other municipalities or other levels of government if nothing changes.

“As long as the practice of interceptions stays, they’re exposing themselves to more liability,” he said.

ahanes@postmedia.com

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