JKB v. Peel (Police Services Board), 2020 HRTO 172

JKB was a 6-year-old girl at a public school. Her litigation guardian, her mother, filed an application at the HRTO alleging that JKB was subjected to differential treatment because of her race, when two police officers treated her in a manner that was lacking in the care and compassion by handcuffing and shackling her at her school. The hearing was bifurcated by agreement of the parties and the question of what remedies should be ordered was not part of the hearing.

On September 30, 2016 two white Peel Regional Police constables attended JKB’s public school after school administrators requested assistance with the girl, who they said was acting violently. During their interaction with JKB, the officers placed her on her stomach and cuffed her at the wrists and ankles. JKB was then kept in that position for 28 minutes until paramedics arrived.

The police officers argued they did their best to keep JKB and others safe in a situation in which JKB’s behaviours were creating a safety risk for herself and others, including the officers. During the hearing, the officers said that they repeatedly tried to verbally de-escalate the situation before JKB was restrained and handcuffed.

The HRTO heard evidence from a behavioural teaching assistant and during the hearing, both officers denied placing JKB on her stomach at any point in the 90 minutes they were at the school. The officers’ evidence was contradicted by the teaching assistant, whose account the HRTO found to be the most reliable. The HRTO also heard from two expert witnesses who testified about implicit bias in policing.

The HRTO considered all the evidence and, while noting that the officers had a legitimate duty to maintain the safety of JKB, others and themselves where JKB’s behaviours were challenging and might have created a safety risk, this did not give the officers’ a licence to treat JKB in a way that they would not have treated a white six-year-old child in the same circumstances.

The tribunal’s ruling does not outline any possible remedies, but another hearing will be held to decide what happens next.

The Tribunal found:

  • That the police officers racially discriminated against JKB when they cuffed her at the wrists and feet and kept her restrained for 28 minutes;
  • That the officer’s actions were “disproportionate” to what was necessary in the circumstances and a “clear overreaction”;
  • That, in the absence of any explanation for the overreaction in placing JKB stomach down with her wrists cuffed behind her, ankles cuffed and maintaining her in this position for 28 minutes, the evidence supported the conclusion that the most probable reason for this action is that the officers were influenced by implicit bias in respect of JKB’s race.

The Tribunal ordered:

  • That the hearing would be reconvened to deal with the remedies at a time and date to be determined by the HRTO Registrar, unless the parties were able to reach agreement on this issue.

To read the full decision, visit Canlii.