TTC overlooked evidence of possible racial bias in review of streetcar altercation: ombudsman

A TTC investigation that ultimately cleared two fare enforcement officers of any wrongdoing in connection with a physical altercation with a black teenager on the St. Clair streetcar last year was not “adequately thorough, fair and transparent” and may have overlooked evidence of unconscious racial bias, according to report by Toronto’s ombudsman.

The internal investigation was undertaken after a woman said that she witnessed fare enforcement officers tackle the teen to the ground as he stepped off the streetcar on Bathurst Street on Feb. 18, 2018.

The 95-page investigative report, which was released last July, found that there was “insufficient evidence to support a finding that the fare inspectors engaged in conduct amounting to discrimination and/or harassment” on the day in question.

The report cleared two of the fare enforcement officers outright but did find a third guilty of “discreditable conduct” for smiling at the customer in a “condescending manner” immediately prior to the incident.

In her enquiry, however, Ombudsman Susan Opler said that the TTC’s investigation “fell short” in several ways.

She said that the investigation “should have identified important facts in dispute and made clear factual findings” but failed to do so. She said that it also did not analyze important issues, such as “evidence of possible unconscious racial bias.”

“As one example, the streetcar’s video clearly shows that just two seconds after the young man got on the streetcar, one of the fare inspectors –- who was not checking fares— spoke to him. Why didn’t the investigators question the fare inspector about his claim that he only spoke to the young man after being stared at non-stop for a prolonged period of time?” Opler writes in the report.

Evidence of unconscious bias was ignored

Opler said that the reason that the man and the first fare enforcement officer began to interact was “critical” to determining whether he may have been “unfairly singled out for extra attention.”

She said that TTC investigators did not do enough to evaluate the story provided to them by the fare inspector, especially in light of video evidence that the fare inspector spoke to the man immediately upon his boarding and then continued to look directly at him for more than a minute.

Furthermore, she said that the investigators failed to examine evidence that could have supported a finding of “unconscious bias racial bias.”

She said that while the report mentions the fact that the fare enforcement officer asked the man if he was OK as an attempt at de-escalation, it does not delve into why the officer felt the need to ask that question within two seconds of him boarding.

She also says that investigators should have asked whether it was “objectively reasonable” for the fare enforcement officer to view the man’s refusal to answer his question as a hostile act.

The report had said that the fare enforcement officer felt “nervous and scared” after the teen did not respond to his question. That same fare enforcement officer then pushed the man as he stepped off the streetcar, later tackling him to the ground with his colleagues after the altercation escalated.

“Is a young black man required to answer such a question from a uniformed fare inspector within two seconds of stepping onto a streetcar in Toronto, without any objective basis for the question being asked?” Opler wrote in her report.

The teen's lawyers, John Kingman Phillips and W. Cory Wanless, issued a statement saying Opler's findings show the TTC investigation was not sufficient or conclusive.

"The TTC’s failure to properly consider evidence that could have supported, at the very least, a finding of unconscious bias on the part of TTC employees who targeted and assaulted our client, a young black man, strongly suggests that the whole investigation was nothing more than a whitewash. The central issue is why our client was targeted by the TTC fare inspectors at all."

Conclusions of TTC investigation can’t be considered reasonable

The TTC’s investigation cited testimony from the fare inspectors indicating that the man had his fists clenched during the interaction, however Opler said that video evidence showed that his “fingers were hanging down at his side or extended off the Presto machine” at all times.

The investigators, she said, appeared to “adopt as fact” the testimony of the fare inspector despite video evidence which appeared to contrast some of what he said.

She said that investigators also failed to ask why one of the fare inspectors and civilian witnesses felt the man might have a weapon.

“Why did participants and witnesses claim to see the young man doing threatening things that the video shows he was not doing?” she asks.

Six recommendations

Opler’s report did not investigate the incident itself, which remains the subject of a civil lawsuit, and therefore does not make any conclusions on what transpired.

That said the report does conclude that the TTC’s own investigations was not “adequately thorough, fair and transparent” and therefore its conclusions cannot be considered reasonable.

It also makes the following recommendations:

• The TTC should develop a plan to strengthen the independence of its internal investigations of the Transit Enforcement Unit.
• The TTC should strengthen its documentation of the Unit Complaints Coordinator's terms of reference and their role and mandate.
• The TTC should also consider creating a protocol for retaining external investigators in appropriate cases.
• All relevant TTC policies and training should clearly state that the standard of proof that applies in investigations of complaints about Transit Fare Inspectors is proof on a balance of probabilities.
• The TTC should document in its investigation policies and procedures that any expert witness it retains should not have ties to the TTC. The expert witness should provide written confirmation that they understand they are being asked for a fair, objective and non-partisan opinion. Furthermore, the TTC should demonstrate that the expert witness prepared their opinion without the TTC’s assistance.
• The TTC should develop a plan to provide additional training to its internal investigators to equip them with the necessary tools to conduct an investigation fairly and independently.

Speaking to reporters on Thursday afternoon, TTC CEO Ricky Leary said that the TTC accepts all six recommendations and plans to implement them by the end of this year.

“It is troubling to me personally and professionally. We want everyone to feel safe and comfortable while using the TTC,” he said.

While he accepted the findings, he would not say whether he personally believed that TTC staff has an unconscious bias.

“What I would tell whether there is an unconscious bias or not, there is a public concern and a public perception, that’s what has to be addressed that’s what I find very troubling.”

Asked about the report at an unrelated press conference, Mayor John Tory said that it does reveal that “there is work to be done” in how the TTC responds to certain allegations.

“I think the public has the right to expect that when there is an incident that needs to be looked into that it will be done in a transparent effective and fair-minded way and the ombudsman found some shortcomings there and those should be remedied, period, full stop,” he said.

Police also conducted an investigation of the incident but opted not to charge any of the fare inspectors.

Civil rights lawyer Selwyn Pieters says Opler’s report found valid concerns with the original TTC probe into the incident.

“We feel that the Ombudsperson identified some significant issues that the TTC missed, we hope that the TTC will take concrete steps to deal with the issues, particularly de-escalation, the unconscious bias issues and how the TTC officers deal with the implicit association that comes with unconscious bias,” Pieters said.

He suggested the video footage of the original encounter should have carried more importance in the original TTC investigation into the confrontation.

“They should have looked at how the TTC fare investigators perceived the young black male that they encountered and what steps they took to disassociate themselves with any sort of stereotypical notions about them linking them with fare evasion or criminality, before even taking a step forward,” Pieters said.