The Human Rights Tribunal of Ontario (HRTO) has ruled the race of a six-year-old girl was a factor after she was handcuffed and restrained by Peel Regional Police at her elementary school for almost half an hour.
The ruling by HRTO board member Brenda Bowlby comes after police were called to the Peel Region school on Sept. 30, 2016, after educators said the girl, who has a history of aggressive behaviour, hit a child.
In the Feb. 24 ruling shared by the Human Rights Legal Support Centre on Monday, staff reported the child, who is black, took off down a hall shortly after the incident and tried to hit another student. She then tried to open doors and made her way to the gym stage and threw items at the school’s principal. A behavioural teaching assistant, who also tried to de-escalate the situation, was hit on his lip by a book thrown by the girl.
The behavioural teaching assistant went on to restrain the girl intermittently using a “child lock hold,” but was unable to calm her down. He told the hearing that the girl, who was described as being about 48 pounds and about three-to-four feet, was in the “most heightened state” of agitation and “not much communication was registering with her.”
After police arrived, the student ran away and had to be brought back to the school office by the behavioural teaching assistant and the first responding officers.
The behavioural teaching assistant testified police had to be “hands on” with the girl and despite using “professional tactical communications,” they too were unable to de-escalate the six-year-old. It was at that point when two police officers put handcuffs on the girl’s wrists.
“The applicant was spitting, head-butting and trying to break free. She began kicking the officers, swinging her legs out sideways and coming backwards like a heel kick,” the ruling said, adding the officers spoke and agreed to handcuff her ankles.
Police asked for paramedics to be called and it was noted the girl “seemed intrigued by their instruments and just stopped.” The handcuffs were removed at that point and the officers stepped back. The girl’s mother was called and declined to have her daughter’s blood tested and to be taken to hospital for further assessment.
Peel Children’s Aid Society was contacted twice — once by police after an incident at the school on Sept. 15 and once by paramedics after the Sept. 30 incident. The agency reportedly offered resources to assist the girl, but the girl’s mother declined and said she was looking for resources.
Conflicting recollections in incident
However, in Bowlby’s ruling, she found a disparity between accounts given by the officers and the school’s behavioural teaching assistant in how and when the handcuffs were put on the girl, including on the point of whether the girl was on her stomach when the handcuffs were applied.
“This difference is critical because placing a six-year-old child on her stomach with her wrists handcuffed behind her, her ankles handcuffed and holding her in that position for almost half an hour represents an entirely different type and level of control than leaving her in a sitting position with her hands cuffed in front of her as the officers say they did,” the decision said.
“Placing her on her stomach as described by [the behavioural teaching assistant] would not only further restrict her freedom, but would represent a greater impact on her dignity.”
Noting that the incident happened years before the hearing, Bowlby noted perceptions by the officers and other witnesses may have been impacted.
However, she noted the behavioural teaching assistant’s notes and recollection was “much clearer” than that of the officers. Bowlby said one of the officer’s notes were “hastily made,” “bereft of detail” and the officer said it contained a “significant error.” The other officer’s notes were described as “scant.”
Past instances of aggressive behaviour
In the ruling, it was noted the girl had behavioural issues since beginning school in 2014. There were multiple instances involving the girl hitting children and staff, running around the school, throwing objects, spitting and swearing. After the girl’s mother was called and she attended the school, the child would “appear to be fine.”
A safety plan was eventually put in place in an effort to address the behaviour.
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The girl was eventually diagnosed with oppositional defiance disorder.
Before the Sept. 30 incident, the school contacted Peel police on Sept. 8, 15 and 26. On the 8th, the child reportedly left the gym, climbed a fence and threw rocks and objects at vehicles. On the 15th, the ruling said the girl messed up a bathroom and classroom and punched and kicked staff. The girl was calm by the time officers spoke with her. Police were contacted on the 26th, but were called off before they arrived.
HRTO finds race to be factor in treatment by officers of girl
Bowlby wrote that there was no “direct evidence of discrimination in this case” and that she could only look at if there was an inference of racial discrimination based on the evidence rather than the explanations from officers. She also looked at if the Peel Children’s Aid Society was contacted maliciously (and if so, was the girl’s race a factor).
She noted the responding police officers didn’t have training in dealing with a child in crisis, adding they were called because the school was unable to “manage” the situation.
In reviewing the incident, Bowlby said it wasn’t known what brought on the girl’s behaviour. She said police were told about the girl’s past history and there was no evidence the officers did anything to cause the girl to run off from the office, adding police carried themselves throughout the incident in a “professional and polite manner” and tried to verbally de-escalate.
However, Bowlby said there was no explanation for putting the girl on her stomach and handcuffing her hands and ankles and “then maintained her in that position for 28 minutes,” calling it “disproportionate to what was necessary to provide adequate control and amounts to a clear overreaction in the circumstances.”
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“It is clear that this level of control was significantly more than what the officers acknowledged exercising,” she wrote.
Bowlby dismissed the complaints relating to the calls to Peel Children’s Aid Society, saying there was “reasonable cause” and noting child protection investigations weren’t initiated.
Roger Love, a lawyer for the girl’s family, told Global News Monday afternoon they are pleased with the decision, adding that healing still needs to take place.
“The nature of racism in Canada is it’s subtle. It’s often not overt,” he said.
“Sometimes concepts like implicit bias sometimes aren’t readily understood, so we’re pleased that the tribunal understood the impact of this trauma.”
Love said the tribunal needs to set a date to determine a remedy. He said increased training and examining protocols are among the things they are hoping will be considered.
“Part of this case was ensuring something like this wouldn’t happen again to another black child or any other child, and so the family is really hoping that this case will be the catalyst to spark change,” he said.
Peel Regional Police responded to the decision on Tuesday. A spokesperson said the officers were investigated by the Office of the Independent Police Review Director, a civilian oversight agency.
“The investigators concluded that there were no reasonable grounds to believe that the officers failed to treat the young person equally without discrimination because of her race,” Const. Bancroft Wright wrote, adding misconduct charges weren’t laid as a result of that investigation.
“However, it was determined as a result of that investigation that these officers, and all officers responding to schools, would benefit from further training, which is being implemented.”