BC Human Rights Tribunal

Radheshwar v. New Westminster Police Board and another, 2025 BCHRT 196

Date Issued: August 15, 2025
File: CS-002700

Indexed as: Radheshwar v. New Westminster Police Board and another, 2025 BCHRT 196

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

Sundar-Jovian Radheshwar
COMPLAINANT

AND:

New Westminster Police Board and Alexandru Oprea
RESPONDENTS

REASONS FOR DECISION

Tribunal Member: Jonathan Chapnick

Counsel for Complainant: Aleem Bharmal and Tanya Lovrich (articling student)

Counsel for Respondents: Naomi Krueger, Anja Nel, and Megan White (law student)

Date of Hearing: July 8-11 and August 15, 2024

Location of Hearing Videoconference

Closing submissions complete: January 22, 2025

I          INTRODUCTION

[1]               Sundar-Jovian Radheshwar is a South Asian man with brown skin colour. His parents are from Karachi, Pakistan. His family is Sindhi. He was born in Bombay (now Mumbai), India, but grew up in the United States. He moved to British Columbia in around 2016. Dr. Radheshwar holds a PhD in Political Science and teaches at Douglas College in New Westminster. At around 10 a.m. on July 27, 2020, he left his apartment building [Apartment], walking to meet a friend for coffee nearby. Dr. Radheshwar alleges that he experienced discrimination in an interaction with two New Westminster Police Department [NWPD] officers that morning, Constables Alexandru Oprea and Peter Jon [collectively, Officers]. Specifically, he says he was racially profiled and aggressively stopped and questioned by the Officers. He says the Officers’ gestures and tone were threatening, and the interaction with them was traumatic.

[2]               On November 30, 2020, Dr. Radheshwar filed a human rights complaint regarding the July 27 interaction, alleging discrimination based on his protected personal characteristics of race, colour, ancestry, and place of origin. For convenience, I will use the term “race” to collectively refer to Dr. Radheshwar’s protected characteristics in this decision.

[3]               The Officers are employed by the New Westminster Police Board [Board]. The Board and Cst. Oprea are the Respondents in Dr. Radheshwar’s human rights complaint.

A.    Overview

[4]               Before interacting with Dr. Radheshwar on July 27, Cst. Jon had been tasked with attempting to locate and arrest a suspect – “Mr. X” – who was known to reside at the Apartment and was arrestable without a warrant for breaching the conditions of his probation. Mr. X had brown skin colour.

[5]               Cst. Oprea was assisting Cst. Jon. The Officers attended at the Apartment at around 10 a.m., observed Dr. Radheshwar from a distance, and – believing he might be Mr. X – followed him for a couple of blocks, calling out to him several times. At a certain point, Dr. Radheshwar turned around, stopped, and interacted with the Officers, after which the Officers turned back to return to the Apartment, having realized that Dr. Radheshwar was not Mr. X.

[6]               Dr. Radheshwar alleges that the Officers discriminated against him by identifying and then aggressively following, stopping, and questioning him primarily because of his skin colour. Further, he alleges that, after the Officers began to backtrack away from him, Cst. Oprea turned around and behaved in a way that was aggressive and hostile. Dr. Radheshwar says that what occurred on July 27 cannot be justified; it was discrimination in contravention of s. 8 of the Human Rights Code.

[7]               In this decision, I will refer to the entire July 27 incident – from when the Officers first saw Dr. Radheshwar exit the Apartment, to when Dr. Radheshwar turned away from the Officers after his final exchange with Cst. Oprea – as the Police Stop.

[8]               The Respondents deny discriminating and argue that Dr. Radheshwar has not proven his case. They say Dr. Radheshwar was not racially profiled, and argue that the evidence does not give rise to an inference of discrimination. The Respondents claim there is a non-discriminatory explanation for what happened on July 27. They say the Officers reviewed Mr. X’s “mugshot” (i.e., police photograph) and/or physical descriptors on the Police Records Information Management Environment database [PRIME] just before seeing Dr. Radheshwar exit the Apartment, and, from a distance, reasonably believed that Dr. Radheshwar might be Mr. X. Accordingly, the Officers followed and called out to Dr. Radheshwar until they were able to get close enough to see his face clearly, at which point they realized their mistake and turned back.

[9]               The Respondents say Dr. Radheshwar appeared to match Mr. X’s general description and was exiting Mr. X’s last known address. They say the Officers followed and stopped Dr. Radheshwar based on these factors, not based on racial stereotypes, and not in a way that was improper. The Respondents deny that Cst. Oprea was aggressive or hostile as the Officers backtracked away. Further, the Respondents argue that, even if the Tribunal decides that Dr. Radheshwar has made his case, the evidence establishes that the Officers’ interaction with Dr. Radheshwar was justified in the circumstances.

B.     Decision

[10]           This complaint arises within the broader social context of what research shows is the “disproportionate policing of racialized communities”: see R. v. Le, 2019 SCC 34 at para. 97 [Le]. It is widely recognized that “racialized groups are disproportionately criminalized and targeted, stopped, and subjected to pointed scrutiny”: Matias v. The Hudson’s Bay Company and another, 2022 BCHRT 17 at para. 58; see Le at paras. 90-97. I accept that race-based over-policing, including in the form of racial profiling, is a social fact, which colours the background to the issues in this case. But it is not determinative of them.

[11]           There are two issues before me. The first is whether Dr. Radheshwar has made his case. The burden is on Dr. Radheshwar to prove that the Police Stop was, or gave rise to, an adverse impact in the Respondents’ services, and that his race was a factor in what happened: Moore v. BC (Education), 2012 SCC 61 at para. 33. If Dr. Radheshwar makes his case, the second issue is whether the Respondents have established their justification defence. The burden shifts to the Respondents to prove that there was “a bona fide and reasonable justification” for what would otherwise be discrimination: Code, s. 8(1).

[12]           For the reasons set out below, I find that the Police Stop was an adverse impact related to Dr. Radheshwar’s race. He has made his case, even though, in my view, the evidence does not support either a finding of racial profiling or an inference of racial bias or prejudice. It does not need to. There is direct evidence that Dr. Radheshwar’s protected characteristics were a factor in the Police Stop, which – in the circumstances of this complaint – itself amounted to an adverse impact within the meaning of the discrimination analysis under the Code.

[13]           In my view, then, the facts before me are sufficient to shift the burden to the Respondents to justify what happened. I find that the Respondents have met this burden. They have established a bona fide and reasonable justification for the Police Stop. This does not mean that the Officers’ conduct during the Police Stop was perfect. In particular, some of Cst. Oprea’s actions were inappropriate and unprofessional, and made a bad situation worse. But despite his behaviour, I find that the Respondents have justified the Police Stop such that there was no discrimination. As a result, the complaint is dismissed.

C.     Issues

[14]           This case is about the Police Stop. In dismissing Dr. Radheshwar’s complaint, I have decided two issues:

a.    Has Dr. Radheshwar proven the elements of his case?

b.    Have the Respondents proven their justification defence?

[15]           I heard evidence related to these issues over the course of a five-and-a-half-day oral hearing. Various documents were entered into evidence and I heard testimony from several witnesses. After the oral hearing concluded, the parties submitted written closing arguments. A preliminary matter arose during closing submissions, which I will address below.

[16]           To make my decision, I have considered all the evidence and submissions of the parties, except the submissions related to the Respondents’ application for sur-reply (discussed below). In my reasons, I only refer to what is necessary to explain what I decided.

II       PUBLICATION BAN

[17]           Before the hearing began, the Respondents filed an application seeking:

a.    An order excluding the public from all or part of the hearing pursuant to Rule 5(2) of the Tribunal’s Rules of Practice and Procedure [Rules], or an order to hear all the evidence of police officers in private pursuant to Rule 5(2) and s. 27.2(4) of the Code [Exclusion Order]; and

b.    An order prohibiting the Tribunal, any party, and any person (including the media) from publishing or sharing any information capable of identifying Mr. X, including his name, last known address, criminal history, and mugshot or a description of it, or other personal identifying information pursuant to Rule 5(6) [Publication Ban].

[18]           The parties made oral submissions regarding the application at the outset of the hearing, after which I gave an oral ruling. I granted the application in part. Specifically, I granted the Respondents’ request for the Publication Ban, but not the Exclusion Order.

[19]           I ordered that:

a.    No person may publish or share any information capable of identifying Mr. X, including his name, last known address, criminal history, mugshot photograph, description of the mugshot photograph, or any other personal identifying information.

b.    Participants in the hearing must refer to Mr. X as Mr. X at all times, and not by his real name.

c.     Hearing participants must not refer to Mr. X’s last known address.

[20]           I also ordered the anonymization of identifying information during the hearing, as reasonably practicable. As a result, hearing participants referred to the Apartment address as #1 A-Street, and they referred to two nearby streets as B-Street and D-Alley. I continue that anonymization in this decision. I thank all participants for their efforts to comply with the Tribunal’s orders at the hearing.

III     Preliminary issue

[21]           Before I explain what I decided in this case, I will deal with a preliminary matter arising from closing submissions; namely, an application by the Respondents to file a sur-reply.

[22]           Following the completion of the hearing, the parties made written closing arguments. Dr. Radheshwar provided his closing argument first, followed by the Respondents, after which Dr. Radheshwar filed a final reply.

[23]           Under the Rules, a party can ask the Tribunal to consider a further submission to address a new issue raised in final reply or new information not available to them when they filed their original submission: Rules 28(5) and (6). In the present case, the Respondents applied to file a sur-reply after receiving Dr. Radheshwar’s final reply, attaching a copy of their sur-reply submission [Sur-reply] for the Tribunal’s consideration.

[24]           The Respondents say that fairness requires the Tribunal to consider the Sur-reply, to allow the Respondents “an opportunity to respond to new evidence, arguments, and misstatements” in Dr. Radheshwar’s final reply. Dr. Radheshwar says there is no valid basis for the Tribunal to consider the Sur-reply. I agree with Dr. Radheshwar. For the following reasons, I am not satisfied that fairness requires an opportunity for further submissions in this case.

[25]           First, Dr. Radheshwar’s final reply is comprised of submissions from legal counsel; it  introduces no evidence. Second, I am satisfied that any new arguments in Dr. Radheshwar’s reply are responsive to closing arguments made by the Respondents, which Dr. Radheshwar did not anticipate or address in his original submission. That is the purpose of reply: Tuson v. The Board of Education of School District No. 5 (No. 4), 2020 BCHRT 195 at para. 24. Finally, fairness does not require me to allow the Respondents to respond to misstatements of evidence or argument in Dr. Radheshwar’s reply. I am satisfied that I can identify and, if necessary, address any misstatements (by either party) on my own, without the parties’ assistance.

[26]           The Respondents’ application is denied. I have not considered the Sur-reply in making my decision in this case, nor have I considered the parties’ response and reply submissions regarding the Respondents’ sur-reply application.

IV    Evidence

[27]           Eight witnesses testified at the hearing, and certain relevant facts were disputed. In deciding this case, I have assessed the credibility and reliability of the witnesses’ evidence, and made findings of fact on a balance of probabilities. In doing so, I have applied the principles summarized in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392, at para. 186:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides … The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross‐examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally …. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time … [citations omitted]

See also Clarke v. City of Vancouver and another, 2024 BCHRT 298 at paras. 22-23 and Fletcher v. Lifestyle Hearing Corporation, 2025 BCHRT 93 at para. 45.

[28]           The Tribunal may believe none, part, or all of a witness’ evidence, and may attach different weight to different parts of their evidence: see R. v. DR, [1996] 2 SCR 291 at para. 93. I have taken this approach in this case.

[29]           In this part of my decision, I introduce the witnesses and explain my general findings regarding the credibility and reliability of their evidence. Later, I make findings of fact and explain the basis for preferring one witness’ testimony over another’s regarding specific matters. I acknowledge that, at the hearing, most witnesses were giving evidence about brief events that took place roughly four years prior. Not surprisingly, some parts of their memories have faded over time. In some instances, I have rejected or given less weight to a witness’ testimony in part because I have found their memory to be less reliable.

[30]           I apologize to the parties and witnesses for the delay in the Tribunal’s process.

A.    Dr. Radheshwar

[31]           Dr. Radheshwar testified on his own behalf. I am satisfied that he did so honestly to the best of his recollection. While the events in question took place several years ago, they were obviously very significant to him, as is evidenced by his writing about the Police Stop (i.e., correspondence and a blog post) and his various complaints (to the Tribunal, the NWPD, and the police complaint commissioner) about what happened. His recall at the hearing was good, and his evidence was generally clear and specific. He testified based on his independent recollection of the Police Stop, while also relying on documents and a surveillance video that was entered into evidence at the hearing [Video].

[32]           Dr. Radheshwar’s story about the Police Stop has been generally consistent over time. In addition, his testimony at the hearing was largely consistent with the other evidence before me. In particular, his testimony about the final 38 seconds of the Police Stop generally aligned with what I saw in the Video.

[33]           This is not to say that every aspect of Dr. Radheshwar’s evidence was clear, accurate, and without inconsistencies. His testimony about distances was sometimes inaccurate, his evidence regarding the timeline of the Police Stop was not always clear, and his account of certain details at the hearing was inconsistent with the Video and seemed to differ from a previous account that he gave to an investigator in January 2021. In my view, however, these were inconsequential flaws that did not undermine the overall credibility and reliability of Dr. Radheshwar’s description of what he recalls doing, saying, seeing, hearing, and feeling during the Police Stop. I reject the Respondents’ submission that Dr. Radheshwar changed his evidence after seeing the Video for the first time in 2024 or otherwise modified his recollection of the Police Stop to serve his interests. There is no merit to this argument, which was made by the Respondents based on their parsing of narrow slices of Dr. Radheshwar’s testimony for minor inconsistencies.

B.     Jeff Shutts

[34]           Dr. Radheshwar also called Dr. Jeff Shutts as a witness. During the Police Stop, Dr. Radheshwar was walking to Dr. Shutts’ home. They were going to meet, get a coffee, and go for a walk. Dr. Shutts teaches history at Douglas College. At the time of the Police Stop, Dr. Shutts and Dr. Radheshwar were colleagues, friends, and neighbours. Dr. Radheshwar testified that Dr. Shutts lived just a two- or three-minute walk from the Apartment.

[35]           Dr. Shutts testified regarding his conversation with, and impressions of, Dr. Radheshwar immediately following the Police Stop. He did not witness Dr. Radheshwar’s interaction with the Officers. At the hearing, he testified that he did not recall many details of his conversation with Dr. Radheshwar that day. He gave evidence about what he was able to remember.

[36]           I am satisfied that Dr. Shutts testified honestly to the best of his ability. However, given the limitations of his recollection, and because of the second-hand nature of his evidence regarding the Police Stop itself, I have given his testimony limited weight in my fact-finding.

C.     The Officers

[37]           The Officers were called as the primary witnesses for the Respondents.

1.      Cst. Oprea

[38]           Cst. Oprea has been a constable with the NWPD since 2018. Before that, he worked for the RCMP for two years. At the hearing, he testified based on his independent recollection of the Police Stop, while also relying on documents and the Video. Cst. Oprea testified that his encounter with Dr. Radheshwar was not an unusual interaction to have with a member of the public. He said nothing really took place, and it was not the type of interaction that he would normally document in any detail. He testified that he did not give the interaction much thought after it happened.

[39]           Cst. Oprea’s recall at the hearing ranged from precise and definitive, to none at all. In certain areas of his testimony, his evidence was at once both detailed and equivocal. In direct examination, he provided particulars of what he did and said at specific points during the Police Stop. However, when alternative descriptions of those same points in time were put to him on cross examination, he equivocated or said he could not remember. His recollection, or lack thereof, seemed to always align with the Respondents’ position in the case. There were no moments of candour, or acknowledgements of what he could have done better during the Police Stop. Moreover, as I discuss below, some of his evidence simply did not add up.

[40]           Overall, I found that Cst. Oprea’s evidence regarding contentious matters lacked credibility, and I have found it difficult to rely on what he told me – with certain exceptions. I have relied on Cst. Oprea’s evidence where it is not disputed, where it does not conflict with Dr. Radheshwar’s, or where it aligns with the Video evidence. For the most part, in key areas where their evidence was in conflict, I have preferred Dr. Radheshwar’s over Cst. Oprea’s.

2.      Cst. Jon

[41]           Cst. Jon has been with the NWPD since 2018; first as a recruit, and then as a constable. At the hearing, he testified based on his independent recollection of the Police Stop, while also relying on documents and the Video. Similar to Cst. Oprea, Cst. Jon testified that the Officers’ encounter with Dr. Radheshwar was an innocuous, run-of-the-mill interaction with the public. He said it would not have occurred to him to document the encounter had he not been told that “a complaint was coming” about it.

[42]           Like Cst. Oprea, Cst. Jon’s recall of specifics seemed to be stronger during direct examination. When conflicting details were put to him on cross examination, he often equivocated or said he could not remember. I found Cst. Jon to be slightly more candid than Cst. Oprea. However, like Cst. Oprea, Cst. Jon’s recollection, or lack thereof, seemed to always align with the Respondents’ position in the case, and some of his evidence was simply not believable. Similar to my impression of Cst. Oprea, I found that Cst. Jon’s evidence regarding contentious matters lacked credibility, and I have found it difficult to rely on what he told me, except where his evidence is not disputed, does not conflict with Dr. Radheshwar’s, or aligns with the Video evidence. For the most part, in key areas where their evidence was in conflict, I have preferred Dr. Radheshwar’s over Cst. Jon’s.

D.    Staff Sergeant Colin Betts

[43]           Staff Sergeant Colin Betts also testified for the Respondents. He has worked for the NWPD for over 20 years. At the hearing, he testified about police officer training and policing policies. S/Sgt. Betts did not witness the Police Stop and gave no evidence about it. There is no dispute about his credibility, and I have accepted all of his evidence as truthful and accurate.

E.     Inspector Aman Gosal

[44]           The last witness for the Respondents was Inspector Aman Gosal. She has worked for the NWPD for roughly 20 years. Insp. Gosal was the professional standards unit officer who dealt with Dr. Radheshwar’s complaint to the NWPD following the Police Stop (discussed below). She testified about those dealings at the hearing. Dr. Radheshwar has relied on her testimony and not challenged her credibility, and I am satisfied that she testified honestly to the best of her ability.

V       Facts

[45]           In this section, I set out my findings of fact. I begin at the end of the story, with a brief outline of some of the activities of Dr. Radheshwar and the Officers following the Police Stop. I then move on to events before the Police Stop and the incident itself.

A.    After the Police Stop

[46]            The Police Stop ended shortly after 10 a.m. on July 27, 2020, at which point the Officers returned to the Apartment to try to locate and arrest Mr. X, and Dr. Radheshwar continued on to meet Dr. Shutts.

1.      The Officers

[47]            Later in the day, each Officer prepared a statement regarding their activities related to Mr. X on July 27 [collectively, Statements]. Cst. Jon completed his Statement at 1:47 pm on July 27; Cst. Oprea completed his at 4:49 pm. Prior to completing their Statements, the Officers were informed that there was or would be a complaint about the Police Stop. Based on this information, they each added additional details to their Statements. In his closing arguments, Dr. Radheshwar asserts that the Officers tailored the Statements to cast their actions in a better light. I touch on this below.

2.      Dr. Radheshwar

[48]           The final stage of the Police Stop happened in close proximity to Dr. Shutts’ home. Dr. Radheshwar then continued on to meet Dr. Shutts.

a.    Meeting with Dr. Shutts

[49]           Dr. Shutts testified that Dr. Radheshwar was agitated and upset when they met. He testified that he could not recall many details about their conversation, but did remember Dr. Radheshwar saying that the Officers asked him for his identification [ID]. During cross examination, Dr. Shutts distinguished between (1) details that he remembered Dr. Radheshwar telling him on the day they met, versus (2) others that Dr. Radheshwar may not have told him, but which he may have heard about at some subsequent point in time. Dr. Shutts insisted that his memory regarding Dr. Radheshwar’s comments about ID fell into the first category.

a.     

b.    Complaint to NWPD

[50]           After meeting Dr. Shutts, Dr. Radheshwar returned home in the early afternoon. He then called the NWPD, and received a brief call back from the Officers’ supervisor. A few hours after that, Dr. Radheshwar received a call from Insp. Gosal. During their conversation, Dr. Radheshwar described the Police Stop and expressed concerns about the Officers, particularly Cst. Oprea. Under s. 85(1) of the Police Act, Insp. Gosal was tasked with recording Dr. Radheshwar’s complaint in a “record of question or concern from the public” form [QC Form]. She did so over the next few days, in consultation with Dr. Radheshwar over email. In her correspondence with Dr. Radheshwar, Insp. Gosal shared information regarding Mr. X’s appearance, which she had derived from a combination of Mr. X’s mugshot and physical descriptors on PRIME. She told Dr. Radheshwar that Mr. X was “in his 30’s” and was “a middle eastern male, medium complexion, approximately [six feet] tall, thick black hair and medium build.”

a.      

b.      

c.     Blog post and OPCC investigation

[51]           In December 2020, Dr. Radheshwar wrote a blog post, titled “Fighting Racial Profiling and Casual Systemic Racism in New Westminster, British Columbia,” in which he described the Police Stop.

[52]           In January 2021, the Office of the Police Complaint Commissioner of British Columbia [OPCC] ordered an investigation of a complaint from Dr. Radheshwar regarding the Police Stop. During the investigation, Dr. Radheshwar was interviewed about the Police Stop. A subsequent decision regarding the OPCC complaint, which was entered into evidence at the hearing before me, contains excerpts from the January 2021 investigation interview [Interview Transcript].

[53]           I will now move on to discuss the morning of the Police Stop.

B.     Before the Police Stop

[54]           Early in the morning on the day of the Police Stop, Cst. Jon was tasked with attempting to locate and arrest Mr. X. Shortly before 10 a.m., Cst. Oprea offered or agreed to help Cst. Jon with this task.

[55]           Cst. Oprea had previously interacted with Mr. X. Roughly a month prior, he was involved in arresting Mr. X, in response to a “call for service” from Mr. X’s former partner (i.e., ex-girlfriend). During that service call, Cst. Oprea got close enough to Mr. X to see his face and make eye contact with him. Cst. Oprea’s undisputed evidence is that Mr. X had previously made threatening comments to his former partner, and was known to have tried to evade police officers in the past by lying to or running away from them.

[56]           Before attending at the Apartment, Cst. Jon reviewed Mr. X’s police profile on PRIME. Specifically, he reviewed Mr. X’s mugshot, as well as information regarding his alleged offences and last known address – which was the address of the Apartment, #1 A-Street. From the information on PRIME, Cst. Jon understood Mr. X to have been charged with domestic violence-related offences and related breaches of a probation order. Under the circumstances, he knew that Mr. X was arrestable without a warrant. Report to Crown Counsel information from Mr. X’s profile on PRIME, which was entered into evidence at the hearing, confirms Cst. Jon’s understanding. Mr. X was charged with (1) criminal harassment for the period between January 13 and June 27, 2020, (2) uttering threats on June 18, 2020, and (3) breaching a release order on June 27, 2020. Mr. X had been ordered not to contact, communicate with, or go anywhere near his former partner. He was reportedly not complying with this order.

[57]           Cst. Jon’s testimony about whether he reviewed Mr. X’s physical descriptor information on PRIME shifted during the hearing. I address this below.

[58]           The Officers arrived at the Apartment in separate vehicles at around 10 a.m. Cst. Oprea testified that, prior to exiting his vehicle, he reviewed Mr. X’s information on PRIME:

Before I exited my vehicle at that time, I had pulled up a mugshot of Mr. X, and just to familiarize myself with his appearance. And his other physical descriptors were that he was described as a – what appeared to be a Middle Eastern male, approximately six foot, slim build, with dark short hair.

[59]           The mugshot is a headshot photo, which shows a younger looking man, clean shaven, without glasses, with brown skin, brown eyes, and short black hair. Mr. X was 30 when the mugshot was taken.

[60]           I note here that Dr. Radheshwar is six feet tall. In the Video, he is wearing sunglasses and appears to have some facial hair. His skin colour in the Video looks similar to that of the suspect in the mugshot; however, he testified that his skin colour would have been darker than Mr. X’s in the summer time. His hair in the Video is cut short, but shaped differently than the that of the suspect in the mugshot. Dr. Radheshwar’s hair colour in the Video appears dark; however, based on his appearance at the hearing, I accept Dr. Radheshwar’s testimony that his hair has not been black for many years and was quite grey in July 2020. He was 40 at that time. At the hearing, Dr. Radheshwar looked considerably older than the suspect in the mugshot, and, from up close, their facial features differed significantly.

[61]           At the hearing, there was a lot of discussion about Dr. Radheshwar’s build, compared to Mr. X’s. Dr. Radheshwar described himself as being “very skinny” in the summer of 2020. He stated that he weighed between 135 and 145 pounds, in contrast to Mr. X, whose physical descriptor information in August 2020 showed a weight of 165 pounds. The PRIME profile information at that time indicated that Mr. X had a “medium build,” whereas the Officers testified that they understood Mr. X to have a “slim build.” This supposed understanding is reflected in Cst. Oprea’s Statement. Each Officer testified that his understanding of Mr. X’s build came from his review of the mugshot before the Police Stop. Cst. Oprea also attributed his understanding to his prior interaction with Mr. X.

[62]           Dr. Radheshwar suggests that the Officers were not truthful about the information they reviewed before the Police Stop and their understanding regarding Mr. X’s build. He says they tailored their Statements, and he casts doubt on their credibility. I agree that the Officers’ evidence in these areas raises credibility issues.

[63]           I do not accept Cst. Oprea’s testimony that, when he reviewed PRIME before the Police Stop, it indicated that Mr. X had a “slim build.” The contemporaneous PRIME profile information before me contradicts his testimony. I also find that Cst. Jon’s testimony in this area lacked credibility. When he was initially cross examined, Cst. Jon testified that he could not remember if there were physical descriptors on PRIME when he reviewed Mr. X’s information before the Police Stop. He testified that Mr. X “may have been documented as being Middle Eastern,” and PRIME “may have also had his height [and] perhaps … a weight.” I found this testimony to be unnecessarily vague and somewhat evasive. Then, when the Officers were later recalled for further cross examination, Cst. Jon’s testimony shifted. At that point in the hearing, he confirmed that he had, indeed, reviewed certain physical descriptor information in Mr. X’s PRIME profile, stating that “PRIME had [Mr. X] as Middle Eastern,” and that he was “sure there would have been some mention of his height and build.”  

[64]           Based on their testimony, I find that, when the Officers reviewed PRIME before the Police Stop, they each came across at least some of Mr. X’s physical descriptors, including his build. Based on the contemporaneous PRIME profile information before me, and considering Insp. Gosal’s evidence regarding what she saw on PRIME, I conclude that the build descriptor the Officers saw for Mr. X was “medium build.” Insofar as their evidence indicated otherwise, I find it to be inaccurate, if not misleading. These inaccuracies have impacted my assessment of the credibility and reliability of both Officers’ evidence regarding contentious matters.  

[65]           Still, it is not disputed that the Officers reviewed the mugshot before the Police Stop. I accept that they each relied on the mugshot, at least in part, in their attempt to locate and arrest Mr. X. They were both experienced police constables, who would have had no reason to disregard a police photograph of the suspect they were looking for.

[66]           In my view, the suspect in the mugshot could reasonably be perceived as having either a slim or medium build. Further, I find that Dr. Radheshwar’s build in the Video looks similar to what a reasonable person might expect the build to be of the suspect in the mugshot.

C.     First part of Police Stop (roughly 2 minutes)

[67]           Before I get to the Police Stop itself, I will make some introductory comments and findings.

1.      Comments regarding my fact finding

[68]           First, I have broken up my fact finding regarding the Police Stop into two parts: (1) the part of the Police Stop that was not captured in the Video, and (2) the part of the Police Stop that was partially captured in the Video.

[69]           Second, based on Dr. Radheshwar’s testimony about the walking distance from the Apartment to Dr. Shutts’ home, I find that the part of the Police Stop that was not captured in the Video lasted roughly two minutes.

[70]           Third, the Video is 50 seconds in length; however, the Police Stop ends before the Video concludes. Based on my review of the Video, I find that the part of the Police Stop that was partially captured in it lasted 38 seconds. In total, then, the Police Stop happened over a period of under three minutes.

[71]           Finally, there were some challenges and discrepancies in the witness testimony regarding the distances at play in the Police Stop. The Officers provided fairly specific estimates of distances, while Dr. Radheshwar struggled to do so. Cst. Oprea measured distances in feet, while Cst. Jon did so in metres. The estimates they provided sometimes differed significantly. For example, Cst. Oprea testified that, when the Officers were initially walking behind Dr. Radheshwar on A-Street, they were “approximately 40 feet”  behind him. In contrast, Cst. Jon testified that Dr. Radheshwar “would have been approximately … 30 to 40 metres [i.e., roughly 100 feet] away” from the Officers at that point. Each of the witnesses also gave slightly different estimates of the distance between them when the Officers stopped approaching Dr. Radheshwar and turned back to return to the Apartment.

[72]           In contrast to the witness testimony, the Google map [Map] and Video evidence proffered by the parties was much more clear. I have largely relied on those documents, not witness testimony, in my fact-finding regarding distances. For the most part, I have measured distances in car lengths, based on the cars pictured in the Map and the Video.

2.      Findings of fact regarding first part of Police Stop

[73]           Constables Jon and Oprea met outside the Apartment near the main entrance area. Soon after, Dr. Radheshwar exited the Apartment and turned left, heading southwest along A-Street, at which point he noticed Cst. Oprea, but kept walking.

[74]           Dr. Radheshwar testified that Cst. Oprea was looking directly at him, and they made very brief eye contact. Cst. Oprea denies making eye contact and said he did not get a view of Dr. Radheshwar’s full face. I find that Cst. Oprea’s evidence is not irreconcilable with Dr. Radheshwar’s. Based on the Officers’ undisputed testimony regarding their distance from Dr. Radheshwar during this first moment of contact, as well my review of the Map, I find that the Officers were roughly 30 feet away from Dr. Radheshwar when they first saw him. Given the distance between them and the quickness of the initial interaction, and considering that Dr. Radheshwar was wearing sunglasses and had turned left, walking away from the Officers, I accept that Dr. Radheshwar briefly looked directly into the eyes of Cst. Oprea, while Cst. Oprea did not see Dr. Radheshwar’s eyes or full face, and did not receive Dr. Radheshwar’s gaze.

[75]           Cst. Oprea testified that he took notice of Dr. Radheshwar because he was exiting Mr. X’s last known address and matched Mr. X’s general description, including being “a male that was Middle Eastern or appeared to be Middle Eastern” and was six feet tall. When asked in cross examination what he meant by Middle Eastern, Cst. Oprea testified that Middle Eastern generally means “dark features” including “darker skin or olive skin.”

[76]           Dr. Radheshwar testified that Cst. Oprea looked at him very intensely. He described Cst. Oprea’s look as “the eye, or the evil eye, or a glare, perhaps.” He said this struck a nerve with him; he felt that Cst. Oprea “had some sort of an issue with me immediately upon seeing me.” Dr. Radheshwar testified that this first moment of contact “triggered a fight or flight response” in him. He said he had received “that kind of a look” at previous times in his life, “generally speaking from people who are engaged in a form of racism.” He associated the experience with Islamophobic racism he had experienced in the United States after 9/11.

[77]           Knowing that he had done nothing wrong, Dr. Radheshwar kept walking. At that point, he had only seen Cst. Oprea; he had not noticed Cst. Jon. While Dr. Radheshwar continued walking, Cst. Oprea told Cst. Jon that he “believed that this might be Mr. X,” but that he did not get a full look at his face so he wanted to double check. Cst. Jon testified that he had also noticed Dr. Radheshwar, but had not seen his face. Like Cst. Oprea, from what Cst. Jon had seen, he believed that Dr. Radheshwar’s appearance matched the general description of Mr. X. Among other things, Cst. Jon viewed Dr. Radheshwar as having “darker skin.” The Officers began to follow Dr. Radheshwar along A-Street.

[78]           Dr. Radheshwar did not run, but “walked with pace” towards the corner of B-Street, at which point he heard someone calling out. He testified that he heard someone shout “hey you!” but he continued walking. The Officers admit to repeatedly calling out to Dr. Radheshwar. Cst. Oprea testified that he yelled Mr. X’s first name multiple times. Cst. Jon testified that they were both shouting “hey, excuse me!” to get Dr. Radheshwar’s attention.

[79]           Dr. Radheshwar turned left at B-Street, heading southeast towards a courtyard off of D-Alley, which was where Dr. Shutts lived. Dr. Radheshwar testified that, as he walked down B-Street, he again heard someone shout “hey you!” – this time in a louder voice and with a more aggressive tone. The Officers admit that they continued yelling to get Dr. Radheshwar’s attention. Cst. Oprea testified that he raised his voice louder and continued to yell Mr. X’s first name. Cst. Jon corroborated Cst. Oprea’s testimony. For his own part, Cst. Jon testified to yelling, “excuse me, excuse me!” as they quickened their pace, following Dr. Radheshwar down B-Street.

[80]           Both Officers testified that they did not recall shouting “hey you!” – but their evidence in this regard was uncertain. In contrast, Dr. Radheshwar’s recall was clear and his evidence about what he heard that day has been consistent over time (see, for example, the QC Form and the Interview Transcript). Considering the witnesses’ evidence as a whole, I find it most likely that the Officers yelled a combination of Mr. X’s first name, “hey you!” and “excuse me” at various times as they followed Dr. Radheshwar. I acknowledge that Dr. Radheshwar has consistently denied that the Officers shouted Mr. X’s name. I accept that he only heard them shout “hey you!” It does not follow, however, that they did not also shout other things, which he did not hear or pick up on. Indeed, Dr. Radheshwar testified that he would not have responded to shouts of “hey, Mr. X!” because that is not his name.

D.    Second part of Police Stop (38 seconds)

[81]           The Officers were shouting to Dr. Radheshwar as he walked down B-Street. This is where the Video begins. The Video does not have sound. In my fact-finding below, I note the time in the Video in parentheses. In the Video, the Police Stop lasts 38 seconds, starting at 00:00 and ending at 00:38.

1.      Arrival at D-Alley

[82]           The block of B-Street between A-Street and D-Alley was roughly a third of the length of Dr. Radheshwar’s block of A-Street, measuring roughly eight or nine car lengths. The video only shows about two car lengths of B-Street before it hits D-Alley.

[83]           Dr. Radheshwar walked down the right side of the road on B-Street, about to reach D-Alley (00:00 to 00:03). The courtyard near Dr. Shutts’ home was just over a car length ahead of him. That was around the time when he heard someone shout “hey you!” again – this time in a louder voice and more aggressive tone. As he stepped onto D-Alley, Dr. Radheshwar turned, looked back, and stopped (00:03 to 00:06). At this point, the Officers were not in view of the surveillance camera.

[84]           Cst. Oprea testified that he may have been shouting to Dr. Radheshwar to turn around. In his Statement, he wrote that the Officers asked Dr. Radheshwar to “hold on.” Dr. Radheshwar denied that Cst. Oprea said “hold on,” but in their cross examination of Cst. Oprea, complainant counsel suggested the opposite. I accept that Dr. Radheshwar heard someone shout “hey you!” and that Cst. Oprea likely also said something to the effect of “hold on” or “turn around,” which Dr. Radheshwar may not have heard.

[85]           I accept Cst. Jon’s testimony that the Officers were walking quickly down B-Street when Dr. Radheshwar turned around, as it is consistent with Dr. Radheshwar’s narrative and aligns with the timing of the Video.

2.      Verbal exchange

[86]           After turning around and stopping, the Video shows Dr. Radheshwar making a questioning gesture, pointing to his chest and tilting his head forward as he appears to speak (00:07). I accept his testimony that he said “who me?” at that moment. Cst. Jon testified that he could not hear what Dr. Radheshwar was saying.

[87]           Dr. Radheshwar testified that Cst. Oprea then said, “yeah you.” However, this evidence was not put to Cst. Oprea on cross examination. I make no finding as to whether Cst. Oprea said “yeah you.” In my view, nothing turns on it.

[88]           The Video then shows Dr. Radheshwar quickly shaking his head and appearing to say something. Dr. Radheshwar testified that, as the Officers continued to approach, Cst. Oprea asked him if he was Mr. X (using Mr. X’s first name), to which he responded “no.” Cst. Oprea denied asking Dr. Radheshwar if he was Mr. X. I prefer Dr. Radheshwar’s evidence, for the credibility reasons discussed above, and because it aligns with the Video evidence and the QC Form.

[89]           In addition, there is another reason why I prefer Dr. Radheshwar’s evidence. I have already found that Cst. Oprea was yelling Mr. X’s name as he followed Dr. Radheshwar. I also accept Cst. Oprea’s evidence that he was trying to determine if Dr. Radheshwar was Mr. X, and that, if he was, the Officers “were going to arrest him right there and then.” Further, I accept Cst. Oprea’s testimony about the importance of properly identifying a suspect before arresting them. Cst. Oprea testified that police officers need to make sure that they “are not arresting the wrong person” and “that there is no mistaken identity when it comes to arresting someone.” He said “getting arrested is a traumatic event in itself,” and police officers must ensure that they “do anything and everything that [they] can to not arrest the wrong person.” In my view, Dr. Radheshwar’s claim that he was asked if he was Mr. X harmonizes with all of this evidence from Cst. Oprea.

[90]           After answering that he was not Mr. X, Dr. Radheshwar paused, with his head still tilted forward (00:10-00:12). In the Video, he appears to be listening to someone speaking to him. He then raised his right arm and pointed to his right (north or northeast), looking quickly in that direction and then back up B-Street, tilting his head forward and speaking (00:13-00:15). He then pointed his raised arm towards the courtyard behind him, looking briefly in that direction and then back up B-Street (00:16-00:19). In the Video, he appears be engaged in a verbal exchange. He then lowered his arm and put it at his hip, tilting his head slightly forward (00:20). Again, he appears in the Video to be listening to someone speaking to him.

[91]           That is when Cst. Jon appears on screen in the Video, roughly three car lengths away, walking down the centre of the road on B-Street (00:20). Cst. Oprea then appears on Cst. Jon’s left (00:21). They were in full police uniform, looking at Dr. Radheshwar, walking quickly towards him.

[92]           Dr. Radheshwar testified that, after answering that he was not Mr. X, the Officers continued approaching. As they approached and were roughly halfway down B-Street, Cst. Oprea said something along the lines of “c’mon, you look just like him,” and then asked for ID, to which Dr. Radheshwar responded that he had none on him. He then told the Officers that he was just out for a walk and pointed in the direction of the Apartment, showing the Officers where he lived. Dr. Radheshwar testified that he also told the Officers he was meeting a friend, showing them where he was going by pointing in the direction of Dr. Shutts’ home. He said the Officers continued approaching and Cst. Oprea asked for ID again, to which he responded “I don’t know what to tell you.”

[93]           Cst. Oprea denies saying “c’mon you look just like him” or requesting ID. He testified that he recalled Dr. Radheshwar pointing, but not what was said. He confirmed that there was a conversation happening at this point of the Video, but testified that he was not sure who was speaking, what was asked, or what was said.

[94]           Like Cst. Oprea, Cst. Jon denied that the Officers asked for ID, and he was unable to tell me what Dr. Radheshwar said when he was pointing and speaking on the Video. Unlike Cst. Oprea, however, Cst. Jon denied that a conversation was occurring. He testified that it looked like Dr. Radheshwar was gesturing to the Officers, but “even if he was trying to say something to us, I wouldn’t have been close enough to even start a conversation without yelling, and this isn’t a situation that warrants yelling in my opinion, except to get his attention.” Cst. Jon testified that he did not think he could even hear Dr. Radheshwar at that point.

[95]           I prefer Dr. Radheshwar’s testimony regarding this part of the Police Stop, not only because I found him to be a more credible and reliable witness than the Officers, but also for other reasons. First, Dr. Radheshwar’s testimony regarding what Cst. Oprea said and asked for during this part of the Police Stop has been consistent over time. His testimony generally aligns with what he told Insp. Gosal in July 2020 and what he wrote in his blog post in December 2020. It is also reflected in the Interview Transcript from January 2021. Second, Dr. Radheshwar’s version of events is consistent with the Video evidence, which he had not seen until 2024. Third, at the hearing, Dr. Radheshwar’s recall of this part of the Police Stop was clear, whereas each Officer’s recall was poor and conflicted with the other’s. Finally, I note again Cst. Oprea’s evidence regarding the lengths to which police officers will go to properly identify a suspect before making an arrest. In my view, Dr. Radheshwar’s claim that he was asked for ID harmonizes with Cst. Oprea’s evidence in this regard.

[96]           I acknowledge that, in their Statements on the day of the Police Stop, each Officer wrote that they had not asked Dr. Radheshwar for ID. Cst. Oprea did so emphatically, in capital letters, writing that, “At NO TIME, did either [Officer] ask for the male’s ID.” I do not know why the Officers wrote that they did not ask for ID. I do not understand why, in Statements otherwise comprised exclusively of attestations regarding what the Officers did do on July 27, 2020, they each saw fit to add the same, one, specific declaration regarding what they did not do. I also do not understand how, on one hand, the Officers were unable at the hearing to remember anything that was said in the verbal exchange at this point of the Police Stop, while, on the other hand, being able to testify with absolute certainty that they did not ask Dr. Radheshwar for ID during the exchange. I cannot make sense of the Officers’ evidence. In contrast, in my view, it makes good sense and is reasonable to conclude that Dr. Radheshwar, who was clearly pointing to his Apartment in the Video, was doing so in response to Cst. Oprea’s repeated request for his ID, which he was not carrying.

3.      Approach and retreat

[97]           Dr. Radheshwar remained still for the next nine seconds of the Police Stop (00:21-00:30). Cst. Oprea slowed down as he approached Dr. Radheshwar, then – within roughly two car lengths of Dr. Radheshwar – stopped his forward motion and looked towards Cst. Jon, who continued looking at Dr. Radheshwar and walking forward (00:22-00:24). Cst. Oprea then began walking backwards, still looking at Dr. Radheshwar but moving away from him (00:25-00:26). At the same time, Cst. Jon stopped within roughly one car length of Dr. Radheshwar, still looking at him (00:25). Cst. Jon then quickly turned away from Dr. Radheshwar and began backtracking, before looking back over his shoulder at Dr. Radheshwar while continuing to retreat up B-Street (00:26). At that point, Cst. Oprea – who was still facing Dr. Radheshwar and walking backwards away from him – lifted his right arm (00:27-00:28). In the Video, he appears to wave towards Dr. Radheshwar while speaking. Meanwhile, Cst. Jon looked away from Dr. Radheshwar and then down at his phone, as he continued back up B-Street. Finally, Cst. Oprea lowered his right arm as he turned away from Dr. Radheshwar, and both Officers continued to walk away, exiting the screen in the Video (00:29-00:30).

[98]           Both Officers testified that, when they finally got close enough to see Dr. Radheshwar’s face clearly, they immediately determined that he was not Mr. X. Having realized their mistake, they quickly turned back. Cst. Oprea testified that, as he retreated, he put his hand up in “an apologetic gesture, and stated that we were there looking for someone to arrest, that we initially thought it might be him, it wasn’t him, apologized, and went to walk away.” Cst. Jon gave similar testimony, saying that, as he backtracked: “I basically said we were looking for someone else and I apologized and went hurriedly back” to the Apartment.

[99]           Dr. Radheshwar testified that the Officers did not apologize and that he was in shock as they departed. He said Cst. Jon might have muttered something to the effect of “it’s not him” to Cst. Oprea as they started walking away, but he was not sure. He testified that he “can’t say [he] heard every single word because [Cst. Jon] spoke much more quietly than Oprea did.”

[100]       Based on the Video evidence, I find that Dr. Radheshwar’s recollection regarding the Officers’ retreat is somewhat inaccurate, perhaps because of the quickness within which they retreated and his inability to hear Cst. Jon clearly. In the Video, Cst. Oprea’s departing gesture appears to be an apologetic one, and both Officers seem to say a few words as they depart. I accept that the Officers quickly said something along the lines of “sorry” as they backtracked, and conveyed that Dr. Radheshwar was not who they were looking for. The Video evidence does not support a finding that the Officers engaged in any sort of dialogue with Dr. Radheshwar about what had happened and I find that no such dialogue occurred.

[101]       Cst. Jon testified that, upon realizing that Dr. Radheshwar was not Mr. X, he “turned around to quickly get back to the [Apartment] because [he] was afraid that [Mr. X] might come out of the building at some point and [the Officers] would miss him.” He said they walked away hurriedly to return to the front of the Apartment “to try to arrest the proper individual and ensure he did not, you know, essentially get away from us from the building.” When asked in cross examination, Cst. Jon testified that he recognizes that “there are specific challenges for racialized individuals” in regards to interactions with police. He said that, in this instance, his actions were “in balance with … the urgency [he] felt to get back to the building.”

[102]       I accept Cst. Jon’s testimony regarding the hurried nature of the Officers’ retreat and the reason for their hurry. It was not disputed in Dr. Radheshwar’s evidence and is consistent with the Officers’ actions in the Video. In his closing arguments, Dr. Radheshwar acknowledges that the Officers were looking for a dangerous suspect in an urgent situation.

4.      Final Exchange

[103]       As the Officers left the view of the surveillance camera, Dr. Radheshwar shrugged, lifting his arms with his hands open, palms up (00:30). He looked up B-Street, in the Officers’ direction, shaking his head (00:31). In the Video, he appears to be speaking to someone. He then took a few steps backwards, with his arms out at his sides (00:32-00:34). It appears in the Video that he is continuing to engage with the Officers. He then began to slowly turn his body away, towards the courtyard, while still looking in the direction of where the Officers would have been (00:35-00:36). Finally, he turned entirely towards the courtyard, making a more dramatic shrug, lifting his arms with his hands open above his shoulders, palms up, and then lowering his arms as he kept walking (00:38).

[104]       The Officers did not mention this part of the Police Stop in their Statements. Each of the Officers and Dr. Radheshwar testified about it at the hearing.

[105]       Dr. Radheshwar testified that, as the Officers were walking up B-Street, Cst. Oprea turned around and threw his arms up in the air in an aggressive gesture, shouting “what?!” Dr. Radheshwar testified that he responded to Cst. Oprea by also saying “what?” He testified that Cst. Oprea then shouted “what?!” again in a hostile tone, to which Dr. Radheshwar replied by saying something along the lines of “nothing, I’m just shocked by what happened here.” I will refer to this interaction as the Final Exchange.

[106]       The Officers’ testimony regarding the Final Exchange differed from Dr. Radheshwar’s. In direct examination, Cst. Oprea testified that he remembered seeing Dr. Radheshwar standing at the bottom of B-Street with his hands out to his sides, so he “asked if everything was okay or if I can help you, or something along those lines,” to which Dr. Radheshwar responded “that he felt accosted.” Cst. Oprea testified that the Officers then “explained to [Dr. Radheshwar] again that we were just looking for someone in the area that resembled his appearance and it wasn’t him, and we turned around and walked away.” Cst. Oprea could not recall if it was him or Cst. Jon who offered this additional explanation.

[107]       Similarly, Cst. Jon testified that Dr. Radheshwar “looked puzzled at one point looking back at us, so just to assuage his fear that he wasn’t in any trouble, we said ‘sorry, we were looking for someone else, but you aren’t the person we’re looking for.’”

[108]       When asked during cross examination if he said “what?” in an aggressive tone or threw his hands up in an aggressive manner, Cst. Oprea equivocated. He said: “No, I don’t think I said that; I don’t think I had any reason to be aggressive towards him.” He also answered: “I had no reason to do that; I don’t think I did that.” Similarly, when Cst. Jon was asked in cross examination if Cst. Oprea turned around and said “what?” to Dr. Radheshwar, he answered that he did not recall. When asked by complainant counsel if Cst. Oprea said “what?” a second time in an aggressive tone and threw up his hands, Cst. Jon answered: “No, I don’t recall anything like that.”

[109]       I prefer Dr. Radheshwar’s testimony regarding the Final Exchange over that of the Officers. In general, Dr. Radheshwar was a more credible and reliable witness than the Officers at the hearing. Specifically regarding these last moments, his evidence about what Cst. Oprea said (and did not say) has been consistent over time (see the QC Form, the Interview Transcript, and Dr. Radheshwar’s blog post) and was expressed unequivocally at the hearing. In addition, Dr. Radheshwar’s version of events aligns with his appearance in the Video, while the Officers’ version does not. Dr. Radheshwar’s appearance in the Video during the Final Exchange can reasonably be described as confused, upset, and, at the very the end, exasperated. It is not the appearance of a person who has received repeated apologies and explanations, or whose concerns have been assuaged. Quite the opposite. Finally, in my view, Dr. Radheshwar’s testimony regarding these final moments, like his other evidence at the hearing, seems consistent with his decision to name Cst. Oprea as an individual respondent in this proceeding, but not Cst. Jon.

[110]       In the Interview Transcript, Dr. Radheshwar is recorded as saying that the Final Exchange ended after Cst. Oprea shouted “what?!” the second time, at which point Cst. Jon “kind of corralled [him] with [his] arm and the two of them walked” away, back up B-Street. At the hearing, Dr. Radheshwar was unsure about whether this happened before or after the Final Exchange. In closing arguments, the Respondents denied that Cst. Jon corralled Cst. Oprea. Despite this denial, I accept Dr. Radheshwar’s evidence that the Final Exchange ended with Cst. Jon gesturing with his arm for Cst. Oprea to continue back up B-Street.

[111]       The Video ends with Dr. Radheshwar crossing the remaining width of D-Alley, stepping onto the sidewalk, and proceeding into the courtyard.

VI    Has Dr. Radheshwar proven the elements of his case?

[112]       British Columbia’s Violence Against Women in Relationships policy [VAWIR] and the NWPD’s Domestic Violence Investigations policy [DVI] each call for a “priority response” to domestic violence situations, including reported breaches of protective orders: VAWIR at 7; DVI at para. 8. NWPD officers are required to make all reasonable efforts to locate and arrest a domestic violence suspect where grounds exist to do so: DVI at para. 34. There is no dispute that this was the situation on the day of the Police Stop. It is not disputed that, in the morning on July 27, 2020, the Officers were acting under their lawful authority to find and apprehend Mr. X. The present case is about whether they discriminated against Dr. Radheshwar in doing so.

[113]       The first issue before me is whether the Police Stop adversely impacted Dr. Radheshwar in connection to his actual or perceived race. Relying on the Officers’ own evidence, Dr. Radheshwar argues that they identified, followed, and stopped him primarily because of his skin colour, and that the Police Stop was a race-related adverse impact. For the reasons set out below, I accept this argument. Before getting to those reasons, however, I will first address Dr. Radheshwar’s other arguments, which I do not accept.

A.    Racial profiling and inference of discrimination

[114]       Dr. Radheshwar suggests that the broader social context in this case gives rise to an inference of race-based discrimination. More specifically, he asserts that he was racially profiled. He refers to the Officers’ decision to follow him as “their initial mistake, which was based on racial profiling.”

[115]       Racial profiling is a form of race-based discrimination. In the policing context, the concept of racial profiling is “primarily concerned with the motivation of the police.” Racial profiling “occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”: Le at para. 76.

[116]       The Ontario Court of Appeal in R. v. Dudhi, 2019 ONCA 665 [Dudhi] at para. 55 described racial profiling as having an attitudinal component and a causation component:

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10 [Peart]. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

[117]       The court in Dudhi stressed that decisions can amount to racial profiling even if they are not motivated solely or predominantly by race or racial stereotypes:

If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment: para. 62.

[118]       The basic legal principles of race-based discrimination under the Code are consistent with, but not limited to, these concepts of racial profiling. To prove discrimination by the Officers, Dr. Radheshwar must establish that his race was a factor in the Police Stop; he does not, however, need to prove that it was the sole or overriding factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at paras. 45-52. Nor does Dr. Radheshwar need to establish that the Officers intentionally or consciously discriminated against him: Code, s. 2; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 101 [Campbell No. 4]; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at para. 482.

[119]       As is the case in this complaint, allegations of racial discrimination can sometimes be supported by direct evidence. I will return to this below. Usually, however, race-based human rights complaints turn on inferences drawn from circumstantial evidence. In some cases, for example, evidence of a broader social context may support an inference of discrimination: Clarke at para. 100; Campbell v. Vancouver Police Board, 2019 BCHRT 12 at paras. 16-19 [Campbell No. 1]; see R.R. v. Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 at para. 149. Social context evidence can help the Tribunal interpret individual incidents that may otherwise be ambiguous or explained away: Clarke at para. 100, citing Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (2005); see Campbell No. 4 at para. 103 and Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at paras. 288-289. This type of evidence can be particularly helpful to decision-makers in cases of alleged racism, like the one before me: see Campbell No. 1 at para. 16, citing Johnson v. Halifax Regional Police Service, 2003 CanLII 89397 (NS HRC) at para. 85.

[120]       As I stated earlier in this decision, I accept that race-based over-policing, including in the form of racial profiling, is a social fact. I have taken notice of this social context in the absence of expert evidence or secondary source materials from Dr. Radheshwar. In this case, however, the social context of disproportionate policing of racialized communities is not enough, on its own, to prove that Dr. Radheshwar was discriminated against: Clarke at para. 102. Nor is Dr. Radheshwar’s subjective perception of racism determinative of the discrimination question before me: see Clarke at para. 103; Francis at para. 283; Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 186. An inference of discrimination must be drawn reasonably and practically from the facts established by the evidence: Smith at para. 188; Clarke at para. 102; Bombardier at para. 88. It may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44; Abbott v. Toronto Police Services Board, 2009 HRTO 1909 at para. 31; Campbell No. 4 at para. 103.

[121]       For the following reasons, I am not satisfied that the evidence offered in this case establishes that Dr. Radheshwar was racially profiled or otherwise supports an inference of discrimination.

[122]       First, regarding the concept of racial profiling in particular, I note that the Police Stop did not involve suspect selection. The suspect was Mr. X. He was known to the Officers. They had reviewed his photograph and physical descriptors. I find, on the evidence, that the Officers followed Dr. Radheshwar because they believed he might be Mr. X, not because they arbitrarily suspected that he was dangerous or had a propensity to offend based on his race. The Officers did not conceive of Dr. Radheshwar as a suspect, they mistook him for their suspect, Mr. X. I agree with the Respondents that there is insufficient evidence “upon which to infer that the Officers’ decision to engage [Dr. Radheshwar] was based on either conscious or unconscious presumptions or suppositions of criminality based on race, colour, ancestry, or place of origin.”

[123]       Second, unlike in Dudhi, there is no direct evidence that the type of “race-based thinking” described in that case factored into the way the Officers treated Dr. Radheshwar during the Police Stop. I do not accept Dr. Radheshwar’s bald assertion that, in saying “c’mon, you look just like him,” Cst. Oprea was “perpetuating the myth that all darker skinned men look similar and are suspect and dangerous.” There is no support for this claim in the evidence. Dr. Radheshwar’s testimony establishes that Cst. Oprea would have been roughly four to five car lengths away when he made that statement. Under the circumstances, a more reasonable conclusion is that Cst. Oprea was simply mistaken in his perception of Dr. Radheshwar’s appearance from that distance – a mistake Cst. Oprea clearly realized when he got closer.

[124]       Third, overall, I find that the circumstances in this case that could potentially support an inference of discrimination are insufficient to render such an inference more probable than the alternative explanations for what happened.

[125]       For example, I accept Dr. Radheshwar’s evidence that Cst. Oprea looked at him intensely when he first began walking along A-Street after exiting the Apartment, and that Dr. Radheshwar associated Cst. Oprea’s look with prior experiences of racism. In my view, however, based on the evidence, the likely explanation for Cst. Oprea’s intense look was that, at that moment, he “believed that [Dr. Radheshwar] might be Mr. X” – a person who he intended to arrest “right there and then,” upon confirming his identity. Indeed, Dr. Radheshwar acknowledges this explanation in his reply submission, stating that Cst. Oprea’s look was “not inconsistent with the officers at issue believing that [Dr. Radheshwar] might be Mr. X.”

[126]       There are also other circumstances that could potentially support an inference of discrimination in this case. For example:

a.    The Police Stop occurred despite the differences between various aspects of Dr. Radheshwar’s physical appearance and that of Mr. X.

b.    The Officers were increasingly loud and assertive as they followed and called out to Dr. Radheshwar.

c.     As the Officers approached Dr. Radheshwar on B-Street, Cst. Oprea pressed him as to whether he was Mr. X, which Dr. Radheshwar says was an “alarming escalation,” which amounted to the Officers “trying to impose this wanted identity on him.”

d.    Dr. Radheshwar told the Officers that he was not Mr. X, and he showed them where he lived and where he was going. Yet, Cst. Oprea repeated his request for ID and the Officers continued their approach.

e.    As the Officers were backtracking up B-Street, Cst. Oprea threw his arms up aggressively and shouted “what?!” twice in the Final Exchange with Dr. Radheshwar.

[127]       In my view, however, an inference of discrimination is far less probable in these circumstances than the alternative explanations supported by the evidence. I have already found that the Officers decided to follow Dr. Radheshwar because they believed he might be the suspect who they were attempting to locate and arrest. This decision was not arbitrary or grounded in general race-based myths or suspicions. I appreciate the various differences between Dr. Radheshwar’s physical characteristics and those of Mr. X. But there were also similarities, and Dr. Radheshwar was leaving the Apartment, which was Mr. X’s last known address. The Officers only got a quick look at Dr. Radheshwar from a distance, and Dr. Radheshwar was wearing sunglasses and walking away from them. It makes sense that they would follow him, call out to him, and try to confirm his identity. I appreciate that Dr. Radheshwar had good reasons to continue walking, despite hearing the shouts behind him. But it is also understandable that, when he did so, the Officers became more assertive and their shouts got louder. They had grounds to arrest Mr. X, and reasonably believed that the man they were following might be him.

[128]       Rather than inferring discrimination from Cst. Oprea’s repeated inquiries regarding Dr. Radheshwar’s identity and ID as the Officers approached, a more probable explanation is that Cst. Oprea was “doing anything and everything” to confirm whether the individual before him was Mr. X, so as not to arrest the wrong person. Cst. Oprea’s persistence, and his somewhat antagonistic tone and language, do not render his actions discriminatory. There is nothing before me to support the assertion that the Officers were trying to impose a “wanted identity” on Dr. Radheshwar. The evidence establishes that they continued to approach Dr. Radheshwar until they were satisfied that he was not Mr. X, at which point they quickly retreated. I reject Dr. Radheshwar’s suggestion that his July 2020 conversation with Insp. Gosal about her police work in Surrey several years prior is relevant context that supports an inference of discrimination by the Officers during the Police Stop. I need not describe that conversation in this decision.

[129]       Finally, on the facts before me, I am unable to reasonably draw an inference of discrimination regarding Cst. Oprea’s conduct during the Final Exchange. I accept that Cst. Oprea’s actions were aggressive and inappropriate, and that they frightened Dr. Radheshwar. But Dr. Radheshwar has not shown me why I should infer that his race was a factor in how Cst. Oprea behaved.

[130]       In sum, I find that what happened in this case was not racial profiling as the courts have defined it, and the evidence regarding the Police Stop does not support an inference of discrimination.

B.     Police Stop was adverse impact related to race

[131]       Alongside his claims of racial profiling and inferences of discrimination, Dr. Radheshwar plainly argues that the Police Stop happened “primarily due to the colour of his skin.” Relying on the Officers’ own evidence, he says his “skin colour (or race or ethnicity) was, at the very least, a significant factor in his being identified and followed.” Dr. Radheshwar argues that the Police Stop “included threatening gestures and tone, which was a traumatic incident for him.” He says it was adverse treatment, which cannot be justified. He submits that it “cannot be reasonably disputed … that [he] has at least established a prima facie case of discrimination” – which is another way of asserting that he has proven the elements of his case.

[132]       The Respondents disagree. In their closing arguments, they make various submissions about whether the evidence supports an inference of discrimination or a finding of racial profiling. Given my reasons above, I need not address those submissions here.

[133]       The Respondents say Dr. Radheshwar has not met the burden of proving the second and third elements of his case. They submit that “the evidence does not establish on a balance of probabilities that [Dr. Radheshwar] experienced any adverse treatment or an adverse impact” during the Police Stop. In addition, they say “the evidence does not establish that [Dr. Radheshwar’s] Protected Characteristics were a factor in any adverse treatment/impact.”

[134]       The Respondents also submit that “the evidence establishes a credible, non-discriminatory explanation for the [Police Stop], such that any inference of discrimination is wholly rebutted on a balance of probabilities.” Citing the Tribunal’s decision in Akintoye v. Vancouver Police Board (No. 2), 2013 BCHRT 298 at para. 39, they say that, to the extent that Dr. Radheshwar’s protected characteristics were a factor in the Police Stop, “they were not used as a matter of stereotyping, but rather as a part of identification in the same way that all of his other physical characteristics were used.” Alternatively, relying on their submissions regarding their explanation for the Police Stop, they say it was justified in the circumstances.

[135]       The Respondents argue that the “fact that [Dr. Radheshwar] has a protected characteristic and alleges he had an adverse encounter with the police does not mean he was discriminated against.” They caution the Tribunal against presuming that “every interaction between a police officer and a person with protected characteristics gives rise to an inference of racial bias or the necessity for an explanation.” They say the facts before me are analogous to those in Akintoye and Park v. University of Ontario Institute of Technology, 2017 HRTO 580, two cases in which allegations of racial profiling were dismissed.

[136]       The fact that Dr. Radheshwar is South Asian and has brown skin colour does not necessarily render his negative interaction with the Officers discriminatory: Campbell No. 4 at para. 104. My findings above demonstrate that I do not presume that every interaction between a police officer and a racialized person gives rise to an inference of racial bias. I have already decided that the evidence in this case does not support a finding of racial profiling or an inference of discrimination. I have found that the Officers did not arbitrarily suspect Dr. Radheshwar of having a propensity for criminal behaviour based on his race. I have found, on the evidence before me, that the Police Stop happened because the Officers mistakenly believed Dr. Radheshwar might be Mr. X, a suspect who they had lawful authority to find and apprehend on a priority basis in relation to domestic violence-related offences.

[137]       I accept that, when they identified, followed, and stopped Dr. Radheshwar, the Officers they were properly focussed on what they saw as similarities between his personal characteristics – including his skin colour and perceived ethnicity – and those of the suspect they were pursuing. The Officers were not operating on stereotypes of criminality during the Police Stop. For the purposes of the discrimination analysis, however, the Officers’ intentions are not determinative. In my view, the facts in this case are enough to establish that the Police Stop was an adverse impact connected to Dr. Radheshwar’s protected characteristics. They are enough to shift the burden to the Respondents to justify what happened.

[138]       I do not accept the Respondents’ assertion that Dr. Radheshwar has failed to identify the adverse treatment or impact he experienced during the Police Stop. In his closing arguments, he claims that the Officers were aggressive and the Police Stop was a traumatic incident. More importantly, he gave testimony at the hearing regarding the impact of the Police Stop. He testified about: being afraid that a uniformed police officer seemed to be following him; trying to get away from what he perceived to be a hostile scenario; hearing the Officers shouting behind him and then feeling anxious that they were closing towards him as he stood at the bottom of B-Street; fearing physical harm if he left the situation without permission; and feeling scared and being “in a state of shock” as the Officers retreated back up B-Street. The fact that the Officers were fulfilling their lawful duties during the Police Stop is irrelevant to the question of its impact on Dr. Radheshwar: see KW v. BC Ministry of Children and Family Development (No. 2), 2021 BCHRT 43 at para. 85 (child protection context). On the evidence, I find that Dr. Radheshwar reasonably experienced the Police Stop as adverse. The effect of the Officers mistaking him for Mr. X was to subject him to police scrutiny and questioning. The Respondents do not dispute that his “perception of the Officer’s conduct and his assumptions about their motivations [were] grounded in his life experience or that the [Police Stop] was unexpected and upsetting for him.” In my view, these facts are sufficient to amount to the type of adverse impact that could – depending on the circumstances – give rise to a finding of discrimination under the Code.

[139]       I turn now to the question of whether Dr. Radheshwar’s race was a factor in the adverse impact he experienced within the meaning of the discrimination analysis.

[140]       To be clear, not every negative interaction with police that is connected to a person’s race must be justified under s. 8(1) of the Code. Context is critical in the analysis of whether such an interaction rises to the level of a race-related adverse impact in police services for Code purposes. The assessment of each interaction turns on its specific circumstances and should be grounded in the Code’s objectives, including the objectives of removing impediments to full and free participation in public life and promoting a social climate where all persons are equal in dignity: Code, s. 3.

[141]       Taking a contextual and purposive approach to my consideration of the circumstances of the Police Stop as a whole, I am satisfied that it was a race-related adverse impact in police services, which requires justification under s. 8(1).

[142]       First and foremost, direct evidence clearly establishes that Dr. Radheshwar’s protected characteristics were a factor in the Police Stop. Both Officers testified that his skin colour and perceived ethnicity, and their belief that these characteristics matched Mr. X’s, factored into why they noticed and pursued Dr. Radheshwar. I appreciate that there were other important factors at play as well, including that Dr. Radheshwar had come out of the Apartment, which was Mr. X’s last known address. However, on the evidence, I accept that Dr. Radheshwar’s race was the predominant factor that gave rise to the Police Stop. In any event, his race was a factor, which is enough for the discrimination analysis.

[143]       Second, I find that Dr. Radheshwar’s experience of the Police Stop as aggressive and frightening was reasonable. This finding is not only related to the Final Exchange. It is also about the rest of the Police Stop. Uniformed police officers were standing outside Dr. Radheshwar’s home. One officer looked at Dr. Radheshwar intensely as he left his building. For roughly two minutes, the Officers followed him and shouted to him, without any indication as to why. Once he stopped, the Officers approached him hurriedly, pressing him regarding his identity and ID. While I accept that the Officers said something along the lines of “sorry” as they backtracked, and conveyed that Dr. Radheshwar was not who they were looking for, they did not stop to engage in any sort of dialogue with him about what had happened. In the context of Dr. Radheshwar’s prior personal experiences of racism and his awareness of the broader social context of race-based over-policing (which was clearly evident from his testimony and in the materials before me), his interpretation of the Police Stop and feelings about it make sense.

[144]       In my view, in these circumstances, to not require the Respondents to justify the Police Stop would be inconsistent with the Code objectives of removing barriers to participation in public life and promoting a climate where all persons are equal in dignity.

[145]       Before moving on to the Respondents’ justification defence, I will address their submissions regarding Akintoye and Park.

[146]       I agree with the Respondents that there are similarities between the situations in Akintoye and Park and the circumstances of the case before me. In Akintoye, the Vancouver police mistook the complainant for a known suspect for whom there was an outstanding arrest warrant, based in part on his race. Similarly, in Park, university security guards misidentified the complainant – a student with “an Asian ethnic background” – as being a known “Asian student” who had threatened a professor. In both of these cases, the complainant alleged racial profiling. In each case, the complaint was dismissed.

[147]       The decision in Akintoye turned on the Tribunal’s finding that there was no inference of discrimination. The Tribunal concluded that “no reasonable inference [could] be drawn that racial stereotyping played any part in the decision of the Vancouver Police to stop, handcuff, or arrest” the complainant: para. 35. The Tribunal found that the complainant had been approached by a police officer “because [the officer] honestly, albeit mistakenly, believed” that he was the suspect in question: para. 38. On the evidence, the Tribunal concluded that the complainant’s “race was not used as a matter of stereotyping, but rather as part of identification in the same way that all of the other physical characteristics would have been used”: para. 39. Similarly, in Park, the adjudicator noted that racial profiling cases involve the operation of racial stereotypes, but found that, in the case before him, the “actions [of the security guards] were based on a bona fide security concern related to a specific individual” and they “did not attribute improper behaviour to the [complainant] because he [was] Asian”: para. 60. In the circumstances, the adjudicator in Park concluded that the security guards’ decision to stop the complainant “was reasonable and did not amount to racial profiling”: para. 60.

[148]       Like in Akintoye and Park, I find no racial profiling or inference of discrimination in the case before me. The Officers did not stereotype Dr. Radheshwar as being dangerous, nor did they arbitrarily suspect him of having a propensity for criminal behaviour based on his race. Rather, they mistakenly believed he was another specific person – their suspect, Mr. X – based on various factors, including Dr. Radheshwar’s skin colour and perceived ethnicity and their belief that his characteristics matched those of the person they were looking for.

[149]       Unlike in Akintoye and Park, however, my analysis does not end there. As the Supreme Court of Canada confirmed in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 45 [Elk Valley], the “existence of arbitrariness or stereotyping is not a stand-alone requirement” for a complainant to make their case: para. 45. The connection between the complainant’s protected characteristics and the adverse treatment or impact in services “does not require proof of arbitrariness or stereotyping”: Rogers v. Canadian Northern Shield Insurance Co. and others, 2025 BCHRT 99 at para. 77; see Elk Valley at para. 45. Such a requirement would improperly focus the discrimination analysis on attitudes rather than impacts: Elk Valley at para. 45.

[150]       I note that the Akintoye and Park cases were each decided before the Court issued its Elk Valley judgement in June 2017. While I find Akintoye and Park helpful in terms of their respective discussions of inferences of discrimination and racial profiling, each case seems to focus on the intentions behind the respondent’s actions, rather than the impact of what happened and its direct connection to the complainant’s protected characteristics. Given the Court’s judgement in Elk Valley, I decline to defer to the decisions in Akintoye and Park, despite the somewhat similar facts in those cases.

[151]       I disagree with the Respondents’ assertion that Dr. Radheshwar’s “case is based on a series of subjective perceptions and assumptions about what the Officers must have been thinking.” This is not accurate. Dr. Radheshwar has made his case based on the direct evidence before me of the adverse impact he reasonably experienced and its connection to his protected characteristics. I will give further consideration to the Respondents’ submissions regarding their explanation for the Police Stop in my justification defence analysis below.

VII  Have the Respondents proven their justification defence?

[152]       Dr. Radheshwar has proven the elements of his case. The burden now shifts to the Respondents to justify the Police Stop.

[153]       The Code provides a justification defence against a complaint of discrimination in services. Under s. 8(1), even if a complainant makes their case, there is no discrimination if there was “a bona fide and reasonable justification” for what happened. To establish their defence in this complaint, the Respondents must show that the Police Stop was carried out in good faith and for a purpose rationally connected to the Officers’ function. They must also show that the Police Stop was reasonably necessary to accomplish its purpose, which involves consideration of the concept of accommodation to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20 [Grismer].

[154]       Dr. Radheshwar says the Officers failed “to accommodate [him], as a racialized person, to the point of undue hardship,” and argues that the high standard for establishing a justification defence has not been met. He asserts that the Respondents have not proven that what happened was justified, focusing his arguments on whether the Officers’ actions were reasonable. He says that, in the circumstances of this case, there was “all the more reason to follow proper protocol and be more careful in how you approach people of colour innocently going about their business in the community.” He says the Officers “elected to eventually let [him] go,” which shows that they had “operational discretion to choose not to follow” him in the first place.

[155]       Dr. Radheshwar says there is no justification for the Officers’ conduct during the Police Stop. He says the Respondents cannot reasonably justify the Officers’ “overly aggressive stop and ensuing actions, which were clearly hostile.” Further, he asserts that, beyond the Officers’ “initial tailing and stopping” of him, “the aggressive actions of Constable Oprea” cannot be justified.

[156]       Relying on their submissions regarding their explanation for the Police Stop, the Respondents say it was justified in the circumstances. They say Cst. Jon was tasked with trying to locate and arrest Mr. X and Cst. Oprea agreed to help him. The Officers were aware of the charges against Mr. X, and Cst. Oprea had been involved in arresting Mr. X a month prior. Cst. Jon reviewed Mr. X’s PRIME profile to familiarize himself with the suspect’s appearance. Cst. Oprea was familiar with Mr. X’s appearance and reviewed the PRIME profile to refresh his memory. The Officers attended at Mr. X’s last known address – the Apartment. From a distance, they got a brief look at a man who had come out of the Apartment and was walking away from them. Both Officers reasonably believed that the man might be their suspect, Mr. X, so they attempted to confirm his identity. They followed the man and called out to him until he stopped and turned around. They approached him and, from up close, realized that he was not Mr. X, at which point they apologized, said they were looking for someone else, and turned back. The Respondents essentially argue that the Officers were doing their job; their purpose in the Police Stop was to fulfil their duties as police constables, and their conduct was justified.

[157]       As I discussed above, I have accepted some, but not all, of the Officers’ evidence regarding the Police Stop. For the most part, in key areas whether the Officers’ evidence conflicted with Dr. Radheshwar’s, I have preferred his evidence. Still, on the whole of the evidence that I have accepted, I am satisfied that the Respondents have established a bona fide and reasonable justification for the Police Stop, such that there was no discrimination.

[158]       In domestic violence cases, breaches of protective orders require a police response, no matter how minor the alleged breach might be: DVI at para. 77. It is not disputed that, on July 27, 2020, the Officers were lawfully responsible for trying to locate and arrest Mr. X – a suspect who had been charged with domestic-violence related offences and was arrestable without a warrant for breaching conditions of his probation. Based on my findings of fact, I accept that the purpose of the Police Stop was to fulfil this responsibility on a priority basis. Police in BC play a key role in protecting victims of domestic violence, and the functions of municipal police departments relate to preventing crime: VAWIR at 7; Police Act at s. 34. I accept that the purpose of the Police Stop was rationally connected to these roles and functions.

[159]       I also accept that the Officers carried out the Police Stop in an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against Dr. Radheshwar. This addresses the subjective component of the justification defence. The evidence in this case does not support a finding of racial profiling or an inference of discrimination. I accept that the Officers believed the Police Stop was reasonably necessary and they were not “motivated by discriminatory animus”: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 at para. 60 [Meiorin].

[160]       The final question, then, is whether the Police Stop was, in fact, reasonably necessary to the fulfillment of the Officers’ responsibility to try to locate and arrest Mr. X on a priority basis. This question involves consideration of the concept of accommodation to the point of undue hardship. “‘Accommodation’ refers to what is required in the circumstances to avoid discrimination”: Grismer at para. 22. The “standard for accommodation is reasonableness, not perfection”: McCulloch v. Nociar and another (No. 2), 2025 BCHRT 111, citing Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 425; see Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at 944-995. It is about doing what is reasonable and practical to avoid the negative impact related to the affected person’s protected characteristics: Meiorin at para. 38.

A.    Belief that Dr. Radheshwar might be Mr. X was reasonable

[161]       The negative impact that Dr. Radheshwar experienced arose from the Officers’ belief that he might be their suspect, Mr. X. This belief was properly based on the Officers’ consideration of situational factors (e.g., Dr. Radheshwar had come out of the Apartment, which was their suspect’s last known address) and perceived similarities between Dr. Radheshwar’s personal characteristics and those of Mr. X. The Officers had knowledge of Mr. X’s personal characteristics from their proximate review of his PRIME profile, including his mugshot and descriptors. The perceptible similarities between the two men at the time of the Police Stop included that: Dr. Radheshwar was six feet tall, which was the same as Mr. X’s known height; Dr. Radheshwar’s skin colour looked similar to that of the man pictured in Mr. X’s mugshot; and Dr. Radheshwar’s build looked similar to what a reasonable person might expect the build to be of the suspect in the mugshot. The Officers also mistook Dr. Radheshwar as sharing Mr. X’s recorded ethnicity (“Middle Eastern”), which they mistakenly associated with “darker features.” The Officers only got a quick look at Dr. Radheshwar from a distance. He was walking away from them and wearing sunglasses. In my view, despite the mistaken association made regarding Mr. X’s recorded ethnicity, the Officers’ belief that Dr. Radheshwar might be Mr. X was reasonable in the circumstances.

B.     Decision to follow Dr. Radheshwar was reasonable

[162]       The parties disagree about whether the Officers had discretion not to follow Dr. Radheshwar upon seeing him and believing he might be their suspect. Regardless, on the evidence, I am satisfied that the Officers had lawful authority to follow Dr. Radheshwar, and their decision to do so was reasonable in the circumstances. The Officers reasonably believed Dr. Radheshwar might be Mr. X, a suspect who was arrestable without a warrant for breaching the conditions of his domestic violence-related probation. NWPD policy directs that if an “investigating member determines a subject has violated a valid and subsisting protective order and grounds for arrest exist then they should arrest the suspect”: DVI at para. 80. Having potentially located their suspect, it was not reasonably open to the Officers to simply allow him to walk away from the Apartment. It was appropriate for them to follow and pursue the suspect’s arrest.

C.     It was reasonable to call out to Dr. Radheshwar

[163]       It was also appropriate for the Officers to repeatedly call out to Dr. Radheshwar. To arrest their suspect, the Officers needed to catch up to him and confirm his identity. So they walked quickly after the suspect, repeatedly shouting a combination of his first name, “hey you!” and “excuse me,” getting louder and more assertive as the suspect continued walking away. This was a reasonable and practical course of action, even though Dr. Radheshwar  reasonably experienced it as aggressive and frightening. In the circumstances, I am satisfied that there was nothing less that the Officers could have done. They did not run after or pursue the suspect in their vehicles, they were not profane or abusive, they did not make any threats. The Officers’ words and actions may have intimidated Dr. Radheshwar, but they were reasonably necessary to get his attention.

D.    Approach, requests for ID, and hurried retreat were reasonable

[164]       The Officers saw they had their suspect’s attention when Dr. Radheshwar stopped and turned around. As the Officers approached to get a closer look at the suspect, Cst. Oprea asked if he was Mr. X, to which the suspect answered that he was not. As the Officers continued to get closer, Cst. Oprea asserted to the suspect that he looked like Mr. X, and asked for ID. When none was provided, Cst. Oprea asked for ID again, and then – when he was within two car lengths – saw that the person in front of him was not their suspect and immediately began backtracking. Cst. Jon immediately followed suit. All of this happened quickly, in a short period of 10 to 15 seconds. On the evidence before me, I find that the Officers’ actions during this part of the Police Stop were consistent with applicable rules regarding such stops. I do not accept that their actions were unreasonable.

[165]       The term “police stop” refers to “any interaction between a police officer and a person that is more than a casual conversation and which impedes the person’s movement”: British Columbia Provincial Policing Standards [Provincial Policy], Subsection 6.2 (Foreword – Police Stops). Rules regarding police stops – including stops where the officers are operating under lawful authority to arrest – are set out in Subsection 6.2 of the Provincial Policy and sections 11, 12, 13, and 20 of the NWPD’s Street Checks (and Police Stops) policy [NWPD Policy]. These policies establish the following for when police officers conduct a police stop of a person under lawful authority:

a.    The decision to conduct the police stop cannot be arbitrary or “based solely on the person sharing an Identity Factor [e.g., race, colour, ancestry, or place of origin] with a person sought by the police”: NWPD Policy, ss. 8, 12-13; Provincial Policy, Subject 6.2.1, Standards (4) to (5).

b.    A lawful arrest is a justifiable reason to request or demand a person’s identifying information during the police stop: NWPD Policy, s. 20; Provincial Policy, Subsection 6.2 (Foreword – Police Stops) and Subject 6.2.1, Standard (6) to (7).

[166]       The Officers’ actions complied with these rules. As I discussed above, the Police Stop was not arbitrary; the Officers did what they did because they reasonably believed Dr. Radheshwar might be Mr. X, who was a suspect sought by police. This belief was properly based not only on perceived similarities in protected characteristics, but also on situational factors and reasonably perceived similarities in height and build. Further, the Officers’ authority to arrest Mr. X without a warrant was a justifiable reason for Cst. Oprea to request or demand Dr. Radheshwar’s identifying information during the Police Stop. This was not a “street check” as defined in the NWPD Policy – it was not a voluntary interaction, the Officers did not need additional justification for seeking their suspect’s identifying information, and they did not need to ensure that any identifying information was provided to them voluntarily: see NWPD Policy, ss. 6, 14-18, and 21 for rules regarding street checks.

[167]       Moreover, beyond my consideration of the applicable policies, I find that the Officers’ actions were reasonable in the circumstances. To arrest their suspect, they needed to approach him. Before arresting (or not arresting) him, they needed to confirm his identity (or confirm that he was not their suspect). In my view, they did these things in a way that was reasonable, particularly given Mr. X’s reputation for lying to the police. When Dr. Radheshwar said he was not Mr. X, they could not just take his word for it. It was reasonable to continue approaching and pressing their suspect for ID, until they were close enough to make a visual assessment. I appreciate that Cst. Oprea’s “c’mon you look just like him” comment frightened and offended Dr. Radheshwar. But the standard here is not perfection. The comment was not discriminatory and it did not invalidate the Officers’ overall actions.

[168]       Nor can I fault the Officers for their hurried retreat upon realizing that Dr. Radheshwar was not Mr. X. They had spent several minutes following the wrong person, leaving their suspect’s last known address unattended. It was reasonable for the Officers be in a hurry to return to the Apartment, so as not to miss Mr. X. While they did not engage in any sort of dialogue with Dr. Radheshwar about what had happened, they quickly conveyed that they were sorry and he was not who they were looking for. On balance, given the urgency of the situation and overriding priority of locating and arresting Mr. X, I am satisfied on the evidence before me that there was nothing else reasonable or practical the Officers could have done in the circumstances.

E.     The Final Exchange did not render the Police Stop discriminatory

[169]       Finally, I must address Cst. Oprea’s behaviour at the very end of the Police Stop. I have accepted that his actions during the Final Exchange were aggressive and inappropriate. However, in the circumstances of this case, I do not find that those actions rendered discriminatory what was otherwise a bona fide and reasonably justified Police Stop.

[170]       The Final Exchange lasted less than 10 seconds. The Officers had already withdrawn from their interaction with Dr. Radheshwar and were walking away from him. Cst. Oprea was several car lengths away from Dr. Radheshwar. He did not move towards Dr. Radheshwar or utter any threats. His aggression was isolated, in the sense that Cst. Jon did not participate, and nothing further happened. Cst. Jon gestured for Cst. Oprea to move along, and he did. I have not been persuaded to infer that Dr. Radheshwar’s race was a factor in how Cst. Oprea behaved. I accept that his behaviour made a bad situation worse for Dr. Radheshwar. But I do not accept that it made the overall Police Stop discrimination.

[171]       In sum, then, I have determined that the Police Stop was a race-related adverse impact in police services for Dr. Radheshwar. However, I am satisfied that there was a bona fide and reasonable justification for it. The Police Stop was reasonably necessary to the fulfilment of the Officers’ responsibility to try to locate and arrest their suspect, Mr. X, on a priority basis. It was reasonable for the Officers to identify, follow, approach, and question Dr. Radheshwar in the way that they did. Under the circumstances and on the evidence before me, there was nothing else reasonable or practical that the Officers could have done. As a result, there was no discrimination under s. 8 of the Code.

VIII           CONCLUSION

[172]       In his complaint, Dr. Radheshwar wrote that the Police Stop left him feeling “that the police, my neighbours, and others I pass on the street think that I am a criminal.” He wrote of an escalating “sense of alienation from mainstream Canadian society” as a result of what happened. He said he felt “betrayed by the people who run the city” he calls home, “and, also, a persistent sense of rapidly internalizing a feeling of being a second class citizen.”

[173]       My decision in this case is not meant to minimize what Dr. Radheshwar experienced or to diminish the importance of the issues he raised before this Tribunal. However, for all of the reasons set out above, his complaint against the Respondents is dismissed: Code, s. 37(1).

Jonathan Chapnick

Tribunal Member