Montreal Transit Service Ordered Black Child with a Disability to Back of Bus, Then Expelled Her

For many years, human rights activists and minorities have complained about the difficulty in getting cases before Quebec's Human Rights Tribunal, citing significant delays and concerns about lack of access to justice. In Ontario, for example, almost 80 percent of cases make it through preliminary screening to some form of hearing before the tribunal. In Quebec, the figure is closer to 5 percent.

In March 2016, these issues were in the news again. Quebec's Human Rights Commission dismissed complaints based on age, race, and disability against the Société de transport de Montréal (“STM”) and Montreal police in a case involving Michaëlla Bassey, a Black high school student in Montreal.

In June 2012, Bassey was 12 years old when she asked a Montreal bus driver for information about a bus schedule. She had difficulty deciphering it because of her dyslexia and a visual-spatial learning disability. The bus was stationary and located several feet before the stop. As any Montreal transit rider knows, it is not unusual for passengers to ask for information from drivers before buses begin their route. In this case the driver refused to answer Bassey's English inquiries; he was on his cell phone, and motioned her towards the bus stop, instructing her in French to read the posted schedule.

Once on the bus, the child reiterated her request. The driver refused to answer or to listen to the child's mother, whom Bassey was speaking to on her cell phone in hands-free mode. Bassey wanted her mother to explain to the driver why Bassey required assistance. Bassey also attempted to obtain the name and number of the bus from the driver, who refused to co-operate.

The bus driver ordered the child to retreat past the yellow line designed to keep people away from drivers. According to video evidence, he motioned to her three times to head towards the back of the bus. Bassey did return to her seat and sit down, but attempted one more time to communicate with the bus driver, again with her mother on the phone.

At this point, the bus driver used his cellular telephone to call a supervisor and immobilized the bus. When the supervisor arrived, the supervisor asked Bassey to get off the bus and offered to drive her home. Bassey, on instructions from her mother, indicated that she wished to stay on the bus because her mother was on her way. The police arrived and forcibly ejected Bassey.

Incredibly, it took the Commission almost four years to investigate the case before dismissing the complaints. The Commission decided that the driver was following the Highway Safety Code that prohibits the use of cell phones while driving.

The STM argued that its two employees had systematically followed the procedure and their training without regard for sex, race, age or handicap. The STM also said it had no knowledge of the child's handicap.  The evidence showed that the STM has no protocols, however, to deal with children with disabilities.

In short, formal equality had been respected. 

The investigation report offers no substantive rationale for forcing Bassey off the bus when the child had shown no aggressive or disruptive behavior. More important, the simple initial inquiry regarding the bus schedule could have been answered easily while the bus was immobilized at the outset.  The explanation regarding the absolute prohibition of cell phones is difficult to square with the fact that the driver had been on his cell phone on at least two occasions.

Equally troubling is the decision to absolve the police officers of responsibility based on a protocol that the police are not required to inquire into the reasons for STM requests for assistance. The logical result of this line of reasoning is that in such circumstances, the police enjoy impunity. 

The investigation lacked any analysis of the effects of allegedly discriminatory behaviour – rather than the intent – let alone the importance of substantive equality and of considering the structural impact of the applicable procedures and rules. No intersectional analysis was carried out. 

Despite the deficiencies, such dismissals by commissions are notoriously difficult to overturn. They are generally understood by the courts not to be decisions on the merits, but merely responses to preliminary questions about whether a matter should be referred to the Tribunal. In this case, however, the Commission had clearly reached a decision on the merits, terminating a vulnerable complainant's rights and raising fresh questions about the human rights system in Quebec.

The Bassey family has not made any decision about next steps at the time of writing, but the case underscores growing concerns about lack of access to justice in Quebec's human rights system and the need for reform.

Pearl Eliadis*

 

*     Pearl Eliadis is a human rights lawyer based in Montreal. Her book on Canadian human rights commissions and tribunals, Speaking Out on Human Rights: Debating Canada’s Human Rights System, was named one of the best books of 2014 and won the 2015 Huguenot Society of Canada Award.

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