Discretion, Implicit Bias, and Traffic Stops: Key Takeaways from a Recent BCHRT Decision

On December 1, 2020, Ms. Safiya Elshazly, a Black woman, was riding in the backseat of a vehicle that had more passengers than seatbelts. Ms. Elshazly was one of four individuals sitting in the backseat of the vehicle. Three of the individuals, including Ms. Elshazly, were sitting in seats. The fourth individual, Ms. F, was sitting on Ms. Elshazly’s lap with her legs draped over the other back passengers. 

The vehicle was stopped by members of the Vancouver Police Department for a seatbelt-related infraction. 

A member, believing that Ms. Elshazly and Ms. F were not wearing seatbelts, asked for identification. Ms. Elshazly repeatedly stated she did not have physical identification and maintained she was not required to provide physical identification. 

The body-worn video captured the sound of a seatbelt being unclicked before Ms. F and Ms. Elshazly exited the vehicle. Ms. F produced her bank card that had no name on it. Ms. Elshazly continued to refuse to produce her identification, and the member arrested her for obstruction of justice. While under arrest, Ms. Elshazly repeatedly offered identifying information, including her name and date of birth. Ms. F ultimately located Ms. Elshazly’s physical identification and provided it to the member. The handcuffs were removed and she was issued a seatbelt ticket. The ticket was later set aside in Provincial Court. 

Ms. Elshazly filed a human rights complaint alleging discrimination based on race, colour, and place of origin. 

Reasons

Applying the test from Moore v British Columbia (Education), 2012 SCC 61, the BCHRT found that: 

1. The Complainant was a member of a protected group; 
2. Being handcuffed and arrested constituted an adverse impact in the provision of police services; and, 
3. Her race and colour were a factor in how she was treated. 

In reaching this conclusion, the BCHRT specifically pointed to comments made by a member to Ms. Elshazly that “you’re one drunk lady” and not to move or “run off.” The BCHRT noted there was no evidence of intoxication or that she was a flight risk, and that the comments were said “offhandedly with a veneer of denigration, and without any measure of true concern.” 

The BCHRT also took issue with members’ descriptions of Ms. Elshazly’s conduct and demeanour. The BCHRT noted the members’ descriptions of Ms. Elshazly as “belligerent,” together with the decision to physically restrain her for obstruction of justice, were tainted by both the “angry Black woman” stereotype and by the disproportionate expectation of docility and compliance by racialized people.  In reaching this conclusion, the BCHRT noted that Ms. F, despite being the passenger whose conduct formed the basis for the traffic stop, was not issued a ticket because she was “quiet and did not assert herself,” while Ms. Elshazly was treated more harshly. 

The BCHRT was also critical of the fact that all members testified that they knew how to identify people who lacked physical ID and were trained to obtain name, date of birth, address, and other identifying information, but in this case decided to escalate to arrest instead. 

The BCHRT rejected VPB’s non-discriminatory explanations for the members’ conduct, including: 

• That one member’s actions should be considered independently from the actions of other members (the VPB is the named respondent and the totality of the conduct is at issue); 
• That the member’s conduct was motivated by Ms. Elshazly’s actions, not her protected characteristics (this amounts to asking the BCHRT to consider the member’s intent, which does not negate the possibility of implicit bias); 
• Ms. Elshazly asked a member if he spoke English (the BCHRT held that relying on this statement as an after-the-fact justification for the arrest would be akin to blaming Ms. Elshazly for refusing to tolerate discriminatory treatment); 
• Ms. Elshazly was arrested for failing to comply with the member’s lawful direction to produce her identification (the member did not pursue the line of inquiry they were trained to follow when a person does not have identification); and, 
• Ms. Elshazly was the only passenger who failed to give identification, which was the foundation for why she was treated differently (the BCHRT was not convinced other Black passengers were not treated harshly by other members on scene, and simply because other Black passengers were not subjected to the same level of escalation does not mean race and colour were not factors in Ms. Elshazly’s treatment). 

The BCHRT then applied the test from British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), [1999] 3 SCR 868. 

The BCHRT found that requiring individuals to identify themselves with physical identification during a traffic stop to issue a violation ticket was rationally connected to the purpose of fulfilling the VPB’s duty to enforce the Motor Vehicle Act, and the practice of obtaining physical identification was adopted in an honest and good faith belief that it was necessary to the fulfillment of an officer’s duty to enforce the Motor Vehicle Act. 

However, the BCHRT declined to find that the standard adopted was reasonably necessary to accomplish the purpose or goal, reiterating that it was not undue hardship to require a member to pursue the line of inquiry they were trained to follow when a person does not have identification. 

Takeaways

In our view, there are a number of takeaways from this case: 

• Tread carefully when using force options or arrest powers for matters stemming from relatively minor offences; 
• Document observed behaviour objectively and avoid characterizations that are not supported by the evidence; 
• Record reasons for certain conclusions (e.g. why someone appeared intoxicated, why they appeared to be a flight risk?); 
• Distinguish between behaviours that are annoying versus behaviours that are obstructive, threatening, or dangerous (see also Muru v City of Edmonton et al, 2025 AHRC 98); 
• When a subject declines to provide physical identification, consider, where possible, investigative means of establishing identity before escalating to arrest; 
• When applying the Moore test, a subjective intention to discriminate does not need to be proven by a complainant; 
• Possessing lawful authority to arrest or detain does not end the analysis; exercise your discretion fairly, consistently, proportionately, and in a manner free from discriminatory assumptions; 
• Consider whether your exercise of discretion, even if it is well-intentioned, may appear inconsistent; and, 
• Consider whether implicit biases regarding individuals with protected grounds may be a factor in differential treatment (see also John v Edmonton Police Service, 2023 AHRC 87).