A city watchdog has identified serious flaws with an internal TTC investigation that largely exonerated three fare inspectors who forcibly detained a young Black man on a streetcar platform last year.

In a report released Thursday, Toronto Ombudsman Susan Opler concluded that while the transit agency’s investigation into the conduct of its own officers had some positive aspects, it failed to examine evidence of potential racial bias and was “not adequately thorough, fair, and transparent” to support its conclusions.

The TTC issued a statement saying the agency accepts her recommendations and committed to implementing them by the end of this year.

“We are committed to human rights and to celebrating diversity. And I know that we can and need to — and will — do better,” said TTC CEO Rick Leary.

The confrontation between the inspectors and the young man on the St. Clair streetcar route on Feb. 18, 2018 incident was caught on video, and raised concerns about the behaviour of transit officers after the footage was widely circulated online.

In a video shot by a bystander, the man, Reece Maxwell-Crawford, who was 19 at the time, can be heard crying “I didn’t do anything though” and “you’re hurting me” as he’s pinned to the ground by a trio of TTC inspectors as well as Toronto police officers who came to assist them.

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A 101-page investigation the TTC released in July 2018 found insufficient evidence to support allegations of misconduct, aside from concluding that one of the fare inspectors had inappropriately smiled at the young man.

The ombudsman, an accountability officer responsible for overseeing municipal employees, launched her own inquiry into the TTC investigation last year. Her resulting report didn’t examine the incident itself, which is now the subject of a lawsuit Maxwell-Crawford has brought against the TTC alleging racial profiling, and she didn’t reach any conclusion about whether the officers did anything wrong.

But Opler concluded that the TTC investigation had “very serious” problems. She wrote that the TTC investigators failed to ask enough questions, make clear findings of fact about key aspects of the case, and apply the correct standard of proof to determine whether misconduct had taken place.

One problem she highlighted was that a TTC inspector told the agency’s investigators the confrontation started after Maxwell-Crawford entered the streetcar and stared at him for a prolonged period of time. But footage from a security camera inside the vehicle showed the inspector spoke to Maxwell-Crawford within two seconds of the teen boarding the streetcar.

The TTC investigation “did not address this key discrepancy,” the ombudsman found.

She also concluded “there was evidence that could have supported a finding of unconscious bias” on the part of TTC officers and witnesses, but the original investigation failed to analyze it.

She wrote that investigators should have asked why both inspectors and witnesses reported seeing Maxwell-Crawford do threatening things that the video showed he never did, such as clenching his fists or putting his hands in his pockets, or what caused inspectors and witnesses to fear without evidence that the young man might have a weapon.

Opler also found TTC investigators failed to examine whether inspectors followed agency policy that dictates they should disengage from potentially difficult situations.

Additionally, her report flagged the fact that the expert witness TTC investigators called in to help determine whether misconduct occurred had potential conflicts of interest because he was the owner of a company the transit agency had contracted to train its officers.

She also said the head TTC investigator himself was not sufficiently independent from the officers he was tasked with scrutinizing, because before taking on the investigator role he had worked for the transit enforcement unit for more than a decade and knew many of its members.

The report made six recommendations, including that the TTC strengthen the independence of its investigations into its officers, and consider creating a protocol for retaining external investigators with no ties to the agency. It also recommended that the agency only use expert witnesses who are independent from the TTC, and develop a plan to provide additional training to investigators to ensure they can conduct fair and independent inquiries.

“It was important for the TTC to get this investigation right. There was widespread concern about this incident and the TTC needed to answer the public’s questions about what happened and why. More broadly, the TTC had to show the public it is capable of investigating concerns about its employees’ conduct,” Opler wrote.

In his statement, Leary said that in addition to following the ombudsman’s recommendations, the transit agency has decided to move “without delay to implement a system-wide anti-racism strategy, aimed directly at preventing racial profiling, and covering all aspects of the TTC’s operation.”

The transit agency plans to take a number of other measures including meeting with community leaders and experts on race relations to develop a comprehensive anti-racism strategy; holding public consultations with affected communities before the end of this year; setting up an anti-racism task force; and implementing enhanced anti-bias training for its fare inspectors and special constables, as well as all other TTC employees.

The ombudsman’s report follows a series of Star investigations that also raised concerns about potential bias in the TTC’s transit enforcement unit, which includes fare inspectors as well as transit enforcement officers. A Star analysis of TTC statistics appeared to show the unit issues tickets and written warnings to Black riders in disproportionately high numbers, which some advocates said was evidence of racial profiling.

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In response to those stories, the TTC said that the statistics were unreliable and firmly denied its officers practise any form of discrimination, highlighting the diversity training employees receive.

At a press conference at city hall Thursday, Leary was asked whether actions the TTC is taking in the wake of the ombudsman’s report, such as setting up an anti-racism task force, was an admission the TTC has a problem.

“What I would tell you is whether there’s an unconscious bias or not, there’s a public concern, alright, a public perception (of possible bias). That has to be addressed, that’s what I find very troubling, that’s why we’re initiating this process,” he said.

When pressed, he added: “I think we all understand that there’s racism in society. The TTC’s a microcosm of society.”

Leary said while the TTC welcomed the ombudsman’s report that found the agency’s initial investigation was flawed, there were no plans for the TTC to reopen its probe into its officers’ conduct.

“We’re just moving forward,” he said.

“Her comments were regarding the process and what we could have done better, and that’s what we’re building on.”

According to a TTC spokesperson, one of the inspectors involved in the streetcar incident has left the agency for unrelated reasons, while the other two remain on the job.

Cory Wanless, the lawyer representing Maxwell-Crawford, said his client considers the ombudsman’s report a “vindication.”

“My client Reece and his family have been concerned about the TTC report from the very beginning. They felt that it was unfair and they felt that it didn’t adequately address their serious concerns about racial profiling and racial discrimination,” he said.

“This has always been, from our client’s perspective, about race.”

Wanless rejected the ombudsman’s conclusion that despite its problems, the TTC conducted its original investigation “diligently and in good faith.”

“I think it was, frankly, the purpose of it, was to whitewash what happened,” he said.

At an unrelated news conference on Thursday morning, Mayor John Tory said that “there’s work to be done there” when asked about whether the TTC’s enforcement unit has a problem of racial bias.

“I was gratified to see, at the same time, that the TTC said that all of these recommendations would be taken on board and adopted.”

He said he shares the ombudsman’s concerns about the way the TTC handled the investigation and that the public should have confidence in the oversight of this incident.

“The ombudsman found some shortcomings and those should be remedied. Period. Full stop.”

With files from Jennifer Pagliaro.

Ben Spurr is a Toronto-based reporter covering transportation. Reach him by email at bspurr@thestar.ca or follow him on Twitter: @BenSpurr

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