The Law Governing Racial Profiling

8/12/2019 The Law Governing Racial Profiling

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The Law Governing Racial Proling:Implications of Alternative Denitionsof the SituationDavid MacAlister School of Criminology, Simon Fraser University

Encounters between the public and the police are highly stressful andcontested events. In a multicultural society such as Canada, freedomfrom discrimination and arbitrary treatment are core values worthy of protection. Investigation by law-enforcement ofcials may give rise toallegations of racial proling, a practice that jeopardizes those values.Yet, intelligence-led law enforcement is a matter of practical impor-tance, recognized widely by the community as desirable. So, policeuse of criminal intelligence to structure investigative practices shouldbe encouraged, but not at the expense of the egalitarian ideals thatmake Canadians proud. Delineating the boundary between intelligence-led, effective law enforcement and racial proling is a matter of con-siderable debate. The recent work of Satzewich and Shafr (2009)provides some needed insight into the racial-proling phenomenon,helping us to explore the distinction between intelligence-led policingand racial proling. Their work helps us to think about the issues thatneed to be resolved in legal disputes arising from racially chargedencounters between the police and the public. However, it shouldnot be seen as an authority police can appeal to in asserting that theirdenials of racial proling have as much validity as do the claims of those who provide evidence of the prevalence of racial proling andother discriminatory practices in our criminal justice system.

The law governing racial proling has grown considerably over thelast ten years. That growth has resulted in numerous signicantdevelopments in various areas of the law, all of which touch on the need for ongoing vigilance regarding police practices and law-enforcement policy.

Most allegations of racial proling arise out of circumstances in which the decision of police to target someone for investigation is called intoquestion. This often occurs in circumstances with low visibility, where


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account for the decisions they make. For example, it arises where thepolice decide to stop someone who is driving a motor vehicle. Policehave widespread discretion under provincial motor vehicle laws tostop motorists and inquire into their tness to drive and the road-worthiness of their vehicle. Most provinces have motor vehicle legisla-tion authorizing the police to stop any vehicle operating on the high-way. 1 These powers generally entitle the police randomly to stop anyvehicle, at any time, even where the driver does not appear to havedone anything wrong. 2 Similarly, the police have widespread dis-cretion to confront individuals on the street and ask them questions.There is no legal standard requiring the police only to speak to certain people in specic circumstances. Another area of wide discretion isin the conduct of customs ofcers. They have unfettered discretion to stop individuals entering the country and ask them questions in order to ascertain their status as residents or citizens and to ascertain whether they are bringing contraband into the country. Canada Customsofcers are empowered by section 11(1) of the Customs Act (1985) toask any questions of those entering the country, so long as the ques-tions pertain to their duties under that act. They may also examineany goods being brought into the country in accordance with section 99 of the act.

While these initial encounters tend to be free from the application of any precise legal standard, more in-depth police-citizen encounterstypically require the police to comply with a pre-set standard thatlimits their intrusion into private lives to circumstances that the courtsand legislatures have determined justify such intrusion. Accordingly,the decision of the police to conduct a sobriety test of a driver or tosearch the vehicle being driven by a motorist requires that they havesufcient grounds to justify these intrusions. Similarly, if a person being questioned by the police opts not to answer the questions beingput to them and seeks to go on her or his way, the police must havesufcient grounds to justify detaining that individual while they carryout their investigation. Also, if a Customs ofcer decides to subject an individual to a personal search, they must have the requisite groundsfor doing so.

The standard of review that typically applies to these further intru-sions is one of reasonable suspicion. An individual who has been stopped by the police because they wish to assess for sobriety may becompelled to endure a sobriety test or a roadside screening assessment

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Code s 254(2)). The police may detain an individual while conductingan investigation if it is premised upon reasonable grounds. TheSupreme Court of Canada set the test for such detentions in R v Mann:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing theofcers suspicion that there is a clear nexus between the individ-ual to be detained and a recent or on-going criminal offence.Reasonable grounds gures at the front-end of such an assess-ment, underlying the ofcers reasonable suspicion that the par-ticular individual is implicated in the criminal activity underinvestigation. The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances,most notably the extent to which the interference with individualliberty is necessary to perform the ofcers duty, the liberty inter-fered with, and the nature and extent of that interference . . .(at para 34)

Many courts have interpreted this ruling as supporting the notion thatthe police are justied in detaining a person for investigation if theyhave a reasonable suspicion the individual is implicated in the offenceunder investigation. 3 Going further and using a sniffer dog to search a detained individual also requires that the police have a reasonablesuspicion of criminal activity. 4 Under the Customs Act (1985), an ofcer may search any person arriving in Canada, if the ofcersuspects on reasonable grounds that the person has secreted on orabout his person anything in respect of which this Act has been or might be contravened (s 98). The common element in all of thesesituations is a requirement that the law-enforcement ofcial have areasonable suspicion that the person under investigation is implicatedin an offence.

Dening what constitutes a reasonable suspicion is a matter of somepractical difculty. Yet, it is the basis on which many racial-prolingcases turn. Recent case law has shown that judges dealing with allega-tions of racial proling address the question of whether racial prolingexisted using the same standard, regardless of the precise nature of thelegal proceedings. Allegations of racial proling frequently arise in thecontext of defences to criminal charges, as where the accused seeks tohave evidence excluded or a stay of proceedings imposed in order toremedy the effect of being racially proled during an investigation. 5

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have been carried out if the individual were not from a racial minority.Racial proling also arises in other forms of legal proceedings. Ithas recently arisen in the context of human rights complaints, wherethose who believe that they have been discriminated against by law-enforcement ofcers seek a remedy from an administrative tribunal(see, e.g., Nassiah v Peel Regional Police Services Board). Furthermore,racial proling has arisen in the context of civil suits, where the victimof alleged racial proling seeks monetary damages for what they per-ceive to have been adverse treatment (see, e.g., Peart v Peel RegionalPolice Services Board; Kelly v Palazzo). These cases are quite varied in their nature, but apply similar analyses in determining whether racialproling occurred.

A key factor in many racial-proling cases is determining whether theexercise of law-enforcement discretion was reasonable in the cir-cumstances. If it was motivated by prejudice, it clearly would not bereasonable. However, even subconscious racism will be held to beunreasonable and result in a nding of racial proling. In the land-mark ruling of R v Brown, Justice Morden of the Ontario Court of Appeal dened racial proling:

There is no dispute about what racial proling means. In itsfactum, the appellant dened it compendiously: Racial prolinginvolves the targeting of individual members of a particular racialgroup, on the basis of the supposed criminal propensity of theentire group and then quoted a longer denition offered by theAfrican Canadian Legal Clinic in an earlier case, R v Richards . . .(R v Richards; cited in R v Brown at para 7, Morden, JJA)

Racial proling is criminal proling based on race. Racial or colour proling refers to that phenomenon whereby certain criminal activityis attributed to an identied group in society on the basis of race orcolour with the result that individual members of that group aretargeted. In this context, race is illegitimately used as a proxy for thecriminality or general criminal propensity of an entire racial group.

The attitude underlying racial proling is one that may be consciouslyor unconsciously held. That is, the police ofcer need not be an overtracist. His or her conduct may be based on subconscious racial stereo-typing.

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Brown ruling requires the racial-proling claimant to establish the factof racial proling for the court on a balance of probabilities. In caseswhere racial-proling arguments have been accepted, courts are often reluctant to conclude that the police involved were overtly and con-sciously racist. However, they have noted that this is not necessaryfor a nding that racial proling occurred. In R v Ahmed, JusticeKiteley of the Ontario Superior Court of Justice noted that racialproling can be conscious or unconscious, intentional or uninten-tional (at para. 62). The judge went on to show restraint by refusingto conclude that the conduct of the police was conscious or intentional.In R v Khan, Justice Molloy of the Ontario Superior Court of Justicewas a bit more bold, taking the rare stance of nding blatant prolingon the facts: even if there had been some minor thing about hisdriving, I do not believe that was the real reason he was stopped. Thepolice stopped him for an improper purpose. Mr. Khan was targetedfor this stop because of racial proling, because he was a black man with an expensive car (at para. 68). In both cases, the court found thepolice to have lied and the claimant to be a more credible witness.

The research Satzewich and Shafr (2009) shows that police assess-ment of suspicion depends on training, socialization, and experienceaccumulated in the company of fellow ofcers. Their interpretationsof the situations they encounter reect a worldview they have developedlargely through their socialization into the police role (MacAlister 2004).The problem with this is that their interpretations and experiences maybe clouded by unconscious racism. The indicators or cues of criminalinvolvement frequently have racial undertones (Tanovich 2006; 2004a).What police ofcers consider to be criminal proling may, in actuality,reect racist stereotypes. As Professor Tanovich (2004b) notes,

[A]n ofcer may see a Black man in a White neighbourhood carry-ing a Plasma television and decide to stop him to investigatebecause, in the ofcers mind, he appears out of place. Alter-natively, an ofcer may interpret a handshake between two Blackmen in a high crime area as a drug transaction. Such innocentbehaviour might not be interpreted in such an incriminating mannerif the men were White. Evasive action is another example. An African Canadian who has historically been harassed by the policeor who is aware of a history of community harassment may

understandably avoid a police ofcer who is approaching, not outof a consciousness of guilt, but to avoid being harassed, or in some



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Unconscious and unintentional racism in the formation of criminalproles is still racial proling. The research of Satzewich and Shafr(2009) does not contradict the prevailing orthodoxy that racism issystemic in our justice system. It merely shows that the police are often unaware of the racial subtext inherent in their beliefs. Their research helps us to understand why the police continue to deny that racismexists and why racial proling continues to occur. However, it doesnot offer any evidence to indicate that the phenomenon is any lesspervasive than has been generally recognized in the courts and bygovernment commissions in recent years (Gittens and Cole 1995). Theresults of their research should prove to be useful in future efforts todetermine whether racial proling arises in any given policecitizen encounternot as a basis on which to discount the claims put forwardby an alleged victim of racial proling but as a means to understandwhy racial proling may still be found on the facts of a case wherethe judge has determined that the police did not consciously engagein racial proling while exercising their discretion to stop or search an individual.

The criminal proles developed through police intelligence havebeen noted to have racial undertones built into them (Tanovich 2002a). Operation Pipeline/Jetway, used to identify potential drugsmugglers has been linked to racial proling (Tanovich 2002b). Whilethe Supreme Court of Canada has declined to rule on the acceptabilityof these criminal-proling techniques, the implication of their recentruling in R v Kang-Brown (2008) involving the use of sniffer dogs at abus terminal gives some indication that a prole may not give rise tothe requisite level of suspicion needed to justify the deployment of dogs on travellers believed to t that prole (Tanovich 2008). To theextent that these proles and other, less rened hunches or schemasinforming the decisions of working police ofcers continue to embodyhidden or latent racial biases, they do not offer an alternativedenition of the situation that is equally worthy of acceptanceas the empirical literature that has consistently shown racial bias in law-enforcement stop-and-search practices. The research of Satzewich and Shafr (2009) allows us to better understand why the police holdthe views that they do; it does not offer a competing explanation of theracial-proling phenomenon.

Notes

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drivers from statute (see Highway Safety Code), some of their power tostop vehicles appears to arise from common law: see R v Murray at paras4550.

2 The power of the police to engage in random vehicle stops has been recognized by numerous Supreme Court of Canada judgments, includingR v Hufsky; R v Ladouceur ; R v Mellenthin; R v Orbanski.

3 A similar ruling was provided in the decision of R v Clayton, where themajority extended the power to allow the police to set up roadblocks tostop and question motorists leaving the scene of a weapons call, again applying the standard that a stop is justied if the ofcers suspicion

deems a detention to be reasonably necessary.

4 See R v Yeh. Going further still and searching the person requires that thepolices belief in the need to search meet a higher standard: reasonable grounds to believe that the individual is in possession of weapons endan-gering the safety of the police or the public; R v Mann (2004) at para 40.To search for any other reason, such as to nd evidence, the police wouldrst need to arrest the individual and have the requisite reasonablegrounds for belief in doing so, a standard somewhat higher than thereasonable suspicion grounds justifying these lower level intrusions.

5 The leading pronouncement on racial proling remains the Ontario Courtof Appeal ruling in R v Brown. Only a couple of cases have resulted in a court ruling that racial proling occurred, meriting a remedy such asexclusion of evidence; see R v Ahmed, R v Khan.

References

Gittens, Margaret and David Cole1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. Toronto: Queens Printer.

MacAlister, David2004 Canadian police subculture. In Stephen E. Nancoo (ed.), Contemporary

Issues in Canadian Policing. Mississauga: Canadian Educators.

Satzewich, Vic and William Shafr2009 Racism versus professionalism: Claims and counter-claims about

racial proling. Canadian Journal of Criminology and Criminal Justice 51: 199226.



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Tanovich, David M.2002a Res ipsa loquitur and racial proling. Criminal Law Quarterly 46: 329

340.

Tanovich, David2002b Operation pipeline and racial proling. Criminal Reports 6th series.

(6th) 1: 5253.

Tanovich, David2004a E-racing racial proling. Alberta Law Review 41: 905933.

Tanovich, David2004b The colourless world of Mann . Criminal Reports. (6th) series. 21: 47

58.

Tanovich, David M.2006 The Colour of Justice: Policing Race in Canada. Toronto: Irwin Law.

Tanovich, David M.2008 A powerful blow against police use of drug courier proles. Criminal

Reports. (6th) series. 55: 379393.

Legislation cited

Criminal Code, RSC 1985, c C-46.Customs Act , SC 1985, c 1 (2d Supp).Highway Safety Code, RSQ c C-24.2.Highway Trafc Act , SS 1986, c H-31.Highway Trafc Act , CCSM c H60.Highway Trafc Act , RSO 1990, c H.8.Highway Trafc Act , RSPEI 1988, c H-5.Highway Trafc Act , RSNL 1990, c H-3. Motor Vehicle Act , RSNB 1973, c M-17. Motor Vehicle Act RSBC 1996, c 31. Motor Vehicle Act , RSNS 1989, c 293. Motor Vehicles Act , RSY 2002, c 153. Motor Vehicles Act RSNWT 1988, c M-16. Motor Vehicles Act RSNWT (Nu) 1988, c M-16.Trafc Safety Act , RSA 2000, c T-6.

Cases cited

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Peart v Peel Regional Police Services Board, [2006] OJ no 4457 (QL) (CA).R v Ahmed, [2009] OJ no 5092 (QL) (SCJ).R v Brown, [2003] OJ no 1251 (QL) (CA).

R v Clayton, [2007] 2 SCR 725.R v Hufsky, [1988] 1 SCR 621.R v Kang-Brown, [2008] 1 SCR 456.R v Khan, [2004] OJ no 3819 (QL) (SCJ).R v Ladouceur , [1990] 1 SCR 1257.R v Mann, [2004] 3 SCR 59.R v Mellenthin, [1992] 3 SCR 615.R v Murray (1999), 136 CCC (3d) 197 (Que CA).R v Orbanksi, [2005] 2 SCR 3.

R v Richards, [1999] OJ no 1420 (QL) (CA).R v Yeh (2009), 69 CR (6th) 197 (Sask CA).



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The Law Governing Racial Profiling