A Critical Examination of Racial Profiling in Canada:
A Constitutional Law Context

Racial profiling is an inequality problem in North America, particularly after the tragic events of September 2001 (9/11).[1] However, the courts have not yet adequately addressed racial profiling as a problem of constitutional inequality. In this research paper, I will provide an explanation of racial profiling and a critical overview of its evidence in North America. I will then consider racial profiling and the courts of Canada and close with a concise overview of this issue.

The experiences of Black men with racial profiling is the primary concern in this paper, given the prevalence of racial profiling by the police towards this target group. The theoretical lens that informs my research is the Critical Race Theory (CRT). This theory looks at the impact of law enforcement from the point of view of a racial minority person.[2] Carol Aylward, in her highly acclaimed book entitled Canadian Critical Race Theory: Racism and the Law, explains the framework of CRT:

Critical Race Theory methodology requires a deconstruction of legal rules and principles and challenges the so-called ‘neutrality’ and ‘objectivity’ of laws that oppress Black people and other people of colour. Deconstruction is designed to confront subtle forms of discrimination perpetuated by law...To this day; race-based litigation in Canada is impeded by the paucity of Black lawyers to conduct the litigation and the unwillingness or inability of many White practitioners to make racial arguments before the courts.[3]

This statement reveals that oppression and discrimination in the legal system can not be explained simply by reference to personal prejudice. Discrimination is a reflection of systemic inequalities, which are built into structural and institutional patterns and organisational policies.[4] The Critical Race Theory facilitates the exploration of the broader experiences of Black men in the legal system in order to indicate whether legal remedies, in this case section 15 (1) of the Canadian Charter of Rights and Freedoms[5], would be of any assistance and if equality litigation ameliorates the conditions experienced by Black Canadian men.

I. Racial Profiling and the Courts of Canada

Racial profiling is an inequality problem because it discriminates against people based on their race. In this portion of the paper, I will first consider how the Supreme Court of Canada has historical addressed racial discrimination. Second, I will examine how this Court has defined equality under section 15(1) of the Charter. Third, I will provide proof of why racial profiling is a violation of section 15(1).

A. Brief Historical Overview of Racial Discrimination in the Supreme Court of Canada

The Supreme Court of Canada is intended to be an institution that one can access in order to seek solace and protection, yet it has been historically implicated in the affirmation of racial inequality, exclusion and discrimination.[6] Discrimination can arise both from the adverse effect of rules of general application, which may appear neutral, as well as from blatant inequality flowing from the distribution of benefits.[7]

In his book entitled, ‘Race’, Rights and the Law in the Supreme Court of Canada,[8] James Walker demonstrated how the Supreme Court of Canada had given a legal approval to racial discrimination in the past. He chose four cases for detailed examination. The first case, Quong Wing v. The King involved a Chinese-Canadian who was charged under a Saskatchewan statute preventing Chinese men from employing White females.[9] The Supreme Court of Canada upheld the statute. The second case, Christie v. York Corp, involved a Black Canadian who was refused service in a tavern because of his race. The Supreme Court also upheld the prohibition.[10] The third case, Noble and Wolfe v. Alley, involved a Canadian Jewish person who was denied the right to purchase a cottage because of a restrictive covenant preventing owners from selling to Jewish people. The covenant survived.[11] The fourth case examined was Narine-Singh v. Attorney General of Canada, which involved an East-Indian Trinidadian who was excluded from Canada based on the Immigration Act[12] because he was of the “Asian race.”[13] The Supreme Court upheld the exclusion on racial grounds.

Professor Constance Backhouse of the University of Western Ontario, supplements the above analysis in her book entitled Colour-Coded: A Legal History of Racism in Canada1900-1950.[14] She details numerous cases where Canadian courts have upheld discriminatory law and practices.[15] For example, Backhouse explores one of the more celebrated cases of the 20th century, which challenged segregation along “race-neutral” lines.[16] This is the case of Viola Desmond, a highly respected African Canadian businesswoman from Nova Scotia, who was arrested in 1947 for challenging the segregated seating arrangements in the Roseland theatre in New Glasgow.[17] Desmond attempted to purchase a ticket to sit on the main floor of the theatre, but was instead sold a cheaper ticket for the balcony, a place reserved for Black patrons. She refused the imposed seating restrictions, and sat on the main floor. Consequently, Desmond was physically removed from the theatre by the police and incarcerated.[18] Desmond challenged the theatre’s racist policy through the courts. She retained a White legal counsel who argued the entire case on the basis of common-law tort actions and in race neutral terms. Desmond’s counsel sought compensatory damages based on her assault, malicious prosecution and false arrest and imprisonment.[19]

Backhouse states that, during the trail, the counsel did not mention that Desmond was a Black person, or that the theatre seating policy was racist. The judge found that Desmond had occupied the main floor, the more expensive seating section in the theatre, while she had only purchased a ticket for the balcony, the less expensive seating section. The judge ignored the fact that she was denied the right to purchase a main floor ticket.[20] Desmond not only lost her case, but was also portrayed as a common criminal who tried to deceive the theatre management. Although race and racism were supposed focal points of this trail, the entire White judicial system disregarded race because to acknowledge race would have been to acknowledge the existence of racism in the society.

Given Professor Backhouse’s extensive historical examination, I remain curious about how the Supreme Court of Canada would address a racial profiling case. The Supreme Court of Canada has however, revealed as to where it would lean if the issue of racial profiling were to go before it now. In R.v. Golden[21], the Supreme Court agreed that Aboriginal and African-Canadians are overwhelmingly at the receiving end of being criminally profiled and therefore, stopped and intrusively strip-searched. This suggests that the Supreme Court of Canada is inching toward recognizing that race may have a bearing on the negative practices of law enforcement officers and that something must be done about that.

B. The Supreme Court of Canada’s Definition of Equality

Equality as articulated in section 15 (1) of the Charter must be constructed as an individual right – that is, not as a means for attainment of social goods. In other words, section15 (1) is an articulation of an individual right to equality and not a blueprint or directive for equalitarianism. Before an analysis of section15 (1) can be fairly conducted, it is appropriate to set out the legislation relevant to the court’s decisions. Under the heading, “Equality Rights,” section 15 of the Charter reads:

15.(1) [e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethic origin, colour, religion, sex, age, or mental or physical disability.[22],[23]

What is important to understand from the above sections is that section 15 (1) bestows and recognizes a discrete, individual right to equality before and under the law and confers a similarly individual right to the equal protection and benefit of the law. Moreover, it provides the negative entitlement of being free from certain unacceptable forms of discrimination, such as racial profiling. It is not a stretch of the interpretation of section 15(1) to conclude that it stands for the idea that something exists in an individual that the state cannot legitimately interfere with or violate without attracting the attention and disapproval of the court.

The quintessential question that faced the courts with respect to section 15 claims was what this right entailed, that is, what was the content of the equality guaranteed? In other words, did it bestow a general guarantee of equality such that all “arbitrary” differences between individuals mandated or supported by law ought to be considered unconstitutional– that is, ultra vires of parliament? Or, was it a more specific right, limited to a probation of discrimination of individuals based on certain enumerated and analogous grounds? In its first section 15 case, Law Society of British Columbia v. Andrews,[24] the Supreme Court of Canada held that the guarantee was in line with the latter question, and thus faced a “new” question - what constitutes unjustifiable discrimination sufficient that it amounted to a violation of equality under section 15(1)? In this case, Mr. Justice McIntyre of the Supreme Court of Canada held that:

Equality is a comparative concept the condition of which may only be attained or discerned by comparison with the condition of others in the social or political setting, in which the question of equality arises.[25]

The most recent articulation of equality by the Supreme Court of Canada is outlined in Law v. Canada (Minister of Employment and Immigration).[26] However, prior to Law, a series of cases concerning equality claims under section 15 (which were known as “the Equality Trilogy”) confronted the Supreme Court of Canada. In articulating what the appropriate test for equality was under section 15, the Court splintered into three groups. The three different articulations by the Court of the test for section 15(1) resulted in confusing precedents for lower courts. Hence, its delivery of a unanimous judgment in Law concerning the appropriate test for section 15 was received with much relief.

In her informative paper, Andrea York[27] examines the cases that constitute the above mentioned trilogy: Egan & Nesbit v. Canada,[28] Miron v. Trudel,[29] and Thibadeau v. Canada.[30] York conducts this analysis with the overarching goal of shedding some light on where the Supreme Court is headed in terms of interpreting the equality guarantee. York seems to call for a more active, less parliament-deferent court to fulfill certain socioeconomic anti-discrimination equality goals. Her piece is useful as a distillation of certain arguments espoused by the Supreme Court justices prior to Law.

According to York, Madame Justice L’Heureux-Dube’s attempt to widen the scope of section 15 by focusing on the definition of discrimination independent of analogous grounds is the most promising of all the justices’ judgments, during the Equality Trilogy, for the achievement of social goals. To this end, York cites L’Heureux-Dube’s often quoted ratio in Egan:

When members of that group have been made to feel, by virtue of the legislative distinction, that they are less capable, are less worthy of recognition or value as human beings or as members of Canadian Society, equally deserving of concern, respect and consideration [this definition] of “discrimination” . . . focuses on impact (i.e., discriminatory effect) rather than on constituent elements (i.e., the grounds of discrimination).[31]

L’Heureux-Dube’s reasoning echoes, prima facie, the above definition that a right to equality means a right to treatment as a human being, that is, as someone of equal worth. York, writing pre-Law, endorses L’Heureux-Dube’s reasoning, but expresses pessimism that such reasoning will have much effect on subsequent Supreme Court jurisprudence since Madame Justice L’Heureux-Dube was alone in articulating it. Hence, York concedes, “[a]ccordingly L’Heureux-Dube’s discrimination analysis may, in the end, be of little more than academic interest.”[32] York was wrong in here pessimistic prediction. L’Heureux-Dube’s analysis ended up dominating subsequent equality jurisprudence. In Law, the Court identifies that the purpose of section 15(1) is to protect human dignity. Justice Iaccabucci, speaking for a unanimous court, states that:

The purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all person enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.[33]

Thus, if a law prima facie distinguishes in such a way (be it blatant discrimination, invidious discrimination, or adverse effects), then it crosses the threshold for section 15(1) judicial review. The Court finds that it is not just a distinction, even a distinction based on enumerated or analogous grounds, that constitutes a violation of section 15(1), but rather that this distinction have a deleterious effect on the dignity of the claimant. Section 15(2) can be interpreted fairly as containing the seeds for a partial explanation of the necessity of ill-effects. For example, section 15(2) holds that it does not count as discrimination in terms of section 15(1) if the distinction is drawn for the purposes of ameliorating the conditions of a disadvantaged group. This provision can be understood as providing a sign to the Court that the quintessential issue is not merely a distinction drawn on enumerated or analogous grounds, but rather what the character of the effect of such a legislative distinction really is. In other words, allegedly, distinctions drawn to aid disadvantaged groups do not constitute the “harm” to human dignity that section 15(1)’s function must therefore be to protect.

However, although the Court correctly identifies human dignity as the appropriate function of section 15(1), it errs in its definition of just what such human dignity entails. The Court agrees that all human beings have an equal right to human dignity because they are, by their very nature, humans. However, the court slips from the universal claim by defining dignity as something that is merely experienced. As Iaccobucci J. states:

The equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth . . . Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.[34]

The Court does not advert to the possibility that “dignity” is not a blanket term, but rather has two distinct manifestations: an absolute abstract, metaphysical conception of “Dignity,” and a relative, particular, and socially-constructed notion of “dignity.” It is the latter that the Court adopts. According to the Court, dignity can be harmed if the complainant feels that he/she has been so negatively affected. To counter the objection that this is basing too much on subjective and possibly irrational feelings of discrimination, the Court proposed a modified-objective test. Under this test, the validity of the claim is judged by whether a reasonable person in the circumstances of the accused would feel as if his/her dignity were violated by such a law.[35]

C. Proof: Racial Profiling is a violation of Section 15(1) of the Charter

In Law, the Supreme Court of Canada developed a three part test to determine whether a section 15 violation occurred. I will apply this test to the issue of racial profiling to illustrate that it is a clear violation of section 15(1) of the Charter. The Law test measures the following factors:

A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics . . .? B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and C. Does the differential treatment discriminate . . . or promote the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?[36]

The first step of the Law test requires that a distinction has been drawn. Based on the previously stated definitions of racial profiling,[37] the main premise of this act is to target certain people (in this case Black men) because of racial stereotypes held by the police about this group. The clear use of distinction in racial profiling is further illustrated in the research studies discussed in this paper. A common theme from the previously explored research indicates that Black Canadians are over-policed compared to other ethnic groups.[38] Black Canadians, especially men, are seen as being a high risk to White society, reinforcing stereotypical believes of this target group being hyper aggressive, inferior and uncontrollable.[39]

In R v. Richards[40], the Ontario Court of Appeal heard the case of the Clifton Richard who was convicted in 1997 for resisting arrest and choking an officer. However, using the police officers’ notes (which explicitly mentioned that Richard’s race was a factor in the decision to stop his vehicle) and statistics showing Blacks are much more likely to be stopped by the police, his lawyer argued that race was the only reason Richards was initially pulled over by the police for question.[41] The defence maintained that Richards’s only real crime was “driving while black”[42] Although the court eventually overturned the conviction, the judges unfortunately did not rule on the controversial racial profiling issue.[43] In a clear attempt to side-step the debate, Justice Marc Rosenberg argued that, “in my view the issues in this case are considerably narrower and this is not an appropriate case to expound upon racial profiling”.[44] This statement reveals that while some judges may argue that racial profiling exists, like the Crowns, they often argue that it only exists in the abstract and not in the specific case at hand.

The second step of the Law test considers if a distinction has been drawn on the basis of a prohibited ground. Targeting a person based on his/her race and ethnicity is enumerated under section 15 as prohibited grounds of discrimination.[45] In this context, every time a Canadian police officer uses racial stereotypes as the basis for stopping a Black male driver, that officer is violating the person’s right to equal treatment before the law. Perhaps the clearest articulation of the link between racial profiling and discrimination is stated by the Honourable Juanita Westmoreland-Traoré in The Queen v. Campbell. [46] In this case, the Honourable Westmoreland-Traoré dropped drug charges against a young Black man because of racial profiling by the Montreal police:

The racial profiling practiced in this case, as shown by the unreliable testimony and cluster of indicators is also a serious concern of the Court. While the racial profiling may have been practiced unconsciously, the good faith of the officers does not restore the right of all citizens to non discriminatory treatment.[47]

Justice Westmoreland- Traoré’s above comments acknowledge that the police officer’s behaviour in this case could be due to their unconscious bias. From a CRT perspective, the police officer’s behaviour could be understood as ‘White privilege’.[48] White privilege is a theory that substantiates the existence of an unconscious attitude that could affect the way in which White people see their position in the society vis a vis individuals from visible minority groups.[49] Robert Jensen, who is a White man, admits that White privilege protects him daily by easily forgiving his ‘flaws’ because of his colour.[50] Jensen argues that there are individuals who still resist the reality that racism exists and has adverse effects on marginalized groups. Jensen’s perspective builds on the recognition made by Peggy McIntosh, in her paper White Privilege.[51] McIntosh argues that White people are deliberately taught not to recognize White privilege, which is an unearned benefit package from which White people can “withdraw” from each day.[52] She contends that White people must remain “oblivious” because to recognize or admit the existence of this benefit package, requires the admission that “meritocracy” is a myth.[53]

Similarly, Backhouse submits that this privileged position is derived from power which is largely in the hands of the dominate White group.[54] According to Backhouse, White people do not perceive themselves in racial terms. She believed that that this: “transparency of ‘Whiteness’ is misleading and contributes to an erasure of the privilege that attach to membership in the dominate race.”[55] In the book, Looking White People in the Eye, Shereen Razack explores how these systems of oppression work in order to support and sustain each other. Razack concludes that even gender plays a major role in sustaining White privilege because, invariably, White women are perceived to be “better off” than their Black counterparts.[56]

By recognizing the existence of White privilege in society, and by factoring this recognition into the way that biases are formed, White police officers and judges could take a huge step toward achieving greater impartiality within the legal system. However, unlike justice Westmoreland-Traoré, most Canadian judges have not openly identified racial profiling and discrimination as central problems in a case dealing with racial profiling. One of the primary questions in a racial profiling case is whether a person was stopped because of his/her race or because there were reasonable and probable grounds that he/she committed an offence.[57] This question derails many cases of racial profiling. However, the Ontario Court of Appeal’s seminal decision upholding a lower appeal court’s decision in Brown held that:

A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a Police Officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.[58]

The above quote indicates that Brown has shattered the prior judicial and prosecutorial demand for proof of racial profiling. Furthermore, Brown gives an opening where a judge may support a finding that racial profiling could be a factor in a case and that he/she should dismiss the charge against the accused based on defect. In other words, in a racial profiling case, a judge could acknowledge that the arrest and charge of a person may have been defected by the factor of racial profiling. Similarly, in Brown v. Durham Regional Police Force, the Court of Appeal decided that if one of the purposes motivating a stop and detention is improper, the whole operation becomes unlawful and or unconstitutional despite the fact that there may have been valid or lawful reasons for the stop.[59]

In Brown, both the lower appeal court and the Ontario Court of Appeal found that there was evidence before the trial judge which was capable of supporting a finding of racial profiling. However, the trial judge had found no such evidence and wanted the defendant, Mr. Brown, to apologize to the police officer for making outrageous allegations of having been racially profiled. The appeal courts found that the judge’s handling of the motion on racial profiling raised a reasonable apprehension of bias.[60] The evidence in Brown that was capable of supporting a finding of racial profiling included, but was not limited to, the evidence that the police officer looked into Mr. Brown’s car before following and stopping him. Also, the apparent evidence of the existence of the second set of notes prepared by the officer to firm up his reasons justifying the stop after he became aware of the status of Mr. Brown; a license check that the officer made before he stopped Mr. Brown and various evidential discrepancies.[61] Even with various problems of credibility with police evidence, the trail judge still believed the police officer in this case. The Court of Appeal stated that police officer’s lack of credibility could be inferred as evidence of racial profiling.

Similarly, in R.v. Richards[62] the trial judge dismissed a motion on racial profiling because, among other reasons, the trial judge was afraid of the consequences to the police officer’s career if the judge had made specific findings that his stoppage of Mr. Richards was a result of racial profiling. However, the Court of Appeal reversed the decision because of the importation by the trial judge of irrelevant issues into the decision. The above cases have been mentioned to illustrate the different contexts and results that are possible when racial profiling is alleged. This overview indicates that, in the end, racial profiling may not be solely about the evidence, but also about the predilections of the judge.[63]

The third step of the Law test is the heart of the section 15 analysis, as it considers if the differential treatment is discriminatory. In order to determine this point, Law states that the court must consider if the person’s dignity was diminished. For this stage of the test, it is essential to consider research on the individual and collective impact of racial profiling within Black communities. Studies conducted in both the United States[64] and Canada[65] has consistently found that people of African descent are much more likely to perceive that the criminal justice system is racially biased than Whites. Personal perceptions of criminal injustice and diminished dignity among North American’s of African descent are some of the many implications of racial profiling. For example, police stop and search practices contribute to the negative option and distrust many racial minorities feel towards the criminal justice system.[66] After all, the majority of people who are stopped and searched by the police are innocent of any wrong doing and understandably feel threatened, angered, bewildered, and a diminished sense of dignity by such experiences.[67] For example, in the study entitled, We Are Not Alone, one research participant shared his humiliating experiences of racial profiling in the following context:

One time I was stopped because I fit the description of a Black man with his hair in a braid, six feet tall. I had nothing on me but they put the handcuffs on me after they ran my name through the computer. They said it was for their own safety. They went through my pockets to see if I had . . . any drugs, any contraband or any sharp objects. The only thing I had on me that was sharp was a pen in my pocket and my house keys.[68]

For many racial minority people, police stop and search practices reinforce the already strong perception that when it comes to the law - race still matters.[69] As Henry Louis Gates, Jr. states: “Blacks – in particular Black men—swap their experiences of police encounters like war stories, and there are few that don’t have more than one story to tell.”[70] This quote indicates that even if a Black person has not been stopped, most Black people have vicarious knowledge about police behaviour through the racial profiling experiences of those they are close to. These indirect experiences could eventually influence how Black people, and more specifically Black men, view the criminal justice system.

The importance of the link between race, police stops and perceptions of criminal injustice should not be discounted. Scholars are only now beginning to consider the impact of the widespread belief among Black men that the criminal justice system is unfair. Some researchers have argued that the greater the perceptions of criminal injustice, the less likely people are to trust criminal justice officials and cooperate in the reproduction of social order.[71] Katherine Russell, for example, argues that perceptions of injustice may contribute to higher levels of criminal offending among African Americans. Russell maintains that:

For Blacks the perceived existence of unfair sanctions, combined with the absence or lack of sanctions for race-based harms, cause a diminished faith in the justice system, which in turn sets the stage for criminal offending.[72]

Another major implication of racial profiling is the direct relationship between how closely people are watched or monitored by the police and how likely they are to get caught for doing something wrong:

A lot of my friends are stopped, especially when they are with White girls. (Police) figure either (a) they are pimps (b) they are drug dealers or (c) you are a drug dealer and the White girl is holding the drugs for you. I have seen females harassed by police too . . . Black females, White females, Hispanic females . . . who mix with Black guys.[73]

Clearly, if Black males are systematically stopped, questioned and searched more frequently than other people, they are also more likely to be detected and arrested for breaking the law than people from other racial backgrounds who engage in the same behaviour.[74] This brief overview of the impact of racial profiling illustrates that through the racialization of crime, Black males experience differential treatment in the law.[75] The over-surveillance of Black men ultimately equates “Blackness” to a natural state of inferiority whereby all Black people are held accountable for the criminal transgressions of a few, since such behaviour is believed to be inherent to the race.[76] Consequently, racial profiling has both individual and collective impacts on Black Canadians. Stereotyping Black Canadians as the inferior outsiders plays an important role in demonizing and diminishing Black people’s sense of dignity so that they are not seen and accepted as legitimate citizens in Canada. One research participant explains his sense of alienation from Canadian society and response to law enforcement officials in the following context:

You treat me like shit, I’ll treat you like shit. What goes around comes around. I all boils down to respect. If you talk to someone in a pleasant tone or manner you will get a response in a pleasant tone or manner nine times out of 10 . . . If [cops] want our cooperation they should talk to us in a proper manner, not like we are criminals. That’s not right.[77]

This sense of alienation due to racial profiling directly opposes section 15(1) guarantee of equality for all Canadians. In RDS[78], Justice Sparks used her knowledge of individual and collective discrimination against Black people by the police to make findings of credibility in this case.[79] This case arose in Nova Scotia where a Black youth came upon a White police officer who had arrested the youth’s cousin. The youth protested by inquiring about the arrest. He was instead charged with assaulting the police officer in the execution of his duties.[80] Justice Sparks acquitted the Black youth in this case. It is contended that only a judge who is in tune with racial discrimination and the social context of racial inequality would make the following observations as Judge Sparks made in this case. She stated:

The Crown says, well, why would the Officer say that events occurred the way in which he has relayed them to the Court this morning? I am not saying that the constable has misled the Court, although police officers have been known to do that in the past. And I am not saying that the Officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. that he was told to shut up or he would be under arrest. That seems to me to be in keeping with the attitude of the day.[81]

The crown appealed the acquittal of the Black youth to the Supreme Court of Nova Scotia on the basis that Justice Sparks demonstrated racial biases.[82] While judges must be impartial and base their judgments on sound legal principles, they are also human beings, the product of their experiences.[83] It makes sense that judges from diverse backgrounds bring a different voice to their work and base their decisions within a social context.[84] The Nova Scotia Supreme Court overturned the acquittal and sent the case for retrial. The Black youth also appealed the decision to the Nova Scotia Court of Appeal which upheld the decision of the Supreme Court. The Black youth further appealed to the Supreme Court of Canada. In a seminal decision, the Supreme Court of Canada restored the acquittal and essentially agreed with the Trial Judge’s findings in this case. In establishing the framework that still resonates in racial profiling cases, the Supreme Court of Canada ruled that “there was evidence capable of supporting a finding of racially motivated overreaction.”[85] An interesting development also occurred in this case, which suggests the possible way of effectively prosecuting cases of racial profiling, and that is the presence of numerous intervenors on behalf of the Black youth. This unified advocacy approach is reminiscent of the strategies used by the Legal Fund of the National Association for the Advancement of Coloured People (NAACP) in the United States and the Legal Education and Action Fund (LEAF) in Canada.

The research presented in this section of the paper establishes that racial profiling is a form of discrimination. Using the Law test to determine when equality rights have been infringed supports my contention that racial profiling is a form of unjustifiable discrimination, which constitutes a violation of equality under section 15(1). When a police officer practices racial profiling, he/she uses the pretext of a minor traffic violation as an excuse to stop a vehicle. In reality, the police officer has targeted the driver on the basis of an illegitimate racial stereotype based on the driver’s personal characteristics. This action stigmatizes and undermines the inherent dignity of the individual being stopped, as well as the equality rights of all persons who share that racial origin. In this way, the police officer’s use of race as a proxy for criminal activity is a discriminatory action that violates section 15(1) of the Charter.

II. Racial Profiling: A Concise Overview

Canada’s Constitution and its mode of governance purport to epitomize the best safeguards to the preservation of civil liberties. Yet, a close scrutiny of the issue of whether there exists a correspondence between the law of the land and the execution by the law enforcement agencies of Toronto reveals that there is a misadministration of justice vis a vis Black men.[86] In this section of the paper, I will illustrate that there is a wide divergence between the principles of the law and its actual implementation by the law enforcement agencies of Toronto.

A. Historical overview of Toronto’s Police Force’s Response to Racial

Profiling

Members of the Metropolitan Toronto police force have a very crucial role in the well-being and safety of Torontonians of different races and belief systems. However, this does not mean that the manner police officers conduct their business in the streets and neighbourhoods of Toronto do not need legal safeguards. A number of remedial measures, such as pieces of legislation, formation of task forces, commissions, inquires, and civilian organizations were initiated in the past in order to narrow the gap between the public and Toronto police officers.[87]

At a national level, the passage of pieces of legislation such as the Canadian Human Rights Act (1977) and the Charter (1982) were envisaged to be of extreme help in brining about the accountability of Toronto’s police force.[88] The codification of the rights and duties of a police officer in both the common law and statute further helped to delineate what is a rightful act as well as wrongdoing of police officers.[89] These are mainly stipulated in Sections 25, 26, and 32 of the Criminal Code[90]. For example, subsection 25(3) allows the use of force in order to protect police officers or members of the public form death or grievous bodily harm. Section 26 stipulates that unnecessary use of excessive force by the police would result in criminal sanctions. Section 32 permits the police to suppress riotous acts in order to ensure the safety and liberty of the public. Such prescriptions were reinforced by further guidelines that elaborated on the duties and rights of the police department in Ontario.[91]

The move towards curbing the Metropolitan Toronto police force’s abuse appeared to be more promising on December 5, 1988 when the Ontario Solicitor General created the Race Relations and Policing Task Force.[92] This task force made a number of recommendations, which are as follows: to ensure affirmative hiring practice, cross-cultural training, methods to improve the interaction of the policies and practices of the police relating to the use of force.[93] Moreover, the creation of an independent body investigating the police otherwise known as the Special Investigations Unit (SIU) in 1990 further enhanced the opportunity to control police misconduct. In addition to these, the involvement of autonomous civilian control bodies raised the hope of instituting the accountability and accessibility of police officers. The formation of the Citizen’s Independent Review of Police Activities (CIRPA) in 1981 was of key importance in this aspect.[94] Unfortunately, despite the past sets of measures overseeing police activities in Toronto, the empirical evidence attests to the escalation rather than de-escalation of the police’s failure to adhere to the principle of accountability and the rule of law.[95]

B. Beyond simple solutions: Recommendations based on lessons learned

from the United States

Despite the findings and recommendations of various commissions of inquiry for facilitating police-community relations and documenting systemic racism, such initiatives has not led to any fundamental changes in the practices of racial profiling or systemic racial discrimination in Canada.[96] Therefore, although racial profiling exists in Canada, transformative action is needed to legally and politically address this issue. This section of the paper will explore the United States’s response to racial profiling and consider how adaptable such responses will be in a Canadian context.

In the United States, the former President Clinton ordered federal law enforcement agencies to collect data on the race, ethnicity and sex of all people subjected to traffic stops and other law enforcement activities as a first step towards detecting and ending racial profiling by law enforcement officials. Clinton also urged all state and local officials to collect similar data and endorsed legislation that would create a new grant program that would help state and local agencies collect data on race and police stops. The former President argued that:

Stopping or searching individuals on the basis of race is not effective law enforcement policy, and is not consistent with our democratic ideals, especially our commitment to equal protection under the law for all persons. It is neither legitimate nor defensible or a strategy for public protection. It is simply wrong.[97]

Major law enforcement organizations, including the International Association of Police Chiefs and the Fraternal Order of Police, immediately expressed opposition to any legislation requiring the collection and dissemination of data on police stop and search practices.[98] I question why there was such resistance. Perhaps police agencies are afraid that such data collection requirements will create more work for their officers and thus take time away from their more “important” crime fighting duties. Or maybe police officials are afraid that the data will confirm the results of other studies, like those discussed in this paper, that point to racial bias in law enforcement practices.[99] Police officers may also be afraid that such data will eventually take away a powerful tool that gives them the power to act on racially based assumptions of who is a criminal offender and who is not:

Some [police officers] may find this practice is justified because there are a lot of bad people out there and it is relatively easy to group certain clusters together based on statistics and probability factors . . . Who can begin to appreciate the level of frustration within these individuals and the future cost to society that disenfranchises these innocent victims.[100]

Although data on stops and searches has the potential to make police agencies more accountable, it is quite likely that data collection proposals that involve the police will receive even more resistance in Canada than in America. After all, unlike the United States, since 1989 the Toronto Police Services Board banned the collection and dissemination of information related to issues of race, crime, and criminal justice outcomes.[101] Police agencies in Canada might use this ban as an excuse for not collecting information on the race of people they stop or search. However, the recent Kingston Research Data reveals that even if data on race and police stops are mandated in Canada, critics have already begun to question the reliability of information that is collected by the police.[102] The critics maintain that, in order to conceal racial profiling practices and avoid outside criticism, individual police officers could simply under-report the number of stops and searches involving racial minorities. Thus, even if the Canadian police are mandated to collect their own data on stop and search practices, it is clear that other forms of data collection – including surveys and ethnographic research – conducted by independent, non-police researchers are needed for comparison.

Despite the great strides made by the United States to effectively address racial profiling, the legal battle against this issue suffered a significant setback in the 1996 case of Whren v. United States.[103] In this case it was argued, with the help of statistics on race and police stops, that the police used a routine traffic violation as a pretext to stop a car and investigate possible drug-related crimes. Besides race, the officers had neither probable cause nor reasonable suspicion to stop the car for narcotics crime. Although the defence argued that the stop and search of their client’s vehicle, which subsequently led to drug charges, was racially motivated and thus unconstitutional, the Supreme Court sided with the police. Thus, after Whren, American courts did not have to ask whether the police conducted a traffic stop because of racial stereotypes or because they had a hunch that the occupants were involved in some other type of criminal activity. In other words, once a driver commits an infraction, the officers’ “real” reason for conducting the stop does not matter. Harris argues that this decision clearly gives American police the power to continue to use racial profiles in order to stop and search suspects on the street. Harris writes that:

Whren is more than a missed opportunity for the court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction - toward authoritarianism, toward racist policing and toward a view of minorities as criminals, rather than citizens.[104]

As the cases discussed above illustrate, at this point there is little hope that dramatic changes in police profiling practices will result from court action in North America. Considerable doubt about whether data on stops and searches can change racist law enforcement practices has also been expressed by progressive law enforcement officials. For example, although he acknowledges that stop and search statistics can help document racism, Kingston police Chief William Closs, maintains that the true essence of the police culture cannot be derived from mere statistics. He states that:

I have never suggested that any Canadian police service should begin to collect data on race and ethnicity, but very police service should keep an open mind with respect to the use of statistical analysis and honestly recognize data collection as an option for consideration, subject to a community’s particular circumstances . . . Simply to consider the possibility of data collection as one option that might prevent, or at least diminish, the mistrust that exists among some of our citizens and youth would be an improvement tot the status quo.[105]

Clearly, data on racist stop and search practices alone can not solve the problem of racial profiling in Canada. It is what is done with such data, such as the programs and guidelines that are developed and justified by this type of information, which really counts.[106]

Conclusion

The guarantee of equality is fundamental to the legitimacy of a modern liberal democratic state. The foundational role of equality is evidenced by the inclusion of equality guarantees in the Canadian Constitution. In Canada, the equality guarantee is enshrined in section 15(1) of the Charter, which guarantees equality before and under the law and the equal benefit and protection of the laws without discrimination. However, the research explored in this paper reveals that Canadian law enforcement agencies’ use of racial profiling against Black men runs contrary to the constitutional principles of the land and the notions of equality stated in section 15(1) of the Charter. I close this research paper with a final question – will information that proves the existence of racial profiling ultimately bring about change through court action, police training, racial minority hiring practices and other transformative efforts? While the verdict is still out, the facts about racial profiling continue to emerge. It is now becoming more difficult to deny that there are major individual and collective consequences for using racial characteristics in order to discriminate against Black Canadian men.

BIBLIOGRAPHY

LEGISLATION

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JURISPRUDENCE

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R. v. Richards, [1999] 42 M.V.R. (3d) 70, 120 O.A.C. 344, 26 C.R. (5th) 286.

The Queen v. Campbell, [2005] CarswellQue 243.

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Whren v. United States, [1996], 116 S.Ct. 176.

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[1] Sherry F. Colb, “The New Face of Racial Profiling: How Terrorism Affects the Debate” FindLaw’s Legal Commentary (10 October 2001), online: FindLaw’s Legal Commentary <http://writ.news.findlaw.com/colb/20011010.html>.

[2] Carol Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood Publishing, 1999) at 68.

[3] Ibid. at 82-3.

[4] Ibid. at 39-40.

[5] Canadian Charter of Rights and Freedoms, Part 1of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15. [Charter]

[6] James Walker, Race, Rights and the Law in the Supreme Court of Canada (Toronto: The Osgoode Society For Canadian Legal History and Wilfrid Laurier University Press, 1997) at 12-31.

[7] Wsevolod W. Isajiw, Understanding Diversity: Ethnicity and Race in the Canadian Context (Toronto: Thompson Educational Publishing, 1999) at 114-15.

[8] Supra note 45 at 3.

[9] Ibid. at 98-9.

[10] Ibid. at 158-68.

[11] Ibid. at 200.

[12] Immigration Act, Sec. 5 (0).

[13] Supra note 42 at 249.

[14] Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada 1900-1950 (Toronto: University of Toronto Press, 1999).

[15] Ibid. at 17.

[16] Ibid at 253.

[17] Ibid. at 226-71.

[18] Ibid. at 228-29.

[19] Ibid. at 252-53.

[20] Ibid. at 228.

[21] R. v. Golden, (2001) 47 CR (5 th) 1 at para. 81-3.

[22] Supra note 5.

[23] Although the focus of this paper is on s.15 (1) jurisprudence, I include the words of s. 15(2) as well because it lends evidence and support to what the intended purpose of the Charter most likely is, and helps, in part, to explain how the Supreme court of Canada arrives at the decisions it has.

[24] Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143.

[25] Ibid. at 164.

[26] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53 [Law].

[27] Andrea York, “The Inequality of Emerging Charter Jurisprudence: Supreme Court Interpretations of Section 15(1)” (1996) U.T. Fac. L. Rev. [York].

[28] Egan & Nesbitt v. Canada, [1995] 2 S.C.R.513 [Egan].

[29] Miron v. Trudel, [1995] 2 S.C.R. 418 [Miron].

[30] Thibaudeau v. Canada, [1995] 2 S.C.R. 627[Thibaudeau].

[31] Supra note 67 at 37.

[32] Ibid. at 38.

[33] Law, Supra note 65 at para. 51.

[34] Law, supra note 65 at para. 53 [my emphasis].

[35] The Court also introduces in Law a list of four ( non-exhaustive) contextual factors – deleterious effects, prior disadvantage, inter alia – that should be taken into account to determine whether the distinction drawn by the legislature in fact amounts to discrimination. The primary issue that the introduction of these justifying facts in the s. 15(1) stage of analysis raises is that it is usurping the justificatory function of s. 1 ] - - ie, that such a violation can be justified in a free and democratic society. Unfortunately, the scope of this paper does not permit any further discussion concerning the dynamic and controversial interplay between ss. 15(1) and 1 of the Charter.

[36] Law, supra note 65 at para. 3.

[37] Supra notes 7and 10.

[38] Supra note 6.

[39] Joanne Naiman. How Societies Work: Class Power and Change in a Canadian Context (Toronto: Irwin Publishing, 1997) at 37-2.

[40] R v. Richards, 1999 W.C.B.J. LEXIS 7478, 1999 W.C.B.J. 626356, 42 W.C.B. (2d) 251 at para. 1[Richards].

[41] Ibid. at para. 11.

[42] Tracey Tyler. “DWB: Driving While Black” Toronto Star (24 October 1998) at A8.

[43] Supra note 79 at para. 3.

[44] Thomas Claridge “Appeal Court Sidesteps Racial-Profiling Issue” The Layers Weekly (21 May 1999) at 18.

[45] Charter, supra note 5 ss. 15 (1), (2).

[46] The Queen v. Campbell, 2005 CarswellQue 243 [emphasis added].

[47] Ibid. at. para. 115.

[48] Peggy McIntosh, “White privilege: Unpacking the invisible knapsack” (1990) 49 Independent School 31 at 31[White Privilege]; Alison Bailey, “Despising an Identity They Taught Me to Claim”, in C.G. Cumon and K.Q. Hall, eds., Whiteness: Feminist Philosophical Reflections (Lanham: Rowan and Littlefield, 1999) at 85.

[49] Ibid.

[50] Robert Jensen, "White Privilege Shapes the U.S." Baltimore Sun (19 July 1998), online: <http://uts.cc.utexas.edu/~rjensen/freelance/whiteprivilege.htm>.

[51] White Privilege, Supra note 87.

[52]Ibid. at 31.

[53] Ibid. at 34.

[54] Supra note 53 at 136.

[55] Ibid.

[56] Looking White People in the Eye, Supra note 11 at 12.

[57] The Queen v. Campbell, 2005 CarswellQue 243 at para. 25.

[58] Brown, supra note 8 at para. 44.

[59] Brown v. Durham Regional Police Force 1998 CarswellOnt 5020 21 C.R. (5th) 1, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1 at 17.

[60] Brown, supra note 8 at para. 2.

[61] Ibid. at para. 46.

[62] Richards, supra note 9.

[63] Christopher P. Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. (Toronto: Oxford University Press, 2001) at 95 and 102.

[64] Douglas Smith, Nanette Graham & Bonnie Adams, "Minorities and the Police: Attitudinal and Behavioral Questions” in Michael Lynch & E. Britt Patterson eds., Race and Criminal Justice (New York: Harrow and Heston, 1991).; Henderson et al. “The Impact of Race on Perceptions of Injustice” (1997) 25 Journal of Criminal Justice 447; Steven Tuch & Ronald Weitzer, “Racial Differences in Attitudes Toward the Police” (1997) 61 Public Opinion Quarterly 642.

[65] Stephen E. Nancoo, “The Police and the Diverse Society” in Stephen E. Nancoo & Subhas Ramcharan, eds., Canadian Diversity: 2000 and Beyond (Mississauga: Canadian Educators’ Press, 1995) at 72-95.; Supra note 37 at 201-226.

[66]Supra note 37 at 201-02.

[67]Cecil Foster, A Place Called Heaven: The Meaning of Being Black in Canada (Toronto: Harper Collins, 1996);

Darlene Conley, “Adding Color to a Black and White Picture: Using Qualitative Data to Explain Racial Disproportionality in the Juvenile Justice System” (1994) 31 Journal of Research in Crime and Delinquency 135.

[68] Maureen Brown, We Are Not Alone: Police Racial Profiling in Canada, the United States and the United Kingdom (Toronto: African Canadian Community Coalition on Racial Profiling, 2003) at 11 [We Are Not Alone].

[69] Supra note 6 at 89-90.

[70] Henry Louis Gates Jr. “Thirteen Ways of Looking at a Black Man” New Yorker (23 October 1995) at 17.

[71] Tom Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990).

[72] Katherine Russell, “The Racial Hoax as Crime: The Law as Affirmation” (1996) 71 Indiana Law Journal 593 at 609.

[73] Maureen J. Brown, In Their Own Voices: African Canadians in the Greater Toronto Area Share Experiences of Police Profiling (Toronto: African Canadian Community Coalition on Racial Profiling, 2004) at 36.

[74] Supra note 27 at 8.

[75] Ibid.

[76]Supra note 78 at 2-3.

[77] We Are Not Alone, Supra note 107 at 15.

[78] R. v. R. (D.S.), 1997 CarswellNS 302, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1, 218 N.R. 1, 161 N.S.R. (2d) 241 [RDS].

[79] Ibid. at 7.

[80] Ibid. at 55.

[81] Ibid at 55.

[82] Ibid. at 5.

[83] Peter McCormick and Ian Greene, Judges and Judging (Toronto: James Lorimer & Company, 1990) at 245-48.; RDS, Supra note 117 at 121.

[84] Supra note 2 at 85.

[85] Ibid. at para. 55.

[86] Augie Fleras, and Jean Leonard Elliott. Unequal Relations: An Introduction to Race, Ethnic and Aboriginal Dynamics in Canada, 2nd ed. (Scarborough: Prentice Hall Canada, 1996) at.310-11.

[87] Ibid. at 312.

[88] Supra note 44 at 338-44.

[89] Criminal Code of Canada, R.S. 1985 c. C-46 [Criminal Code] online: Department of Justice, <http://laws.justice.gc.ca/en/C-46/40190.html>.

[90] Ibid.

[91] John F. Hamilton and Bruce R. Shilton, The 1998 Annotated Ontario Police Services Act (Toronto: Carswell Legal Pubns, 1998).

[92] Susan Watt, "The future of civilian oversight of policing." (1991) Canadian Journal of Criminology at 349-358.

[93] Clare Lewis, Police Law: Ontario Task Force on Race Relations and Policing (Toronto: Queen’s Park, 1989).

[94] Ibid.

[95] Supra note 6 at 163.

[96] Kingston Report, Supra note 42 at 5-6.

[97] Anonb, “President Orders Data Collection to Combat Racial Profiling” 30 Criminal Justice Newsletter (1999) at 2-3.

[98] Ibid. at 3.

[99] Kingston Research Data, supra note 27.

[100] Supra note 6 at 163.

[101] Hartley Steward, “All Stats Valid to Fight Crime” The Toronto Star (31 July 2005) online:
http://torontosun.com/News/Columnists/Steward_Hartley/2005/07/31/1154110.html

[102] Jim Rankin, “Police bias study stirs debate: Critics charge methods flawed” The Toronto Star (01 May 2005) online :
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Print

[103] Whren v. United States (1996), 116 S.Ct. 176.

[104] Supra note 28 at 547.

[105]Kingston Report, Supra note 42 at 12-3.

[106] Gabriella Pedicelli, When Police Kill: Police Use of Force in Montreal and Toronto (Montreal, Vehicule Press, 1998) at 121.