The problem with combating the illegal conduct of the state in criminal matters in order to bring about change is that the criminal justice system is reactionary. Court disputes over racial profiling take place long after racial profiling. Moreover, claims are made only by persons accused of a crime; The courts do not see the many people who suffer violations of their rights that do not lead to criminal charges. Even if a person is charged once they are on the belt of the justice system, minimizing the risk to their future often leads them to jump before trial, such as pleading guilty to a sentence without penalty or a low prison sentence, rather than rolling the dice with a trial and arguing the issues. which can lead to a sentence with a more severe sentence. Law enforcement agencies have a long history of formulating anti-crime strategies based not only on primary targets – those considered real criminals – but also on secondary targets, commonly referred to as partners or affiliates. Data and the predictive policing modes that enable them have expanded “the scope and power of police to label individuals as suspects”[268] in a way that has a particular impact on racialized groups. The OHRC`s position is that “consistent with the preventive and remedial objective of the Code, there is a positive obligation to take corrective measures to ensure that the Code is not and will not be violated in the future. Just as organizations and institutions are required to conduct an investigation as soon as they become aware of an allegation of racial harassment, knowledge of the existence of racial discrimination may require an investigation that involves data collection. [210] Example: Police officers in a given province or territory tend to view racialized drivers in predominantly white neighbourhoods as particularly suspicious. Officers often conduct computer checks on the licence plates of racialized drivers instead of stopping them. The result is that there are no significant racial differences in those stopped, but when it comes to licence plate checks, racialized drivers are much more likely to be stopped than white drivers. [154] Racial profiling by police is a form of racial discrimination.
It violates section 1 of the Code[16] and sections 7 and 15 of the Charter. [17] If racial profiling leads to unlawful search and detention/arrest, it could also contravene sections 8 and 9 of the Charter. [18] Where “illegitimate thinking” about race or racial stereotypes plays a role in the selection of suspects or the treatment of subjects, legal standards of reasonable suspicion or reasonable grounds are not met. [19] There is no doubt that systemic racism exists in Canada and permeates law enforcement agencies, no matter what parts of the RCMP may say about it. The implications are obvious to participants in the criminal justice system and can have dire consequences for racialized Canadians. These include stereotypical presumptions of danger, more frequent police stops due to bias, more frequent searches during stops, violence during these interactions, more criminal charges, and overrepresentation in prisons. This is not new. Example: Results from a police race data collection project showed that racialized drivers were disproportionately exposed to traffic stops. While trying to explain the results, the police chief explained that the deployment of officers was motivated by requests from the community to deal with violent crime, firearms offences and gang activity. According to the chief, these factors have led to a relatively high number of traffic stops in “high crime” areas.
Despite the chief`s assertion, the data showed that of all those charged criminally that year, less than 5% were charged with serious crimes (e.g., murder, attempted murder, robbery, aggravated assault, displaying or discharging a firearm, etc.). This raised the question of whether operational roadside checks were actually carried out in response to serious offences. The discussion of “disorder,” on the other hand, is more controversial. There is a long history of “disorder” interpreted as justifying law enforcement intervention in the lives of Indigenous and racialized people in the absence of criminal activity. [27] Notions of perceived disorder (e.g., Indigenous activism against resource development projects or racialized youth gatherings in public spaces) are often driven by powerful interests at the expense of less powerful groups. [28] In R v Grant, 2009 SCC 32 (CanLII), the Supreme Court of Canada noted that it is not always clear whether a person was stopped by police by mental rather than physical restraint. If it is not clear, the court may consider a number of contextual factors in determining whether detention has occurred. Mr.
Grant, in particular, was a young Black man who was stopped by Toronto police and received a map while walking down the street, in part because he was “staring” at them in an “exceptionally intense way.” This interaction eventually led Mr. Grant to admit that he was in possession of a small bag of marijuana and a firearm. The majority of the court found that Mr. Grant had been arrested by the police in all circumstances and that the detention was arbitrary. They stated that there was no indication that Mr. Grant was the target of racial profiling or other discriminatory police practices (para. 133). It may have been different in a post-Le world. Systemic racial profiling can be driven by discretionary or inappropriate policies, practices or decision-making processes, as well as organizational culture.
Activities that may contribute to racial profiling include: Example: A police officer chose only Vietnamese surnames from a land registry to investigate potential marijuana growers. Although there was no indication that the owner of any of the properties or her husband were involved in managing a cultivation operation, the officer was monitoring the house. He observed several indicators associated with cultivation on the plot. Based on this information, the property was searched, it was determined that it was a cultivation operation and the husband was arrested and charged. A court ruled that the husband had been racially profiled and that his Charter rights had been violated because the choice of Vietnamese names had led to the investigation. The court stated: “The use of race as a substitute for criminal activity makes it illegal to investigate or detain people, although I find here that there are other legitimate grounds justifying successive police actions.” [127] Several organizations may be held jointly and severally liable if they all contribute to racial profiling and other forms of discrimination. Courts and tribunals can also hold organizations accountable for failing to adequately respond to discrimination and harassment. Organizations may suffer greater damage as a result. [140] If a serious crime has been committed and police are deployed in a manner that has a disproportionate impact on Indigenous or racialized people, police services may be asked to justify the deployment as appropriate and bona fide (legitimate). To avoid racial profiling, police responses should be tailored to specific concerns and respond to needs identified by the community. [223] Example: A young Black man drove his mother`s Mercedes SUV into a hair salon. After parking his car, leaving his vehicle and walking to the store, the officers who had followed him down the street ordered him to stop.
They arrested him, handcuffed him and ransacked his vehicle. Although they claimed to have initially approached him for inappropriate driving, an Ontario Superior Court of Justice judge found that “the real reason for the stop was racially motivated: a young Black man was driving a Mercedes and. [The senior officer] believed something illegal was going on. [118] The effects of racial profiling are devastating for Indigenous and racialized people and their communities. Racial profiling is a violation of human dignity and can harm physical and mental health, self-image, self-esteem and sense of security. It perpetuates negative stereotypes and creates racial inequality by depriving Indigenous and racialized people of their privacy, safety and daily lives. It contributes to the overrepresentation of Indigenous and racialized people in the criminal justice system, which increases alienation and can result in lost opportunities for employment, education and social mobility. For the purposes of its inquiry, the Commission defines racial profiling as any act done for reasons of safety or protection of the public based on stereotypes about race, colour, ethnic origin, ancestry, religion or place of origin, or a combination thereof, rather than on reasonable suspicion in order to subject a person to further examination or other treatment.
While police can proactively arrest and question people before arresting them, these interactions usually involve a wide margin of discretion on the part of officers. The courts and the Commission on Systemic Racism in Ontario`s Criminal Justice System recognize the negative impact of broad, unguided discretion on racial profiling. [224] Indeed, the Commission recommended the creation of guidelines “for the exercise of police discretion to stop and question persons, with the aim of eliminating the disparity in treatment between Black and other racialized persons.” [225] The OHRC has developed guidelines on when an officer can approach a person in a non-arrest scenario. [226] The OHRC recommends that law enforcement implement policies and procedures that apply these or similar criteria to prevent racial profiling.