Racial Profiling in Canada

Racial Profiling in Canada

Prateeksha Ravi

University of Waterloo

Racial Profiling in Canada

Racism is pervasive in the criminal justice system and extends from systemic issues embedded in the legal processes and societal conditions. The phenomenon of racial profiling at its core is about racism and has historically existed in many Western nations including United States, Great Britain and within Canada. Racial profiling is a practice undertaken for safety or security reasons where law enforcement uses stereotypes about race, color, ethnicity, religion or place of origin, rather than on reasonable suspicion, to subject individuals to greater scrutiny of committing a criminal offence (OHRC, 2003, p.6). It is a form of racial stereotyping and discrimination that has its roots in the law but also in society. It is important to note that legal and social conditions overlap within one another as social norms consistently play out in relation to the law and the legal system in order to perpetuate racial profiling. This paper will argue racial profiling as existing through a contextual analysis of legal and social conditions through the lens of critical race theory and examine what can be done to address this issue.

Firstly, Canada’s criminal justice system and law enforcement agencies are notorious for engaging in racial profiling. Communities that are subjected to racial profiling are over-policed and disproportionately represented in the criminal justice system (Melchers, 2006, p.21). They are stopped, searched, arrested, detained in custody and sometimes even shot, tortured or killed because of being perceived as a serious threat (Bahdi, 1988, p.2). As a common policing tactic, racial profiling and can either be an overt or a subtle strategy of law enforcement. When overt, it targets certain communities or individuals for surveillance on the basis of the whole community being susceptible to crime. This form of profiling has become more common especially after the incident of 9/11. Subtle racial profiling on the other hand leads police to use unwarranted lethal force against members of racialized communities (Comack, 2012, p.30). There are many examples of racial profiling within minority groups but one famously known is the case of Donald Marshall Jr., who was wrongfully convicted of the murder of Sandy Seale. He was repeatedly let down by the Canadian justice system because he was Aboriginal and had to serve a lengthy prison sentence for a crime he did not commit. Police officers subconsciously operate on stereotypical assumptions regarding minority groups as detention is only to be considered reasonably necessary under the following conditions: 1) there is an objectively clear connection between the individual and the criminal offence; and 2) the overall reasonableness of the decision to detain when evaluated against all other circumstances (Gill, 2014, p.11).

Supporters of racial profiling argue that the racial profiling is a means of maximizing security and police resources and because not everyone can be targeted, the link between race and crime can help police target the usual suspects, who in this case are people of a visible minority. The problem however is that it does not take into account the criminal activity that may be perpetrated by the non-racialized or that the majority of those subjected to scrutiny primarily because of their race are innocent subjects (Amoah, 2005). Moreover, since it is performed more so on a discretionary basis, it is an inconsistent process, making it an unfair policing technique which results in distorted policing, negatively impacting minority groups (Tanovich, 2002, p.165).

The expression “racial profiling” has become very common in the Canadian court system as well. Any police actions that lacks sufficient grounds is submitted as a case of racial profiling if the subject of these actions are a member of a racialized visible minority (Melchers, 2006, p.18). As per the Canadian Charter of Rights and Freedoms, section 9 in theory is supposed to prevent random vehicle stops deemed as detention and arbitration which in this context refers to a discriminatory exercise of discretion for an inappropriate purpose such as race. However, in reality it is difficult to provide sufficient evidence to demonstrate that an officer disproportionately stopped a person because of race without taking into consideration other relevant factors (Cairns, 2009, p.104). Moreover, it may also violate section 15 of the Charter which states that all individuals are equal before the law and prohibits discrimination based on race, national or ethnic origin and color. Unfortunately, data suggests that cases with respect to section 15 are very rare which underscores the difficulties of proving racial discrimination (Cairns, 2009, p.121). Even if racial profiling was unconscious, from a Critical Race Theory perspective, the police officer’s behavior could be understood as being White privilege (Hamalengwa, 2006). Since many Canadian judges have not openly acknowledged racial profiling and discrimination as central problems within the justice system, Critical Race Theory suggests that racism is difficult to address or cure because of which the system of white over color continues to dominate in the legal arena (Delgado, 2014, p.7).

         Although it may not be an act subject to criminal sanctions or explicitly stated within legislation, racial profiling is still an act of police deviance and misconduct in violation of the rules and regulations within the police organization and of abuse of power and authority. The phenomenon of “Driving While Black” (DWB) derived its term from Black Canadians being pulled over by the police on numerous occasions in stop and search procedures without reasonable grounds (Comack, 2012, p.33). Compared to white people, Black people are disproportionately charged and imprisoned in Ontario despite judges and lawyers rejecting the possibility of systemic racism as a problem (Comack, 2012, p.31). The high rate of statistics with regards to police stops suggest that the cause is not a few bad apples and that while police do apply the appropriate law to a situation in their daily work, but they use provisions of the law as a means for attaining other alternatives that disadvantages certain populations in society (Comack, 2012, p.33). Such activity and experiences undermine the legitimacy of the criminal justice system and eventually lead to having less trust and viewing these institutions as biased.

Canada as a nation has a foundation based on democratic values of social and legal equality where all parties are required to abide by the law despite which, profiling still continues to exist (Krobel, 2001).  In fact, Critical Race Theory recognizes racism to be rooted in society and it also challenges the legal discourse of law as being colorblind and neutral by examining the state as a vehicle for self-interest, power and privilege (Delgado, 2014, p.8). With racial profiling, we can see that there is a disconnect between the symbolic claim and the actual reality that exists because within the legal system and police institutions, power dynamics play out in a way that demoralises visible minorities and subjects them to heightened scrutiny because of the color of their skin. Moreover, as one of the tenets of Critical Race Theory suggests, racism is systemic and gets institutionalized (Delgado, 2014, p.7). This is apparent even in the case of racial profiling as it is a manifestation of systemic racism within the criminal justice organization and society as a whole.