Racial Profiling
General Principles
Racial profiling is when police actions in selecting and treating a suspect are motivated by "race or racial stereotypes about offending or dangerousness", whether conscious or not.[1]
A state agent engaging in racial profiling will breach the principle of fundamental justice.[2]
Racial profiling has two components:[3]
- an attitudinal component; and
- a causation component.
The attitudinal component relates to whether the public official "accepts" that "race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous."[4]
- Causation
The causation component requires that the attitude consciously or unconsciously plays a "causal role"--that is motivates or influences to any degree--decisions to select or to treat a suspect.[5] The racial motivation does not need to be the sole or main factor. Any degree "contaminates" the decision and nullifies any reasonable suspicion or grounds.[6]
- Relevance of lawful grounds
An act will still constitute racial profiling even if the suspected offence being investigated was reasonably founded on lawful grounds.[7]
- Analysis
The assessment must involve all circumstances that lead to the detention or arrest to determine whether they correspond to racial profiling.[8]
- Evidence
Racial profiling is rarely proven by direct evidence. It will usually be inferred from circumstances surrounding the actions.[9]
There is no requirement that the judge fine that the police was lying to draw an inference of racial profiling.[10]
- Existence of anti-Black racism
It has been found that anti-black racism is prevalent in Canada.[11]
- International Travel
A police officer relying on travel patterns based on national origin instead of individual travel patterns to assess criminality is an indicator that there may be profiling.[12]
- ↑ R v Le, 2019 SCC 34 (CanLII), [2019] 2 SCR 692, per Brown and Martin JJ, at para 76
- ↑
R v Smith, 2004 CanLII 46666 (ON SC), 26 CR (6th) 375, per Dawson J, at paras 35 to 36
R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, 45 CCC (3d) 296, per Dickson CJ (7:0), at para 180
- ↑ R v Dudhi, 2019 ONCA 665 (CanLII), per Pacciocco JA, at para 54
- ↑
Dudhi, ibid., at para 55
Peart v Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), 43 CR (6th) 175, per Doherty JA, at para 90 - ↑ Dudhi, ibid., at para 55 (“the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment”)
- ↑ Dudhi, ibid., at paras 62 to 63
- ↑ Dudhi, ibid., at para 59
- ↑ R v Edwards, 2024 ONSC 2478 (CanLII), per Dennison J, at para 20
- ↑
Dudhi, ibid., at para 75
Peart, supra at para 95 - ↑
R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at paras. 43, 48-49, and 54
Edwards, supra, at para 18 - ↑
Edwards, supra, at para 14 ("There is no dispute that anti-Black racism is prevalent in Canada and continues to be a reality in Canadian society.")
R v Morris, 2021 ONCA 680 (CanLII), per J, at para 1 ("It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area.") - ↑ Edwards, supra, at para 82