2. Understanding racial profiling in policing

The OHRC defines racial profiling as any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.

Racial profiling is a particularly damaging form of racial discrimination. Profiling is based on pre-conceived ideas about a Code-related characteristic, such as a person’s race, ethnic origin, creed, etc. It is different from criminal profiling. Criminal profiling relies on actual behavior or on information about suspected criminal activity by someone who meets the description of a specific person or persons.

In racial profiling cases, courts and human rights tribunals have widely accepted that race only needs to be a factor in the adverse treatment to constitute profiling.[4] There is no need to establish an intention or motivation to discriminate.[5] The focus of the enquiry is the effect of the respondent’s actions on the complainant.

It is important to recognize the role that stereotypes play in racial profiling. Racial profiling may be the product of stereotypes about African Canadians,[6] Indigenous peoples[7] and Arabs and Muslims[8] in addition to stereotypes about criminality. A person may face racial profiling based on multiple aspects of his or her identity that intersect in a socially significant way.[9] Police officers and policing institutions are not immune to dominant and entrenched societal perceptions.[10]

There are different types of racial profiling, which may overlap with each other. It may result from police officers’ internal implicit bias, which stems from unconscious stereotypes, or explicit bias, which arises from conscious stereotypes. Courts and tribunals have recognized that racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.[11]

Less well understood is that racial profiling often arises from systemic or institutionalized discrimination. The case law has recognized that racial profiling is a systemic problem in policing.[12] Even in individual situations of racial profiling by police, there may be an institutional component that contributes to it.

Systemic racial profiling results from patterns of behavior, policies or practices that are part of the social or administrative structures of an organization, and which perpetuate a position of relative disadvantage for racialized and Indigenous persons. These policies or the behavior may appear neutral, but nevertheless may result in situations where racialized or Indigenous peoples tend to be chosen for greater scrutiny. Policies or procedures may themselves be based on unconscious racial stereotypes.

Systemic racial profiling can overlap with and be in part reproduced through individual acts of racial profiling. For example, a policy that contributes to racial profiling can be compounded by the discriminatory attitudes of individual police officers administering it. However, the focus of the systemic racial profiling analysis is on the outcome and effects of institutional policies, practices and procedures.

An important component of systemic racial profiling is the organization’s culture. This can be described as shared patterns of informal social behavior, such as communication, decision-making and interpersonal relationships, which are the evidence of deeply held and largely unconscious values, assumptions and behavioural norms. If stereotypical thinking that links race to criminality is reinforced and encouraged through training and socialization of staff and fixed through organizational norms and practices, inherent suspicion of racialized people may become embedded in a police organization’s belief system and culture.[13]

Overall, systemic racial profiling means that racial profiling has become an established and accepted part of the way an organization operates. It becomes part of the “normal” way of doing things.

Specific policing activities related to monitoring traffic may be seen as forms of systemic racial profiling. One is stopping and questioning people who are perceived to be “out of place”[14]and not residents of the neighbourhood they are in.[15] Higher income neighbourhoods tend to be populated by White residents. This, coupled with stereotypes linking racialized people with criminality, may lead to racialized people in the neighbourhood being more likely to be stopped because they are perceived to be suspicious.[16]

Another is intelligence gathering in the form of pretext vehicle stops. Pretext vehicle stops may be used to investigate suspected drug couriers and other criminal activity,[17] and in the U.S. have been accompanied by the use of race-based drug courier profiles.[18] According to the OPS’s policy on racial profiling,

A pretext stop occurs where the officer’s primary motivation is to conduct a criminal rather than a traffic investigation. A pretext stop can occur even where
a traffic violation has been committed. Pretext stops have been found to violate section 9 of the Charter. Pretext vehicle stops are one of the primary means by which racial profiling is manifested.[19]

Although the OPS’s policy prohibits the use of pretext stops, it is not clear how this directive has been implemented, and whether any monitoring or accountability measures have been put in place to enforce it.

Police deployment practices can also lead to systemic racial profiling, over-policing and aggressive policing of racialized communities.[20] Because of the widespread nature of traffic offences, people in all neighbourhoods should be equally likely to be stopped by police. However, a greater number of patrol cars may be assigned to racialized and socio-economically disadvantaged neighbourhoods because of a perception that there is high crime. If these officers are instructed or allowed to conduct vehicle stops while in the neighbourhood, ostensibly to fight crime, racialized people are more likely to be singled out. This standard policing activity will likely have an adverse impact on people from racialized communities.

[4] Phipps v. Toronto Police Services Board, 2009 HRTO 877 (CanLII) at para. 16 [Phipps, 2009]; Shaw v. Phipps, 2010 ONSC 3884 (CanLII) at paras. 11-15 and 76 [Phipps, 2010]; aff’d in Shaw. v. Phipps, 2012 ONCA 155 [Phipps, 2012]; Peel Law Association v. Pieters, 2013 ONCA 396  at paras. 53-62 and 111-125 [Pieters]; Adams v. Knoll North America, 2009 HRTO 1381 (CanLII) at para. 44;  aff’d Knoll North America Corp. v. Adams, 2010 ONSC 3005 (CanLII); Maynard v. Toronto Police Services Board, 2012 HRTO 1220 (CanLII) at para. 150 [Maynard]; Peart v. Peel Regional Police Services Board, [2006] O.J. No. 4457 (C.A.) at para. 91 [Peart]; Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 47-51 [Bombardier].

[5] Bombardiersupra note 4 at paras. 40, 41 and 49; Phipps, 2010 supra note 4 at para. 76; aff’d in Shaw v. Phipps, 2012 ONCA 155; Pieterssupra note 4 at para. 60; Maynard, supra note 4 at para. 150.

[6] Sinclair v. London (City), 2008 HRTO 48 (CanLII) at paras. 16 and 17 [Sinclair]; Nassiah v. Peel (Regional Municipality) Police Services Board, 2007 HRTO 14 (CanLII) at paras. 129 and 166 [Nassiah]; Johnson v. Halifax (Regional Municipality) Police Service, [2003] N.S.H.R.B.I.D. No. 2 at paras. 11-43 [Johnson]; R. v. Khan, [2004] O.J. No. 3819 at para. 68 (S.C.J.) [Khan]; R. v. Brown, [2003] O.J. No. 1251 at paras. 42-29 (C.A.) [Brown]; Phipps, 2009, supra note 4 at para. 21; aff’d Shaw v. Phipps, 2012 ONCA 155 (CanLII).

[7] McKay v. Toronto Police Services Board, 2011 HRTO 499 (CanLII) at paras. 103, 128 and 129 [McKay]; Radek v. Henderson Development (Canada) Ltd., 2005 BCHRT 302 (CanLII) at para. 132 [Radek].

[8] R. v. Neyazi, 2014 ONSC 6838 (CanLII) at para. 204 [Neyazi].

[9] Radeksupra note 7 at paras. 463-465; Maynard, supra note 4 at para. 4.

[10] See for example, Giwa, et al., “Community Policing – A Shared Responsibility: A Voice-Centred Relational Method Analysis of a Police/Youth-of-Colour Dialogue” (2014) 12(3) Journal of Ethnicity in Criminal Justice  218.

[11] Pieterssupra note 4 at paras. 111-115; R. v. Parks, [1993] O.J. No. 2157 at para. 54. (C.A.) [Parks]; Peart supra note 4 at para. 93; R. v. R.D.S., [1997] 3 S.C.R. 484 at para. 46 [R.D.S.]; R. v. Spence, 2005 SCC 71 at paras. 31-33 [Spence]; Briggs v. Durham Regional Police Services, 2015 HRTO 1712 (CanLII) at para. 283 [Briggs].

[12] Nassiahsupra note 6 at para. 113; Peart, supra note 4 at para. 94.

[13] Carol Tator & Frances Henry, Racial Profiling in Canada: Challenging the Myth of “a Few Bad Apples” (Toronto: University of Toronto Press, 2006) at 96.

[14] Donald Tomaskovic-Devey, Marcinda Mason & Matthew Zingraff, “Looking for the Driving While Black Phenomena: Conceptualizing Racial Bias Processes and their Associated Distributions” (2004) 7(1) Police Quarterly 3.

[15] See, for example, Interview of Chief Jennifer Evans by Matt Galloway (6 October 2016) on Metro Morning, CBC Radio, Toronto online:  CBC News Toronto www.cbc.ca/news/canada/toronto/programs/metromorning/peel-police-chief-jennifer-evans-says-she-won-t-resign-amid-complaints-1.3794146 (retrieved November 7, 2016). The Chief of Peel Police identified that 76% of street checks happened because people were not in the area where they lived, and they could not provide a credible reason to police as to why. She cited this as a reason for police to document them.

[16] Canadian research has shown that Black people are subjected to disproportionately more stops and arrests for drug-related reasons in neighbourhoods that are more socio-economically advantaged and where White people are more likely to live. Yunliang Meng, “Racially Biased Policing and Neighbourhood Characteristics: A Case Study in Toronto, Canada” (2014) 665 Cybergeo: European Journal of Geography online: Cybergeo https://cybergeo.revues.org/26165 (retrieved November 4, 2016).

[17] David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40(2) Osgoode Hall Law Journal 145.

[18] Ibid

[19] Ottawa Police Service, Racial Profiling Policy, No. 5.39, Approved 27 June, 2011, online: Ottawa Police Service www.ottawapolice.ca/en/news-and-community/FAQsTSRDCP.asp#policy (retrieved November 15, 2016) at 2-3.

[20] Research based in the U.S. has found that because crime rates tend to be higher in lower socio-economic neighbourhoods in which African Americans are more likely to live, they tend to experience aggressive policing. High levels of police suspicion, stops, interrogation, and searches are more likely directed at people in poor and racialized neighbourhoods. See Tomaskovic-Devey, supra note 14 for a review of the literature at 19; Scot Wortley & Julian Tanner, “Inflammatory Rhetoric or Baseless Accusations? A Response to Gabor’s Critique of Racial Profiling Research in Canada” (2005) 47Canadian Journal of Criminology and Criminal Justice 581.