…[R]acial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.
…[R]acial profiling cannot be tolerated. It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling.
– Ontario Court of Appeal, Peart v. Peel Regional Police Services, 2006
The Ontario Human Rights Code (Code) recognizes the dignity and worth of every person. The Code makes it illegal to discriminate based on race, ancestry, colour, creed, citizenship, ethnic origin and place of origin, in five social areas, including housing, services and employment. Despite this legal protection from discrimination, racial profiling continues to be a serious and persistent human rights issue in Ontario.
People in racialized and First Nations, Métis, and Inuit (Indigenous) communities have had longstanding concerns about racial profiling and other forms of racial discrimination. Racial profiling is an insidious and particularly damaging type of racial discrimination that relates to notions of safety and security. It often, but not always, relies on stereotyping based on preconceived notions about the character of a person or group.
Racial profiling has profound effects
Racial profiling can have profound personal impacts. Racial profiling has a harmful effect on dignity. Victims may also lose their sense of being safe and secure, their liberty, their connection with their families and communities, and in the most tragic cases, their lives.
Racial profiling also has harmful impacts on the social fabric of society. For many years, racialized and Indigenous communities have spoken out about their deep mistrust of public institutions – such as police and child welfare agencies. These are the very institutions we have entrusted to protect us and help us with highly
sensitive issues, and which often respond to the needs of the most vulnerable people in our society. Yet, for racialized and Indigenous peoples, too often the trust they should feel is overridden by the lived experience of being unfairly singled out for surveillance, scrutiny, investigation and disproportionately harsh treatment.
For Indigenous peoples in particular, racial profiling must be understood in the context of colonization. It is often experienced as part of the legacy of historic state practices that were intended to eliminate Indigenous cultures and disrupt communities through forced assimilation. The deep mistrust felt by many racialized and Indigenous peoples negatively affects the legitimacy of institutions that serve the public interest, and makes them less effective.
Despite the potentially catastrophic consequences for individuals and communities, some people and institutions see racial profiling as a normal, even effective tool for gathering information, assessing risk and ensuring safety.
Ontario is at a critical juncture
In terms of addressing racial profiling, we are at a critical juncture in Ontario. Ontario is becoming more racially, ethnically and religiously diverse and yet increasingly economically stratified. Many institutions in society are becoming more focused on assessing potential threats to safety, citing concerns about terrorism and violence. As well, advances in technology make it easier for institutions that assess risk to collect, analyze, store and share people’s information.
Concerns about racial profiling take place against this backdrop of heightened security. People from many different communities experience racial profiling. However, it is often directed at Indigenous peoples, Muslims, Arabs, West Asians and Black people, and is often influenced by the distinctly negative stereotypes that people in these communities face. In Ontario today, many people are concerned about racial profiling in the form of police stop practices (including “street checks” or “carding”), police use of force, deaths at the hands of police, disproportionate use of segregation on Indigenous and Black prisoners, heightened scrutiny and surveillance of Muslims, Arabs and West Asian people in society (including at airports and border crossings), the role that racial profiling may play in the overrepresentation of Black and Indigenous children in child welfare investigations, and disproportionate discipline of racialized students in the education system.
A core part of the OHRC’s work
Combatting racial discrimination, including racial profiling, is a core part of the work of the Ontario Human Rights Commission (OHRC). In 2003, we released the results of a year-long inquiry on the personal and social impacts of racial profiling. Through detailed first-person narratives, our report, Paying the price: The human cost of racial profiling, showed the severe and widespread impacts of profiling on racialized and Indigenous individuals and communities. It described how racial profiling fractures trust in our public institutions, criminalizes youth, and decreases people’s sense of citizenship and belonging in Ontario society.
This inquiry led to the development of the OHRC’s Policy and guidelines on racism and racial discrimination in 2005. This policy provides guidance on people’s rights under the Code to be free from racial discrimination, and on how organizations and individuals can prevent and respond to it. It addresses racial discrimination in all its forms, including racial profiling.
In the years since, we have continued to be active in our efforts to address racial profiling. We have helped to advance the law before the Human Rights Tribunal of Ontario (HRTO) and the courts, initiated partnerships with law enforcement institutions in an effort to effect large-scale organizational change, conducted training and public education, launched public interest inquiries, made submissions to government, and worked with community and advocacy groups.
In our 2017-2022 strategic plan, we committed to being a leadership voice on human rights issues. We will use our enforcement powers under the Code to work towards non-discriminatory practices in the criminal justice system, including ending racial profiling in policing.
As part of this ongoing work, we decided to provide more detailed policy guidance on racial profiling. The aim is to give specific information to organizations, individuals and communities on how to identify, address and prevent racial profiling. To develop this future policy guidance, we reviewed the case law and conducted a year-long consultation to understand more about:
- The social and historical context of racial profiling
- People’s experiences of racial profiling
- How racial profiling should be defined
- What racial profiling looks like in different sectors and contexts
- The impacts of racial profiling
- Newer, emerging or contested forms of racial profiling
- Effective measures to address and prevent it.
To gather this information, we connected with people and organizations representing diverse perspectives, including affected people from Indigenous, racialized and Muslim communities, legal and academic researchers, educators, human rights practitioners and police, among others. We conducted an online survey, analyzed applications made to the HRTO that alleged racial profiling, held a policy dialogue consultation, conducted focus groups with Indigenous peoples and received written submissions. Overall, almost 1,650 individuals and organizations told us about their experiences or understanding of racial profiling in Ontario.
The information we received is integrated throughout this report. Consistent with the OHRC’s commitment to bring people’s lived experiences to the forefront of our work, the purpose of this report is to:
- Report on the feedback we heard during the consultation
- Provide Ontarians with a better understanding of the kinds of issues that may raise concerns about racial profiling across a variety of sectors
- Present related social science and legal research from Canada and the U.S., which provides context for the experiences and perceptions we heard about
- Inform the OHRC’s future policy guidance on racial profiling
- Outline key themes and some next steps that the OHRC will take to address racial profiling.
Note that by examining racial profiling, we are examining the perceptions of profiling and not evaluating whether these perceptions are substantiated. Regardless of whether profiling can be proven to occur in a given context, the widespread perception among racialized and Indigenous groups that it is occurring is cause for concern.
What we heard
During the consultation, we heard many perspectives and experiences. We heard concerns about racialized and Indigenous peoples being subjected to unwarranted surveillance, investigation and other forms of scrutiny, punitive actions and heavy-handed treatment. We also tried to explore other, less well-understood forms of racial profiling, which may be systemic in nature. This report presents what we learned about institutional policies, practices, prediction and assessment tools, and decision-making processes, which may seem neutral but may nonetheless amount to systemic racial profiling. We also report on potential solutions. Encouragingly, we heard a great deal of consensus from consultation participants on what is needed to end racial profiling.
Societal recognition of the phenomenon of racial profiling and its corrosive effects has grown since the OHRC’s racial profiling inquiry in 2003. Today, many community leaders in Ontario, including several in the policing community, and many members of the general public more readily acknowledge that racial profiling exists. A growing body of decisions by Canadian human rights tribunals and courts have affirmed that racial profiling happens in policing and other areas, such as retail settings. Decisions and settlements arising from these claims have led some institutions to take steps to address racial profiling. Some institutions are starting to collect race-based data, and in some cases this data has supported personal anecdotes about racially biased practices.
I've been given more attention in a negative regard by police, teachers, security in stores, malls and banks, and folks have made negative assumptive comments towards me in health care settings etc...The details don't come readily to mind aside from being followed, questioned, and scrutinized... (Black, First Nations female, age 25-34).
Increased public awareness about the existence and effects of racial profiling has led to greater understanding about the issue. High-profile reports of racial profiling incidents have contributed to calls from communities for change. Community organizations and groups, including grassroots movements such as Black Lives Matter and groups calling for a public inquiry to address missing and murdered Indigenous women and girls, have highlighted disparities in how racialized and Indigenous peoples are treated by public institutions, such as police, and have pushed for these systems to be overhauled.
However, there is still a long way to go. Many people and institutions still deny the reality of racial profiling. It is concerning that during our consultation we heard many of the same themes, experiences and impacts as we documented in Paying the price. Racial profiling is entrenched in society, is complex, and can be challenging for all involved in addressing it. Many consultation participants expressed great frustration with the slow pace of change. Coordinated efforts are needed from policy-makers, government, community groups and responsible organizations. Preventing and addressing racial profiling is a shared responsibility.
How this report can be used
At the end of some sections of this report, we have noted “key themes.” These points summarize and analyze what we heard. In Appendix C, we provide a list of relevant recommendations gathered from previous OHRC reports and submissions.
These recommendations should be used by organizations to identify how racial profiling may be taking place in their own establishments. The themes and recommendations also identify approaches organizations can use to prevent racial profiling. Community groups, academics, human rights practitioners and others may also find this report useful to help with their own research and advocacy around racism, racial discrimination and racial profiling.
[Racial profiling] made me feel like less of a person and that I can't be trusted because of the way I look (and in this case, the way my family looks) (Mixed heritage male, age 25-34).
We also have incorporated quotations from consultation participants throughout the report. These were excerpted from respondents’ responses to the survey questions and chosen because they illustrate the various themes we heard about. Quotes from survey respondents are identified using relevant demographic information, such as the person’s racial or ethnic background, gender and age range, and in some cases, their creed, as reported. Appendix B shows the demographic make-up of survey respondents.
We acknowledge and thank the many individuals and organizations that took the time to contribute to this process. We especially thank all the people who shared their personal, and often difficult, experiences with us. Special thanks to representatives from the organizations that helped us bring people together: York University’s Centre for Human Rights, Equity and Inclusion; Institute for Social Research; and School of Public Policy and Administration; and the Ontario Federation of Indigenous Friendship Centres (OFIFC). A list of organizations that participated and people who provided papers to the OHRC’s racial profiling policy dialogue is included in Appendix A.
1.1. A word about terminology
During our consultation, people identified themselves in many different ways. When referring to individual consultation participants, we use the terms they used to describe themselves. When describing research that may categorize people into different groups, we use the terms used by the authors.
Throughout this report, we use the term “racialized people” as a generalized term to refer to people who are not Indigenous or White. “Racialization” is the “process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life.”  The term “racialized” is widely preferred over descriptions such as “racial minority,” “visible minority” or “person of colour” as it expresses race as a social construct rather than a description of people based on perceived characteristics. Of our survey respondents, “racialized” includes people who identified with the Statistics Canada categories of South Asian, Chinese, Black, Filipino, Latin American, Arab, Southeast Asian, West Asian, Korean, Japanese, or more than one of these categories.
We use the term “Indigenous peoples” to collectively refer to people who are First Nations, Métis or Inuk (Inuit). This is the term used in the United Nations Declaration on the Rights of Indigenous Peoples, and is used by some Indigenous organizations, such as the OFIFC.
Indigenous peoples are also “racialized.” Specific traits, physical features, attributes and characteristics that are connected in some way to Indigenous peoples are deemed to be “abnormal” and of less worth. However, we heard that to refer to Indigenous peoples along with people from other racialized groups fails to recognize that many members of First Nations, Métis and Inuit communities object to being referred to as a racial group (for more information, see section 3.6: “Lessons learned from people in Indigenous communities”). To recognize the unique specific historical dynamic that gives rise to experiences of Indigenous peoples, we heard that these experiences must be considered separately from those of other racialized people. For this reason, throughout this report, we use the terms Indigenous, First Nations, Métis, and Inuit to refer to Indigenous individuals and groups.
The term “racialized” also refers to people from marginalized creed groups. Discrimination based on creed can intersect with discrimination based on race and race-related Code grounds including ethnic origin, colour, ancestry, place of origin and citizenship.
When referring to people who are African-descended, we use the terms “Black,” “African Canadian” and “people of African descent.”
All of these terms are not exclusive categories, and many people will identify with more than one group or reject these identifiers altogether.
 Peart v. Peel Regional Police Services Board,  O.J. No. 4457 (C.A.) at paras 96, 93 [Peart].
 Human Rights Code, RSO 1990, c H.19
 For example, in 2009, to better protect employees from violence in the workplace, the Ontario legislature passed amendments to the Occupational Health and Safety Act (OHSA). As part of these changes, employers subject to the OHSA must assess the risk of workplace violence. Occupational Health and Safety Act, RSO 1990, c O-1, s 32.0.3. Note that justice statistics show that there was an overall downward trend in police-reported crime in Ontario from 2005 to 2015. Statistics Canada “Police-Reported Crime Statistics in Canada, 2015,” (2016) by Mary Allen, The Daily. July 20. Statistics Canada Catalogue no.85-002-X (Ottawa: Statistics Canada, 2016) online: Statistics Canada, online: www.statcan.gc.ca/daily-quotidien/160720/dq160720a-eng.htm (retrieved February 13, 2017) at 35, 9.
 Ontario Human Rights Commission, Paying the Price: The human cost of racial profiling (Toronto: Queen’s Printer for Ontario, 2003), online: Ontario Human Rights Commission www.ohrc.on.ca/en/paying-price-human-cost-racial-profiling [Paying the Price].
 Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (Toronto: Queen’s Printer for Ontario, 2005), online: Ontario Human Rights Commission www.ohrc.on.ca/en/policy-and-guidelines-racism-and-racial-discrimination [Policy].
 See, for example, Shaw v. Phipps, 2012 ONCA 155 (CanLII) [Phipps]; Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) [Pieters]; Maynard v. Toronto Police Services Board, 2012 HRTO 1220 (CanLII) [Maynard]; and Nassiah v. Peel Police Services Board, 2007 HRTO 14 (CanLII) [Nassiah]. In 2012, the OHRC reached a settlement with the Ottawa Police Services Board that required Ottawa Police Service officers to collect race-based data on traffic stops for at least two years. See Ontario Human Rights Commission’s Response to the Race Data and Traffic Stops in Ottawa report, 2016, online: Ontario Human Rights Commission: www.ohrc.on.ca/en/ohrc-response-race-data-and-traffic-stops-ottawa-report [OHRC Response to OPS Data Collection Project].
 In 2007 the OHRC began a three-year Human Rights Project Charter partnership with the Toronto Police Service (TPS) and Toronto Police Services Board (TPSB) to identify, monitor and eliminate discrimination in TPS employment and service delivery. We have also taken on a human rights organizational change project partnership with the Windsor Police Service. See Ontario Human Rights Commission, Human Rights Project Charter – TPS & TPSB (2007) online: Ontario Human Rights Commission www.ohrc.on.ca/en/human-rights-project-charter-tps-tpsb; Ontario Human Rights Commission, Human Rights Project Charter – Windsor (2011) online: Ontario Human Rights Commission www.ohrc.on.ca/en/human-rights-project-charter-windsor.
 For example, the OHRC has developed and delivered training on various human rights topics, including how to avoid racial profiling in policing. We have delivered training to police officers across the province in partnership with the Ontario Police College. The OHRC has also delivered training to racialized youth across Toronto on their right to be from racial profiling.
 In addition to our racial profiling inquiry, in 2007-2008, the OHRC launched a public interest inquiry into the physical and verbal assaults on Asian Canadian anglers that occurred in various municipalities in Ontario. See Ontario Human Rights Commission, Preliminary Findings: Inquiry into Assaults on Asian Canadian Anglers (Toronto: Queen’s Printer for Ontario, 2007), online: Ontario Human Rights Commission www.ohrc.on.ca/en/preliminary-findings-inquiry-assaults-asian-canadian-anglers; Ontario Human Rights Commission, Fishing Without Fear: Report on the Inquiry into Assaults on Asian Canadian Anglers (Toronto: Queen’s Printer for Ontario, 2008), online: Ontario Human Rights Commission www.ohrc.on.ca/en/fishing-without-fear-report-inquiry-assaults-asian-canadian-anglers
 Ontario Human Rights Commission, Ontario Human Rights Commission Submission to the Independent Review of Police Oversight Bodies (2016) online: Ontario Human Rights Commission www.ohrc.on.ca/en/ohrc-submission-independent-review-police-oversight-bodies#_edn20 [Police Oversight Bodies Review Submission]; Ontario Human Rights Commission, Submission of the OHRC to the Ministry of Community Safety and Correctional Services on the Strategy for a Safer Ontario (2016), online: Ontario Human Rights Commission www.ohrc.on.ca/en/strategy-safer-ontario-%E2%80%93-ohrc-submission-mcscs [Strategy for a Safer Ontario Submission]; Ontario Human Rights Commission, Submission of the OHRC to the Ministry of Community Safety and Correctional Services on street checks (2015), online: Ontario Human Rights Commission www.ohrc.on.ca/en/ohrc-submission-ministry-community-safety-and-correctional-services-street-checks-0 [Street Checks Submission]; Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to the Office of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police Practices for DNA Sampling (2014), online: Ontario Human Rights Commission
www.ohrc.on.ca/en/ohrc-submission-office-independent-police-review-director%E2%80%99s-systemic-review-opp-practices-dna [DNA Sampling Submission]; Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to the Independent Review of the Use of Lethal Force by the Toronto Police Service (2014), online: Ontario Human Rights Commission www.ohrc.on.ca/en/submission-ontario-human-rights-commission-independent-review-use-lethal-force-toronto-police; Ontario Human Rights Commission, Submission of the OHRC to the Ombudsman’s Investigation into the direction provided to police by the Ministry of Community Safety and Correctional Services for de-escalating conflict situations (2014), online: Ontario Human Rights Commission www.ohrc.on.ca/en/submission-ohrc-ombudsman%E2%80%99s-investigation-direction-provided-police-ministry-community-safety-and.
 For example, the OHRC has attended meetings with community groups in Ottawa and Toronto to respond to issues such as carding (described further in section 18.104.22.168), race-based data collection and provide human rights information. We also co-drafted a joint submission on carding. See A Joint Response to Ontario Draft Regulation “Collection of Identifying Information in Certain Circumstances – Prohibition and Duties” Released on 28 October 2015, online: Ryerson University Department of Criminology www.ryerson.ca/criminology/about-us/faculty-staff/for-faculty/faculty-news-and-events/news-archive/ (retrieved January 4, 2017) [Carding Regulation Joint Response]. We also strategized with counsel representing intervenors from community groups when we intervene in racial profiling cases before the HRTO and the courts.
 Ontario Human Rights Commission, Putting people and their rights at the centre: Building human rights accountability, Strategic Plan 2017-2022 (Toronto: Queen’s Printer for Ontario, 2016) online: Ontario Human Rights Commission www.ohrc.on.ca/en/ontario-human-rights-commission-strategic-plan-2017-%E2%80%93-2022 [2017-2022 Strategic Plan].
 Sunil Gurmukh, “A Review of Racial Profiling Jurisprudence” 13:3, Canadian Diversity a Publication of the Association for Canadian Studies [forthcoming in 2017]. A version of this paper was presented at the racial profiling policy dialogue in February 2016. Sunil Gurmukh, “Summary of racial profiling case law review” (Paper presented to the Ontario Human Rights Commission and York University Racial Profiling Policy Dialogue, 16-18 February, 2016).
 The OHRC analyzed 113 applications filed at the Human Rights Tribunal of Ontario (HRTO) from January 2009 to May 2015 that alleged racial profiling. The HRTO provides the OHRC with human rights applications as per section 38 of the Code.
 The aim of the policy dialogue was to stimulate dialogue and generate relevant research. For this event, we received many papers and heard presentations by academics, individuals, community group representatives, advocates and police representatives. Many of these will be published as an anthology in an upcoming publication of Canadian Diversity a Publication of the Association for Canadian Studies.
 See, for example, Phipps, supra note 6; McKay v. Toronto Police Services Board, 2011 HRTO 499 [McKay]; Nassiah, supra note 6; Johnson v. Halifax (Regional Municipality) Police Service,  N.S.H.R.B.I.D. No. 2 [Johnson]; Maynard, supra note 6.
 Pieters, supra note 6; McCarthy v. Kenny Tan Pharmacy, 2015 HRTO 1303 (CanLII); Radek v. Henderson Development (Canada) Ltd., 2005 BCHRT 302 (CanLII) [Radek].
 See Shaheen Azmi, “Ontario Human Rights Commission Promotion Activities: The Experience of Responding to Racial Profiling by Police” in Shelagh Day, Lucie Lamarche & Ken Norman eds, 14 Arguments in Favour of Human Rights Institutions (Toronto: Irwin Law, 2014).
 Commission on Systemic Racism in the Ontario Criminal Justice System, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer for Ontario, 1995) (Co-Chairs: D. Cole & M. Gittens) at 40-41. For more information, see OHRC, Policy, supra note 5.
 These categories reflect those included in Statistics Canada’s term “visible minority.” Adapted from Statistics Canada, Visible Minority and Population Group Reference Guide: National Household Survey, 2011 (2013) Statistics Canada Catalogue no. 99-010-X2011009, online: Statistics Canada www12.statcan.gc.ca/nhs-enm/2011/ref/guides/99-010-x/99-010-x2011009-eng.pdf (retrieved
April 22, 2015) at 4.
 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 61st Sess, UN Doc 61/295 (2 October 2007).