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OHRC submission to the Office of the Independent Police Review Director’s systemic review of OPP practices for DNA sampling

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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

April 2014


The Ontario Human Rights Commission (OHRC) is troubled by allegations that the Ontario Provincial Police (OPP) engaged in racial profiling when requesting DNA samples from approximately 100 “Indo and Afro-Caribbean” male migrant workers near Vienna, Ontario as part of a sexual assault investigation in October and November 2013.

Justicia for Migrant Workers filed a complaint setting out these allegations with the Office of the Independent Police Review Director (OIPRD), triggering the systemic review into the OPP’s DNA sampling practices.

Racial profiling is a key allegation in Justicia’s complaint, and a key component of the OIPRD’s review. Gerry McNeilly, the Independent Police Review Director, has stated: “allegations that dozens of migrant workers who were asked to submit to DNA tests for a criminal investigation did not match the description of the suspect except for their dark skin colour, raises the spectre of racial profiling and Charter rights issues.”[1]

The OHRC is also concerned that the allegations are consistent with racial profiling, and appreciates this opportunity to provide our perspective on the matter.

Although racial profiling is prohibited under Ontario’s Human Rights Code (the Code), it remains a daily reality for Aboriginal Peoples and members of racialized, particularly Black, communities in Canada. We continue to hear about instances of police racial profiling that go beyond stops to include unreasonable questioning, requests for identification, retaining personal information, intimidation, searches, aggression – and now, possibly DNA sampling.

Our submission will:

  1. Provide information about racial profiling and how to identify it
  2. Explain: (i) why the OPP’s DNA collection from migrant workers appears to be consistent with racial profiling, and (ii) how police DNA collection may disproportionately affect racialized and marginalized groups
  3. Make recommendations on how the OPP can address racial bias in its policing.

While the submission focuses on the OPP, the concerns and recommendations we outline apply to other Ontario police services and the Ontario Ministry of Community Safety and Correctional Services (MCSCS).

The Supreme Court of Canada has described DNA as “undoubtedly the highest level of personal and private information”.[2] Police services that use voluntary DNA sampling as an investigative technique must understand how it affects racialized and marginalized communities in Canada, and make sure that this practice does not violate the Code.

1) The Ontario Human Rights Commission

The OHRC is a provincial statutory agency responsible for promoting and advancing human rights, and preventing discrimination in Ontario. We have done extensive work on racial discrimination and profiling, and racial discrimination in policing has been one of our strategic priorities since 2009.

The OHRC has produced several publications with detailed information about racial discrimination and profiling. These include:

We have also worked with various police services and boards in Ontario, including our multi-year Human Rights Project Charter with the Toronto Police Service, and similar ongoing partnerships with the Windsor Police Service and Ontario Police College. These efforts aim to embed human rights in all aspects of operations so that police services can meet the changing needs of an increasingly diverse population. 

Although we work collaboratively with police services, we have also been involved in many key cases addressing racial discrimination and racial profiling in Ontario.[3] In 2012, OHRC litigation led to an agreement with the Ottawa Police Services Board to conduct the first long-term race-based data collection project by a Canadian police service, involving collecting and analyzing traffic stop data.

The OHRC also regularly speaks out about policing issues that raise human rights concerns, for example, our deputations about the Toronto Police Service practice of “carding” and its disproportionate effect on African Canadians.[4]

2) The Ontario Human Rights Code

The Code provides for equal treatment without discrimination in services, including policing,[5] and applies to the policies, practices and conduct of all police services in Ontario.[6]

The Code prohibits discrimination based on personal characteristics, called “grounds”. These include: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex (including pregnancy and breastfeeding), family status, marital status, sexual orientation, gender identity and gender expression.

The Code protects against both direct and adverse effect discrimination. A person may experience racial profiling through direct discrimination based on their identification with a Code ground and consciously or unconsciously held stereotypes associated with that ground. For example, a police officer may decide to stop and question a Black male pedestrian, based in part on a racial stereotype of Black male criminality. Adverse effect or constructive discrimination results from practices, policies, rules, standards or other factors that appear to be neutral, but have a negative impact on some people based on their identification with a Code ground.

Organizations may develop policies, guidelines and practices that exclude people who are protected under the Code or do not take into account their actual needs and circumstances. This is an example of systemic discrimination.

A person may also face intersectional discrimination because of how multiple aspects of their identity overlap or intersect to form meaningful combinations.[7] For example, a young Black man can be seen as a “Black person” or as a “young person” or as a “man.” All of these sources of identity overlap, but they also intersect in a socially significant way. The person may face discrimination solely because of race/colour, age or gender. However, he may face discrimination specifically as a “young Black man” based on assumptions and stereotypes uniquely associated with young Black men.

3) Understanding racial profiling

What is racial profiling?

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.[8] Profiling can also occur because of a combination of the above factors with other grounds, like age and/or gender.

At its heart, profiling is about stereotyping people based on preconceived ideas about their character. Stereotyping occurs when people use social categories (e.g., race, ethnic origin, religion, etc.) to acquire, process and recall information about others.[9]

Racial profiling differs from criminal profiling, which is not based on stereotypes, but instead relies on actual behaviour or on information about suspected activity by someone who meets the description of a specific individual.[10]

Racial profiling is a form of racial discrimination. It is and always has been contrary to the Code for police to treat people differently in any aspect of the police process because of their race, even if race is only one factor out of many leading to that different treatment.[11]

Racial discrimination often involves the inappropriate exercise of power by a member of the dominant racial group over a member of what is perceived to be a subordinate racial group. Although the exercise of power is inherent in the interaction between a police officer and any member of the public, it can be inappropriately exacerbated when layered on top of a racial and gender power dynamic.[12]

Racial profiling is not limited to initial stops

The Court of Appeal for Ontario and Human Rights Tribunal of Ontario (HRTO) have recognized that racial profiling is not limited to decisions to stop or detain someone, but can affect how people continue to deal with each other after an initial encounter.[13] The HRTO has noted how greater scrutiny may be applied to later investigations:[14]

I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black.

Racial profiling is systemic

Courts and tribunals have repeatedly recognized that racial profiling is a systemic problem in policing, and is not the result of individual “bad apples” within police forces:[15]

What is new (in the last two decades) is the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual “bad apples” but part of a systemic bias in many police forces. What is also new is the increasing acceptance by the Courts in Canada that racial profiling by police occurs in Canada and the willingness to scrutinize seemingly “neutral” police behaviour to assess whether it falls within the phenomenon of racial profiling.

Overall, the social science evidence establishes that statistically, racial minorities, particularly Black persons, are subject to a higher level of suspicion by police because of race, often coupled with other factors.

–      Nassiah v. Peel (Regional Municipality) Services Board, HRTO[16]

The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system…With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.  Indeed, as the evidence in this case indicates, police forces, including the Board, acknowledge the existence of racial profiling and accept that it has no place in law enforcement.  The Board has designated racial profiling as a prohibited practice for which officers are subject to disciplinary action.

–      Peart v. Peel Regional Police Services, ONCA[17]

Racial profiling has harmful individual and societal effects

People who have been racially profiled often suffer psychological effects such has humiliation, fear, anger, frustration and helplessness, and in some cases, post-traumatic stress disorder.[18] Racial profiling can contribute to a community’s deep mistrust of police and a reluctance to cooperate, which in turn can seriously hamper a law enforcement agency’s ability to carry out its mandate and ensure public safety.[19] Also, racial profiling contributes to the over-representation of African Canadians and Aboriginal Peoples in prison.[20]

4) Principles that apply when identifying racial discrimination or profiling

Police conduct amounts to racial discrimination when a person:[21]

  1. is a member of a group protected by the Code
  2. was subjected to adverse treatment
  3. their race, colour and/or ethnic origin was a factor in the alleged adverse treatment.

Police may provide rational and credible reasons for their actions. The ultimate issue is whether an inference of discrimination is more probable than the actual explanations offered by the police. An inference that discrimination is more probable will lead to a finding of racial discrimination.[22]

Several principles and factors should be considered in cases involving allegations of racial profiling or discrimination:

Race only needs to be a factor. Race, or race combined with other Code grounds, does not have to be the sole or major factor in police actions, or the cause of the discriminatory conduct. There only needs to be a connection between the adverse treatment and a ground or grounds of discrimination.[23] Racial profiling can be found to have occurred even if race was mixed in with other legitimate factors.[24]

There is no need to prove intention or motivation to discriminate. The Supreme Court of Canada has stated that intention to discriminate is not necessary.[25] Instead, the inquiry focuses on the effect of the actions on the individual.[26]

Racial stereotyping is usually the result of subtle, unconscious beliefs, biases and prejudices.[27] A long line of case law describes how racism permeates society:[28]

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

Racial profiling can rarely be identified through direct evidence. Because of the subtle, pervasive and unconscious nature of racial stereotyping, the existence and extent of racial bias are rarely proven through direct evidence. Instead, it will more often be proven by circumstantial evidence and inference.[29]

It can be helpful to hypothesize how events would have unfolded if a person was White. Adjudicators sometimes question whether an interaction between police and a racialized person would have been different had the person been White.[30]

People who believe they are being racially profiled can be expected to find the experience upsetting. They might react in an angry and verbally aggressive way. A person’s use of abusive language requires reasonable tolerance and tact and cannot form the basis of further differential treatment.[31]

5) Human rights concerns raised by the Justicia Complaint

The OHRC shares Justicia’s concern that the OPP collected DNA samples from approximately 100 Indo- and Afro-Caribbean male migrant workers near Vienna, Ontario in October and November 2013 in a manner consistent with racial profiling.

The OHRC is concerned that:

  • The workers were targeted mainly because of race
  • This targeting was consistent with existing stereotypes about Black men and the Ontario migrant worker population
  • The requests were coercive given the racialized nature and unique vulnerability of the workers
  • The OPP practice of seeking voluntary DNA samples in investigations has a disproportionate impact on racialized groups and marginalized communities.

Complaint made by Justicia for Migrant Workers

Justicia filed a complaint with the OIPRD on December 12, 2013 which said:

  • The DNA collection was part of a sexual assault investigation with a suspect described as a Black male with no facial hair, in his mid-to-late twenties, between 5’10 and 6’ tall, and with a muscular build.
  • The Elgin County OPP visited farms known to employ Caribbean migrant workers. The OPP approached workers and asked them to enter a police cruiser nearby, where the officers would explain the investigation, and ask the workers to provide a voluntary DNA sample. The workers were “required” to sign a “waiver-like” document, and then driven to a nearby police van to provide a DNA sample.
  • Justicia’s survey showed that DNA samples were collected from Indo- and Afro-Caribbean men aged 21-61, 5’ to 6’5 feet tall, 130-310 lbs, with varying hair styles and colour, facial hair and build.
  • Workers surveyed reported feeling shocked, upset, frightened, and that they would appear guilty if they did not comply. They felt that police would not have acted in the same way if the suspect was White, and doubted that the DNA samples would be destroyed.

Race appears to be the predominant factor that led to the DNA collection

The complaint alleges that DNA samples were collected from migrant workers who did not match the suspect description apart from having a dark skin colour. 

Instances where police officers target individuals who do not meet a suspect description—or do not meet it apart from race and/or colour—have been identified as cases of racial discrimination.

The Court of Appeal for Ontario recently upheld an HRTO decision that found discrimination when a police constable stopped and questioned a Black letter carrier who did not fit a suspect description. The constable had been directed to watch for White, Eastern European men with a vehicle. The HRTO held that the person’s colour was “a factor, a significant factor, and probably the predominant factor” in the constable’s actions.[32]

In another case, the HRTO found that a police officer “cast his investigative net so wide” that race was the predominant factor leading him to investigate a young Black man. The officer was investigating a gun-related incident involving a Black male suspect driving a black sports car, and decided to follow the man because he was a young Black man driving alone in a black BMW. The HRTO noted that the officer had no indication of the suspect’s age, and stated that the most reasonable explanation for the officer’s decision was that the claimant was a “black man, and specifically a young black man, driving a black vehicle…and as a result, he was stereotyped as a person with some probability of being involved in a gun-related incident.” The HRTO explained that it was consistent with a finding of racial profiling that all Black men driving alone in the area in a black car became possible suspects.[33]

The OPP’s DNA sweep appears to be another instance of police “casting the investigative net so wide” that race and/or skin colour was the predominant factor putting the migrant workers at risk of investigation. It is not clear why workers with such a wide range of physical characteristics were targeted when the suspect description should have narrowed the investigation’s scope.

The alleged actions of the OPP are consistent with pervasive stereotypes of Black men and migrant workers in Ontario

To place the OPP’s investigation in context, it is important to acknowledge the existence of pervasive stereotypes about the criminality of Black men and migrant workers in Ontario. The OPP’s alleged actions are consistent with these stereotypes.

The HRTO has said that, “[r]acialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal. This may lead to heightened monitoring and racial stereotyping.”[34] Along with general stereotypes that Black men are more prone to criminal behaviour, there is also an underlying presumption of the Black male as a sexual predator.[35]

Specific stereotypes about the criminality of Ontario’s seasonal agricultural workers, a group that is largely racialized as workers must come from Mexico or the Caribbean,[36] have also been identified. A study of newsprint media about foreign workers in Ontario concluded that “[a]ccording to this discourse…offshore workers…are not suited for permanent inclusion in the rural community where they work because of their inherent potential for criminal and violent behaviour.”[37] The study showed that newspapers mention foreign workers most often in relation to accidents, rowdiness and crime. When the press reported on a previous sexual assault in Elgin County, the researcher noted that a connection was made between the offshore program and the criminal behaviour, “as if a causal link existed between the two.”[38]

The workers may have felt coerced by the OPP’s requests

The allegations also raise the concern that the migrant workers felt coerced to consent to the OPP’s request for a DNA sample.

The Justicia complaint says that the majority of migrant workers asked for a DNA sample reported feeling shocked, upset, frightened, and concerned that they would look guilty if they did not comply. This suggests that while the DNA sampling may have been intended as voluntary, that most of the workers felt coerced to cooperate.

Visible minorities and marginalized people are at particular risk from unjustified “low visibility” police interventions in their lives. Based on their background and experience, these groups may feel especially unable to disregard police directions, and that asserting their right to walk away will be taken as evasive.[39]

Given the history of police abuse against visible minorities, such groups may also expect that challenging police requests will place them at risk of significant harm.[40] The result is that racialized persons may feel coerced by even the politest requests from police:[41]

…the reality facing African-Americans and other members of minority groups is this: they are more likely to be stopped, and more likely to be asked to consent to a search of their persons and property because of their colour. And, because of the experiences in their community, they will frequently – if not usually – feel coerced to forego their constitutional right of privacy. The idea of a voluntary consent in such circumstances is a fantasy.

Migrant workers are known to be particularly afraid to assert their rights. The HRTO has recognized that they are “exceptionally vulnerable” and rarely seek to vindicate their rights in the workplace and elsewhere for fear of being sent home or not being asked to return.[42] Typically, the workers arrive on temporary work permits binding them to specific employers, who are able to elect whether to have them return in future years (a practice commonly called “naming”).[43]  Given the power these employers have over the workers, it would be even harder for workers to refuse the OPP’s request if their employer was encouraging them to cooperate.

While the OPP may have provided the workers with a waiver setting out their legal rights, under these circumstances a request to sign a waiver may feel just as coercive as the request for a DNA sample.

Seeking voluntary DNA samples may have a disproportionate effect on racialized and other marginalized groups

The OHRC is concerned that seeking voluntary DNA samples has a disproportionate effect on racialized and marginalized communities.

First, if DNA sampling is being used as an investigative technique, police must be vigilant that they are not doing it differently with racialized or other Code-protected groups. There can be racial profiling in DNA sampling in the same way as with other police practices like traffic stops and consent searches. If the commencement of the investigation is discriminatory, collecting and retaining the DNA samples may also be discriminatory.

Second, even if police make sure that DNA sampling is done in a racially neutral way, racialized and marginalized people may be disproportionately affected because they feel less able to disregard police directions.

DNA sampling has been criticized for its disproportionate effect on racialized groups. This has led to recommendations that it only be used in exceptional circumstances with narrowly defined target populations, strict rules in place to make sure consent is given without coercion, and minimal infringement of privacy rights.[44]

As stated earlier, the Supreme Court of Canada has described DNA as containing “undoubtedly the highest level of personal and private information.” It is imperative that police DNA sampling does not result in racialized and marginalized groups disproportionately sacrificing their dignity and privacy.

6) Addressing racial profiling in policing

Police forces need to acknowledge that racial profiling is a systemic problem and that they must take proactive steps to address it. Doing so requires a multi-faceted approach that is part of an ongoing human rights organizational change process.[45]

The recommendations below, some of which the OPP may already have in place, can help to do this. They apply to the OPP, and can also be applied to other police services and MCSCS, which oversees policing services in Ontario. 

Developing policies and procedures

Appropriate human rights policies and procedures are relevant when assessing efforts
to address alleged discrimination, and may also be taken into account when determining future orders for compliance with the Code.[46] The OPP should develop and implement distinct policies and procedures that clearly prohibit racial profiling, and include, among other things, the following key elements:[47]

  • The principle that all persons have the right to live and work in an environment that is free of racial profiling by the police
  • Recognition that racial profiling exists in Ontario and that police may do it
  • A clear definition of racism and racial profiling
  • Recognition that racial profiling causes significant harm, particularly to Black and Aboriginal communities, and hampers the confidence of these communities in policing
  • Examples of how racial profiling manifests in police activities like pedestrian and traffic stops, consent searches, investigative detentions, suspect selection and DNA sampling
  • The disciplinary consequences of racial profiling, up to and including dismissal
  • The roles and responsibilities of members, supervisors, the Chief of Police, the professional development centre and any other relevant stakeholders to ensure compliance with the terms of policy.

Racial profiling policies should reflect the needs of the police service and the community it serves, so it is important that the OPP consult with racialized groups and Aboriginal Peoples when developing them.

To ensure compliance with racial profiling policies and procedures, all OPP stakeholders – starting with top leadership – should be involved and committed to developing, promoting and implementing them.[48]


The OHRC recommends training on racial profiling for new recruits, current officers, investigators and supervisors.

The Toronto Police Service and the HRTO highlight the need for anti-racial profiling training. The Toronto Police Service’s Police and Community Engagement Review
(the PACER Report) states that “the training of Officers is an essential part of ensuring the Service achieves its organizational aspirations of treating everyone in an impartial, equitable, sensitive and ethical manner.”[49] As well, the HRTO has explained that “[i]f officers are not appropriately trained on what may constitute racially biased profiling
or investigation, they may consciously or subconsciously engage in this form of discriminatory conduct.”[50]

OPP racial profiling training should, among other things:

  • Be designed and delivered by trainers with racial profiling expertise
  • Involve local racialized and marginalized communities in designing, delivering and evaluating it, including identifying relevant racial profiling scenarios
  • Convey the importance of good community relations
  • Describe the nature of racism, including its particular impact on Black and Aboriginal communities
  • Explain that racial profiling violates the Code, Charter, Police Services Act and police policies and procedures, with references to relevant case law
  • Incorporate role-play and scenario-driven learning modules to improve its “street-level application and articulation”[51]
  • Address how people who think they are being racially profiled might become angry or upset, and make sure this does not lead to further differential treatment[52]
  • Communicate that racial profiling is unacceptable and will result in disciplinary penalties, up to and including dismissal
  • Explain why respect for human rights is aligned with the OPP’s objectives.

Information about racial profiling should also be integrated into other training where it is particularly relevant, such as that on investigative detention, consent searches, customer service and conflict de-escalation, mediation and resolution.

Finally, any racial profiling or other human rights training should be reviewed and evaluated to make sure that learning goals are being met.

Data collection

The OHRC recommends that the OPP collect race-based data on police stops, searches and DNA sampling practices to identify, monitor, evaluate and reduce racial profiling. Collecting similar data is already common practice in the United States and the United Kingdom.[53]

Data collection should be supplemented by qualitative research methods, such as focus groups.[54] While quantitative data helps measure the extent of racial disproportionality in police activities, qualitative methods allow police to better understand officer motivations and the nature of police interactions that are consistent with racial profiling. 

Regularly collecting race-based data using credible, accepted data collection methods, can, among other things:

  • Identify patterns of behaviour that are consistent with racial profiling, and help police services to remove systemic barriers
  • Help to evaluate anti-racism and anti-racial profiling programs
  • Reveal gaps and improvements that can be made to racial profiling policies, procedures, training and accountability measures
  • Improve police relationships with racialized communities.

When gathering information, the OPP should do so in a way that is consistent with the human rights principles outlined in the OHRC’s guide, Count me in! Collecting human rights-based data.[55] Racialized communities, Aboriginal Peoples and other relevant community stakeholders should be consulted about the purpose, use, benefits and methods of collecting data. Once the data has been analyzed and interpreted, the results should be made public in an accessible format.

Recruiting, selecting, promoting and retaining a diverse workforce

The OHRC recommends that the OPP actively recruit, select, promote and retain people from racialized groups, Aboriginal communities and other under-represented groups to reflect the populations it serves.

Many police services, including the TPS and Peel Regional Police, have already taken significant steps to establish a diverse workforce.[56] The TPS believes “a more representative police service is an essential affirmation of human rights values, and a key way to develop capacity to better serve a very diverse city with many different human rights issues.”[57]

We also recommend that the OPP proactively screen for racial bias among applicants before hiring them. This best practice has been implemented by the Toronto Police Service.[58]

MCSCS should provide the OPP with direction on how to address racial profiling

As MCSCS is responsible for the Policing Standards Manual, which sets out standards for Ontario police services and offers recommendations for local policies, procedures and programs, we recommend that it provide appropriate direction to the OPP on all the areas outlined above.


The allegations about the OPP’s DNA sampling of migrant workers are troubling and, from the OHRC’s perspective, consistent with racial profiling.

The OPP’s statement in response to the complaint – that it does not condone racial profiling – is an important part of addressing this systemic problem.[59] However, more action is required.  The OIPRD’s systemic review presents an opportunity to move forward on this issue.  The welfare of racialized and Aboriginal communities in Ontario depends on it.

[1] Office of the Independent Police Review Director, OIPRD To Review OPP Practices for Obtaining Voluntary DNA Samples in Police Investigations (March 3, 2014), online:

[2] R. v. S.A.B., 2003 SCC 60 at para. 48

[3] Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 [Nassiah]; Sinclair v. London (City), 2008 HRTO 48 [Sinclair]; Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), aff’d 2012 ONCA 155 [Phipps (Div. Ct.)]; Shaw v. Phipps, 2012 ONCA 155 [Phipps (C.A.)]; Maynard v. Toronto Police Services Board, 2012 HRTO 1220 [Maynard]; Peel Law Association v. Pieters, 2013 ONCA 396 [Pieters]

[4] Toronto Police Service Racial Profiling and Carding: OHRC Deputation at April 8, 2014 Special Public Meeting Inviting Public Comment on the Toronto Police Service Board’s Draft Policy on Community Contacts (2014), online: Ontario Human Rights Commission

[5] Human Rights Code, R.S.O. 1990, c. H. 19, s. 1

[6] Except for the Royal Canadian Mounted Police, which falls under the jurisdiction of the Canadian Human Rights Act

[7] Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 at paras. 144-149; Radek v. Henderson Development (Canada) Ltd., 2005 BCHRT 302 at paras. 463-465 [Radek]; Maynard, supra note 3 at para. 4; Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (2005) at 16-17, online: Ontario Human Rights Commission [Policy on racism]

[8] Ontario Human Rights Commission, Paying the Price: The human cost of racial profiling (2003) at 6, online: Ontario Human Rights Commission [Paying the price]; Policy on racism, supra note 7 at 19

[9] Paying the price, ibid.

[10] Ibid.

[11] Policy on racism, supra note 7 at 19-20; Nassiah, supra note 3 at para. 112

[12] Abbott v. Toronto Police Services Board, 2009 HRTO 1909 at para. 42 [Abbott]

[13] Pieters, supra note 3 at para. 123; Nassiah, supra note 3 at para. 134

[14] Nassiah, ibid. at para. 134

[15] Nassiah, ibid. at para. 113; See also, R. v. Grant, 2009 SCC 32 at para. 154, Binnie J., partially concurring; and R. v. Brown, 2003 CanLII 52142 at para. 9 (Ont. C.A.)

[16] Nassiah, supra note 3 at paras. 113, 126

[17] Peart v. Peel Regional Police Services, 2006 CanLII 37566 at para. 94 (Ont. C.A.)

[18] Paying the Price, supra note 8 at 17

[19] Ibid. at 25, 29, 32

[20] Margaret Gittens et al., Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer for Ontario, 1995) at 99-102; Faisal Mirza, “Mandatory Minimum Prison Sentencing and Systemic Racism” (2001) 39 Osgoode Hall L.J. 491 at paras. 8, 20; McKay v. Toronto Police Services Board, 2011 HRTO 499 at paras. 102, 130, 192 [McKay]

[21] Phipps (C.A.), supra note 3 at para. 14; Pieters, supra note 3 at paras. 53-61, 126; Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 [Moore]

[22] Phipps (C.A.) supra note 3 at para. 13; Moore, ibid. at para. 33; Maynard, supra note 3 at para. 153

[23] Pieters, supra note 3 at paras. 59, 111-112; Phipps (Div.Ct.), supra note 3 at para. 76; Maynard, supra note 3 at para. 150

[24] Johnson v. Halifax Regional Police Service (2003), 48 C.H.R.R. D/307 at para. 35 (N.S. Bd.Inq.) [Johnson]

[25] Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 at paras. 13-14 (S.C.C.); Phipps (C.A.), supra note 3 at para. 34

[26] Phipps (C.A.), supra note 3 at para. 34; Radek, supra note 7 at para. 482; Pieters, supra note 3 at paras. 111-113; Maynard, supra note 3 at para. 150; R. v. Brown, supra note 15 at para. 8

[27] Policy on racism, supra note 7 at 21

[28] R. v. Parks (1995), 15 O.R. (3d) 324 at para. 54 (C.A.); R v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 46; R. v. Spence, 2005 SCC 71 at paras. 31-33

[29] McKay, supra note 20 at para. 125; R. v. Brown, supra note 15 at para. 44; R. v. Parks, ibid. at para. 42; Phipps (C.A.), supra note 3 at paras. 34-35; Pieters, supra note 3 at para. 72

[30] Maynard, supra note 3 at para. 176; Abbott, supra note 12 at para. 44

[31] Policy on racism, supra note 7 at 20; Maynard, ibid. at para. 154; Johnson, supra note 24 at para. 41;

[32] Phipps (C.A.), supra note 3 at para. 5

[33] Maynard, supra note 3 at para. 175

[34] Sinclair, supra note 3 at paras.17, 18; Knoll North America Corp. v. Adams, 2010 ONSC 3005 at para. 20 (Div. Ct.); Nassiah, supra note 3 at para. 126

[35] Duru N Jeremi, "The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man" (2003) 25 Cardozo L. Rev. 1320 at 1323-4

[36] Employment and Social Development Canada, Hiring Seasonal Agricultural Workers online: Employment and Social Development Canada

[37] Harold Bauder, “Foreign Farm Workers in Ontario (Canada): Exclusionary Discourse in the Newsprint Media” (2008) 35:1 Journal of Peasant Studies 100 at 115

[38] Ibid. at 110

[39] R. v. Grant, supra note 15 at paras. 154-155, 169

[40] Marcy Strauss, “Reconstructing Consent” (2001) 92:1 Journal of Criminal Law and Criminology 211 at 242-243

[41] Ibid. at 244

[42] Monrose v. Double Diamond Acres Limited, 2013 HRTO 1273 at para. 11

[43] Law Commission of Ontario, Vulnerable Workers and Precarious Work - Final Report (December 2012) at 23, online: Law Commission of Ontario

[44] Samuel Walker & Michael Harrington, “Police DNA “Sweeps”: A Proposed Model Policy on Police Requests for DNA Samples” (2005) Police Professionalism Initiative, online:; Elazar Zadok et. al., “Forensic utilization of voluntary collected DNA samples: law enforcement versus human rights” in Richard Hindmarsh and Barbara Prainsack, Genetic Suspects: Global Governance of Forensic DNA Profiling and Databasing (Cambridge University Press, 2010); Harriet A. Washington, “Base assumptions? Racial aspects of US DNA forensics” in Richard Hindmarsh and Barbara Prainsack, Genetic Suspects: Global Governance of Forensic DNA Profiling and Databasing (Cambridge University Press, 2010)

[45] Ontario Human Rights Commission, Human rights and policing: Creating and sustaining organizational change (2011) at 5-6, online: Ontario Human Rights Commission
[Human rights and policing]

[46] Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 (Ont. Bd. Inq.); Laskowska v. Marineland of Canada Inc., 2005 HRTO 30

[47] Ottawa Police Service, Racial Profiling, Policy No: 5.39 (Approved June 27, 2011) online: Ottawa Police Service

[48] Human rights and policing, supra note 45 at 20

[49] Toronto Police Service, Toronto Police Service – The Police and Community Engagement Review (The PACER Report) Phase II – Internal Report and Recommendations (2013) at 14 online: Toronto Police Service [PACER Report]

[50] Nassiah, supra note 3 at para. 209

[51] PACER Report, supra note 49 at 14

[52] Policy on racism, supra note 7 at 20

[53] Ibid. at 32; Human rights and policing, supra note 45 at 41

[54] Ontario Human Rights Commission, Count me in! Collecting human rights-based data (2010) at 31 online: Ontario Human Rights Commission

[55] Ibid.

[56] Mary Gooderham, “Creating bonds on the beat” The Globe and Mail (21 November 2010), online: The Globe and Mail; Peel Regional Police, Peel Regional Police Corporate Recruiting and Development – “Policing it’s more than you think…” Equitable Access to Opportunity Equal Opportunity Plan Results 2011 (2011) online: Peel Regional Police

[57] Human rights and policing, supra note 45 at 36

[58] PACER Report, supra note 49 at 59

[59] Richard Brennan and Nicholas Keung, “OPP commissioner Chris Lewis says force doesn’t condone racial profiling” The Toronto Star (12 December 2013), online: The Toronto Star