• Lewis Waring

Racial Profiling by Police - Masuma Fatima

husky men in dark cloths take pieces of our lives away, forcing us into dark and lonely places where we leave our DNA behind. Men who claim they help and protect stealing the air from our lungs version one; documentation

they watch and ask you questions to entrap, anything which could be construed as bad- they watch, till you are exhausted and forget. Then they intimidate and bombard your brain with words a dry water-boarding. version one; torture


Poem By Lorna King


From the streets of Minneapolis to the streets of Winnipeg, the unlawful use of force by police can end in death, injury, and devastation. George Floyd, who was black, marked one more chapter in a long history of police brutality and racial profiling. Discriminatory profiling and the stereotypes underpinning them have been denounced for decades, and, yet, there is no national law or standard in Canadian policing that prohibits random stops and similar practices that lie at the core of police racial profiling everywhere. Monitoring, meaningful accountability, and organizational change are among some of the key steps to addressing racial profiling and respecting equality rights.


A survey conducted in Winnipeg showed that 29 percent of people felt the way police interact with people of colour in their community was sometimes a problem. The survey suggests that Canadians are more likely to believe that there is a problem with how police treat people of colour in the country at large. Systematic racism is an issue right across the country, in all our institutions, including in our provincial police forces and the Royal Canadian Mounted Police (“the RCMP”). Brenda Lucki, Commissioner of the RCMP, said that unconscious bias exists in the RCMP and that there are times when its members don’t act in accordance with its core values, which include acts of racism.


Am unwarranted arrest grounded in racism


Police are permitted to limit individual freedoms. For example, officers may arrest individuals if it is reasonably necessary to carry out their duties. Chief Allan Adam of the Athabascan Chipewyan First Nation in Alberta alleged that he was beaten by officers of the RCMP when they stopped him for an expired license plate on March 10, 2020. The arrest was reviewed and charges of resisting arrest and assaulting a peace officer were withdrawn by the Crown. The dropped charges validate that the arrest was excessive, unreasonable, and unwarranted. Adam’s lawyer, Brian Beresh, said that it is clear that Chief Allan Adam’s race played a role in the officers’ decision to charge. The charges were dropped, but no steps were taken to change the justice system, including implementing cross-cultural police training for such officers who make decisions based on race and color. Prime Minister Justin Trudeau called this incident shocking, but is saying this enough after a person’s life is put at stake because of police brutality?


Recognition of police racism in Canada


In the landmark, racial profiling case of R v Brown (“Brown”), Justice John Morden firmly recognized that racial profiling is a reality in policing in Canada. The central issue in Brown was whether the trial judge had conducted the proceedings in a fair manner. The Court of Appeal for Ontario (“the ONCA”) found that his insensitive approach to the issue raised a reasonable apprehension of bias. Justine Morden, writing for the ONCA in Brown, acknowledged that racial profiling cases must be conducted in a way that maintains public confidence in the justice system. Brown established a correspondence test for proving racial profiling. The ONCA in Brown held that “where the evidence shows that the circumstances correspond to the phenomenon of racial profiling, the record is then capable of supporting a finding that the stop was based on racial profiling”. Many people believe that addressing the behaviour of few “bad apples” – individuals who have racist attitudes and problems – will solve the problem of racial profiling. However, racial profiling may result from an individual’s explicit bias or conscious stereotypes. These stereotypes may be rooted in personal prejudice and hostility against Indigenous or racialized people. Law enforcement officers who hold overtly racist sentiments are the minority, but their abuse of power can damage the lives of many racialized people.

Detention due to systemic racism and violated property rights


In R v Le (“Le”), Tom Le was charged with being in possession of a firearm and of drugs. He was arrested after police entered a backyard where he was standing with other four men. The police asked questions which led to Mr. Le fleeing the scene. Police apprehended Mr. Le while he was carrying a loaded firearm, drugs, and cash. A narrow 3-2 majority held that Mr. Le’s rights under section 9 of the Canadian Charter of Rights and Freedoms (“Charter”) were infringed and that the Supreme Court of Canada (“the Court”) should exclude the evidence under the authority of section 24 of the Charter.


In various cases dealing with section 9 of the Charter, the determination is contextual and based on specific facts. But in Le, the facts show aggressive police conduct intruding into the space of racialized people, who are, in general, more likely to have negative interactions with the police officers. Justices Brown and Martin highlighted in Le the fact that the men stood on private property and the police were not investigating anything going on at the location. The police entered the yard without “warrant, consent, or warning”, questioned the people in the backyard without communicating why they were there, “trespassed” into the yard, and used “loud stern voices, curt commands, and clear orders”. The facts show that the police were exerting dominion over the individuals present in the backyard.


The Court in Le used social science evidence, such as studies on racial profiling and carding, to aid their understanding. The Court then accepted that racialized people, like Mr. Le and his friends, may experience interactions with the police differently in comparison to non-racialized people given the historic and continuing over-policing of racialized communities. Overall, the Court in Le determined that the detention of Mr. Le crystallized when the police entered the backyard.


The current state of police racism


To date, the debate of racial profiling in Canada has been largely political, characterized by a lack of sound empirical research, unsubstantiated assertions, broad generalizations, and the over-simplification of a complex issue. Law enforcement agencies can become aware of systematic racial profiling through external sources, including the media, Indigenous and racialized individuals and communities, human rights experts, academics, government-appointed reviews, and international human right bodies. Policies, procedures, and decision-making processes can lead to racial profiling by allowing informal or highly discretionary decision-making processes. The less formal the process and the less closely decisions are monitored, the more opportunity there is for subjective consideration and racial bias to come into play. The Court has made it clear that systems must be designed to be inclusive for all persons. The racial and Indigenous diversity that exists in Canada should be reflected in the design stages of programs and policies so that biases are not created initially. Where biases already exist within systems and structures, they should be actively identified and removed.


Law enforcement officers must keep an open mind by always carefully assessing the totality of relevant circumstances. Depending on the context and facts, decisions made in a close-minded way may be evidence of racial profiling. Some people make racially biased complaints to law enforcement about Indigenous or racialized people, whether consciously or unconsciously. If law enforcement authorities accept complaints without conducting a neutral investigation and considering available information that is based on racial bias, they may be held responsible for racial profiling. For example, a police officer may arrest an Indigenous woman following a complaint from a store manager that she has stolen merchandise. The woman may say she has been wrongly accused. Nevertheless, the police may not take steps to conduct further investigation, may fail to look at the available store video evidence, and may refuse to interview other witnesses before confirming the evidence and arresting the woman. Such actions raise concerns about racial profiling.


It is important to consider that accountability in law enforcement can take various forms, including peer-based accountability. In New Orleans, where two-thirds of the population is racialized or Indigenous, the New Orleans Police Department has implemented a program entitled Ethical Policing is Courageous (“EPIC”) in recognition of the degree that the community and the department benefit when mistakes and misconduct are prevented. EPIC is practiced throughout the department and it encourages front-line officers to intervene, on a peer-to-peer basis, to prevent the unlawful use of force and other abuses of power. The implementation of this strategy in New Orleans has shown promising results, including substantial declines in citizen complaints, increased community satisfaction with the police department, and the use of body camera footage featuring real-life instances of peer intervention for officer training.


Defund the police


Across Canada, we have seen an unprecedented wave of support for defunding the police. Policy options for defunding the police include the redirection of funds currently wasted on ineffective policing to services that are constructed to meet our needs. Our society uses the police as an easy, ineffective band-aid to attempt to solve social issues plaguing our communities. It is time to reject this botched approach. We need to solve problems like racial profiling at their root cause, and we can afford to do this now if we defund the police. Police defunding is about seriously and genuinely committing ourselves to safety in our communities by funding alternatives that are not rooted in the surveillance and punishment of our communities. I firmly believe that it is time to work to end police violence by redressing racial and economic inequalities instead of policing them.

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