• Featured in Robson Crim

Racialized or Randomized?: Race Shield Legislation Admissibility & Character Evidence

Racialized or Randomized?: The Merits of Race Shield Legislation on the Admissibility of Racialized Character Evidence

by Sarah Dalton

According to David Tanovich, “the collateral effects of over-incarceration and constant surveillance [i.e.: racial profiling] on racialized communities are enormous”.[1]Canadian criminal justice institutions are racially biased.[2] Racial bias creates preconceived character evidence that is attributable to individual members of that race. For example, minority groups report disproportionally high incidents of racial profiling.[3] These incidents are a by-product of racial bias, yet no anti-racial profiling legislation exists. To fill this legislative void, the federal government should introduce ‘race shield’ legislation that would operate similarly to rape shield legislation. Rape shield legislation protects complainants in sexual assault trials from improper questioning using myths and stereotypes around sexual activity, which ameliorates victim rights and reporting. Similarly, race shield legislation would protect a racialized accused during legal proceedings where racialized character evidence is used to attack their credibility, increasing equity in the justice system. This commentary will advocate for the adoption of race shield legislation by discussing racial profiling as a form of stereotyping and the practical application of race shield legislation on character evidence.

Race shield legislation would include three components: 1) evidence of racial bias; 2) conditions for admissibility; and 3) factors that judges must consider. Evidence that an accused is more likely to commit a crime due to their race or their actions are more suspicious due to their race would be inadmissible. In a proceeding, unless a judge determines that the evidence 1) does not support the previously mentioned inferences; 2) is relevant to a live issue; and 3) is of significant probative value that does not create prejudice, then the evidence is inadmissible. When determining whether evidence is admissible, the judge should consider the effects of stereotyping and society’s interest in ending systemic racism. Thus, under race shield legislation, counsel could limit the prosecution’s ability to introduce evidence or cross-examine a racialized accused about character evidence based on systemic racism and stereotyping.[4] Such character evidence would be inadmissible and not subject to weighing probative value and prejudicial effect.

The context of racial profiling within police stops provides a framework to evaluate the merits of race shield legislation. Specifically, police officers’ ability to randomly stop vehicles, affirmed by the Supreme Court of Canada (SCC) in R v Ladouceur,[5] highlights the need for anti-racist legislation due to the unfettered police power to stop individuals. Racial profiling is a lived reality for minorities, but it can be hard to identify. In R v Le,[6] the SCC majority defined racial profiling as having behavioural and attitudinal components.[7] Behaviourally, police officers use racial stereotypes regarding “offending or dangerousness” during suspect selection and treatment.[8] In turn, behaviours impact police officers’ attitudes so that over-policing and poor policing unfairly target racial minorities.[9] In R v Holloway,[10] Harris J further posited that racial profiling involves two steps: 1) assigning character traits to a specific racial or minority group; and 2) presuming that everyone of said group has those character traits.[11] Thus, racialization arising from stereotyping occurs when the perceived personality traits, behaviours, and social characteristics from a particular race are attributed to an individual. Ultimately, stereotypes connect individuals to pieces of generalized character evidence based on racial biases.

Police officers frequently use offenders’ characteristics to formulate a profile of the “usual offender”. Often officers will use racial profiling to engage in proactive policing rather than reactive policing. Instead of responding to and solving crimes, the police deliberately stop vehicles or pedestrians to “prevent” crimes. These stops are prone to racial profiling because, consciously or unconsciously, officers proactively policing implement the usual offender principle into their surveillance.[12] Thus, surveillances based on stereotypes and racial bias may create criminal suspicion out of innocent interactions and activities.

Race shield legislation would be beneficial to protect a racialized accused from profiling during proactive policing. In R v Ladouceur,[13] Sopinka J held that a “random stop [is] rationally connected and carefully designed to achieve safety on the highways and impair as little as possible the rights of the driver” and it “is the only way to check such things”.[14]

Consequently, the SCC majority decided that section 1 of the Charter saved random vehicle stops checking sobriety, licences, mechanical fitness, and registration. Officers’ unfettered power increases the use of proactive policing and usual offender profiles, which increases racial profiling. Ladouceur illustrates that making a racial profiling case is difficult because a police officer’s wide discretion under the Highway Traffic Act can easily mask their true intent.

The challenge for an accused who thinks they have been profiled is that direct evidence rarely proves that profiling occurred. In R v Handy,[15] the SCC emphasised that the “criminal justice system has suffered some serious wrongful convictions in part because of misconceived notions of character and propensity”.[16] These misconceived notions of character are analogous to racialized character evidence, which demonstrates that the justice system struggles with the admissibility of character evidence. Thus, by excluding character evidence observed during racially motivated stops, race shield legislation can ensure fair and equitable justice is delivered.

Since racial biases are often subconscious, stereotypes implied from actions and facts create racialized character evidence. Thus, inadmissible character evidence can indirectly enter the courtroom. This failure of evidentiary rules demonstrates that they cannot adequately address racialized character evidence. For example, a driver’s age and race are facts. Conversely, the idea that a young black driver in an expensive car is likely driving a stolen car is a racial stereotype. Based on that stereotype, the racialized character evidence is that the driver is a thief.Existing evidentiary rules such as low probative value, high prejudicial effect, or relevance have low admissibility thresholds. These low thresholds create an opportunity for stereotypical characteristics to attach themselves to an accused. Therefore, the existing rules are not effective at excluding racialized character evidence. For the proper administration of justice, it is important to protect marginalized members of Canada’s diverse communities from racial bias and “prevent unwarranted and damaging stereotypes from infecting the criminal trial”.[17] Race shield legislation directly addresses the admissibility of racialized character evidence, sealing the cracks in existing evidentiary rules.

Stereotyped personality traits, behaviours, and social characteristics observed in minority offenders do not represent an entire group. When police officers operate under the false guise that they do, randomized stops become racialized. Character evidence observed from a racially motivated stop should be inadmissible. Race shield legislation would explicitly protect minority groups and create anti-racist legislation. Therefore, if a racialized accused could argue that systemic racism and stereotyping were relevant factors to consider when admitting character evidence, the justice system would become more equitable. Adopting race shield legislation will not fix everything, but it would be a huge step in the right direction because when bias affects the justice system, we all lose.

[1] David M Tanovich, “The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System” (2008) 40:21 SCLR (2d) at 661 [Tanovich 1]. [2] Robin T Fitzgerald and Peter J Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011) 52 Can. J Crim & Crim Just 449 at 450. [3] Ontario Human Rights Commission, “Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario” (2017) Racial Profiling Trends and Experiences – figure 1 showed that 72.5% of Black people, 63% of Arab and west Asian people, and 57.4% of Indigenous people reported racial profiling compared to 11% of White people. [4] Tanovich 1, supra note 1, at 674. [5] R v Ladouceur, 1990 1 SCR 1257. [6] R v Le, 2019 SCC 34. [7] Ibid at paras 74-78. [8] Ibid at para 76. [9] Ibid at para 95. [10] R v Holloway, 2021 ONSC 6136. [11] Ibid at para 50. See also David M Tanovich, “E-Racing Racial Profile” (2004) 41:4 Alberta Law Review at 912 [Tanovich 2]. [12] Tanovich 2, supra note 11, at 918. [13] Ladouceur, supra note 1. [14] Ibid at para 38. [15] R v Handy, 2002 SCC 56. [16] Ibid at para 150. [17] Tanovich 1, supra note 3.