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The Law Governing Racial Proling: Implications of Alternative Denitions of the Situation

David MacAlister School of Criminology, Simon Fraser University

Encounters between the public and the police are highly stressful and contested events. In a multicultural society such as Canada, freedom from discrimination and arbitrary treatment are core values worthy of protection. Investigation by law-enforcement ofcials may give rise to allegations of racial proling, a practice that jeopardizes those values. Yet, intelligence-led law enforcement is a matter of practical importance, recognized widely by the community as desirable. So, police use of criminal intelligence to structure investigative practices should be encouraged, but not at the expense of the egalitarian ideals that make Canadians proud. Delineating the boundary between intelligenceled, effective law enforcement and racial proling is a matter of considerable debate. The recent work of Satzewich and Shafr (2009) provides some needed insight into the racial-proling phenomenon, helping us to explore the distinction between intelligence-led policing and racial proling. Their work helps us to think about the issues that need to be resolved in legal disputes arising from racially charged encounters between the police and the public. However, it should not be seen as an authority police can appeal to in asserting that their denials of racial proling have as much validity as do the claims of those who provide evidence of the prevalence of racial proling and other discriminatory practices in our criminal justice system. The law governing racial proling has grown considerably over the last ten years. That growth has resulted in numerous signicant developments in various areas of the law, all of which touch on the need for ongoing vigilance regarding police practices and lawenforcement policy. Most allegations of racial proling arise out of circumstances in which the decision of police to target someone for investigation is called into question. This often occurs in circumstances with low visibility, where the police have a high level of discretion and are free from having to

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account for the decisions they make. For example, it arises where the police decide to stop someone who is driving a motor vehicle. Police have widespread discretion under provincial motor vehicle laws to stop motorists and inquire into their tness to drive and the roadworthiness of their vehicle. Most provinces have motor vehicle legislation authorizing the police to stop any vehicle operating on the highway.1 These powers generally entitle the police randomly to stop any vehicle, at any time, even where the driver does not appear to have done anything wrong.2 Similarly, the police have widespread discretion to confront individuals on the street and ask them questions. There is no legal standard requiring the police only to speak to certain people in specic circumstances. Another area of wide discretion is in the conduct of customs ofcers. They have unfettered discretion to stop individuals entering the country and ask them questions in order to ascertain their status as residents or citizens and to ascertain whether they are bringing contraband into the country. Canada Customs ofcers are empowered by section 11(1) of the Customs Act (1985) to ask any questions of those entering the country, so long as the questions pertain to their duties under that act. They may also examine any goods being brought into the country in accordance with section 99 of the act. While these initial encounters tend to be free from the application of any precise legal standard, more in-depth police-citizen encounters typically require the police to comply with a pre-set standard that limits their intrusion into private lives to circumstances that the courts and legislatures have determined justify such intrusion. Accordingly, the decision of the police to conduct a sobriety test of a driver or to search the vehicle being driven by a motorist requires that they have sufcient grounds to justify these intrusions. Similarly, if a person being questioned by the police opts not to answer the questions being put to them and seeks to go on her or his way, the police must have sufcient grounds to justify detaining that individual while they carry out their investigation. Also, if a Customs ofcer decides to subject an individual to a personal search, they must have the requisite grounds for doing so. The standard of review that typically applies to these further intrusions is one of reasonable suspicion. An individual who has been stopped by the police because they wish to assess for sobriety may be compelled to endure a sobriety test or a roadside screening assessment of their breath if the investigating ofcer has reasonable grounds to suspect that the driver has recently consumed alcohol (see Criminal

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Code s 254(2)). The police may detain an individual while conducting an investigation if it is premised upon reasonable grounds. The Supreme Court of Canada set the test for such detentions in R v Mann:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the ofcers suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds gures at the front-end of such an assessment, underlying the ofcers reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the ofcers duty, the liberty interfered with, and the nature and extent of that interference . . . (at para 34)

Many courts have interpreted this ruling as supporting the notion that the police are justied in detaining a person for investigation if they have a reasonable suspicion the individual is implicated in the offence under investigation.3 Going further and using a sniffer dog to search a detained individual also requires that the police have a reasonable suspicion of criminal activity.4 Under the Customs Act (1985), an ofcer may search any person arriving in Canada, if the ofcer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened (s 98). The common element in all of these situations is a requirement that the law-enforcement ofcial have a reasonable suspicion that the person under investigation is implicated in an offence. Dening what constitutes a reasonable suspicion is a matter of some practical difculty. Yet, it is the basis on which many racial-proling cases turn. Recent case law has shown that judges dealing with allegations of racial proling address the question of whether racial proling existed using the same standard, regardless of the precise nature of the legal proceedings. Allegations of racial proling frequently arise in the context of defences to criminal charges, as where the accused seeks to have evidence excluded or a stay of proceedings imposed in order to remedy the effect of being racially proled during an investigation.5 These cases typically allege that the police arbitrarily detained the racialized individual or claim that a search occurred that would not

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have been carried out if the individual were not from a racial minority. Racial proling also arises in other forms of legal proceedings. It has recently arisen in the context of human rights complaints, where those who believe that they have been discriminated against by lawenforcement ofcers seek a remedy from an administrative tribunal (see, e.g., Nassiah v Peel Regional Police Services Board). Furthermore, racial proling has arisen in the context of civil suits, where the victim of alleged racial proling seeks monetary damages for what they perceive to have been adverse treatment (see, e.g., Peart v Peel Regional Police Services Board; Kelly v Palazzo). These cases are quite varied in their nature, but apply similar analyses in determining whether racial proling occurred. A key factor in many racial-proling cases is determining whether the exercise of law-enforcement discretion was reasonable in the circumstances. If it was motivated by prejudice, it clearly would not be reasonable. However, even subconscious racism will be held to be unreasonable and result in a nding of racial proling. In the landmark ruling of R v Brown, Justice Morden of the Ontario Court of Appeal dened racial proling:
There is no dispute about what racial proling means. In its factum, the appellant dened it compendiously: Racial proling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group and then quoted a longer denition offered by the African Canadian Legal Clinic in an earlier case, R v Richards . . . (R v Richards; cited in R v Brown at para 7, Morden, JJA)

Racial proling is criminal proling based on race. Racial or colour proling refers to that phenomenon whereby certain criminal activity is attributed to an identied group in society on the basis of race or colour with the result that individual members of that group are targeted. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group. The attitude underlying racial proling is one that may be consciously or unconsciously held. That is, the police ofcer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. This denition has been accepted and applied in virtually every racialproling case entering Canadian courts subsequent to Brown. The

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Brown ruling requires the racial-proling claimant to establish the fact of racial proling for the court on a balance of probabilities. In cases where racial-proling arguments have been accepted, courts are often reluctant to conclude that the police involved were overtly and consciously racist. However, they have noted that this is not necessary for a nding that racial proling occurred. In R v Ahmed, Justice Kiteley of the Ontario Superior Court of Justice noted that racial proling can be conscious or unconscious, intentional or unintentional (at para. 62). The judge went on to show restraint by refusing to conclude that the conduct of the police was conscious or intentional. In R v Khan, Justice Molloy of the Ontario Superior Court of Justice was a bit more bold, taking the rare stance of nding blatant proling on the facts: even if there had been some minor thing about his driving, I do not believe that was the real reason he was stopped. The police stopped him for an improper purpose. Mr. Khan was targeted for this stop because of racial proling, because he was a black man with an expensive car (at para. 68). In both cases, the court found the police to have lied and the claimant to be a more credible witness. The research Satzewich and Shafr (2009) shows that police assessment of suspicion depends on training, socialization, and experience accumulated in the company of fellow ofcers. Their interpretations of the situations they encounter reect a worldview they have developed largely through their socialization into the police role (MacAlister 2004). The problem with this is that their interpretations and experiences may be clouded by unconscious racism. The indicators or cues of criminal involvement frequently have racial undertones (Tanovich 2006; 2004a). What police ofcers consider to be criminal proling may, in actuality, reect racist stereotypes. As Professor Tanovich (2004b) notes,
[A]n ofcer may see a Black man in a White neighbourhood carrying a Plasma television and decide to stop him to investigate because, in the ofcers mind, he appears out of place. Alternatively, an ofcer may interpret a handshake between two Black men in a high crime area as a drug transaction. Such innocent behaviour might not be interpreted in such an incriminating manner if the men were White. Evasive action is another example. An African Canadian who has historically been harassed by the police or who is aware of a history of community harassment may understandably avoid a police ofcer who is approaching, not out of a consciousness of guilt, but to avoid being harassed, or in some cases, out of a sense of self-preservation (53).

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Unconscious and unintentional racism in the formation of criminal proles is still racial proling. The research of Satzewich and Shafr (2009) does not contradict the prevailing orthodoxy that racism is systemic in our justice system. It merely shows that the police are often unaware of the racial subtext inherent in their beliefs. Their research helps us to understand why the police continue to deny that racism exists and why racial proling continues to occur. However, it does not offer any evidence to indicate that the phenomenon is any less pervasive than has been generally recognized in the courts and by government commissions in recent years (Gittens and Cole 1995). The results of their research should prove to be useful in future efforts to determine whether racial proling arises in any given policecitizen encounternot as a basis on which to discount the claims put forward by an alleged victim of racial proling but as a means to understand why racial proling may still be found on the facts of a case where the judge has determined that the police did not consciously engage in racial proling while exercising their discretion to stop or search an individual. The criminal proles developed through police intelligence have been noted to have racial undertones built into them (Tanovich 2002a). Operation Pipeline/Jetway, used to identify potential drug smugglers has been linked to racial proling (Tanovich 2002b). While the Supreme Court of Canada has declined to rule on the acceptability of these criminal-proling techniques, the implication of their recent ruling in R v Kang-Brown (2008) involving the use of sniffer dogs at a bus terminal gives some indication that a prole may not give rise to the requisite level of suspicion needed to justify the deployment of dogs on travellers believed to t that prole (Tanovich 2008). To the extent that these proles and other, less rened hunches or schemas informing the decisions of working police ofcers continue to embody hidden or latent racial biases, they do not offer an alternative denition of the situation that is equally worthy of acceptance as the empirical literature that has consistently shown racial bias in law-enforcement stop-and-search practices. The research of Satzewich and Shafr (2009) allows us to better understand why the police hold the views that they do; it does not offer a competing explanation of the racial-proling phenomenon.

Notes
1 See, e.g., motor vehicle and trafc safety legislation listed at the end of this article. While police in Quebec derive powers over motor vehicle

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drivers from statute (see Highway Safety Code), some of their power to stop vehicles appears to arise from common law: see R v Murray at paras 4550. 2 The power of the police to engage in random vehicle stops has been recognized by numerous Supreme Court of Canada judgments, including R v Hufsky; R v Ladouceur; R v Mellenthin; R v Orbanski. 3 A similar ruling was provided in the decision of R v Clayton, where the majority extended the power to allow the police to set up roadblocks to stop and question motorists leaving the scene of a weapons call, again applying the standard that a stop is justied if the ofcers suspicion deems a detention to be reasonably necessary. 4 See R v Yeh. Going further still and searching the person requires that the polices belief in the need to search meet a higher standard: reasonable grounds to believe that the individual is in possession of weapons endangering the safety of the police or the public; R v Mann (2004) at para 40. To search for any other reason, such as to nd evidence, the police would rst need to arrest the individual and have the requisite reasonable grounds for belief in doing so, a standard somewhat higher than the reasonable suspicion grounds justifying these lower level intrusions. 5 The leading pronouncement on racial proling remains the Ontario Court of Appeal ruling in R v Brown. Only a couple of cases have resulted in a court ruling that racial proling occurred, meriting a remedy such as exclusion of evidence; see R v Ahmed, R v Khan.

References
Gittens, Margaret and David Cole 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. Toronto: Queens Printer. MacAlister, David 2004 Canadian police subculture. In Stephen E. Nancoo (ed.), Contemporary Issues in Canadian Policing. Mississauga: Canadian Educators. Satzewich, Vic and William Shafr 2009 Racism versus professionalism: Claims and counter-claims about racial proling. Canadian Journal of Criminology and Criminal Justice 51: 199226.

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Tanovich, David M. 2002a Res ipsa loquitur and racial proling. Criminal Law Quarterly 46: 329 340. Tanovich, David 2002b Operation pipeline and racial proling. Criminal Reports 6th series. (6th) 1: 5253. Tanovich, David 2004a E-racing racial proling. Alberta Law Review 41: 905933. Tanovich, David 2004b The colourless world of Mann. Criminal Reports. (6th) series. 21: 47 58. Tanovich, David M. 2006 The Colour of Justice: Policing Race in Canada. Toronto: Irwin Law. Tanovich, David M. 2008 A powerful blow against police use of drug courier proles. Criminal Reports. (6th) series. 55: 379393.

Legislation cited
Criminal Code, RSC 1985, c C-46. Customs Act, SC 1985, c 1 (2d Supp). Highway Safety Code, RSQ c C-24.2. Highway Trafc Act, SS 1986, c H-31. Highway Trafc Act, CCSM c H60. Highway Trafc Act, RSO 1990, c H.8. Highway Trafc Act, RSPEI 1988, c H-5. Highway Trafc Act, RSNL 1990, c H-3. Motor Vehicle Act, RSNB 1973, c M-17. Motor Vehicle Act RSBC 1996, c 31. Motor Vehicle Act, RSNS 1989, c 293. Motor Vehicles Act, RSY 2002, c 153. Motor Vehicles Act RSNWT 1988, c M-16. Motor Vehicles Act RSNWT (Nu) 1988, c M-16. Trafc Safety Act, RSA 2000, c T-6.

Cases cited
Kelly v Palazzo, [2005] OJ no 5363 (QL) (SCJ). Nassiah v Peel Regional Police Services Board, [2007] ORHTD no 14 (HRT).

The Law Governing Racial Proling Peart v Peel Regional Police Services Board, [2006] OJ no 4457 (QL) (CA). R v Ahmed, [2009] OJ no 5092 (QL) (SCJ). R v Brown, [2003] OJ no 1251 (QL) (CA). R v Clayton, [2007] 2 SCR 725. R v Hufsky, [1988] 1 SCR 621. R v Kang-Brown, [2008] 1 SCR 456. R v Khan, [2004] OJ no 3819 (QL) (SCJ). R v Ladouceur, [1990] 1 SCR 1257. R v Mann, [2004] 3 SCR 59. R v Mellenthin, [1992] 3 SCR 615. R v Murray (1999), 136 CCC (3d) 197 (Que CA). R v Orbanksi, [2005] 2 SCR 3. R v Richards, [1999] OJ no 1420 (QL) (CA). R v Yeh (2009), 69 CR (6th) 197 (Sask CA).

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