Drawing the line on racial profiling in traffic stops: R v Sparks

This is an important decision, from May 2022, but just recently published, and you can find the link here. I was defence counsel in this matter. My client, who is Black, was stopped while driving. The arresting officer saw a “black man” driving and had a hunch that it was someone who had a no contact release condition to prevent contact with the woman in the passenger seat. Even though he was the person the officer was looking for, the officer’s reliance on a hunch, without further substantiation before the stop, was the problem. As the Honourable J. Borden found, this was not enough to base a detention or arrest:

“Other than the driver being described as a Black male, there is nothing which would lead me to conclude the driver was Mr. Sparks.”

This kind of thinking, assuming a Black person is the suspect sought after, without more substantiating evidence leads to disproportionate stops of Black people relative to white counterparts and is racial profiling, where:

“race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment.” (In R. v. Le2019 SCC 34)

As stated in paragraph 44 of the decision:

[44]         Racial profiling and these specific Charter-infringing practices reverberate throughout our province.  It is not lost upon me that this corrosive conduct has a significant history in Nova Scotia.  The impact of these violations is profound as it affects the equality rights of the specific individual and the African Nova Scotian community in general.

Hopefully, with more of a line drawn on racial profiling, and more guidance on police needing to have the required grounds for a detention or arrest before the detention or arrest, stops involving racial profiling can be more effectively challenged. Ideally, police are further deterred from engaging in such actions going forward. Driving while Black should not be criminalized.

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