On May 4, 2022 the Hon. Judge Perry Borden rendered a decision for my client in the Nova Scotia Provincial Court. He was arrested for breaching probation and an undertaking, both for contravening a “no contact” condition. How the police made the stop, just assuming he was “the Black person” they were looking for based on very little information — which could have resulted in any Black person being stopped — was the problem, leading to a finding of Charter rights violations (unlawful search (s. 8) and arbitrary detention (s.9)) and dismissal of charges. In my submissions in April at the trial, I referred to the Wortley report (Street Checks Report), systemic racism, and a number of previous cases of racial profiling. The decision was very good, referring to a number of the cases and issues raised in my submissions, and “driving while Black”.
This is a very good precedent to challenge the lawfulness of police stops based on racial stereotypes-laced hunches or presumptions about criminality based on race. I do not have the decision, which is currently unpublished, but below are some key points in my submissions.
A majority of the Supreme Court of Canada gave their opinion on racial profiling in R v Le (2019 SCC 34), at para 76:
the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment.[1]
The majority in Le went on to elaborate on court’s accepted definition of racial profiling, taken from Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center):
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis deleted; para. 33.]
R. v. Le, 2019 SCC 34 (CanLII), [2019] 2 SCR 692, at para 76
As noted in R. v. Dudhi (2019 ONCA 665), at para 55, racial profiling is at play when race or racial stereotypes factor in “to any degree in suspect selection or subject treatment.”
In R v Brown (2003 CanLII 52142 (ON CA) [148]), at para 7:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
Police gambling on a hunch that the Black man driving was the Black man they were looking for is racial profiling. This is the kind of thinking that leads to too many unlawful stops of Black people in this province, and feeds into the disproportion, where a Black person is 6 times more likely to be street checked by police than their white counterparts, as noted in the Wortley report.
When a motor vehicle is stopped by police, it is a detention (there is plenty of Supreme Court of Canada jurisprudence Orbanski & Elias, Ladouceur, Nolet, etc to validate this point). That means as soon as the vehicle was stopped, police had to have a reasonable suspicion that an occupant of the vehicle was involved in an ongoing criminal offence before the stop (R v Mann, 2004 SCC 52).
In the Minister’s directive on street checks (December 2, 2021), the preamble stated the reasons for the directive included the disproportionate impact on African Nova Scotian Communities, and the need to address distrust by such communities of the justice system, and the need to address systemic racism. Following this, the directive addressed the requirement for reasonable suspicion before a stop.
- No police officer shall:
- Interact with a person for the purpose of collecting and recording identifying information; or
- Collect and record identifying information as the result of an interaction with a person
Unless at the time of the interaction, the police officer reasonably suspects that:
- The person has recently engaged in, is engaged in , or will engage in unlawful activity or
- The person has information relevant to the investigation or prevention of unlawful activity or enforcement of the law
If there is no reasonable suspicion before the detention begins, this makes it clear that the directive on street checks was violated.
R v Holloway was a case of unwanted person call, police entering apartment and finding 4 Black men, including the accused; police proceeded to search based on an unreasonable suspicion that the accused was hiding something in a bag; a gun was found, and the gun was excluded as evidence. The pertinent point concerns racial profiling:
The taint of racial profiling magnifies the detriment that might otherwise be felt by a person whose Section 8 rights have been violated. Racial profiling “results in the person or group being exposed to differential treatment or scrutiny… It perpetuates and accentuates fundamental racial fault lines in society and depreciates the statehood of Blacks in the Canadian community. Discrimination against individuals distinguished only by the colour of their skin is repugnant. It depreciates every facet of their lives.
R v. Holloway, 2021 ONSC 6136, at para 143