Do Toronto police engage in racial profiling?

• Author: Melchers, Ron

On 19 October 2002 the Toronto Star began a series of articles "Race and Crime," (1) making claims that "justice is different for blacks and whites" ("Singled out" 2002), "Blacks arrested by Toronto police are treated more harshly than whites" ("Singled out" 2002), and that "Police target black drivers" ("Police target" 2002: A1). Subsequent stories suggested that Toronto police were engaging in racial profiling, defined by the Star as "the practice of stopping people for little reason other than their skin colour" ("Police target" 2002: A8). Published interviews with black community leaders and advocates added the weight of anecdote and presumption to charges of racial profiling, and University of Toronto criminologist Scott Wortley, whose research has focused on race issues in criminal justice, deemed the Star analysis "clear evidence of what, until now, has been based largely on assumption" ("Singled out" 2002: A13).

Representatives of the police responded angrily, denying accusations of singling out blacks. The Toronto Police Service commissioned an independent review of the Star's analysis by a prominent criminal lawyer (Alan Gold) and a University of Toronto sociology professor (Edward Harvey) (see Harvey and Liu 2003; Harvey 2003; Gold and Harvey 2003). Their review concluded that the Star analysis was "junk science" and the conclusions of the articles "completely unjustified, irresponsible and bogus slurs" to be "put down at once" (Gold and Harvey 2003). The police union went further and on 17 January 2003 launched a $2.7 billion class action libel suit on behalf of its 7,200 members ("Police union" 2003). The furor has since spread throughout the Ontario criminal justice system, with judges, attorneys, crown prosecutors, and police officials making additional controversial statements supporting or refuting the allegations of racial profiling in the criminal justice system. The media have given considerable attention to the issue, as befits its renewed prominence in public debate, but perhaps also in defence of one of their own. The debate is likely to be given further play in municipal, provincial, and federal election campaigns.

Whatever else may come out of these events, it is already clear that the Toronto Police Service has now joined the ranks of North American police organizations that must now devote considerable effort to addressing accusations that they engage in racial profiling. The development of data collection and analysis systems to respond to accusations of racial bias in policing has become something of a growth industry in the U.S. (e.g., Ramirez, McDevitt, and Farrell 2000; McMahon, Garner, Davis, and Kraus 2002; Fridell, Lunney, Diamond, and Kubu 2001: 118; Engel, Calnon, Bernard 2002: 250, 262-263). Widespread public belief that police engage in racial profiling undermines public confidence in the police, as well as the credibility of the testimony and evidence submitted by police officers in criminal proceedings. It may now have become difficult to prosecute criminal cases involving accused persons from groups claiming police bias, without extensive expert testimony on the issue of racial profiling. In Toronto (as elsewhere across North America), the issue of racial profiling has become a significant threat to the ability of police to maintain order, ensure public safety, and prosecute those accused of criminal offences. This issue also affects the ability of the courts to weigh evidence appropriately, assess criminal responsibility, and determine appropriate sanctions.

The evidence for claims of racial profiling

What evidence is there that Toronto Police engage in what is called racial profiling? The claims made by the Toronto Star were based on the newspaper's own analysis of arrest data from the Toronto police's Criminal Information Processing System (CIPS), obtained under a freedom of information request. The data were recorded between late 1996 (when CIPS was first implemented on a trial basis) and early 2002.

The Toronto Star's investigative team, under the supervision of Dr. Michael Friendly, professor of psychology and director of consulting services for York University's Institute for Social Research, worked with a database consisting of 483,614 incidents in which someone had been arrested, charged, or ticketed. These incidents resulted in more than 800,000 charges being laid under criminal and other statutes or by-laws. Of these charges, 301,551 were for Criminal Code or drug offences.

No individual identifying information was included in the information obtained by the Star under the freedom of information request and offences were aggregated into broad categories to preserve individual's privacy. As well as incident, charge, and police disposition detail, information was also provided about the age, gender, skin colour (white, black, brown, other), immigration and residency status in Canada, employment information, and country of birth of those arrested, charged, or ticketed. The data also provided some information on the criminal histories of individuals arrested: previous convictions, bail status, probation orders, or conditional release status. Complete information, the Star reported, was not available in every instance, and the analysis excluded those cases where specific information was missing. As with all police-recorded data, the more serious offences would tend to be over-represented among completed records and the least serious offences under-represented (Melchers 2001).

CIPS records only incidents or police actions in which a person is arrested, charged, or ticketed. The purpose of CIPS is to manage information that is likely to be required at subsequent stages in criminal justice processing. Therefore, no information is reported for an incident where there is no subsequent action taken and information is often incomplete, especially in cases where there is little expectation of follow-up. Depending on the type of offence, incidents reported may be only a small portion of the total number of instances in which the police intervened. CIPS coverage is, furthermore, not consistent throughout this period, as the system was being progressively implemented, initially on a voluntary basis.

The Star analysis focused its attention, although not exclusively, (2) on two categories of offences: arrests, charges, or ticketing for out-of-sight driver offences (such as driving without a valid licence or without insurance) arising from vehicle stops; and police dispositions of persons charged with single counts of simple drug possession offences. These were chosen because they offered two of the more commonly suspected, if not also more likely, opportunities to observe racial bias in policing. The belief that police stop black drivers for reasons of skin colour alone (known as DWB "Driving While Black" in some circles) is widespread. (3) Drug offending is a stereotypical "black crime" in the minds of some, an idea reinforced by local media portrayals of "Jamaican posses." Both situations further rely on considerable officer discretion in enforcement.

Traffic stops

Traffic stops were chosen, following the lead of U.S. studies according to the Star, because of the high degree of discretion (therefore potential for discrimination) in most police decisions to stop vehicles and because police would have no prima facie indication of these infractions at the time of their decision to stop a vehicle. The researchers assumed that the racial distribution of these charges would be representative of the racial distribution of all vehicle stops and also that any differences in this distribution from that of the population would be evidence of bias or racial profiling.

The Star reported that of 4,696 out-of-sight offences reported over the five-year period for which skin colour was recorded for purposes of identification, 33.6% involved drivers described as "black." The Star wrote, "It's assumed random checks would generate a pattern of charges that mimics the racial distribution of drivers in society as a whole," citing U.S. studies that consider these figures a "bellwether for racial profiling" ("Police target" 2002: A1). Skin colour is not identified on driver's licences in Ontario, nor is any record of kilometres driven available for registered vehicle owners by skin colour. So the Star used as a proxy the proportion (8.1%) of the Toronto population who reported themselves as black on the 1996 Census forms. The difference between these two proportions was considered by the Star to be evidence of racial profiling.

The use of population data in studies of racial profiling

Contrary to the assurances of the Star, this method is not well supported in the literature--quite the contrary in fact. For example, McMahon et al. concluded from their review of racial profiling research that studies of racial bias in traffic stops "too often base their conclusions on comparing preliminary data on traffic stops to aggregate city demographics without establishing credible benchmarks for comparison purposes. These superficial evaluations are dangerous, in that they may foster incorrect conclusions and generate inappropriate corrective measures" (McMahon et al. 2002: 1). There are two problems with the assumption that proportions of drivers stopped by police should be identical to proportions within the population. The first relates to the use of population data and the second to the assumption of randomness in police vehicle stops.

Incidence versus prevalence

The reference to population data results in two errors. First, data on traffic stops and population data belong to two very...