Applying the Racial Profiling Correspondence Test

• Author: David M Tanovich
• Pages: 83-104

83

ChAPTeR 4

Applying the Racial Prof‌iling

Correspondence Test

  *

A. INTRODUCTION

In the landmark racial prof‌iling ca se of R v Brown,1 John Morden J, writ-

ing for a unanimous Ontario Court of Appeal, f‌irmly recognized that

racial prof‌iling is a reality in policing in Ca nada that is “supported by

signif‌icant social science research.”2 He acknowledged that racial pro-

f‌iling today is, at its core, largely about implicit bias — the reliance on

learned stereotypes about race and crime, often subconsciously, in the

decision-makin g process.3 Following Brown, we can def‌ine racial prof‌il ing

in policing as follows:

Racial prof‌ilin g occurs when race or racialized stereoty pes about of‌fending

or dangerousness are used, consc iously or unconsciously, to any degree in

suspect selection or su spect treatment. The one exception to this i s where race

is used as part of a know n suspect’s physical descript ion, the description

* Professor, faculty of law, Universit y of Windsor; fellow, Royal Societ y of Canada. This

article was w ritten for the Law Society of Upper Ca nada, “The Six Minute Cr iminal

Lawyer 2017,” held in Toronto, 8 April 2017. Reproduced by p ermission of Thomson

Reuters Canada Lim ited. I wish to thank my resea rch assistant Natasha Donnelly

(Windsor Law, 2017) for her outstand ing editing.

1 (2003), 173 CCC (3d) 23 (Ont CA) [Brown].

2 Ibid at para 9. In R v Grant, 2 009 SCC 32 at para 154 , Binnie J similarly acknow ledged

that a “growin g body of evidence and opinion su ggests that visible minoritie s and

marginal ized individuals are at pa rticular risk from u njustif‌ied ‘low visibility ’ police

interventions in thei r lives.”See also Peart v Peel Regi onal Police Serv ices (2006), 43 CR

(6th) 175 at para 94 (Ont CA) [Peart], leave to appeal to SCC ref used, 2017 SCCA No

10. In Peart, Doh erty J noted that there is now “an a cceptance by the courts t hat racial

prof‌iling occu rs and is a day-to-day rea lity in the lives of those minor ities af‌fected by it.”

3 Brown, above note 1 at pa ras 7–8 and 86.

David M Tano vich

is detailed and an indiv idual is investigated bec ause he or she reasonably

matches that descript ion.4

The central issue in Brown was whether the tria l judge had conducted

the proceedings in a fair and impar tial manner. The Court of Appeal con-

cluded that his insensitive and resistant approach to the issue — including

suggesting that Brown apologize to the of‌f‌icer for having asser ted that he

was prof‌iled5 — raised a reasonable apprehension of bias.6 In so holding,

Morden J recognized that racial prof‌iling cases must be conducted in a

way that maintains public conf‌idence in the justice system and fosters

fair and u nbiased adjudications.7 Perhaps most signif‌icantly for the de-

velopment of the law in this area, Brown established a correspondence test

for proving racial prof‌iling.8

This chapter aims to set out, in some detail, how and when the cor-

respondence test can be applied. Section B sets out the test from Brown.

Section C identif‌ies the dif‌ferent manifestations of racial prof‌iling. This

is the f‌irst step in applying the correspondence test: understanding how

racialized stereotypes ca n impact suspect selection and treatment. Sec-

tion D examines the relevant indicators that can be used to meet the test.

These indicators include context, pretext, and lessons learned. Section

D also summarizes the ca rding/street check data that reveals the wide-

spread nature of the disproportionate policing of Black and other racial-

ized individuals in a number of cities in Ontario, as well as Montreal and

Halifax. It is suggested that this e vidence requires a reconsideration of

the argument made by the Afr ican Canadian Legal Clinic in Peart , that

in order to enhance adjudicative accuracy and fairness, there should be a

rebuttable presumption of racial prof‌iling in litigation.9 Sections C and D

4 See Peart, above note 2 at p aras 89–90 ; and R v Lam, 2014 ONSC 3538 at pa ra 181. This

def‌inition was adopted b y the Ottawa Police Serv ice in its “Racial Prof‌iling Policy” No

5.39 (27 June 2011). See, further, Onta rio Human Rights Commission , Paying the Price:

The Human Cost of Ra cial Prof‌iling (Toronto: Onta rio Human Rights Commis sion,

2003) at 6–8 [Pay ing the Price]; Michele Turenne, Rac ial Prof‌iling: Context and

Def‌inition (Montreal: C ommission des droits de la personne et des droits de la

jeunesse, 2005). In th is article, “raciali zed” refers to Black, Brown, and Ab original

communities. Th is terminology is consistent wit h the Ontario Human Rig hts

Commission that “descr ibes communities facing rac ism as racialized.” See Onta rio

Human Rights Com mission, “Racial Discr imination (Brochure),” online: ww w.ohrc.

on.ca/en/racial-discrimination-brochure.

5 Above note 1 at para 98 .

6 Ibid at paras 84, 86 –95, and 104–5 .

7 Ibid at para 50.

8 Ibid at paras 44–45.

9 Above note 2 at paras 14 4–46.