Interrogating the Definition of Racial Profiling: A Critical Legal Analysis

• Author: Sunil Gurmukh
• Pages: 59-82

59

ChAPTeR 3

Interrogating the

Def‌inition of Racial Prof‌iling

A Critical Legal Analysis

suniL Gurmukh*1

A. INTRODUCTION

The Human Rights Tribunal of Ontar io (HRTO) rarely determines

whether an individual was a victim of “racial prof‌iling.” Instead, it fo-

cuses more broadly on whether there was racial discrimination.2 None-

theless, the def‌inition of racial prof‌iling matters. Clearly identifying the

boundaries of a specif‌ic type of discrimination allows for the develop-

ment of ef‌fective solutions. And there is no doubt that ef‌fective solutions

to racial prof‌iling are needed. It has a profound negative impact on In-

digenous peoples, African Canadians , and other racialized groups.3

People who feel that they have been the victims of racial prof‌iling

often feel humiliated, frightened, frustrated, anxious, and helpless. As

* Sunil Gurmu kh is a lawyer at the Ontar io Human Rights Commission.

1 This paper, prepared by a memb er of the staf‌f of the Ontario Hum an Rights Commission,

has not been formally ap proved by the commissioners. It is therefore not an of‌f‌ic ial

commission publication.

2 For a summary of s ignif‌icant legal developments i n racial prof‌iling juri sprudence in the

ten years prior to Februar y 2016 that may have an impac t on, or be relevant to, inter-

preting and applyi ng the Human Rights Code, s ee Sunil Gurmukh , “A Review of Racial

Prof‌iling Jur isprudence” (2017) 14:1 Canadian Diversit y 9, online: Ontario Human

Rights Commission w ww.ohrc.on.ca/sites/defau lt/f‌iles/Racial%20P rof‌iling%20a nd%20

Human%20Rights_ Canadian%20Diversity.pdf.

3 Peart v Peel Regional Poli ce Services, 20 06 CanLII 37566 at para 93 (Ont CA) [Peart];

McKay v Toronto Police Se rvices Board, 2 011 HRTO 499 [McKay]; Ontario Human R ights

Commission, Payin g the Price: The Human Cos t of Racial Prof‌ilin g (2003), online: www.

ohrc.on.ca/sites/default/f‌iles/attachments/Paying_the_pr ice%3A_The_ human_cost_ of_

racial_prof‌iling.pdf [Paying the Pri ce].

Sunil Gurmukh

the Ontario Human Rights Commission (OHRC) noted in its inquiry re-

port Paying the Pr ice: The Human Cost of Racial Prof‌iling:4

It is impossible to quantify the cost to t hese individuals, their famil ies and

friends, their commun ities and society overal l of these psychological ef-

fects. Nevertheless it is clear that t he emotional and psychological damage

inf‌licted by prof‌ilin g is signif‌icant and we as a s ociety cannot af‌ford to

ignore it.

Racial prof‌iling in policing is par ticularly destructive. It contributes

to the overrepresentation of Indigenous peoples and African Canadians

in the criminal justice system.5 It also undermines ef‌fective policing,6

the functioning of the justice system, and public safety by engendering

mistrust in police. Frayed community relationships with police, fuelled

by racial prof‌iling, reduce the likelihood of civilians repor ting crime,

cooperating with police investigations, and providing ev idence in court.7

This paper applies a critical legal analysis to def‌initions of racial pro-

f‌iling. In doing so, it considers many principles and developments in the

caselaw that are relevant to interpreting and applying the Ontario Human

Rights Code8 and its defacto prohibition on racial prof‌iling, including how:

• Racial prof‌iling may be the product of stereotypes other than

those about criminality and unlawful conduct;

4 Paying the Pric e, ibid at 47.

5 McKay, above note 3 at para 104; Scot Wortley & A kwasi Owusu- Bempah, “Crime and

Justice: The Exp eriences of Black Canadians” i n Barbara Perry, ed, D ive rsi ty, Cr ime and

Justice in Ca nada (Don Mills, ON: Ox ford University Press, 2011) 127.

6 Peart, above note 3 at p ara 93.

7 Chris Gibs onet al, “The Impact of Tra f‌f‌ic Stops on Calling the Police for Help”

(2010) 21:2 Criminal Just ice Policy Revi ew 139; Lee Ann Slocume t al, “Neighbourhood

Structur al Characteristics , Individual-Level Att itudes, and Youths’ Crime Report ing

Intentions” (2010) 48:4 Criminology 106 3; Tom Tyler & Jef‌frey Fagan, “L egitimacy

and Cooperation: W hy Do People Help the Police Fight Crime in Their Com munities?”

(2008) 6 Ohio State Journ al of Criminal Law 231.

8 RSO 1990, c H.19. T he Code does not def‌ine racial prof‌ilin g. The right to be free from

racial prof‌ili ng is captured, in ef‌fect, t hrough the Code’s prohibition of racial d iscrimin-

ation in social area s. In Nassiah v Peel (Reg ional Municipalit y) Police Services Bo ard, 2007

HRTO 14 at para 11 2 [Nassiah], the HRTO state d:

Racial prof‌ili ng is a form of racial discrimin ation. There is nothing novel in f‌inding

that racial prof‌i ling is contrary to the Human R ights Code and nothing tu rns on how

it is def‌ined. It is and alwa ys has been contrar y to the Code for the police to treat

persons dif‌ferently in a ny aspect of the police process, beca use of their race, even if

race is only one factor in t he dif‌ferential treatment.