Litigating Cases

• Author: David M. Tanovich
• Pages: 121-150

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Litigating Cases

Having identified the scope and nature of the problem of

racial prof‌iling in Canada, this third part of the book examines

how courts and government can better respond to address the

problem. The response must ensure not only that victims have

access to a meaningful remedy but that suff‌icient safeguards are

put in place to deter police and security off‌icials from using this

destructive and unreliable policing tool. This chapter ex plores the

challenges and potential strategies that can be used by civ il and

criminal lawyers in litigating racial-prof‌iling cases in our courts.

While criminal cases are the most likely place where prof‌iling

claims will be litigated, given that the accused’s liberty is often

at stake, we may begin to see more civil actions. To date, only a

hand ful of c ivil rac ial-prof‌i ling l awsuits h ave been re ported i n the

newspapers or law reports.1

part three: moving forward

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In one of these cases, Rasim Karela, who is Muslim, and his

neighbour, Kerry Bevis, sued atv (a lo cal ctv aff‌i liate in the Mari -

times) for defamation, and two rcmp off‌icers for arbitrary arrest

and detent ion.2 Four days after the att acks on September 11, the

rcmp received a tip that the two men, one of whom was identif‌ied

as “a man of Middle-Eastern descent,” appeared “suspicious” and

were travelling to Halifax by ferr y. It is not clear what was suspi-

cious other than the fact that Karela had a dark complexion. Appar-

ently, rumours were f‌lying around the East Coast that some of the

terrorists had arrived in the United States on a ferry from Halifax.3

Some time after they got off the ferry, the two men were arrested

at gunpoint and told that the arrest was in connection with the

terrorist bombings in New York. After travelling a short distance,

the men were released when the police realized they had made a

mistake.4 The arrests were caught on tape and broadcast in the

Maritime provinces. at v had received not ice that t he police were

following two men possibly connected to the New York attacks.5

Bevis and Karela won their lawsuit: they were each awarded a pal-

try sum of $1,500 by a jury for false arrest, and Karela received an

additional $15,000 in relation to h is action against the telev ision

station. The jury did not award Bevis damages for the broadcast

because they must have felt he was not identif‌ied by it.6

Civil suits are important because they can bring about more

systemic changes than in criminal cases, where the accused

is most often concerned about being acquitted. In the United

States, racial-prof‌iling lawsuits, including class actions, have

been effective in forcing police departments to take measures

to address the problem: for example, instituting a data-collection

program; getting video cameras in police cruisers; and ensur-

ing equity in hiring, promoting, and training.7 Class actions can

also serve, to some extent, to shield the public exposure of the

litigant. That is important in the terrorism context, where, as

we have seen, individuals are understandably reluctant to come

forward and complain that they have been unfairly singled out

by security of f‌icials.