Notes

• Author: Colleen Sheppard
• Pages: 161-192

161

Notes

preface

1 When referring to race throughout this book, Black is capitalized and white is not.

For a discussion of why this choice has been made, please see Nancy Coleman,

“Why We’re Capitalizing Black” New York Times (5 July 2020), online:

www.nytimes.com/2020/07/05/insider/capitalized-black.html.

introduion

1 Donovan Livingston, “Lift Of‌f — The Remarks of Donovan Livingston, Ed.M.’16,

Student Speaker at HGSE’s 2016 Convocation Exercises” (25 May 2016) at 03m:04s,

online (video): Harvard Graduate School of Education www.gse.harvard.edu/news/

16/05/lift.

2 Lexico, “Coercion” (nd), online: Lexico www.lexico.com/en/def‌inition/coercion.

3 For an overview of Canadian anti-discrimination law, see Colleen Sheppard, “Anti-

discrimination Law in Canada and the Challenge of Ef‌fective Enforcement” in

Marie Mercat-Bruns, David B Oppenheimer & Cady Sartorius, eds, Comparative

Perspectives on the Enforcement and Ef‌fectiveness of Antidiscrimination Law: Chal-

lenges and Innovative Tools (New York: Springer International Publishing, 2018) 83.

4 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11 [Canadian Charter]. See, in particular, section 15, which provides:

15. (1) Every individual is equal before and under the law and has the right

to the equal protection and equal benef‌it of the law without discrimination

and, in particular, without discrimination based on race, national or ethnic

origin, colour, religion, sex, age or mental or physical disability.

(2) Section (1) does not preclude any law, program or activity that has

as its object the amelioration of conditions of disadvantaged individuals or

groups including those that are disadvantaged because of race, national or

ethnic origin, colour, religion, sex, age or mental or physical disability.

5 For a more extensive discussion of formal, substantive, and inclusive equality,

see Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systemic

Discrimination stories

162

Discrimination in Canada (Montreal: McGill-Queen’s University Press, 2010). For

a general review of Canadian equality law, including the major Supreme Court

decisions, see Colleen Sheppard, The Principles of Equality and Non-Discrimina-

tion: A Comparative Analysis — Canada (European Parliamentary Research Service,

2020), online: www.europarl.europa.eu/RegData/etudes/STUD/2020/659362/

EPRS_STU(2020)659362_EN.pdf.

6 Nassiah v Peel (Regional Municipality) Services Boards, 2007 HRTO 14.

7 McLeod v Youth Bowling Council of Ontario, (18 July 1988) Ontario BOI 88-015

(Ontario Board of Inquiry) [McLeod BOI]. See also Youth Bowling Council of Ontario v

McLeod (1994), 20 OR (3d) 658; 121 DLR (4th) 187 (Ontario Divisional Court).

8 Canadian National Railway v Canada (Canadian Human Rights Commission) [1987]

1 SCR 1114, 40 DLR (4th) 193 (SCC) [Action travail des femmes].

9 Action Travail des Femmes v Canadian National Railway, 1984 CanLll 9 (CHRT).

10 Judge Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report

(Ottawa: Supply and Services Canada, 1984) at 9, online: www.bakerlaw.ca/

wp-content/uploads/Rosie-Abella-1984-Equality-in-Employment.pdf.

11 See Colleen Sheppard, “Jordan’s Principle: Reconciliation and the First Nations

Child” (2018) 27:1 Constitutional Forum 3; Colleen Sheppard, “#MeToo Canada:

Towards a Culture of Equality” in Ann Noel et al, eds, The Global #MeToo Move-

ment: How Social Media Propelled a Historic Movement and the Law Responded

(2020), online: www.globalmetoobook.com.

12 Pictou Landing Band Council v Canada (Attorney General), 2013 FC 342 at para 6

[Pictou Landing].

13 First Nations Child & Family Caring Society of Canada et al v Attorney General of

Canada (representing the Minister of Indigenous and Northern Af‌fairs Canada), 2016

CHRT 2.

14 Turner v Canada (Border Services Agency), 2014 CHRT 10 at para 216.

15 See Sumi Cho, Kimberlé Williams Crenshaw & Leslie McCall, “Toward a Field of

Intersectionality Studies: Theory, Applications, and Praxis” (Summer 2013) 38 (4)

Signs: Journal of Women in Culture and Society 785.

16 See Devon W Carbado & Mitu Gulati,“The Fifth Black Woman” (2001) 11 Journal of

Contemporary Legal Issues 701 at 703; Kenji Yoshino, Covering: The Hidden Assault

on Our Civil Rights (New York: Random House, 2007).

17 For a discussion of the importance of collective political responsibility for social jus-

tice, see Iris Marion Young, Responsibility for Justice (Oxford: Oxford University Press,

2011).

one | Be Careful Going Shopping: Racial Prof‌iling in

EverydayLife

1 Nassiah v Peel (Regional Municipality) Services Board, 2007 HRTO 14 [Nassiah].

Details outlined in this chapter about the case are based on the review of the facts

included in the decision of the Ontario Human Rights Tribunal.

2 Elmardy v Toronto Police Service Board, 2017 ONSC 2074 (a Black man is stopped

by the police while walking down the street); Johnson v Sanford and Halifax

Regional Police Service, (2003) 48 CHRR D/307 (Nova Scotia Board of Inquiry)

[Johnson] (a driver who is Black is stopped).

3 Shaw v Phipps, 2012 ONCA 155 (a replacement mail carrier who is Black in wealthy

Toronto area is singled out by the police for interrogation).

Notes

163

4 Radek v Henderson Development (Canada) and Securiguard Services (No 3), 2005

BCHRT 302 [Radek] (racial and disability prof‌iling of a disabled Indigenous woman

by a shopping mall security guard).

5 R v Campbell, [2005] QJ No 394, 2005 CarswellQue 243 (Black man racially pro-

f‌iled while riding in a taxi in Montreal).

6 For a discussion of the meaning of the term “racialized,” see Ontario Human

Rights Commission, “Policy and Guidelines on Racism and Racial Discrimination”

(Toronto: OHRC, 2005), online: www.ohrc.on.ca/en/policy-and-guidelines-racism-

and-racial-discrimination (s 2.1). As noted (at 12):

When it is necessary to describe people collectively, the term “racialized

person” or “racialized group” is preferred over “racial minority,” “visible

minority,” “person of colour” or “non-White” as it expresses race as a social

construct rather than as a description based on perceived biological traits.

Furthermore, these other terms treat “White” as the norm to which racial-

ized persons are to be compared and have a tendency to group all racialized

persons in one category, as if they are all the same.

7 Nassiah, above note 1 at para 9.

8 Ibid at paras 10–13.

9 Ibid at para 16.

10 Ibid at para 70. Jacqueline Nassiah could have also f‌iled a complaint against the

security guard and the store; however, she limited her complaint to the police

ocer.

11 Ibid at para 166.

12 Ibid at para 134.

13 Ibid at para 166.

14 Ibid at para 212.

15 Jacqueline Nassiah, quoted in Christian Cotroneo, “A Victim of Racial Prof‌iling”

Toronto Star (18 May 2007).

16 Nassiah, above note 1 at para 112.

17 See, for example, Ontario Human Rights Commission, A Collective Impact: Interim

Report on the Inquiry Into Racial Prof‌iling and Racial Discrimination of Black Persons

by the Toronto Police Service (November 2018), online: www.ohrc.on.ca/en/public-

interest-inquiry-racial-prof‌iling-and-discrimination-toronto-police-service/

collective-impact-interim-report-inquiry-racial-prof‌iling-and-racial-discrimination-

black; Scot Wortley & Akwasi Owusu-Bempah, “The Usual Suspects: Police Stop

and Search Practices in Canada” (2011) 21:4 Policing & Society 395; Jim Rankin,

“Race Matters: Blacks Documented by Police at Higher Rate” Toronto Star (6 Feb-

ruary 2010).

18 See the background paper prepared by Michèle Turenne, Racial Prof‌iling: Context

and Def‌inition (2005) (Cat 2.120-1.25 ) at 13. The Quebec Human Rights Commis-

sion also published a study on the results of its consultation on racial prof‌iling:

see Racial Prof‌iling and Systemic Discrimination of Racialized Youth (2011), online:

www.cdpdj.qc.ca/publications/Prof‌iling_f‌inal_EN.pdf. The Ontario Human Rights

Commission currently has a similar def‌inition, def‌ining racial prof‌iling as “any

action undertaken for reasons of safety, security or public protection that relies on

stereotypes about race, colour, ethnicity, ancestry, religion or place of origin —

rather than on reasonable suspicion — to single out an individual for greater scru-

tiny or dif‌ferent treatment.” See Ontario Human Rights Commission,Under

Suspicion: Research and Consultation Report on Racial Prof‌iling in Ontario(2017),