Racial Profiling and Racially Motivated Detentions

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 107-134

107

Racial Proling

and Racially

Motivated

Detentions

4

I. Introduction ............................................. 

II. Law and Doctrine ......................................... 

A. The Supreme Court of Canada: R v Le ................... 

B. Lower Court Jurisprudence ............................ 

III. Racial Bias in Context ...................................... 

A. Trac Stops ........................................ 

B. Investigative Detention ............................... 

C. Race and the Use of Criminal Proles ................... 

D. Ancillary Police Powers at Common Law ................. 

IV. Conclusion .............................................. 

© 2025 Emond Montgomery Publications. All Rights Reserved.

108Detention, Arrest, and the Right to Counsel

I. Introduction

Canadian courts recognize that racial profiling is a systemic problem in policing.

Our legal community may have been slow to recognize this reality due to an unfor-

tunate inclination to perceive ourselves as superior to our southern neighbour. But

as TullochJA (as he then was) of the Ontario Court of Appeal recognized in R v

Theriault,“[s]ystemic and overt racism have long sustained unequal treatment before

the law, leading to a crisis of confidence in the administration of justice in some

communities.”1 The scope and breadth of this social problem is stunning. Count-

less studies have shown that racial profiling not only influences an ocer’s decision

to stop, question, or detain a person but it can also aect how an ocer deals with

the person as the encounter evolves. For example, the impact of racial profiling can

be felt during trac stops,2 searches,3 DNA sampling,4 arrest decisions,5 and the

use of excessive force.6 The significant role that race plays during the investigative

process translates to the court process. Race can inform a variety of issues that a

judge will need to confront during trial, including fact finding, credibility assessments,

determining what evidence is accepted as persuasive, assessing whether a detention

occurred, examining whether the detention was arbitrary, and determining whether

evidence should be admitted under section 24 of the Canadian Charter of Rights and

Freedoms.7 This chapter will focus on the role that race plays during police investiga-

tions, including how race infiltrates the decision by the police to detain a person and

the interaction that ensues.

Since 2003, the Ontario Human Rights Commission (OHRC) has conducted a

number of inquiries and produced several reports outlining the prevalence of racial

profiling in police interactions with minority communities, the impact of profiling

1 2021 ONCA 517 at para 212.

2 See e.g. Nassiahv Peel (Regional Municipality) Services Board, infra note 11; Peart v Peel Regional

Police Services, infra note 38 atpara 94. See also Ministry of Community Safety & Correctional

Services, Report of the Independent Street Checks Review, by the Honourable Michael H Tulloch

(Ottawa: Queen’s Printer for Ontario, 2018), online (pdf ): <https://opcc.bc.ca/wp-content/

uploads/2019/06/StreetChecks.pdf> [Tulloch Report].

3 R v Mitchell, infra note 93 at paras 112, 113. See also Nassiah, ibid at para 134.

4 Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to

the Oce of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police

Practices for DNA Sampling (2014), online: <https://www.ohrc.on.ca/en/ohrc-submission

-oce-independent-police-review-director%E2%80%99s-systemic-review-opp-practices-dna>.

5 Nassiah, infra note 11 at paras 124, 126; McKay v Toronto Police Services Board, 2011 HRTO 499

at paras 143-49, 159.

6 McKay, ibid at paras 150-53; Maynard v Toronto Police Services Board, infra note 127 paras

177-90.

7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter]; R v Le, infra note 17 atpara 89.

© 2025 Emond Montgomery Publications. All Rights Reserved.