A Wrench in the Social Justice Toolbox: Assessing the Constitutional Class Action as a Tool for Addressing Racial Discrimination

AuthorElizabeth Emery
A Wrench in the Social Justice Toolbox: Assessing the
Constitutional Class Action as a Tool for Addressing
Racial Discrimination
Elizabeth Emery
: Racial prof‌iling is a form of racial discrimination exemplif‌ied
by police when they target individuals because of their race or ethnicity,
as opposed to their engagement in criminal behaviour. Canadian courts
have recognized that racial prof‌iling constitutes a breach of Charter rights.
This is important because bringing a claim for Charter damages is one of
the few options available to victims of racial prof‌iling for pursuing com-
pensation. Unfortunately, this remedy is seldom pursued due to f‌inancial,
social, and psychological barriers. This paper discusses the utility of the
class proceeding as a tool for increasing the accessibility of Charter dam-
ages for victims of racial prof‌iling.
Part A provides an introduction to racial prof‌iling. Part B highlights
the consequences of racial prof‌iling and its recognition by Canadian
courts. Part C discusses the availability and importance of Charter dam-
ages and the complementary nature of the legal frameworks for racial
prof‌iling and Charter damages. Part D canvasses the two leading Can-
adian cases on the certif‌ication of Charter damages claims and discusses
the uncertainty that persists in the current legal landscape. Part E advo-
cates for the use of class actions to address the inaccessibility of Charter
damages and reviews the recent certif‌ication of a racial prof‌iling claim in
Quebec to support the viability of such claims. Finally, Part F concludes
that certif‌ication of Charter damages class actions is possible and that fur-
ther clarif‌ication of the legal framework should be pursued to increase
access to justice for victims of racial prof‌iling.
Elizabeth Emery*
The Canadian Charter of Rights and Freedoms is now more than thirty years
in the making, yet, to borrow from Martin Luther King, many of its potential
benef‌iciaries are still standing outside the “palace of justice” waiting to be
let in. At the heart of this access-to-justice crisis are largely pragmatic rea-
sons: Charter grievances are prohibitively costly to lodge, are unreasonably
time-consuming, and of‌fer so little (if any) f‌inancial relief that it takes a very
“economically irrational” applicant to even venture to bring a claim.
—Iryna Ponomarenko
The Canadian Charter of Rights and Freedoms1 guarantees a number of
rights that form part of Canada’s fundamental law.2 Upholding these
* Elizabeth Emery is a lawyer at Murphy Battista LLP in Vancouver. She is a graduate of
the Peter A Allard School of Law at the University of British Columbia, where she
participated in the UBC Innocence Project under the guidance of Tamara Levy and
Marilyn Sandford. That experience provided her the opportunity to hear the stories
of many individuals who have been failed by the Canadian criminal justice system,
among the reasons for which include systemic racial discrimination. That experience,
along with the guidance and knowledge of her professors Luciana P Brasil and
Chelsea D Hermanson in regard to the law of class actions in Canada, provided the
inspiration for this paper.
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter].
2 Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Constitution Act].

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