Inequality before the Law: The Canadian Experience of "Racial Profiling"

This project was undertaken by an external, independent researcher to explore, and provide information about, an issue or topic. Opinions expressed are those of the author and do not necessarily reflect those of the Royal Canadian Mounted Police or the Government of Canada.

Executive Summary

Most people experience contacts with police at some time. Few experience these as a diminishment of their rights to privacy, even when it ultimately is determined that there was no cause for police attention, and the vast majority of such contacts end peacefully without serious consequence. Nonetheless, even benign contacts often leave people wondering for what reasons they were singled out. For individuals who feel visible traits such as skin colour, age, clothing or non-legally relevant behaviours make them more subject to unwanted - and in their minds unwarranted - attention from police, it can be experienced as a violation. This sense of violation in itself can further result in an escalation of response.

What lies at the heart of the "racial profiling" debate is a lack of understanding of the police role. Police themselves bear part of the responsibility for this. Police contacts with the public are often conducted in a way that leaves even sympathetic members of the public puzzled. Accusations made in the name of "anti-racial profiling" advocacy have only intensified this fundamental problem in the quality of police - public interactions.

The neologism "racial profiling" does not describe a new phenomenon. Allegations and findings of biased policing have a long history. Use of excessive force by police, whether as a consequence of bias or as a consequence of factors unrelated to bias or discrimination, is certainly not unknown either. In capturing media and public attention, the expression "racial profiling" has managed to pour old wine into new bottles and reinvigorated these issues.

There is little consensus, nor is there any evidence of a search for consensus, as to what "racial profiling" means. Foremost a political term, it is not intended to provide an operational or empirical definition. It is used in ever-expanding contexts and ways, eluding any evidentiary quality. Racial profiling is a presumption and an "unfalsifiable" claim. There are simply no circumstances in which it can be objectively rejected. Little of what is stated about racial profiling has, nor could have, any empirical basis. Circular and ever-inflating citations of a small number of dubious sources lends only the appearance of substantiation. In fact the only sources that allege racial profiling is an established practice in policing are those advocating against it, who consequently, having set up an easily defeatable straw man, then go on to point out its folly as an investigative approach.

Notwithstanding its ambiguity, the expression "racial profiling" has found favour in the Canadian courts. Courts have become quick to lay any violation of legal rights at the altar of "racial profiling" whenever such actions involve members of visible minority groups. Lack of "reasonable grounds", the Canadian jurisprudential equivalent of the U.S. term "articulable cause", is often seen as de jure evidence of "racial profiling", even in the absence of any specific evidence of racial bias. The consequence is an emerging asymmetry in the treatment of legal rights in the area of police powers, especially in the application of powers of search, seizure and investigative detention under sections 8 and 9 of the Charter of Human Rights and Freedoms and the consequence of any failing in the exercise of these powers as per 24(2). Such an asymmetry threatens to place justice into disrepute, makes the work of ensuring public safety and enforcing the law more difficult when it involves members of visible minority communities and threatens to endanger the security of visible minority communities themselves by empowering criminals and criminal organizations in their midst.

Notwithstanding its growing acceptance in the courts, among the media and with the public, the evidentiary basis for allegations of "racial profiling" is weak, often fabricated, if not entirely absent. The Commission on Systemic Racism in the Ontario Criminal Justice System, the most cited source of claims finding for the existence of "racial profiling" distorted the evidence of its own inquiry so as to make such a finding inevitable, and thus without probative value. The only two Canadian experiences in "racial profiling" data collection, are the one conducted by the Toronto Star in 2002 and the one more recently conducted by Scot Wortley for the Kingston Police Service. None of this work has been accepted for peer-reviewed publication, yet it continues to circulate as "grey" literature. These studies suffered from such serious methodological problems that the consensus view of the research community is that they are "junk science".

Human rights advocates, who only a decade ago denounced and successfully lobbied for prohibitions against the collection of racial or ethnic identity information by criminal justice agencies because of their enabling of offender stereotypes, have since found in allegations of "racial profiling" a productive means to further claims for equality rights on behalf, not only of visible minorities, but of all disadvantaged groups and any member of a protected class defined by legislation. Organizers for extremist causes have also found a powerful tool for promoting outrage against perceived injustice and a sense of alienation, in particular against minority youth.

Provincial human rights commissions have been quick to join the fray over "racial profiling", although police powers and judicial proceedings do not fall specifically under their jurisdiction. The consequence has been to blur considerably the traditional distinction between legal and equality rights. The conjuring away of legal rights in favour of an equality rights perspective on law enforcement and legal decision-making evident in the consideration of "racial profiling" by several provincial commissions adds to the confusion surrounding the issue of "racial profiling". It is confusion with consequence. The suggestion was already made by David Tanovitch, acting as Counsel for the plaintiff in R. v. Richards (1999), "that the courts should impose a legal burden on the Crown in any case where criminal charges follow the stopping of a black person to establish that the stop was lawful and not the result of racial profiling . [and] that if the Crown could not rebut this presumption of illegality, this would affect the validity of the criminal charges." This is already the law of Canada for all citizens under 24(2) of the Charter. To add an asymmetrical interpretation, as is suggested, is to threaten the very principle of equality of rights and freedoms that founds the Charter.

Canadian experiences of racial profiling data collection and reports of human rights advocates and provincial commissions share a legacy of fallacious reasoning and statistical obfuscation. The use of statistics in discrimination cases is less a search for truth than it is for advantage, and statistics are remarkably pliable, easily contrived or distorted, even when there is no intent of deceit but only unconscious subversion. The adversarial use of statistics in discrimination cases has grown to become a sub-discipline in its own right, often not a very distinguished one. Racial profiling data collection is born of this tradition in human rights advocacy research. In general the legal reliability of such evidence is far from assured. Statistical arguments presented in discrimination cases are rife with methodological weaknesses, many of which we have also seen in racial profiling studies. Among these are the almost inevitable absence of any sort of corroboration, the misuse of statistical significance (probability) as a substitute for size of effect, non-probability or small samples below inference levels, non-contextualised use of second hand data, small effect sizes, inappropriate use of rates or likelihoods to "grow" small numbers into large conclusions, level of aggregation errors, base errors, induction errors, poor model construction in multivariate analysis, absence of elaboration, spuriousness, illogical conclusions, inappropriate combination of conditional probabilities of dependent versus independent events, often done with unknown or implausibly assumed base rates .. Human rights commissions and the courts, rather than objective triers of facts, may have become the wild west of statistical and scientific reasoning and the battleground of competing experts.

What we learn first and foremost from the U.S. experience of efforts to address allegations of "racial profiling" through empirical testing, is their futility. No challenge to "racial profiling" can have salience so long as "racial profiling" is held as an unassailable belief. Allegations of "racial profiling" are not falsifiable, no more than are beliefs of any sort. "Racial profiling" beliefs cannot be disproved through data collection. Furthermore, there simply is no audience for such proof. Not even the most carefully conducted studies have had impact. They add much heat but no light to debates. "Racial profiling" beliefs are a threat to social cohesion and public safety. They drive a wedge between law enforcement officials and those who, for whatever reasons, come to think of themselves as their victims.

Rather than confront racial profiling beliefs on the battlefield of evidence, one should understand them as perceptions. The enforcement of legal rights by the courts, public statements and written policies against racial profiling, irrespective of whether or not the phenomenon can be demonstrated to exist, effective complaints processes, community education, staff training, efforts to engage communities in policing are all tools that may shape public perceptions of policing and fight beliefs in racial profiling. But first and foremost are efforts to ensure transparency and greater accountability of policing, so that the public comes to understand the police role better, as well as the exercise of police powers and the mutual responsibilities of police and the public. This may help ensure that the portion of the public that is least experienced with respect to the work of law enforcement is not so frequently left perplexed when they do experience contact with their police.