The existence of racial profiling

The Commission has consistently stated that the purpose of its racial profiling inquiry is not to prove or disprove the existence of racial profiling. It is the Commission’s view that previous inquiries have considered this and have found that it does occur.

Moreover, as discussed above, racial profiling is a form of racial stereotyping. As racial stereotyping and discrimination exists in society, it also exists in institutions such as law enforcement agencies, the education system, the criminal justice system etc., which are a microcosm of broader society.

Racial profiling has long been acknowledged to exist in other western nations, most notably the United States and Great Britain. In the absence of proactive measures to ensure that profiling does not take place in Ontario, there is no reasonable basis to assume that we are immune to the problem.

In addition to the logical reasons for concluding that racial profiling exists in Ontario, there have been numerous studies which have confirmed differential treatment of racialized groups in different contexts. The African Canadian Legal Clinic has identified at least 15 reports issued since the 1970s dealing with police/minority relations in Canada.^[6] Early Ontario reports included those of the Walter Pitman Task Force (1977) and a 1979 Report by Gerald Emmett Cardinal Carter to the Civic Authorities of Metropolitan Toronto and its Citizens.

In 1988, the Solicitor General of Ontario appointed Clare Lewis as chair of the Race Relations and Policing Task Force. The Task Force’s 1989 report concluded that visible minorities believed they were policed differently: “They do not believe that they are policed fairly and they made a strong case for their view which cannot be ignored.”^[7] The Task Force found that racial minorities would like to participate in law enforcement and crime prevention but are “denied integration into community life when labelled as crime prone.”^[8] The report noted that the worst enemy of effective policing is the absence of public confidence^[9] and emphasized that police reliance on a “bad apple theory” to explain incidents does not help solve police race relations problems.^[10] The Task Force presented 57 recommendations to the Solicitor General covering monitoring, hiring and promotion, race relations training, use of force and community relations.

Stephen Lewis’ 1992 Report to the Premier on Racism in Ontario on the issue of police/visible minority relations concluded that visible minorities, particularly African Canadians, experienced discrimination in policing and the criminal justice system. Stephen Lewis recommended that the Task Force on Race Relations and Policing be reconstituted owing to perceived inadequacies with the implementation of the 57 recommendations in its 1989 report. A second report of the Task Force was published in November 1992 which examined the status of the implementation of the recommendations from the 1989 report and offered additional recommendations.

In 1992, the Ontario government also established the Commission on Systemic Racism in the Ontario Criminal Justice System. This Commission studied all facets of criminal justice and in December 1995 issued a 450 page report with recommendations.

To date, this is the most comprehensive report on the issue of systemic racism in Ontario’s criminal justice system. The review confirmed the perception of racialized groups that they are not treated equally by criminal justice institutions. Moreover, the findings also showed that the concern was not limited to police.

In addition to the various task forces, social scientists, criminologists and other academics have studied racial profiling using different social science research methods. Some have used qualitative research techniques and field observations while others have employed quantitative research and examined official records. Regardless of the method used, these studies have consistently showed that law enforcement agents profiled racial minorities.^[11]

A.B.L.E., the Association of Black Law Enforcers acknowledges the existence of racial profiling:

A.B.L.E. acknowledges that the vast majority of Law Enforcement Officers in our Country perform their duties in a professional, honourable and ethical manner. We believe this because we are also these Officers. At the same time, we accept the presence of the Law Enforcement phenomenon known as Racial Profiling. As Black and Minority Officers, we live in two worlds that allows us to intimately understand the issues that affect our Community and our profession.^[12]

Ontario courts have also accepted the existence of racial profiling.^[13] For example, in a decision issued in April 2003, the Ontario Court of Appeal stated:

In the opening part of his submission before this court, counsel for the appellant [the Crown] said that he did not challenge the fact that the phenomenon of racial profiling by the police existed. This was a responsible position to take because, as counsel said, this conclusion is supported by significant social science research.^[14]

The Perception of Profiling

Regardless of whether profiling can be proven to occur in any given context, the widespread perception among racialized groups that it is occurring is cause for concern.

Studies have shown that racialized persons perceive that racial profiling is affecting them and also that White persons also believe that visible minorities are treated worse, for example, by the police^[15] and criminal justice system.^[16] In a recent survey of Oakville’s Black youth aged 13 to 24, researchers were told that adults appear to brand them as troublemakers on the basis of “youthful indiscretions” more quickly than they do White kids doing comparable things. Similarly, they believe adults react differently to White and Black youth wearing the same type of clothing: White kids are assumed to be going through a “phase” while Black youth are more likely to be seen as potential criminals.^[17]

The perception of racial profiling is so strong that it has found its way into popular culture. Recent television shows have dealt with the subject as have movies and music. For example, in his song “Mr. Cab Driver”, popular African American rock artist Lenny Kravitz sings:

“Mr. Cab Driver don't like the way I look
He don't like dreads he thinks we're all crooks
Mr. Cab Driver reads too many story books”

There are many reasons why the perception of profiling is in itself of sufficient concern for the issue to be tackled. In a paper on community policing, Dr. Valerie Pruegger states:

Police are a target for accusations of racism. This is a fact of life and the nature of the business. However, regardless of the accuracy of the charges, even the perception that the police are biased can lead to serious consequences in the larger and targeted communities. How the police respond can make a great deal of difference in gaining trust. Rather than reacting with defensiveness and denial, there needs to be a genuine attempt to work with racialized communities, to provide anti-racism training to police officers, and to have severe penalties for any breaches that will inevitably occur.^[18]

Police chiefs in the United States have acknowledged that it is important not to get bogged down in the debate over whether profiling occurs:

Whether racial profiling by police officers is a matter of perception or reality loses significance when considering the widespread public belief in its existence and subsequent liability for law enforcement agencies that encounter allegations of racial profiling.... To restore public trust and improve community/police relationships, law enforcement agencies must address both the concerns of the community at large that are relevant to discriminatory policing, and the allegations of racial profiling made by ordinary citizens.^[19]

The experience of the United States has been that, whether practiced or simply a perception in any given community, racial profiling beliefs contribute to minority cynicism and mistrust towards the criminal justice system. The effects of these negative attitudes can include:^[20]

• People are less likely to cooperate with people they mistrust and may develop doubts regarding all aspects of the criminal justice system.
• Individuals with these perceptions may respond inappropriately to law enforcement officers out of mistrust or may retaliate for past-perceived injustices. Situations may therefore escalate unnecessarily putting both the citizen and officer at risk of injury.
• Safety concerns for officers and community members may be increased in hostile environments.
• Left unchecked, mistrust towards the criminal justice system can lead to civil unrest.

• It has even been suggested that mistrust of police can be the basis for acquittals in jury trials.^[21]

The perception of racialized groups that they are being profiled must also be addressed due to the psychological impact of this belief. In other words, the impact of racial profiling, as discussed below, has a social cost whether profiling can be proven to be occurring or whether it is based on people’s beliefs. It is therefore imperative that steps be taken to address the concerns raised.

An unwillingness to discuss community concerns about racial profiling, a denial of its existence or an unwillingness to implement measures to monitor whether it may be occurring and to prevent it, further undermines public confidence. A vicious cycle can be created where the perception of profiling is increased by a seeming unwillingness to address the concerns. The mistrust that is created has an impact on the ability of the relevant institution to carry out its mandate, as many institutions in society rely on public confidence to function effectively.

As with any type of human interaction, not talking about racial profiling will not make the concerns go away. It will only exacerbate existing tensions. The denial of problems of this nature has been shown to have several effects. First, communities fear being rebuked and silenced if they are vocal about their concerns. There can be a real backlash against those who speak out as they are seen to be the cause of the problem. In addition, denial of a problem can lead to the phenomenon of blaming the victim. Therefore, rather than seeing a social problem as contributed to by the existence of racial discrimination, the fault is laid squarely at the feet of the group involved.^[22]

Many inquiry participants noted that people may find it hard to believe that racial profiling occurs when it has not happened to them and expressed a hope that ordinary Ontarians who have not experienced profiling and those in a position of power would listen to and keep an open mind regarding their concerns about profiling.

Recent progress has been made as several law enforcement officials have either acknowledged that profiling does occur, may occur or that the perception that it occurs must be addressed.^[23] For example, when announcing new guidelines concerning racial profiling, Kingston Police Chief Bill Closs is quoted as saying:

Today we are setting an even higher standard for Kingston Police officers in that they are being asked to acknowledge and understand the existence of unlawful profiling/bias-based policing and the need to prevent it. While my officers and this service have never condoned this practice, the publicity generated by the allegations has cast a shadow over the Kingston Police. Racial profiling is not institutionalized in our service, but the perception cannot be ignored and police must respond to the reality or perception by going beyond denial and patronization.^[24]

The Ontario Provincial Police have announced a pilot project to equip 38 cruisers in Toronto and Kenora with in-car digital video cameras. This will allow the OPP to assess allegations of racially motivated misconduct with objective evidence.^[25]

Toronto Community Housing Corporation has commissioned an independent report of certain enforcement practices in response to concerns that staff were using the Trespass to Property Act in a manner that was discriminatory to Black youth. The report found that there was indeed a problem and Toronto Community Housing has implemented measures to remove and/or modify operational practices that have allowed systemic racism to occur. Toronto Community Housing has acknowledged that to address these concerns, it cannot work alone and has engaged the community, and youth in particular, to implement an action plan that responds to the report findings and recommendations. The action plan includes a thorough review of all enforcement-related policies, practices and procedures and outlines best practices that include:

• clarifying and confirming enforcement policies and procedures for staff and community;
• improved and more comprehensive mandatory training and measuring of security staff performance, especially in the area of diversity, human rights and equity;
• comprehensive community and youth outreach including developing a community safety committee, information for residents on security protocols, rights and responsibilities; and
• providing opportunities for youth involvement in the St. Jamestown (TCHC) community.

The Windsor District Black Coalition reports working with the Windsor Chief of Police and making some progress in agreeing upon measures to address concerns with racial profiling in Windsor:

• Regular consultation between the African Canadian community of Windsor, the Windsor Police Services administration and the Windsor Police Services Board to discuss matters raised by the African Canadian community and of mutual concern. Topics will include the number and type of complaints lodged by African Canadians about police encounters, community relations and minority recruitment strategies.
• Complaint forms to be made more readily available at the Police Headquarters front desk and on the Police Service’s Web site.
• The Windsor Police Service will enforce its no tolerance policy on racial profiling, negative racial or cultural comments by police, the use of violence on handcuffed prisoners and harassment of complainants.
• The Police Service and Coalition are working together to produce and widely distribute a pamphlet outlining citizen’s rights.

Other initiatives are the subject of ongoing discussion between the police and the community.

These types of efforts to acknowledge and address profiling concerns are to be commended and leveraged by these organizations. Others, in particular, should follow their example and learn from their best practices.

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^[6] African Canadian Legal Clinic, Anti-Black Racism in Canada: A Report on the Canadian Government’s Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (July 2002).
^[7] The Report of the Race Relations and Policing Task Force (Ontario, April 1989) (Chair: C. Lewis) at 14.
^[8] Ibid. at 20.
^[9] Ibid. at 23.
^[10] Ibid. at 26.
^[11] See for example: S. Wortley, “The Usual Suspects: Race, Police Stops and Perceptions of Criminal Injustice” (Forthcoming in Criminology, paper presented at the 48^th Annual Conference of the American Society of Criminology, November 1997); S. Wortley, Racial Differences in Customs Searches at Pearson International Airport: Results from a Pilot Survey (Report prepared for African Canadian Legal Clinic, 2002); C.E. James, “ ‘Up to No Good’: Black on the Streets and Encountering Police” in V. Satzewich, ed., Racism and Social Inequality in Canada: Concepts, Controversies & Strategies of Resistance (Toronto: Thompson Educational Publishing, 1998) 157.
^[12] D. Mitchell, “What does A.B.L.E. say about “Racial Profiling?” Magazine Issued for 11^th Annual Scholarship Awards Ball (24 May 2003).
^[13] Cases concerning racial profiling include: R. v. Brown, supra, note 4, R. v. Richards (1999), 120 O.A.C. 344 (C.A.), Peart v. Peel (Regional Municipality) Police Services Board, [2003] O.J. No. 2669 (Sup.Ct.). Another recent case discussed systemic racism in the criminal justice system in the context of sentencing: R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.). See also, in the context of jury selection: R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.) and R. v. Williams, [1998] 1 S.C.R. 1128 which recognize that racial beliefs are widespread enough in the broader community that in certain circumstances potential jurors can be asked direct questions about racial prejudice in jury selection.
^[14] R. v. Brown, supra, note 4 at 165.
^[15] S. Wortley, Civilian Governance and Policing in a Multicultural Society (Discussion Paper prepared for Multiculturalism Directorate Canadian Heritage for the National Forum on Policing in a Multicultural Society, February 2003) at 5.
^[16] Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, supra, note 1.
^[17] K. Arnott, “Black youths feel alienated in Oakville” Oakville Beaver (8 June 2003).
^[18] V. Pruegger, Community and Policing in Partnership, (Paper Developed for National Forum on Policing in a Multicultural Society, February 2003) at 8.
^[19] R. Leach, Chief of Police, Riverside CA, Racial Profiling: A Police Manager’s Perspective (Paper for Risk Management Issues in Law Enforcement – A Public Entity Risk Institute Symposium, undated), online: <http://www.riskinstitute.org/symposiumdocs/RacialProfiling-PERISymposiu…;.
^[20] Lamberth Consulting, “Racial Profiling – Effect on Our Nation”, online: Lamberth Consulting <http://www.lamberthconsulting.com/research_nation.asp&gt;.
^[21] “Recent Verdicts Concern Officials” The Baltimore Sun (27 January 2001).
^[22] Dr. V. St. Denis & Dr. E. Hampton, Literature Review on Racism and the Effects of Aboriginal Education (Prepared for Minister’s National Working Group on Education, Indian and Northern Affairs Canada, November 2002).
^[23] For example, Kingston Police Chief Bill Closs, Ottawa Deputy Police Chief Larry Hill and Bill Currie, Deputy Commissioner of the Ontario Provincial Police.
^[24] G. McArthur & J. Pritchett, “It’s official: racial profiling banned” The Kingston Whig-Standard (16 May 2003).
^[25] T. Blackwell, “OPP to capture the moment on cruiser cameras: Force concerned about allegations of racism” National Post (12 September 2003).