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Submission to the United Nations International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement

Code Grounds
colour
ethnic origin
intersecting
place of origin
race
Law
Ontario Human Rights Code
Resource Type
submission
Activity Type
reporting on the state of human rights
Discrimination Type
individual
racial profiling
racism
systemic
Organizational responsibility
education and training
Key Priorities
Human Rights Culture
Intended Audience
government
service providers

 

Summary

The Ontario Human Rights Commission (OHRC) prepares this submission to provide information to the United Nations (UN) International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement (Expert Mechanism). This submission aims to assist the Expert Mechanism in the preparation of their fourth report to the Human Rights Council, which focuses on systemic racism against Africans and people of African descent in the criminal justice system. This submission also aims to amplify the OHRC’s advocacy against racial discrimination, particularly anti-Black discrimination, in Ontario’s criminal justice system for the benefit of all Ontarians.

 

About the OHRC

The OHRC was established in 1961. It is an independent arm’s-length agency of the provincial government. The OHRC administers Ontario’s Human Rights Code (Code), with a mandate to promote and enforce the Code through research, policy development, public education, public inquiries, and legal interventions before tribunals and courts. The OHRC is one of three pillars of Ontario’s human rights system. The other two are the Human Rights Tribunal of Ontario (HRTO) and the Human Rights Legal Support Centre (HRLSC). 

The purpose of the Code is to create a climate of understanding and mutual respect for the dignity and worth of each person, so that everyone feels part of and able to contribute to the community. The Code protects everyone’s right to equal treatment without discrimination in employment, housing, goods, services and facilities, contracts, and membership in unions, trade or occupational associations based on 17 protected characteristics known as Code grounds.[1]
 

This submission

The OHRC provides periodic input to governments and UN human rights mechanisms on issues relevant to its mandate. It recently submitted information to the United Nations (UN) Special Rapporteur on contemporary forms of racism (Special Rapporteur) highlighting the OHRC’s decades-long work applying an intersectional racial justice perspective. 

Criminal justice is one of the OHRC’s five priority areas under its current Strategic Plan for 2023-25. The OHRC is committed to “advancing human rights and reducing systemic discrimination in the criminal justice system by requiring accountability and institutional change,” and aims to: 

  1. Reduce discriminatory practices and racial profiling in policing throughout Ontario; and
  2. Reduce discriminatory practices in corrections, including the use of solitary confinement in provincial institutions.

In this submission, the OHRC highlights common trends and concerns it has addressed over decades of advocacy against anti-Black discrimination in the criminal justice system – particularly in policing. The OHRC has recognized that racial discrimination in criminal justice impacts many other racialized communities in Ontario, including Indigenous and Muslim communities, and is actively engaged in combatting all forms of racial discrimination. However, this submission focuses specifically on anti-Black racism, in alignment with the Expert Mechanism’s thematic focus. 

For clarity, where the Expert Mechanism refers to Africans and people of African descent, the OHRC refers to Black people or Black communities. This terminology reflects both community consultations and commonly used language in Ontario, as well as the broad range of race-related grounds protected by the Code.[2]

The OHRC commends the UN for establishing and continuing to support the Expert Mechanism, whose focus on racial discrimination in law enforcement is vital. Since its creation in 2021 to “further transformative change for racial justice and equality in the context of law enforcement globally,” the Expert Mechanism has brought attention to key issues, including the disproportionate use of force against racialized people.

However, the OHRC is also concerned that, in four years, the Expert Mechanism has conducted only four country visits, submitted 13 communications, and published 16 news releases (most of which simply announced country visits). 

The OHRC cautions against performative advocacy and urges the Expert Mechanism to fully leverage its mandate and methods of work to ensure that anti-Black racism and discrimination in law enforcement are meaningfully addressed. This could include:

  • Increasing the frequency of country visits, particularly where requests have already been accepted;
  • Issuing more annual communications, in proportion to the urgency of the issue;
  • Raising the visibility of this work through media engagement; and/or
  • Using the Chair’s ability to appoint a member of the Expert Mechanism as a focal point or rapporteur to highlight specific issues of interest, such as racial profiling or the threat of racially biased artificial intelligence (AI).

The OHRC is aware that a request to visit Canada as part of the Expert Mechanism’s mandate was submitted in November 2024 and is currently pending. The OHRC would welcome such a visit and calls on the Government of Canada to accept this invitation.  

Systemic anti-Black racism and discrimination in criminal justice 

Systemic discrimination consists of attitudes, patterns of behaviour, policies or practices which are part of the social or administrative structures of an institution, sector, or system, and create or perpetuate inequalities for individuals protected by the Code. It arises not from an individual act, but from the structure of a system itself – for example, by deploying greater policing resources to an area marked as “high crime” when those crime statistics were themselves a product of racial profiling and anti-Black racism. 

Individual and systemic racial discrimination are linked. Discrimination arising from an individual’s bias can have a broader, systemic impact, and may contribute to racial inequalities. Furthermore, there need not to be explicit or implicit racial bias for systemic discrimination to exist. If the way certain services (including criminal justice services) are provided exacerbates the disadvantage faced by racialized people, then the practice is discriminatory.

Root causes

Systemic racism in the criminal justice system is rooted in the historical and structural inequalities that shape Canadian society. Discriminatory policing practices like racial profiling have ripple effects. A police stop can result in a record, which may limit employment opportunities. Repeated stops can label someone as 'known to police' increasing the risk of harm, criminal charges, and incarceration. These harms compound – disrupting lives, breaking families, and destabilizing communities through over-policing and under-protection. 

Systemic anti-Black racism also appears in broader social and economic inequality. Black and other racialized communities face disproportionate poverty, overrepresentation in child welfare and prisons, and underrepresentation in leadership roles across politics, media, and public administration. Barriers to housing, healthcare, education, and employment persist. 

Systemic discrimination may be difficult to detect, but its impacts are real.

In the context of criminal justice, a significant expression of systemic racial discrimination is racial profiling. In its Policy on eliminating racial profiling in law enforcement, the OHRC defines racial profiling as “[a]ny act or omission related to actual or claimed reasons of safety, security or public protection by an organization or individual in a position of authority, that results in greater scrutiny, lesser scrutiny or other negative treatment based on race [and race-related grounds].”

Furthermore, in its Policy and guidelines on racism and racial discrimination, the OHRC makes clear that “racial profiling is, at its heart, a form of stereotyping based on preconceived ideas about a person’s character… [and therefore] a form of racial discrimination.”

Policing 

Systemic anti-Black discrimination and racism are embedded in many institutions but are perhaps most visible in policing. 

The OHRC has studied, investigated, and litigated racial profiling and policing issues for over 30 years. For example, in 2003, the OHRC released Paying the Price: The human cost of racial profiling, which featured first-hand accounts of racial profiling and recommendations on how best to prevent it. The OHRC later published Under suspicion: Research and consultation report on racial profiling in Ontario in 2017, and in 2019 launched the above-mentioned Policy on eliminating racial profiling in law enforcement to provide guidance to law enforcement organizations and the Government of Ontario on preventing, identifying and responding to racial profiling, racial discrimination, harassment, and other violations of the Code.

More recently, the OHRC completed a public inquiry into racial profiling and racial discrimination of Black people by the Toronto Police Service (TPS). The inquiry revealed findings of systemic racial discrimination, racial profiling, gross over-representation of Black people in police use of force incidents, and anti-Black racism across interactions with the TPS.

These findings informed the following OHRC publications: 

Since releasing these reports, the OHRC has sought to maintain an open and collaborative dialogue with TPS to foster progress and support implementation on the 107 recommendations made in the From Impact to Action report.

While the inquiry focused on TPS, the issues and its findings are not unique to that police service. For example, the Peel Regional Police (PRP) has acknowledged that systemic racism exists in Peel Region. In 2020, the OHRC and PRP and its Board signed a Memorandum of Understanding committing the parties to develop and implement legally binding remedies that aim to “end systemic racism and discrimination in policing, promote transparency and enhance Black, other racialized and Indigenous communities’ trust in policing throughout Peel Region.”

In addition to concerns with racial profiling and other existing practices that perpetuate racial discrimination in policing, the OHRC has expressed concern about the use of AI systems in policing. When police services use AI systems, they can compound existing disparities and/or create new discriminatory conditions. In 2021, the OHRC made a submission to the TPS board regarding its Use of Artificial Intelligence Technologies Policy, underlining that AI tools may unintentionally integrate developer biases, including racist ones. This can result in approaches to policing that are based on racially biased and inaccurate data, in turn creating conditions in which the risk posed by Black people is improperly assessed.

Case law analyzed by the OHRC also confirms systemic racial discrimination, anti-Black racism, and individual racial discrimination of Black people in policing. The Supreme Court of Canada, the Ontario Court of Appeal, and the Ontario Superior Court of Justice have all acknowledged the existence of anti-Black racism in our criminal justice system.[3] 

Corrections

The overrepresentation of Black people in correctional institutions is a demonstrated fact in Canada. This is particularly concerning when considering that Ontario is home to over half (52.4%) of Canada’s Black population. 

In addition, Black inmates experience conditions of incarceration that violate their Code-protected rights, for instance through the use of strip searches without reasonable and probable grounds.

 Black children are similarly overrepresented in Ontario’s child welfare system, as demonstrated and addressed in the OHRC’s 2018 public inquiry Interrupted Childhoods: Over-representation of Indigenous and Black children in Ontario child welfare. Black children are more likely to experience the adverse effects associated with being placed in the welfare system, which include a greater risk of becoming involved with the Youth Criminal Justice System (a process referred to as the “child-welfare-to-prison pipeline”).

Intersectionality

Intersectional racial discrimination – that is, discrimination based on multiple identifying characteristics of an individual, including race and race-related grounds but also other intersecting grounds – compounds the harms of systemic racism within the criminal justice system for Black people with intersecting identities. Indeed, when identities overlap in a socially significant way, they expose a person to an intersectional form of discrimination. For example, a young Black man can be seen as a “Black person” or as a “young person” or as a “man.” He may therefore experience discrimination based on any of the grounds of race and colour, age, and gender independently, but also based on the racially biased assumptions and stereotypes that are uniquely ascribed to someone who identifies as a “young Black man.”

The OHRC explored intersectionality in more detail in its above-mentioned submission to the Special Rapporteur. The OHRC invites the Expert Mechanism to also review the contents of that submission as a companion to the information provided here.  

Pathways to progress

Through public inquiries, community engagement, policy-development, and legal action, the OHRC can monitor and address systemic challenges to human rights and  foster change throughout the province. 

In addition to keeping duty-holders accountable through remedial mechanisms such as the HRTO and courts , the OHRC builds and maintains collaborative relationships with service providers as an efficient way to combat systemic anti-Black racism and discrimination and prevent further Code violations. The previously mentioned Memorandum of Understanding with PRP is an example of such collaborative efforts toward progress. Central to this work is promoting the application of a Human Rights-Based Approach (HRBA) to all aspects of criminal justice, including policy-making, service delivery, oversight, and the use of emerging technologies such as AI.

The OHRC also provides practical guidance to Ontarians on effective ways to meaningfully respect, promote, and protect human rights in Ontario. Most recently, the OHRC released two guides to help duty-holders, notably police and other service providers in the criminal justice system, navigate the implementation of human-rights based approaches to their work, including with new technologies: the Human Rights-Based Approach to Policy and Program Developmentand the Human Rights AI Impact Assessment. 

Lastly, disaggregated data collection that is openly available to the public is necessary to uncovering and remedying the impacts of anti-Black racism and discrimination in the criminal justice system. In addition to Code obligations, Ontario’s Anti-Racism Act, 2017, mandates the collection of race-based data for the purpose of eliminating systemic racism by public sector organizations, which includes criminal justice institutions. 

Throughout its decades of advocacy, the OHRC has been a stalwart proponent of data collection as a catalyst for improvements in this area, calling for accountability and transparency. A few examples include:

 

[1] The 17 Code-protected grounds are: 

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status and same-sex partnerships)
  • Gender identity, gender expression
  • Receipt of public assistance (in housing only)
  • Record of offences (in employment only)
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation.

[2] Namely: race, ancestry, colour, citizenship, place of origin, ethnic origin, and creed.

[3]For example, Abbott v Toronto Police Services Board, 2009 HRTO 1909; Maynard v Toronto Police Services Board, 2012 HRTO 1220; Shaw v Phipps, 2012 ONCA 155; R v Ahmed, [2009] OJ No 5092 (SCJ); R v K(A), 2014 ONCJ 374; R v Smith, 2015 ONSC 3548; R v Thompson, [2016] O.J. No. 2118 (Ont CJ); Elmardy v Toronto Police Services Board, 2017 ONSC 2074.