The War Against Equality: Racial Profiling, and Anti-Terrorism in Canada
By: Jewel Amoah*
This paper will examine the practice of racial profiling in Canada, with a particular focus on the increased harm that results when racial profiling is conducted with the alleged purpose of combating terrorism. The discussion will consider whether the use of racial profiling to combat terrorism is reasonably justified infringements on the equality provisions in section 15 of the Canadian Charter of Rights and Freedoms.
Discussions about freedom, democracy and human rights are demarcated by the terrorist attacks of September 11, 2001. Current references to freedom and democracy are done in the context of two time frames: pre and post- 9-11. One of the most notable consequences of the terrorist attacks was the public link that was drawn between race and terrorism. This arbitrary line in the sand rendered those on one side of the racial divide de facto terrorists (or at least potential terrorists), and those on the other side were victims. The designation of victims and perpetrators was based on little more than race (and perhaps religion), but this arbitrariness quickly became a litmus test to determine friend or foe. Such a simple test might indeed have merit. If at all it worked.
Although September 11 made the link between race and crime, specifically terrorism, very public, it was certainly not the first time that such a link was proposed. What was different this time was that public sentiment and sympathy was ripe to allow prejudice to over rule reason. The security measures that have been undertaken around the world by countries including Canada, that are known for their commitment, to fairness, justice and equality, have not been about staving off the threat of terrorism so much as they have been about publicly displaying racist sentiments that had bubbled beneath the surface of human interaction for so long. Many have said that since September 11 things have never been the same. This paper will argue that for racialized peoples, those who continue to be publicly terrorized and targeted simply because of the colour of their skin and the name of their God, it is particularly true that nothing will ever be the same. This different, new world that we live in is one in which none of us can ever be truly safe or free. As long as people are targeted because of who they are (and who they appear to be), and not because of what it has been proven that they have done, then the notion of safety and security will continue to be a complete farce.
The irony is that the reality of this farce has long been known by racialized peoples who have always been victimized by their race. Whether it be the Japanese who were illegally held in internment camps, or the Chinese who were forced into indentured slavery to build the railroads, or those of the African Diaspora, who were subjected to slavery and then later to segregation, and most recently to being labeled criminals, all of these people have long known the problems that would be fall them because of their race. Not because of their own wrongdoing, but because of the ignorant mindset of others.
Despite the public prominence of a perceived link between race and terrorism, the Canadian legal tradition is still one that is based on equality, fairness and non-discrimination. The Canadian commitment to these principles has been enshrined in its Constitution, and is staunchly defended in its courts. As long as this remains the case, and the racist ideology that professes the link between race and crime is not given legal legitimacy, then there may still be hope. Quite simply, "using race as a proxy for criminality is a remarkably offensive exercise of racialized prejudice and contravenes the most basic and fundamental principles of human dignity and equality."
Canadian efforts to combat terrorism in this new era were highlighted by the hurried introduction of the Anti-terrorism Act in the aftermath of 9-11. The legislation brought with it much speculation about the links that will be made between race and terrorist activity, and how to counter these racist assumptions, it is clear that now, four years after the terrorist attacks that would change everything, it is not the Anti-terrorism Act per se that is to have the greatest impact with respect to racial profiling, but rather, its application in an immigration context. It is under immigration legislation that broad powers to search and detain individuals have been used with great arbitrary discretion. The assumption here is that the terrorist threat will not come from within Canada, but from some foreign element that is seeking entry. This is of course a profoundly racist conception of "the other", and those to whom certain immigration privileges will be accorded, simply on the basis of appearance. As was evident this past summer in discovering those responsible for the July 2005 London bombings, those who are arbitrarily given the designation of "other" may very well be part of us, living among us.
Part I of this paper will begin with discussing the concept of racial profiling, as it is understood in contemporary socio-legal culture. Part II will discuss the notion of equality, particularly as it is understood and applied within the context of section 15 of the Canadian Charter of Rights and Freedoms. It will be argued that the existence of, and adherence to equality rights principles is what characterizes Canada as a diverse, multicultural and tolerant society. Part III will discuss the equality analysis that has been developed and applied in Canadian case law. Equality challenges to government policy and action are not new, and this part of the discussion will examine whether or not the current equality analysis is indeed sufficient to provide for an adequate remedy for those whose rights have been violated. This discussion of remedy continues in Part IV, where the focus is on specific remedies to address the consequences of racial profiling. Part V concludes the discussion with strategies to move forward in this new era to combat terrorism without infringing equality rights.
Part I Definition of Racial Profiling
Although there may be slight variations in the language of documented definitions, racial profiling is essentially heightened scrutiny applied to individuals primarily, if not solely because of their race. Also because there is still so much controversy around the practice, there has not always been a clear admission on the part of authorities, that they actually engage in racial profiling, thus they are reticent to define what they claim they are not doing. In R. v. Richards, the Ontario Court of Appeal cited the factum of the intervener, the African Canadian Legal Clinic in defining racial profiling as follows:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
This definition has also been relied upon in subsequent cases, such as R. v. Brown and R. v. Khan, and will be the basis for understanding racial profiling as it is used within the context of this paper. Although racial profiling may traditionally occur within the criminal context, this is not the only context in which the practice occurs, and certainly not the only context in which it is harmful. This paper is also concerned with the practice of racial profiling within the immigration context, particularly as it relates to efforts to combat terrorism, and decisions that are made regarding who is permitted to enter and remain in Canada and why. Although criminal law and immigration law will be the primary focus points for the discussion at hand, it is also recognized that racial profiling is evident in all spheres of societal relations, for instance, access to education, employment, as well as health, financial and consumer services. Essentially, once people are targeted for "special" treatment solely on the basis of race, then this treatment also extends into all aspects of a persons life.
The Ontario Human Rights Commissions Terms of Reference define racial profiling more broadly to include any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.
Academic commentary has said the following about racial profiling and its inherent contravention of equality principles:
profiling is the use of race, religion, or ethnicity either as the sole reason, or as one factor among many, in a decision to detain or arrest an individual, or to subject an individual to further investigation. Whether used as the sole factor, or one factor among many, profiling allows race, religion, or ethnicity to play a determinative factor in investigative decisions. Profiling likely contravenes section 15 of the Charter and faces significant hurdles under the minimal impairment branch of the Oakes test for section 1.
And, specifically within the criminal law context, David Tanovich proffers the following definition of racial profiling:
Racial profiling is the practice of targeting racial minorities for criminal investigation solely or, in part, on the basis of their skin colour. It is conduct that is premised on the assumption that the "usual offenders" can be located within a particular group in society. Using race as the sole basis for the investigation occurs, for example, when an African-Canadian man is stopped while driving or walking even if the officer has no legitimate reason to suspect that he is involved in criminal conduct. In these cases, the investigation is motivated by a conscious or unconscious belief that African-Canadian men are the usual drug or weapons offenders. [T]his form of racial profiling is most commonly manifested in pretext vehicle stops where the police can rely on their power to regulate traffic and vehicle safety to mask their true intent. Using race as a partial basis for the investigation most commonly occurs when the police are using their crime-control power to conduct a criminal investigatory detention. Racial profiling is implicated in this context because assumptions about race and crime play a role, along with other race-neutral behaviour, in creating a suspicion in the mind of the police officer that the individual has engaged in, or is currently engaging in, criminal activity.
The practice of racial profiling operates on the assumption that ones behaviour is primarily dictated by race. The assumption goes further to align good behaviour with certain (good) races and bad behaviour with other (bad) races. To say that this assumption is contrary to the equality provisions of the Charter is to state the obvious. This paper will not focus on reiterating the common sense arguments that speak to the evils of racial profiling. Suffice it to say that such a practice does not meet the individual guarantee of equality provided for in section 15(1) of the Charter. On this ground alone, the practice of racial profiling would not be able to withstand judicial scrutiny.
Racial Profiling: A Harmful Practice
It would be folly to assume that because racial profiling is not specifically provided for within legislation, that it does not happen with sufficient frequency to be socially damaging. As one commentator explains, the lack of legislative authority may in fact exacerbate the problem:
As it currently stands in Canada, it is virtually impossible to gauge the extent to which racial profiling is practised in the War against Terrorism. This is in part because racial profiling takes place "on the ground" and is often the product of discretionary decision-making that is not well-documented. Yet, several indicators suggest that Canadian Arabs and Muslims are subject to racial profiling. First, the silence of the legislature regarding the practice, at best, fails to effectively check racial profiling and, at worst, creates opportunities for racial profiling. Second, a number of high profile cases suggest that racial profiling does take place in Canada's War against Terrorism. Finally, while enacted laws do not explicitly endorse or encourage racial profiling, the same cannot be said of policies and directives developed by the institutions entrusted with fighting the War against Terrorism.
Despite the obvious offensiveness, impropriety and illegality of racial profiling, supporters of the practice defend it as a means of maximizing security and police resources. The argument is that since not everyone can be targeted, then the presumed link between race and crime enables police scrutiny to be focused on the usual suspects, namely, racialized peoples. The problem with this defense is that it does not make allowance for the vast amount of criminal activity that may be perpetrated by those who fall outside of the (racialized) sphere of the usual suspects. Nor, does it address the fact that the vast majority of those who are subjected to heightened scrutiny solely because of their race are innocent of any wrongdoing. Consequently, racial profiling fails to target all of those who may potentially be involved in criminal activity, and it subjects innocent people to suspicion and harassment, thus aggravating the already strained relationship between law enforcement officials and racialized communities. Legitimacy for the practice of racial profiling is further weakened by the fact that the practice is performed on a discretionary basis, and is not sanctioned by legislation. The discretionary aspect means that the practice is applied inconsistently. Further the fact that authorization for the practice does not occur in writing suggests that even among those who engage in it, there is a basic recognition that the practice is discriminatory and highly offensive.
As a general matter, profiling involves separating a subsection of the population from the larger whole on the basis of specific criteria that purportedly correlates to risk and subjecting the subgroup to special scrutiny for the purposes of preventing violence, crime, or some other undesirable activity. Racial profiling thus entails the use of race as a proxy for risk either in whole or in part. In the context of the War against Terrorism, the racial profiling debate centers on whether or not race should substitute for real knowledge about an individual's connection to, or propensity for, terrorist activity.
It must also be borne in mind that in addition to its moral and equality considerations, racial profiling is not as effective as its proponents would have us believe. The reality is that,
Simply judging someone on the basis of their looks, religion, or nationality can be misleading simply because neither race, religion, nor nationality assume a quintessential form. Those who advocate in favour of racial profiling assume that racial identifiers are easy to locate. But, the popular image of the Arab or Muslim man -- olive-skinned, brown-eyed, curly-haired, often moustache-sporting -- is a stereotype and fails to appreciate that only approximately 20 per cent of Muslims are Arabs. Terrorists, moreover, will not likely travel on their own documents nor will they carry documents such as texts written in Arabic or business cards that may raise suspicion or may associate them with Muslim groups. Nor will a terrorist likely present herself in hejab.
Racial profiling may in fact do more harm than good, considering the tension that it adds to relations between the state and particular communities. Historically, any treatment which specifically targets a community on the basis of any of the equality grounds enumerated in section 15 cannot be condoned. This position was elucidated in the Supreme Court of Canadas decision in Little Sisters Book an Art Emporium v. Canada (Attorney General). In this case, a bookstore which catered to the gay and lesbian community alleged that its stock imports had been systematically targeted by Customs Canada as containing obscene material. The implication here was that literature that was produced by and for the gay and lesbian community was more likely to be obscene than material that catered to a different audience. This assumption was based on stereotypical assumptions about those who engage in same sex relationships. The reasoning can also be applied to racial profiling to the extent that to assume that membership in a particular community automatically renders one guilty of a particular sort of behaviour is high prejudicial and contrary to equality principles.
The potential harm of racial profiling is heightened by the fact that the practice as it has been manifested in the context of terrorism is not simply about stereotypical assumptions about race, but rather the assumptions are based on the particular intersection between race and religion. On one level, proponents of racial profiling can be seen to have grasped a fundamental concept in critical race theory the way in which aspects of race, religion, gender, age, and other identity characteristics intersect to create a particularly heightened experience of discrimination for an individual. However, the grasp of this notion of intersectionality is limited in that in the context of those who engage in racial profiling, the assumption is that the intersection of a particular race, ethnicity and religion will always produce terrorist inclinations. Further, this understanding of intersectionality is limited in that it fails to appreciate the heightened disadvantage which befalls those located at the particular intersection of race and religion in this post 9-11 world.
Since the focus on racial profiling within this paper is in the context of anti-terrorism legislation, it is useful to provide a working definition of terrorism. The definition in the Anti-terrorism Act has been criticized for being vague and unwieldy, and this vagueness is easily susceptible to constitutional challenge.
In the 2002 case of Suresh v. Canada, the Supreme Court implicitly rejected the broad definition of terrorism found in the Anti-terrorism Act and defined terrorism within the purposes of the immigration law as any
act intended to cause death or serious injury to a civilian, or to any person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act.
The Court described this definition of terrorism, taken in part from the 1999 International Convention on the Suppression of the Financing of Terrorism, as "the essence of what the world understands by terrorism".
Part II Equality Considerations and Racial Profiling
Having explained the practice of racial profiling, and examined its application in the context of anti-terrorism, Part II will now discuss the way in which the practice is contrary to the equality provisions of the Charter. Some of these reasons were eluded to in Part I, for in the course of defining the practice, it was clear that anything that is based in allocating differential treatment solely on the basis of race is inherently antithetical to Canadas commitment to equality.
Canadas commitment to equality for all within its borders goes beyond mere rhetoric or flowery legislative language to meet international obligations of non-discrimination. The Canadian commitment to equality is a fundamental part of the character of the country. This commitment is reflected in section 15(1) of the Canadian Charter of Rights and Freedoms, which states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Since this provision came into force in 1985, within the body of jurisprudence from Andrews v. Law Society (B.C.) to Law v. Canada (Minister of Employment and Immigration), there are two decades of judicial interpretation and application of this provision within various contexts. The current method of equality rights analysis requires the following that a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
A. Does the impugned law:
(a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or
(b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis
of one or more personal characteristics?
B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and
C. Does the differential treatment discriminate, by imposing a burden upon or
withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
Although this test is the most comprehensive one to date, reflecting the evolution of equality analysis, there is still room for improvement, particularly as it relates to full considerations of intersecting aspects of a rights claimants identity (e.g. race, gender, age, religion, class, etc.), as well as giving due consideration to the notion of social context, recognizing that equality does not take place in a vacuum, but within the framework of certain societal relations, and the history of these relationships.
An initial consideration with respect to the equality analysis test and racial profiling is that the practice of racial profiling is almost impossible to apply against an equality standard, simply because it is a practice, and not government legislation. Moreover, it is a practice, which because of its overtly egregious character, many will not admit to engaging in, and will instead seek another "legitimate" reason for bringing a racialized person under suspicion. This alone should be sufficient to denounce it, but so far it has not been the case. Although it may not be admitted to, racial profiling has long been a mainstay of routine police work.
Where the practice becomes most interesting is under the context of the Anti-Terrorism Act. Again, the practice of racial profiling is not explicitly sanctioned under the Act (nor is it clearly denounced), but the public and media link between race, religion and the commission of terrorist attacks seems to have had the effect of lending some sort of credibility, if not justification to the practice of racial profiling.
Legal scholars have noted that
the central challenge for liberal democracies in the "war on terror" is how best to strike a balance between the need to protect security and maintaining respect for the very freedoms that that war seeks to defend. But just as history teaches us the chilling lesson that freedom is often the first victim of war, it also reminds us that equality is frequently an early casualty. Indeed, to a considerable extent, the threats to equality and freedom are linked. Deprivations of liberty and privacy, although felt to some extent by the populace as a whole, are often distributed unevenly along lines of race, class, and religion
This is the realization that is perhaps the strongest argument against formally sanctioning the practice of racial profiling within immigration and/or anti-terrorism contexts. In fact, the mere fact that there is an understandable, or even justifiable link between immigration, race and anti-terrorism is itself quite unsettling. But beyond this, there is the realization that the formal establishment is contrary to equality principles. And as such, anything that contravenes equality cannot be accepted. As Bhabha explains,
Section 15(1) is a guarantee of non-discrimination, setting essential human dignity as its defining standard. It follows that members of vulnerable minorities should not be placed in the position of having a well-founded fear that a statutory scheme will be applied against them in a discriminatory manner. Moreover, the Canadian public, as a whole, should be able to feel confident that the law will be administered in accordance with the principle of equality. Indeed, legislation should not create concern that discrimination will take place. Canada's Anti-Terrorism Act does not meet these bare requirements. In fact, it instills a well-founded fear amongst members of a disadvantaged group not only that the law will adversely affect them, but also that, in implementation, it will actually target them on the basis of their race, religion, colour and ethnic or national origin.
Part III Equality Analysis: Application of the Law Test to Racial Profiling
In order to maximize the utility of this document critiquing the practice, then it is necessary for the present purposes to assume that there is legislation which explicitly provides for applying a higher degree of scrutiny against individuals on the basis of their race. Application of the above analysis to the practice of racial profiling in the context of anti-terrorism results in the following:
Where there is a perceived link between an individual's race and the particular crime, or incident under consideration, a public policy that grants decision makers permission to regard members of that race with heightened suspicion proves highly problematic. Given the long-standing belief that existed well before 9/11 that Arabs and Muslims are generally more inclined towards violence than other groups, racial profiling of Arabs and Muslims as risks to national security are not easily disentangled from stereotyping. A decision maker's perceptions of a particular group's propensity towards crime impacts upon their analysis of who reasonably should be considered a suspect in any particular case. Numerous studies of racial profiling of African Americans illustrate this point.
Almost by definition, the practice of racial profiling fails to take into account a targets already disadvantaged position in society. Or perhaps more accurately, implicit in the motivation to justify racial profiling is the realization that racialized peoples are on the whole not treated fairly in Canadian society. And particularly in the context of terrorism, people of Arab descent (or at least those who appear to be) are treated with general suspicion and disdain. Further, it is understandable that being victimized by such treatment may cause certain persons to develop an anti-Western sentiment and ideology, such that they may be prone to engage in acts of terrorism to compensate for their mistreatment. As Choudry explains:
Those travellers would essentially be asked to establish their legitimacy; they would be placed in the position of having to state and justify their reasons for travelling, an entirely legal activity, while other travellers would face no such burden. They would faced this burden of persuasion every time they fly, or pass through customs and immigration. The cumulative effect on individuals of bearing this burden, simply because of ones looks, in a historical and social context where the differential imposition of the burden of law enforcement on the basis of race and ethnicity have been identified with the most odious forms of discrimination, would be enormously damaging on their self-respect and self-worth. And it is a cost that advocates of profiling altogether ignore.
C. The last branch of the test is colloquially referred to as the dignity test. Clearly, differential treatment that is meted out purely on the basis of race is an affront to ones dignity. Race is such a primary aspect of identity that to treat or judge on the basis of race, or racial association is to attack the very character of a person. Such vehement and unfounded attacks that go to the essence of ones core are essentially why the equality provision exists to guard against discrimination that is beyond doubt an attack on dignity. As was stated in Law,
It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
The difficulty with any legal analysis of profiling is that profiling is not an officially recorded policy. Profiling is carried out at an operational level through the discretionary powers of various administrators. It may be evident only in verbal instructions to subordinates, and possibly in internal memoranda. Its existence is problematic to prove, and therefore difficult to challenge. However, whether this policy could effectively be challenged or not, a Charter analysis of profiling is essential in examining its interaction with the legal system, Charter values, and, consequently, Canadian society.
Bhabha summarizes the lengthy equality analysis applied to the practice of racial profiling above as follows:
the Anti-Terrorism Act encroaches upon the section 15(1) rights of Muslims, an identifiable and vulnerable segment of Canadian society. Any government justification cannot reasonably uphold the legislation, even though the stated government interest lies in protecting national security and public safety. The definition of "terrorist" offences is likely too vague to be considered "prescribed by law", the objective of protecting Canadians cannot be rationally connected to measures which target Muslims, and the means adopted are not minimally impairing. The balance the government has attempted to strike is simply misguided. It can only be hoped that sober judicial reasoning will prevail over alarmist political reflexes, and that the offending provisions will be struck down on the first possible occasion.
Here, the challenge that Bhabha refers to is not the provisions of the Act that prescribe for racial profiling within the context of fighting terrorism, for as he points out, no clear legislative provision exists. However, it is generally accepted that the lack of a clear denouncement of the practice leaves it open for it to occur under the context of discretion to combat terrorism. The real harm here lies in the broad scope of power that lies within discretion. The solution then would be to ensure that all efforts to combat terrorism are properly prescribed by law, so as to leave nothing to chance.
Considerations of the harms of racial profiling must consider the inherent potential that it has to feed the fires of racism. As Bahdi explains below, such a potential is not conducive to a democratic society, founded in the principles of equality and dignity for its citizens. Consider that,
[r]acial profiling fuels the conviction that Arabs and Muslims represent the foreigner within, regardless of their citizenship status. Racial profiling excludes Arabs and Muslims from "those who are imagined by the community as belonging to the community." "The subtext is that Muslims are a foreign element, aliens ... with no tenure to citizenship, that they are here as sleeper terrorists... ." Ultimately, the relationship between racial profiling and racism casts serious doubt on both the wisdom and efficacy of racial profiling as an arsenal in the War against Terrorism. [footnotes omitted]
Thus, apart from assuming a link between race and acts of terrorism, racial profiling also contains assumptions about race and who is entitled to citizenship (and its attendant benefits). Such a link is wholly incompatible with the equality guaranteed in the Charter greatly because such a link assumes that racial divisions (and attendant benefits) are not merely natural, but essential.
The impact of the body of recent case law which includes Richards, Brown and Khan, has been to have the issue of racial profiling directly addressed by the courts. The existence of prejudice and the reliance on stereotype has been proven to exist in relations between the police and racialized communities. Certainly these sentiments do not exist in all police officers, but they are common enough that a responsible trier of fact must consider this in the course of determining the contextual background of a particular interaction, as well as the impact that this may have in determinations of credibility. Case law which challenges the subtle and not so subtle ways in which racial bias and prejudice may taint the administration of justice is developing, but is still at a very elementary stage. The practice of racial profiling however, in both criminal and immigration contexts is a serious step backwards from this small progression.
Section 1 Justification Test
Having found that the practice of racial profiling violates the equality provisions of the Charter, the full analysis requires a consideration as to whether or not the government could defend the practice as a justifiable infringement of rights under section 1 of the Charter. Section 1 of the Charter provides as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Colloquially referred to as the Oakes test, the justification requires that the following criteria must be satisfied:
The primary consideration in assessing a section 1 justification for a rights infringement is whether the challenged act is prescribed by law. It has already been discussed that racial profiling is a practice that is arbitrarily applied, and that this practice is not officially provided for in either legislation or policy. As such, it is not necessary to go through all of the branches of the Oakes test. Since there is no clear legislative provision that is being impugned, then the desirable remedy of striking down this legislation cannot be achieved. Certainly, there will be unanimous consent amongst all levels of the judiciary that the arbitrary detention of individuals solely on the basis of race is a violation of the equality rights provision of the Charter. Even where the argument is made that these detentions are based on a perceived link between race and crime, in the absence of evidence linking a particular individual to a particular crime, then the actions cannot be defended. Moreover, where these actions are committed in the absence of legislative justification, then there can be no saving them. Even if this initial hurdle of the practice of racial profiling not being prescribed by law is surmounted, it is well-established that in applying the Oakes test, full consideration must be given to the equality principles in section 15 of the Charter. And clearly, government practice which singles out individuals for differential treatment solely on the basis of their race, cannot be seen to be giving full consideration to equality principles.
Thus, although combating terrorism and the elimination of common crime are admirable objectives, and in fact purposes to which government ought to strive, these ends are not to be attained at the expense of the dignity and equality rights whom the government ought to protect. Certainly citizens are willing to forgo a certain amount of their individual freedoms in order to attain greater security for all, but this loss of individual freedoms should not be disproportionately borne by members of racialized communities. Such an unequal burden is grossly contrary to the spirit of equality on which Canada prides itself.
However, Boacabella explains that proponents of racial profiling are confident that the practice would survive a section 1 challenge. This survival is dependent upon the stereotypical link between race and crime which is itself the basis for racial profiling. Consider
that any infringement on the rights of Arab/Muslims in Canada would be so justified given the security risk of terrorism arising from the Middle East. However, that a law may be saved under s. 1 of the Charter does not mean that justice is being reached in the best possible manner. Profiling, within a context of extensive state power exercised with limited accountability, may lead us unknowingly to accept grave abuses to fundamental human rights. While discretion may be a necessary component of the anti-terrorism legislation, the importance of legislation that provides the maximum amount of protection for rights cannot be overstated. Where infringement of civil liberties is necessary, it remains unacceptable without accountability.
Part IV Strategies to Remedy Racial Profiling
Having established the ineffectiveness of racial profiling, and the social tension that it creates in the process, the easiest remedy is perhaps to abandon it altogether. However, it is acknowledged that presumptions between race and crime have long existed and thus may be difficult to fully extricate.
It is difficult to directly apply existing case law that challenges racial profiling in the criminal context to the way in which racial profiling is contemplated in the Anti-terrorism Act and within an immigration context because under the former, racial profiling is a (conscious or unconscious) motivator in the application of police discretion to detain or apprehend a suspect. Where racial profiling is discovered to be the motivator, then this taints the search, seizure or detention. In a terrorist or immigration context however, the whole interaction between the authorities and members of the public is about whom to subject to heightened scrutiny. In criminal law, it has been deemed to be discriminatory and improper to subject individuals to heightened scrutiny because of their race. In the context of anti-terrorism or immigration however, it is race itself that seems to justify or give licence to the heightened scrutiny.
Impact Study - Discussion of case law
In order to effectively suggest what should come next in terms of section 15 equality rights arguments to challenge (and ideally, alleviate) the practice of racial profiling, it is important to get a sense of the road that has been travelled. As previously mentioned, the definition of racial profiling appeared in the 1999 decision of the Ontario Court of Appeal in R. v. Richards. Richards claimed that the police stopped his vehicle only because he was Black, and not because he had committed any sort of driving violation. Indeed, it turned out that Richards was driving without a licence, but there was no legitimate basis for the police to stop the vehicle and ultimately discover this fact. As a result of the motivation for the stop being racially biased (police had assumed that because Richards was Black the car was stolen), and the trial judges failure to properly considering this in his assessment of credibility, the conviction was quashed and a new trial ordered. The Court of Appeal in Richards acknowledged the impact that race may have on police discretion to stop drivers, as well as a judges discretion in assessing credibility of witnesses. The reasoning in Richards indicates that were it not for the racially motivated police stop, there would not have been a discovery of Richards licence infringement. This decision is a reminder that although police must certainly be given a broad scope of discretion in the course of their work, this discretion does not extend to permit them to stop individuals for no apparent reason other than their race.
Similarly, in R. v. Brown, the accused was stopped under the guise of a driving offence. Indeed, when stopped and the officer detected an odour of alcohol and the accused failed the roadside Breathalyzer, he was charged with impaired driving. However, the accused, (a professional basketball player) contended that the police officer stopped him, not because he had committed a driving offence, but because he was a Black man driving an expensive vehicle. At trial, the accused claimed that he had been arbitrarily detained, contrary to section 9 of the Charter, because of racial profiling. The accused was convicted at trial. On appeal it was accepted that the trial judge appeared predisposed to believe the evidence of the police officer and had failed to appreciate that racial profiling could be a subconscious factor impacting on the exercise of a discretionary power in a multicultural society. The Court of Appeal in Brown acknowledged that racial profiling could be consciously or unconsciously held. It is precisely because of the existence of unconscious racial profiling that there must be extra vigilance in determining the core motivation for a police stop. It is recognized that all police are not racist at their core, but rather that they are likely to become prey to unconscious racism and so there must be some sort of external check to guard against (or remedy) the damage that this would inevitably cause to the dignity and psyche of racialized peoples. If unconscious racism were permitted to run unchecked, then it might lead to an unconscious belief by racialized peoples in their own criminal predilections. And there is nothing more tragic than the loss of belief in ones self. The damage that this would cause to the dignity of ones self and ones people is insurmountable. The acknowledged existence in unconscious racism in Brown was indeed progress in that it recognized that there are stereotypes and influences which affect the decision making process. Full understanding of this is particularly important where discretion is involved.
In R. v. Khan, a driver is stopped by police and drugs are found in his car. Like Richards, Khan contended that the motivating factor for the search was that he was a Black man driving an expensive car. The trial judge held that it was reasonable to infer from all the evidence that the police singled out the accused and decided to search his car because he was a young black male driving an expensive vehicle. As a consequence, the court found that Khans rights under sections 8 and 9 of the Charter were infringed.
Richards, Brown and Khan all question the legitimacy of a police stop. The framework within which the police may stop a vehicle for a traffic violation was outlined in Brown v. Durham Regional Police. Here it was noted that it is not necessary that the police actually witness a traffic violation, but one of the reasons for the stop must be a traffic violation. The case law has repeatedly shown that a determination that a vehicle is being driven by a racialized person and that therefore there must be some wrong doing, is not sufficient to justify a police stop. This sort of reasoning is premised wholly on racial profiling and prejudice, and cannot be allowed to stand. Although this is usually rectified by the courts, rights claimants should not have to rely on the judiciary for the restoration of rights and dignity that have been infringed upon by the police through racial profiling. The rights should not have been infringed in the first place. It seems that the most effective way of avoiding this initial violation is to disband with the practice of racial profiling, for certainly the harm that it does far outweighs any benefit. Because of its inherent reliance on discretion, racial profiling cannot be said to be an effective means of combating crime or apprehending criminals. It seems that all it does is single out racialized peoples for police harassment and undignified treatment.
The fact that in the three cases discussed above, there was found to be an infraction of one sort another: Browns blood-alcohol limit was indeed over the legal limit, and he may have been speeding 10-20 kilometers over the posted speed limit, and Richards was in fact driving without a licence, and Khans licence was suspended and cocaine was found in Khans car, yes even if there was indeed some wrongdoing on the part of the claimants, the fact remains that the police had no legitimate facts on which to establish this wrong doing. The only facts that they were operating on related to the race of the claimants and the stereotype about Black people and crime. The police in each case did not have any specific knowledge about what sort of wrong doing may have occurred, but they were simply operating on the assumption that if a Black person is involved, then there is sure to be a crime all they need do is dig deep enough. This sort of fishing-expedition method of police work cannot be tolerated in a free and democratic society. The potential that this attitude will result in the inconvenience and indignity of far more innocent racialized people than catching racialized offenders is far too great to risk. Moreover, this is not the way in which law and justice operate. The law is based on proven fact, and not presumptions that are grounded in racist stereotype. Madam Justice Molloy in Khan made a point of saying that conduct of this kind is reprehensible, and it cannot be condoned or excused. So, certainly there is a recognition that racial profiling is wrong and harmful. But perhaps it is this obvious realization that has kept the practice from being explicitly included into legislation. Interestingly enough, it may be the fact that the practice is not explicitly legislated is what has permitted it to remain in existence. Any legislative authority for racial profiling would immediately be challenged and struck down as part of a remedy for a violation of Charter rights. But without clear legislation, it is left for each suspected case of racial profiling to be examined on the facts, in consideration of the historical context, as well as the credibility of witnesses. This obviously is not a wholesale solution, and will only provide vindication for one victim of racial profiling at a time, as they wind their way through the criminal justice process. In the meantime, there will be countless instances in which the practice continues unchecked and unchallenged.
The issue comes down to a consideration of what is worse: racially motivated discriminatory treatment of individuals by government and police authority that is not openly admitted to, or such treatment that is known to exist under the guise of discretionary policy that cannot be sufficiently challenged in the courts. In many ways, since the existence of the practice of racial profiling is known, and since it cannot be proven without a direct admission of liability on the part of the police, then the courts can be seen to be complicit in creating the damaging consequences of racial profiling. They know that it exists, but the test for establishing its existence in any given situation is so high as to never permit it to be challenged. Perhaps then the best solution is a situation of reverse onus, where any time discretion is at play in the decision to stop a racialized person that is, where there is no clear articulable cause, or evidence of a crime, then there should be a reverse onus on the Crown to establish that the encounter was not motivated by race. Some may argue that this presumption gives racial motivation too much power or that it is being excessive to assume that race is always a factor in police minority relations. Indeed, this may err on the side of excessiveness, but there does not seem to be any other choice. Besides, if race was not a factor in the interaction, then it should be easy enough to disprove the existence of racial profiling. However, the insidious nature of this practice and because it seems to take advantage of the necessary use of police discretion, renders it a situation particular enough to justify a reverse onus standard. It may be that this reverse onus will cause police officials to question whether or not racism is unconsciously at play in their exercise of discretion. Thus, if racial bias is challenged openly, it will no longer linger in the subconscious, but come out into the light of day where it can be addressed properly.
In Ontario, police power to stop vehicles is taken from section 216(1) of the Highway Traffic Act. The Act provides that police may stop a vehicle to deal with highway safety concerns. In Brown v. Durham Regional Police, Justice Doherty writing for the Court of Appeal was very clear that the wide scope of discretionary power that lies within section 216 should not be applied for an improper purpose. Specifically, he said that:
it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the HTA does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops.
In elaborating upon the types of improper purposes to which section 216 was not intended to apply, Justice Doherty continued to state that
Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the HTA even if they also have highway safety concerns when making the stop.
This reflects a recognition that there are instances when police consciously abuse the scope of their power, and these instances ought to be limited. However, in the case of racial profiling, it has already been discussed that this may be based on unconscious stereotype, thus there may not be a conscious effort on the part of a police officer, but still a vehicle driven by a racialized person may be apprehended because the unconscious link in the police officers mind between race and crime may have caused the police officer to believe that there is a legitimate highway concern for the stop. Again, the problem is how to deal with the insidious nature of racism that is so deeply embedded within the psyche. What is the appropriate remedy for this?
With particular respect to the anti-terrorism and immigration law contexts, the issue becomes whether these areas are given broad enough discretionary powers so as to remove them from the ambit of section 8 (search and seizure) and section 9 (arbitrary detention) Charter challenges. Of course it is to be expected that one participating in air travel, particularly in this age of heightened terrorism awareness, and one seeking entry into a foreign country, must concede a certain level of rights and freedoms. The issue however is whether this concession extends to the infringement of ones dignity, for this is undeniably what racial profiling amounts to. Certainly it is accepted that airport authorities and customs officials are given a discretionary power to thoroughly question and search where necessary, for all of this is understood to be necessary in creating a society that is safe and welcoming for all. However, when this discretion is applied solely on the basis of race, this is a problematic and improper use of discretion. The formal sanctioning of race-based discretion is highly problematic in a free and democratic society. Although it is generally accepted that there ought to be reasonable restrictions on personal freedom in the interests of safety and security, these restrictions ought to be borne by all equally (or at least proportionately), and not discriminatorily applied on the basis of race.
Specifically with respect to the similar fact scenarios in Richards, Brown and Khan, where police use race as a basis for arbitrarily stopping drivers, David Tanovich proposes the following four standards towards the development of what he calls an equality-based conception of arbitrary detention:
Although developed in the criminal law context, these four standards can also be applicable to immigration and anti-terrorism contexts. The first of these implies a reverse onus, similar to what is already being applied in jury selection cases. The second requires some level of judicial activism, and assumes that the judiciary is neither consciously nor subconsciously complicit in racial bias that might exaggerate the impact of racial profiling. The third standard may not be particularly helpful in an immigration context, as it is generally accepted that detention or secondary questioning is necessary to fulfill the purposes of the Act. The fourth standard, however, of deeming all detentions of racialized persons as being arbitrary would go along way towards requiring objective justification for the detention of racialized peoples, and in this way, may help to reduce the practice of racial profiling.
Part V Concluding Considerations and Strategies for the Way Forward
In the course of examining the practice of racial profiling, this paper has focused on the increased harm that results when racial profiling is conducted with the alleged purpose of combating international terrorism. A critical analytical discussion of the matter included reference to the equality provisions in section 15 of the Charter, and demonstrated that the practice of racial profiling and the incorporation of racial profiling into anti-terrorism legislation are not reasonably justifiable infringements into the equality provisions of the Charter.
In Canada, as well as in other countries with diversely racialized populations, the notion of racial profiling has generally been discussed in the context of criminal law. The basic idea was that there was a presumed link between ones race and ones propensity towards criminal activity. More over, certain races were associated with particular types of criminal activity. The terrorist attacks of September 11, 2001 served as fodder for moving the racial profiling debate beyond the general criminal context to focus specifically on the crime of terrorism. The basic premise of racial profiling whether it be within the criminal or terrorist sphere, is that it is based on presumptions and not fact. Essentially, racial profiling is about discrimination which results in selective treatment, not on the basis of investigated evidence, but simply on the basis of prejudice.
The challenge that lies ahead is the construction and implementation of an equality rights framework which will guide potentially invasive and oppressive legislation such as the Anti-Terrorism Act, where racialized people are concerned. The difficulty with establishing such a framework is that although the practice of racial profiling can reasonably been seen to be a by-product of legislation such as the Anti-Terrorism Act, the Act does not specifically endorse the practice of racial profiling, and thus there is no legislative provision which can be applied against a Charter challenge. This point is emphasized by Boacabella who explains that,
The difficulty with any legal analysis of profiling is that profiling is not an officially recorded policy. Despite the evidence that it is occurring, there are no regulations or any legislation prescribing its usage. Profiling is carried out at an operational level through the discretionary powers of various administrators. It may be evident only in verbal instructions to subordinates, and possibly in internal memoranda. Its existence is problematic to prove, and therefore difficult to challenge. However, whether this policy could effectively be challenged or not, a Charter analysis of profiling is essential in examining its interaction with the legal system, Charter values, and, consequently, Canadian society.
So, although it is assumed to take place, this cannot be proven. And in the criminal justice system, everything depends on the establishment of proof. One option, along the notion of a reverse onus would be to assume that in all instances where a racialized person has been subjected to differential treatment, that racial profiling was a factor, and thus onus would then shift to the state/government to prove otherwise. Although this assumption of the application of racial profiling is in many respects an improvement over previous jurisprudence in that it gives racialized persons the benefit of the doubt, the reality is that in order to rectify any indignity that that may have been suffered through the experience of racial profiling, one must still interact with the justice system. That is to say that the remedy is one that can only be obtained from the courts. This compounds the violation of inherent dignity, and in many respects places the burden of the proper administration of justice on the backs of those who have been traditionally denied justice. This is not an adequate solution. An adequate solution is one which would impose tight restrictions on the use of discretionary power so as to severely limit, if not cease all together, the instances in which government authorities are in a position to apply disparate treatment. In many ways, this is a call for formal equality treat all people the same. And so where there is no allowance for discretion, there is no change to abuse it. This may indeed be a drastic measure, but on the other hand, it may be the only thing that works.
Five years of racial profiling jurisprudence, from Richards (1999) to Khan (2004) have witnessed repeated discussions on the matter. But beyond acknowledging its existence, there has been little substantive judicial input. There has been agreement that if racial profiling is determined to have been a factor, then the courts must step into provide a remedy. But there has been no clear discussion about either: a) assuming as a matter of course that racial profiling is always a factor, and that there should be a reverse onus on the Crown to prove otherwise; or b) how to eliminate the practice altogether.
The racial profiling debate is not new. And until the issue is directly challenged, it will be far from over. However, the debate has changed in such a way as to render it almost impossible to continue to keep it secret. As Bahdi explains,
Prior to September 11, 2001, the racial profiling debate largely focused on African Canadians, usually, though not exclusively, in the context of criminal law. While the issue did command sporadic public attention, it did not elicit protracted debate from either popular or scholarly circles. When the participants in the debate did square off, the main point of contention between them was whether officials did in fact resort to racial profiling as an instrument of law enforcement. After 9/11, however, the racial profiling debate focused more squarely on Arabs and Muslims while it also spilled beyond the criminal law to other contexts such as banking and employment. Moreover, 9/11 forced a fundamental shift in the racial profiling discourse. The central contention was no longer whether racial profiling was in fact taking place or how to best prevent incidents of racial profiling or even whether the Charter offered adequate remedial measures to address racial profiling. Rather, racial profiling debates in the context of the War against Terrorism focus on whether Canadian society can morally, legally, or politically condone racial profiling. [footnotes omitted]
In truth, one wonders how now, when the debate on racial profiling is at a moral climax, how can the practice be condoned in a society that prides itself on its commitment to equality. It fact it seems that the true testament to Canadas commitment to equality would be to completely denounce the practice altogether, and accept that the purview of terrorism is equally available to all, regardless of race or ethnic origin.
Amongst the criticism leveled against the practice of racial profiling, there is the fact that in addition to not being sufficiently effective, it is also shortsighted. The practice of racial profiling within an anti-terrorism context assumes that the greatest threats are terrorism caused by outsiders. This leaves absolutely no consideration for acts of terror that are perpetrated from within by those other than the "usual suspects". As Reem Bahdi explains,
Threats of domestic terrorism, for example, have been all but forgotten in the current flurry of public interest over global terrorism even though the threat of domestic terrorism, including terrorism perpetrated by former and active American military personnel, remains on the horizon. Of course, prior to 9/11, Timothy McVeigh launched the single most devastating terrorist attack on American soil when he helped blow up the Murray Federal Building on April 19, 1995 in Oklahoma City, killing 169 people, including children from a daycare inside the building. However, as Leti Volpp notes, "Timothy McVeigh did not produce a discourse about good whites and bad whites because we think of him as an individual deviant, a bad actor. We do not think of his actions as representative of an entire racial group."
This causes one to consider why it is that the guilt of one white man is cast as an anomaly, rather than casting a net of suspicion on all whites? And why does racial profiling operate to assume innocence on the part of all whites and guilt on the part of racialized peoples clearly this is an unjustifiable double standard.
This paper has sought to argue that the potential harm caused by the practice of racial profiling within the context of anti-terrorism efforts far exceeds any potential benefit. It is acknowledged that there may be times when the practice of racial profiling does indeed result in the apprehension of a potential wrongdoer, however, these odds are slim, and certainly not worth the risk of perpetuating stereotypes of inequality and offending the dignity of innocent persons in the process. What is certain however, is that whether or not it coincidentally results in the apprehension of a wrongdoer or not, the practice of racial profiling will always be a blatant violation of equality rights. Consider that
the Anti-Terrorism Act, though arguably neutral on its face, will undoubtedly be implemented in a way which discriminates on the basis of race, religion, colour and ethnic or national origin. More precisely, it will target Muslims, a community which suffers from historical disadvantage and ongoing stereotyping. The definition of "terrorist activity" and the designation of "terrorist groups", as outlined in the Act, will adversely impact on Muslims by subjecting them to differential treatment in the enforcement of criminal law provisions and administrative processes. An additional feature to consider will be the fact of intersecting inequalities, particularly those of a systemic nature, such as the case of non-citizen Muslims, who will be at an even greater risk of discrimination and for whom the adverse effects will be exceptionally grave.
There is no dispute that something must be done to counter the threat of terrorism. This author contends however, that before a proper strategy can be designed and properly implemented, there must be a clear idea of what exactly terrorism is. Many have argued that the definition that exists in the Anti-terrorism Act is far too broad and unwieldy. Arguably, the Supreme Court of Canada also took this view when it adopted a narrower definition in Suresh. Despite the domestic and international difficulty in defining what constitutes acts of terrorism, it is clear that at the very least, terrorism can be seen to be acts which manifest an ideology that is oppositional to particular ideology of government. As Bhabha explains
as an ideology, terrorism through history has been the invention of the colonizer, not the colonized, of the master not the slave, of dominant rather than subjugated states. Particularly in the United States, the ideology of terrorism is anti-Arab, anti-Islamic and anti-Palestinian, and as such must be understood as a legitimation of Zionism. Considered globally, it is a specific ideology of subjugation.
In this way, the notion of terrorism and counter-terrorism are better understood as being diametrically opposed to one another. One is either a terrorist or against terrorism. There is no middle ground. Interestingly enough, this notion of diametric opposites has traditionally been applied to race, and less so to religion: one is either white or racialized; Christian, Muslims or Jewish. The lines are clear, and people must be positioned within them so that we know how to react to one another. The reality however is that in this modern world, the lines, are become more blurred, and well they should, as we continue to operate from a premise of equality and not arbitrary difference.