The Law Governing Racial Profiling: Implications of Alternative Definitions of the Situation

Abstract

Encounters between the public and the police are highly stressful and contested events. In a multicultural society such as Canada, freedom from discrimination and arbitrary treatment are core values worthy of protection. Investigation by law-enforcement officials may give rise to allegations of racial profiling, a practice that jeopardizes those values. Yet, intelligence-led law enforcement is a matter of practical importance, recognized widely by the community as desirable. So, police use of criminal intelligence to structure investigative practices should be encouraged, but not at the expense of the egalitarian ideals that make Canadians proud. Delineating the boundary between intelligence-led, effective law enforcement and racial profiling is a matter of considerable debate. The recent work of Satzewich and Shaffir (2009) provides some needed insight into the racial-profiling phenomenon, helping us to explore the distinction between intelligence-led policing and racial profiling. Their work helps us to think about the issues that need to be resolved in legal disputes arising from racially charged encounters between the police and the public. However, it should not be seen as an authority police can appeal to in asserting that their denials of racial profiling have as much validity as do the claims of those who provide evidence of the prevalence of racial profiling and other discriminatory practices in our criminal justice system. The law governing racial profiling has grown considerably over the last ten years. That growth has resulted in numerous significant developments in various areas of the law, all of which touch on the need for ongoing vigilance regarding police practices and law-enforcement policy. Most allegations of racial profiling arise out of circumstances in which the decision of police to target someone for investigation is called into question. This often occurs in circumstances with low visibility, where the police have a high level of discretion and are free from having to account for the decisions they make. For example, it arises where the police decide to stop someone who is driving a motor vehicle. Police have widespread discretion under provincial motor vehicle laws to stop motorists and inquire into their fitness to drive and the roadworthiness of their vehicle. Most provinces have motor vehicle legislation authorizing the police to stop any vehicle operating on the highway. (1) These powers generally entitle the police randomly to stop any vehicle, at any time, even where the driver does not appear to have done anything wrong. (2) Similarly, the police have widespread discretion to confront individuals on the street and ask them questions. There is no legal standard requiring the police only to speak to certain people in specific circumstances. Another area of wide discretion is in the conduct of customs officers. They have unfettered discretion to stop individuals entering the country and ask them questions in order to ascertain their status as residents or citizens and to ascertain whether they are bringing contraband into the country. Canada Customs officers are empowered by section 11(1) of the Customs Act (1985) to ask any questions of those entering the country, so long as the questions pertain to their duties under that act. They may also examine any goods being brought into the country in accordance with section 99 of the act. While these initial encounters tend to be free from the application of any precise legal standard, more in-depth police-citizen encounters typically require the police to comply with a pre-set standard that limits their intrusion into private lives to circumstances that the courts and legislatures have determined justify such intrusion. Accordingly, the decision of the police to conduct a sobriety test of a driver or to search the vehicle being driven by a motorist requires that they have sufficient grounds to justify these intrusions. …