It’s a rare day when Crown prosecutors admit that a criminal conviction was wrongly decided. It’s an even rarer day when the Crown concedes its case when it’s under appeal before the Supreme Court of Canada. So why now? And what does it mean? The central answer to these questions is racial profiling, and how conceding one man’s case keeps systemic accountability out of reach.
R v. Ali
Mr. Mohammad Ali, a Somalian refugee, was legally stopped in 2021 when an officer saw him using his cellphone while driving. But when his birthday on his out-of-province license did not match that on an internal police record, the officer did not do any further investigation. The officer directed Mr. Ali out of his vehicle and immediately charged him with obstruction. He was further charged with offences based on what police found when searching him upon this arrest.
At trial, Mr. Ali argued that the officer racially profiled him. His evidence included some contradictions in police evidence and admissions by the police officer. For example, the officer admitted that he didn’t follow his normal practice with out-of-province licenses, which was to call the central records office. The officer also admitted that he was aware that some white immigrants, namely Greek immigrants, would have a different day on some documents as a “government” birthday.
The trial judge didn’t appreciate this evidence when he convicted Mr. Ali. Instead, he stated that there was “no direct evidence of racial profiling,” focused on credibility of the officer, and re-iterated that the officer was just “doing his job.”
Justice for Mr. Ali
Because racial profiling often arises from unconscious bias, the legal test for racial profiling requires the judge to look at all the circumstantial evidence and external conduct. One judge of three on the Court of Appeal for Saskatchewan agreed that the trial judge did not apply this test correctly, however the other two judges upheld Mr. Ali’s conviction.
At the Supreme Court of Canada, the only question examined was whether the trial judge applied the correct legal analysis for racial profiling. The Crown continued to defend the trial judge and intervenors including the BCCLA applied for leave to intervene to highlight the multiple systemic issues with racial profiling law and to push for systemic solutions.
In a win for Mr. Ali, the Crown responded to our interventions by conceding that the case was incorrectly decided because racial profiling law was incorrectly applied. As a result, Mr. Ali will be given a new trial where the law is correctly applied.
However, by conceding to the appeal, the Crown conveniently avoided giving the Supreme Court of Canada the opportunity to consider the BCCLA and intervenor arguments to advance racial profiling law.
Why is the Crown scared to advance racial profiling law?
The policing system is unaccountable.
The fact that the test was wrongfully applied in Mr. Ali’s case demonstrates that the legal system still has not caught up to address the reality of racial profiling. Without reforms to advance racial profiling law, state and police accountability will continue to be kept out of reach.
Research shows that racial profiling is extremely common, everywhere across Canada. The individual and community effects of racial profiling range from serious impacts on mental health and substance misuse, to decreased sense of safety and aversion to certain spaces. It results in community experiences of exclusion, marginalization, and alienation from the justice system.[1]
Yet there have been few proven cases of racial profiling in court. In the majority of cases where a racial profiling claim could potentially have been made, police failed to find any evidence of unlawful activity, so the event disappears without any further criminal process.[2] In the cases that do proceed, racial profiling is still often not addressed. Scholars have provided several reasons for this including lack of clarity in the law and corresponding lack of confidence of lawyers to raise the issue, and the difficult job placed on the victim to prove unconscious bias in the actions of officers.[3]
At the Supreme Court of Canada, Mr. Ali argued that the “correspondence test” from the Ontario case Ontario R v Brown[4] needs to be formally adopted by the court to apply across Canada. This test is helpful because it recognizes that racial profiling, particularly unconsciously held racial bias, can rarely, if ever, be proven by direct evidence. Instead, the test requires a court to consider all the circumstances that led to a suspect’s detention and/or arrest and to determine whether the suspect’s treatment corresponds to the phenomenon of racial profiling as understood in social science literature, the reports of inquiries into race relations with police, and the case law. The judge can then decide whether those circumstances “correspond” and form a basis to infer that the detention or arrest was based on racial profiling, even when the police have offered other explanations for their actions.
Racial profiling law must improve
But the correspondence test alone simply doesn’t go far enough and has not offered a meaningful increase in racial profiling claims in Ontario. In fact, it arguably reinforces the burden of proof being on the victim. In our intervention application, the BCCLA proposed to argue that inferring subconscious racial profiling from circumstantial evidence may be sound in theory but is virtually impossible in practice.
The correspondence test would better assist courts in finding subconscious racial profiling if trial judges took judicial notice and accepted as fact the following when applying the test:
- Racialized groups face disproportionate levels of policing; and
- The contexts in which racial profiling have been widely known to occur.
The effect of doing so may place a “tactical burden” on the Crown to prove the absence of racial profiling. After all, it is the state’s responsibility to ensure that its law enforcement arm does not disproportionately target racialized groups
The other intervenors also proposed important arguments. For example, the Canadian Civil Liberties Association proposed that requiring additional proof of racial bias in the psyche of the officer is unjustified, redundant, and unnecessary. Once there is an “air of reality” to the racial profiling claim, the onus should shift to the Crown to disprove the claim. This would also allow the finding to be reviewable by an appeal court to improve access to justice.
The Canadian Association of Black Lawyers and Black Legal Action Centre jointly sought to propose a new legal framework, given the fact that the correspondence test has been so difficult to operationalize. The new framework would shift the burden to the Crown to disprove racial profiling and would:
- Recognize the existence and impact of anti-Black racism in policing
- Address the challenges in raising racial profiling claims
- Provide clear guidelines for its identification and prevention, and
- Work to ensure the substantive equality guaranteed to Black defendants is achieved.
The South Asian Bar Association proposed that the correspondence test needed to be expanded to be sure it could be appropriately applied in other contexts with frequent racial profiling, such as at the border and in immigration, and in the targets of state surveillance, and to other racialized groups.
LEAF sought to argue that an equality-rights focus is critical to an analysis concerning racial profiling. It is not sufficient for the Court to focus narrowly on a claimant’s race without considering how their gender, national or ethnic origin, immigration status, and other social identities form an interconnected web that informs the historical, social, and political barriers they have experienced.
The future of racial profiling accountability
Until the law adequately responds to the real and rampant phenomenon of racial profiling, justice for many will continue to fall through the cracks. Eventually, another case will finally make its way to be heard by the Supreme Court of Canada. The good news is that the BCCLA and many other organizations will be there to support those pushing for justice in their cases and to continue to push for law that provides systemic accountability.
[1] See Terry Skolnik, “Racial Profiling and the Perils of Ancillary Police Powers” (2021) 99:2 Can Bar Rev 429 at 438.
[2] David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40:2 Osgoode Hall LJ 145 at 176; David M. Tanovich, “Applying the Racial
Profiling Correspondence Test” (2017), 64 Crim LQ 359 at 370; and R v Le, 2019 SCC 34 at paras 90-93, citing Ontario Human Rights Commission, A Collective impact: Interim Report on the Inquiry into Racial Profiling and Racial Discrimination of Black Persons by the Toronto Police Service (2018) at 21, 26, and 37.
[3] Ibid at 145.
[4] 2003 CanLII 52142, 173 CCC (3d) 23 (ONCA).
Racial profiling law: justice for one man but a system left unaccountable
It’s a rare day when Crown prosecutors admit that a criminal conviction was wrongly decided. It’s an even rarer day when the Crown concedes its case when it’s under appeal before the Supreme Court of Canada. So why now? And what does it mean? The central answer to these questions is racial profiling, and how conceding one man’s case keeps systemic accountability out of reach.
R v. Ali
Mr. Mohammad Ali, a Somalian refugee, was legally stopped in 2021 when an officer saw him using his cellphone while driving. But when his birthday on his out-of-province license did not match that on an internal police record, the officer did not do any further investigation. The officer directed Mr. Ali out of his vehicle and immediately charged him with obstruction. He was further charged with offences based on what police found when searching him upon this arrest.
At trial, Mr. Ali argued that the officer racially profiled him. His evidence included some contradictions in police evidence and admissions by the police officer. For example, the officer admitted that he didn’t follow his normal practice with out-of-province licenses, which was to call the central records office. The officer also admitted that he was aware that some white immigrants, namely Greek immigrants, would have a different day on some documents as a “government” birthday.
The trial judge didn’t appreciate this evidence when he convicted Mr. Ali. Instead, he stated that there was “no direct evidence of racial profiling,” focused on credibility of the officer, and re-iterated that the officer was just “doing his job.”
Justice for Mr. Ali
Because racial profiling often arises from unconscious bias, the legal test for racial profiling requires the judge to look at all the circumstantial evidence and external conduct. One judge of three on the Court of Appeal for Saskatchewan agreed that the trial judge did not apply this test correctly, however the other two judges upheld Mr. Ali’s conviction.
At the Supreme Court of Canada, the only question examined was whether the trial judge applied the correct legal analysis for racial profiling. The Crown continued to defend the trial judge and intervenors including the BCCLA applied for leave to intervene to highlight the multiple systemic issues with racial profiling law and to push for systemic solutions.
In a win for Mr. Ali, the Crown responded to our interventions by conceding that the case was incorrectly decided because racial profiling law was incorrectly applied. As a result, Mr. Ali will be given a new trial where the law is correctly applied.
However, by conceding to the appeal, the Crown conveniently avoided giving the Supreme Court of Canada the opportunity to consider the BCCLA and intervenor arguments to advance racial profiling law.
Why is the Crown scared to advance racial profiling law?
The policing system is unaccountable.
The fact that the test was wrongfully applied in Mr. Ali’s case demonstrates that the legal system still has not caught up to address the reality of racial profiling. Without reforms to advance racial profiling law, state and police accountability will continue to be kept out of reach.
Research shows that racial profiling is extremely common, everywhere across Canada. The individual and community effects of racial profiling range from serious impacts on mental health and substance misuse, to decreased sense of safety and aversion to certain spaces. It results in community experiences of exclusion, marginalization, and alienation from the justice system.[1]
Yet there have been few proven cases of racial profiling in court. In the majority of cases where a racial profiling claim could potentially have been made, police failed to find any evidence of unlawful activity, so the event disappears without any further criminal process.[2] In the cases that do proceed, racial profiling is still often not addressed. Scholars have provided several reasons for this including lack of clarity in the law and corresponding lack of confidence of lawyers to raise the issue, and the difficult job placed on the victim to prove unconscious bias in the actions of officers.[3]
At the Supreme Court of Canada, Mr. Ali argued that the “correspondence test” from the Ontario case Ontario R v Brown[4] needs to be formally adopted by the court to apply across Canada. This test is helpful because it recognizes that racial profiling, particularly unconsciously held racial bias, can rarely, if ever, be proven by direct evidence. Instead, the test requires a court to consider all the circumstances that led to a suspect’s detention and/or arrest and to determine whether the suspect’s treatment corresponds to the phenomenon of racial profiling as understood in social science literature, the reports of inquiries into race relations with police, and the case law. The judge can then decide whether those circumstances “correspond” and form a basis to infer that the detention or arrest was based on racial profiling, even when the police have offered other explanations for their actions.
Racial profiling law must improve
But the correspondence test alone simply doesn’t go far enough and has not offered a meaningful increase in racial profiling claims in Ontario. In fact, it arguably reinforces the burden of proof being on the victim. In our intervention application, the BCCLA proposed to argue that inferring subconscious racial profiling from circumstantial evidence may be sound in theory but is virtually impossible in practice.
The correspondence test would better assist courts in finding subconscious racial profiling if trial judges took judicial notice and accepted as fact the following when applying the test:
The effect of doing so may place a “tactical burden” on the Crown to prove the absence of racial profiling. After all, it is the state’s responsibility to ensure that its law enforcement arm does not disproportionately target racialized groups
The other intervenors also proposed important arguments. For example, the Canadian Civil Liberties Association proposed that requiring additional proof of racial bias in the psyche of the officer is unjustified, redundant, and unnecessary. Once there is an “air of reality” to the racial profiling claim, the onus should shift to the Crown to disprove the claim. This would also allow the finding to be reviewable by an appeal court to improve access to justice.
The Canadian Association of Black Lawyers and Black Legal Action Centre jointly sought to propose a new legal framework, given the fact that the correspondence test has been so difficult to operationalize. The new framework would shift the burden to the Crown to disprove racial profiling and would:
The South Asian Bar Association proposed that the correspondence test needed to be expanded to be sure it could be appropriately applied in other contexts with frequent racial profiling, such as at the border and in immigration, and in the targets of state surveillance, and to other racialized groups.
LEAF sought to argue that an equality-rights focus is critical to an analysis concerning racial profiling. It is not sufficient for the Court to focus narrowly on a claimant’s race without considering how their gender, national or ethnic origin, immigration status, and other social identities form an interconnected web that informs the historical, social, and political barriers they have experienced.
The future of racial profiling accountability
Until the law adequately responds to the real and rampant phenomenon of racial profiling, justice for many will continue to fall through the cracks. Eventually, another case will finally make its way to be heard by the Supreme Court of Canada. The good news is that the BCCLA and many other organizations will be there to support those pushing for justice in their cases and to continue to push for law that provides systemic accountability.
[1] See Terry Skolnik, “Racial Profiling and the Perils of Ancillary Police Powers” (2021) 99:2 Can Bar Rev 429 at 438.
[2] David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40:2 Osgoode Hall LJ 145 at 176; David M. Tanovich, “Applying the Racial
Profiling Correspondence Test” (2017), 64 Crim LQ 359 at 370; and R v Le, 2019 SCC 34 at paras 90-93, citing Ontario Human Rights Commission, A Collective impact: Interim Report on the Inquiry into Racial Profiling and Racial Discrimination of Black Persons by the Toronto Police Service (2018) at 21, 26, and 37.
[3] Ibid at 145.
[4] 2003 CanLII 52142, 173 CCC (3d) 23 (ONCA).
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES