Racial Profiling,Discretionary Power of the Police and the Charter as Accountability

Posted: November 7, 2011 by krobel2001 in Systemic Racism
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     Despite legislative enactments that have entrenched the rights and freedoms of citizens in Canada, reports of covert and overt racism are found in media articles and commentaries and in public protests of differential treatment by the police. In 1995 the Ontario Human Rights Commission stated that “the current challenge is to grapple with the systemic dimension of racism in Canada” (Ontario Human Rights Commission, 1995, p.24). In Canada, systemic racism has become an issue of debate and discussion amid government officials, commissions, academics and the media (see Toronto Star series “Race Matters 2002), who have defined systemic racism in the context of accusations of racial profiling by law enforcement officials.

     In the context of the police organization, systemic racism refers to the collective production of racial inequality, within the organization through a combination of norms, processes, cultural, and institutional ideologies of the actions, decisions and policies of the people who work within the criminal justice organization. (Commission on systemic Racism, 1995) It is within this organization that decisions about people and the treatment they receive are institutionalized, . It is revealed by specific consequences, incidents and acts that indicate differential decisions or unequal treatment, but it is the underlying processes of the structural system that make such events “systemic”(Ontario Human Rights Commission 1995).

     These processes cannot be reduced to individual prejudices but are reproduced through institutional practice and the organizational culture, who have a particular shared purpose and political structure. Institutionalized means the procedure of racial profiling having become an established custom or an accepted part of the structure of a large organization or society because of having existed for so long and is part of the cultural and by extension political life. (Ontario Human Rights commission, 1995).

     Satzewich and Shaffir state “that a number of commentators have also noted that, generally speaking, police chiefs, police union representatives, and police boards deny that racial profiling is practised in this country and are explained as either as a form of democratic racism or hierarchy of credibility, as outright lies told by those in power in order to protect their prestige and authority” (Satzewich and Shaffir, 2009, p. 200).

     Since the entrenchment of the Canadian Charter of Rights and Freedoms in 1982, the recommendations of human rights commissions should have more effect and authority in curtailing the actions of public officials, specifically the actions of the RCMP who engage in racial profiling. As a multicultural nation the provisions contained in the Charter specifically sections 7-14, legal rights and section15, equality rights) not only entitles every Canadian citizen to the freedoms and rights set out in it, but specific to this discussion is the freedom from discrimination, arbitrary detention, and illegal search and seizure. When the police target certain areas, stop motor vehicles and individuals, i.e. as in stop and search procedures, based on race, it becomes a system of surveillance and control and infringes the rights of minority groups. According to Satzewich and Shaffir ,“this type of surveillance operation creates racial inequalities by denying people of color, privacy, identity, place, security and control over their daily life” (Satzewich and Shaffir, 2009, p.199).

     The provisions in the Charter should be of such force to ensure that the police are accountable for any deviance, discriminatory actions, and abuse of legal rights, specifically when racially profiling individuals for the purpose of stop and search procedures that is based on the color of their skin. In “2003, 36 black police officers were asked to recount their lived experiences with having been the subjects of racial profiling, and a majority indicated that they had been stopped and questioned by other police officers ‘‘for no other reason than the colour of their skin’’ (Satzewich and Shaffir, 2009, p.203).

     Although racial profiling is not an act that is subject to criminal legislation and sanctions, it is an act of police misconduct, as the violation of lower level rules and regulations of the police organization, and of corruption, as the abuse of police power and authority, and a violation of the public trust. These acts can be subject to judicial rulings in cases of racial profiling, (discrimination) resulting in an infringement of rights and to political and institutional disciplinary measures by which the public are purportedly led to believe make the police accountable.

The fact is that in order to keep the official paradigm intact racial profiling by the police is often denied to protect the organization. In 2002 the Toronto Star, reported denials of racial profiling by Police Association president, Graig Brommel, by local politicians, the Mayor of North York, Ontario Mel Lastman and even chair of Toronto’s civilian police oversight board, which made public pronouncements that the police did not, nor do they engage in racial profiling. Additionally racial characteristics such as color and ethnicity were not factors and had no influence on police decisions in case dispositions and treatment of individuals of a minority group (Wortley and Tanner. 2003). In this way a relationship is created between police deviance and accountability (Wortley and Tanner. 2003). In this way a relationship is created between police deviance and accountability.

      RCMP Watch reports that “the RCMP is the only major Canadian Federal police force without a truly effective and independent oversight body. The senior management has repeatedly demonstrated it prefers the RCMP remain a closed organization” (RCMP Watch http://www.rcmpwatch.com/about/ . The RCMP has enormous powers but in order for them to be accountable they must be seen to exercise those powers within the rules of law, and due process, and where there is an excessive abuse of power they are subject to judicial scrutiny.

      Drawing from this foundation three key issues emerge. First are the wide discretionary powers of the police. “Most allegations of racial profiling often arise “out of circumstances in which the decision of police to target someone for investigation is called into question” (MacAlister, 2011, p.95). Some such circumstances in which stop and search procedures occur are often with low visibility and include, driving a motor vehicle, walking down the street, or patronizing a particular establishment, (i.e. just “hanging out”). These are circumstances “where police have a high level of discretion and are free from having to account for the decisions they make” (MacAlister, 2011, p.95). The accountability of the police is overshadowed by their wide powers of discretion to stop and search the only requirements being is that they must have a sufficient and reasonable grounds or reasonable suspicion to stop and search any individual. These requirements are determined by the judiciary who are not only determining the accountability of the police but who themselves are often not accountable to any parliamentary institution.

     The second issue revolves around the” lack of available data on racial and ethnic statistics in the Canadian justice system (Owusu-Bempah and Millar, 2010, p. 97). It is not only the lack of data but the reluctance on part of the police organization and politicians to “refrain from examining themselves in a meaningful, methodical, or measurable manner to determine whether they were in fact engaging in bias-free policing “(Closs and McKenna, 2006, p. 146). In May 2003 the Kingston Police began an experiment in operational research that dealt with the issue of racial profiling, and was similar to procedures that had already been instigated in the United States and Britain for collecting data. The project consisted of the police collecting data on an individual’ race and ethnicity on the individuals which the police came into causal contact. (Closs and McKenna, 2006). The end result of the project was that no police jurisdiction made an effort to launch a data collection policy and claims of racial profiling were outright denied by the Kingston police. “Whenever elements of race or ethnicity are discussed in the context of the police, these organizations have become exceedingly cautious and in many instances highly defensive about their methods, means, and motivations “(Closs and McKenna, 2006, p. 145).

     The third issue is the key findings of Wortley and Tanner in their survey of approximately 3,400 Toronto high school students, which provided further evidence of racial profiling (Wortley and Tanner, 2003). Additionally Wortley and Tanner discussed the debate between the findings of the Toronto Star and the expert, Edward Harvey, hired by the Toronto police Chief Fantino to conduct a re-analysis of the Star’s data” (Wortley and Tanner, 2003, p.368). What Wortley and Tanner found was Harvey’s findings were fraught with methodological problems, such as excluding particular offenders, multiple offenders and those charged with a crime on more than one occasion, “thus by excluding the very population that is targeted and who experienced the greatest degree of police discrimination” (Wortley and Tanner, 2003, p. 375). It is evident that much more research and study needs to be undertaken by social scientists, and data collection procedures must be instigated and made transparent for true accountability of our policing organization.

References Blog 2

 

Closs, W.J. and McKenna, P.F.  (2006).  Profiling a problem in Canadian police  leadership: The Kingston Police data collection project. Canadian Public Administration. Vol. 49 No. 2. P.143-160.

Commission on Systemic Racism.  (1995). Report of the Commission on Systemic  Racism in the Ontario Criminal justice System. Toronto. Queen’s Printer for
Ontario. Retrieved from: http://www.archive.org/details/reportracismontOOcomm

 Commission  on Systemic Racism Retrieved from: http://www.cfdp.ca/ontrac.html.

Henry, F.  and Tator, C. (2000). Racist Discourse in  Canada’s English Print Media. The Canadian Race Relations Foundation.Toronto,
Ontario. Retrieved from: http://www.crr.ca/divers-files/en/pub/rep/ePubRepRacDisMedia.pdf

MacAlister,  D. (2011). The Law Governing Racial Profiling: Implications of Alternative Definitions of the Situation. Canadian Journal of Criminology and Criminal  Justice. Vol. 53, No.1. p.96-103. DOI: 10.3138/cjccj.53.1.95

 Melchers, R. (2006). Inequality before the Law: The Canadian  Experience of “Racial Profiling”. University  of Ottawa. Research and Evaluation Branch. Retrieved from: http://cpc.phippsinc.com/cpclib/pdf/60756e.pdf

Ontario Human Rights Commission. (2003). Paying The Price: The Human  Cost of Racial  Profiling Inquiry Report. Toronto,  Ontario. Retrieved from: http://www.ohrc.on.ca/en/resources/discussion_consultation/RacialProfileReportEN/pdf

Owusu-Bempah,  A. and Millar, P. (2010). Research Note:  Revisiting the Collection of “Justice Statistics  by Race” in Canada. Canadian Journal of Law and Society. Vol. 25, No. 1. p.97-104.

 Satzewich, V. and  Shaffir, W. (April 2009). Racism versus Professionalism: Claims and counter-claims about Racial Profling. Canadian Journal of Criminology and Criminal  Justice. Vol. 51. p. 199-226. Doi:10.3138/cjccj.51.2.199

 The Toronto Star.(2002). Race Matters Series. Retrieved from: http://www.thestar.com/racematters

 Walker, S. (2007).  Police Accountability: Current Issues and Research Needs. Washington, DC. Unpublished Paper. Retrieved from: https://www.ncjrs.gov/pdffiles1/nij/grants/218583.pdf

 Wortley, S. and Tanner, J. (2003). Data, denials and confusion: The  racial profiling debate in Toronto. Canadian
Journal of Criminology and Criminal Justice
. Vol.45.p. 367–389.

 Wortley, S. and Tanner, J. (July 2005). Inflammatory Rhetoric?  Baseless Accusations? A Response  to Babor’s Critique of Racial Profilin Research in Canada. Canadian Journal of Criminology and Criminal Justice. Vol.47 No. 3.p. 581-609.

 

 

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Comments
  1. Mike Larsen says:

    This is a detailed and thought-provoking post.

    In relation to your point about discretion, I agree that racial profiling generally manifests in the context of discretionary practices. How should we respond to this? Is the problem with the amount of discretion or with cultural and organizational influences that shape discretion?

    Also, Owusu-Bempah and Millar have lead the call for the collection of racial and ethnic data by police during encounters with the public. This has been a controversial issue. Where do you stand in terms of this? Should we push for the collection of this data?

    Finally, it would be excellent if your final post could offer us a brief snapshot of how the issue of systemic or institutional racism relates to the various elements in the policing field. We tend to focus on the ‘low policing’ practices of the public police. Does this issue impact on ‘high policing’ practices as well?

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