Canada has been reputed to be a multicultural nation that supports human rights and freedoms, free from distinction based on race or ethnicity. This reputation emerged out of parliamentary statutes and legislation to secure a commitment for the protection of individual and group rights and freedoms for all Canadian citizens. Historically the passing of the Royal Proclamation in 1763, an implied Bill of Rights (BNA Act 1867), the passage of the Bill of Rights in1960, and in 1982, under the Trudeau administration, Canada’s rights and freedoms were entrenched in the Canadian Charter of Rights and Freedoms guaranteeing certain civil and cultural liberties to recognized citizens of Canada in sections 15 (1) & (2). The Canadian government went further when, the Multiculturalism Act was tabled in 1985 and enacted in 1988, which provides for equality, rights and freedoms for all males, females, aboriginals, all Canadians by birth or choice, and all ethnic groups.
Upon closer scrutiny and observation of Canada’s history, we find that in the 19thcentury there were thousands of Klu Klux Klan members located within the Canadian borders in such areas as Vancouver, B.C. and Toronto, Ontario. It was a crime for Chinese restaurant owners to hire white women and after the bombing of Pearl Harbour (December 1941) thousands of Canadian Japanese were ordered into internment camps all across Canada. This was historically one of the “worst incidents of racial profiling when Japanese Canadians were classified as traitors and as security threats. Approximately 22,000 Japanese men, women and children were designated as “enemy aliens”. The majority were forced to live in settlement camps similar to prison complexes. They were uprooted from their homes in British Columbia and approximately 4,000 were forcibly deported” (Tanovich, 2006, p.57). Black Canadians maintain that they have been pulled over by the police in stop and search procedures without reasonable grounds and have given this procedure the name of “Driving While Black” (DWB). Aboriginals have been mistreated, abused and segregated through reserves and residential schooling, and have been overrepresented by all government levels and branches, especially within Canada’s criminal justice system, and which includes as the power to uphold the law, the Royal Canadian Moun
As a nation that is founded on democratic values of social and legal equality, and political freedom, “there is an expectation that law enforcement will follow both the rule of law and due process, and should abide by the law and be accountable for their decisions and failures” (Punch, 2000, p.301). Maurice Punch notes that the “history of policing is fraught with scandals of misconduct and corruption in which officers have broken the law and also in which the police organization failed to detect the deviance, colluded in it or tried to deflect investigations by defensive opposition” (Punch, 2000, p.301).
Although racial profiling is not an act that is subject to criminal legislation and sanctions, it is an act of police deviance, and 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.
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, commentaries, and academic debates and in public protests of differential treatment by the police. David Tanovich a leading academic in the area of racial profiling and director of Windor’s Law Enforcement Accountability Project (LEAP), “states that despite widespread denials the targeting of racial minorities for criminal or security related investigation solely or in part on the basis of their skin colour is a real and serious problem in many Canadian jurisdictions” (Tanovich, 2004, p.907).
Tanovich defines racial profiling as “occurring when, law enforcement or security officials consciously or unconsciously subject individuals at any location (e.g. airports, neighbourhoods), to heightened scrutiny based solely or in part on race, ethnicity, aboriginality, place of origin, ancestry or religion or on stereotypes associated by any of these factors rather than on objectively reasonable grounds to suspect that the individual is implicated in criminal activity” (Tanovich, 2006,p. 13). Racial profiling most often occurs in stop and search practices during police patrols where visibility is low thus shielding the police from accountability. Racial profiling can occur during undercover activities or sting operations which target particular ethnic groups and therefore “operates as a system of surveillance and control which creates racial inequalities by denying people of color, privacy, identity, place, security, and control over their daily life” (Tanovich, 2006,p. 13). Under this definition racial profiling is an act of discrimination that is engaged in by the RCMP and results in the abuse of their discretionary power to target minorities and thought to be dependent on the hierarchy of credibility. The RCMP have enormous discretionary powers in relation to motor vehicles, and persons, to explore for anything in or on the vehicle for certain items, but are required to have reasonable grounds for suspecting what they will find. This power permits them to bypass accountability and operate under the guise of legitimacy.
Tanovich notes that racial profiling is a manifestation of systemic or institutionalized racism (Tanovich, 2006). In the context of the police organization, systemic racism refers to the collective production of racial inequality within the organization, and is accomplished through a combination of entrenched 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 become 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, which have a particular shared purpose and political structure. Institutionalized racism means that the practice of racial profiling has 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) As Maurice Punch notes it is sometimes “not the apple or even barrel that is rotten but the system, that is deviance that has become systemic is in some way encouraged and perhaps event protected by certain elements in the system, referring to both to the formal system, of the police organization, the criminal justice system and the broader socio-political context” (Punch, 2003, p. 172), and by such actions as cover ups as a means of protecting the actions of police officers. 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 &Tanner. 2003). Tanovich reported that “Toronto’s Chief of Police Julian Fantino angrily stated that the report was “totally divorced from the reality of today. Chief Fantino also stated that “I don’t believe our police are so corrupt, so dishonest, so racist, that we need to have body packs on them, cameras on their back and watchdogs at everything they do”(Tanovich, 2004, p.909). The president of the Ontario Association of Chiefs of Police “described the report as predictably disappointing and unfair” (Tanovich, 2004, p.909). As Closs & McKenna point out “whenever elements of race or ethnicity are discussed in the context of the police, these organizations have become exceedingly cautious ad in many instance highly defensive about their methods, means, and motivations” (Closs & McKenna, 2006, p145).
According to David Tanovich in large part as a result of the Toronto Star’s crime series in October of 2002, issues of racial profiling by the police of African-Canadians in Toronto were exposed, and resulted in denials of racial profiling from political and police officials, and public outcries for accountability of police discretionary powers (Tanovich, 2006). Additionally this issue resulted in academic and government debates and controversy over of the collection of justice statistics by race. Akwasi Owusu-Bempah & Paul Millar state that “many minority groups are now advocating for the collection and publication of this data as a means to redress racial discrimination in the administration of justice” (Owusu-Bempah & Millar, 2010, p.97).
In Canada with the exception of the Kingston Police Project and federal justice statistics on aboriginals very little race relevant justice data on the social characteristics of victims or offenders is readily available or collected within the system. As a result we cannot know how prevalent racial profiling is within any given visible minority group that is processed by the criminal justice system, nor the extent of involvement of lower levels of policing (Owusu-Bempah & Millar 2010;Tanovich, 2004).
Procedures for the collection of racial data have been established in both in the United States (50 out of 54 states) and in Great Britain (Tanovich, 2004), in which the compilation of racial data is either voluntary or pursuant to legislation and, “requires that the police and security officials record information either electronically or in writing of those whom they stop and investigate, and would include perceived age, gender, racial and ethnic background, where the stop takes place the reasons for the stop and investigative measures taken and the results” (Tanovich, 2004 p. 175).
In Canada there has been vehement denial of racial profiling by law enforcement and government officials and by extension there has been a great reluctance to create legislation or policy for the collection of racial data. Satzewich & Shaffir note 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, by those in power in order to protect their prestige and authority” (Satzewich & Shaffir, 2009, p. 200).
Owusu-Bempah & Millar note that the police organization is part of the larger government structure and “their data is therefore publicly owned; however, the data is made available only for the purposes that the agencies themselves deem appropriate” (Owusu-Bempah & Millar, 2010, p.103).
In 1989 the Toronto police services Board reacted to an incident when a Toronto police inspector made comments that black people accounted for a disproportionate amount of crime in a particular area of Toronto, the TPSB adopted a policy banning the collection and publication of statistics relating to race. Their reasoning was that this type of statistical data would encourage stereotyping. The “Canadian Centre for Justice Statistics proposed the collection of racial and ethnic data and sent requests to every police department in Canada. Some forces refused to comply and three weeks after the initial proposal was made Statistics Canada announced that the plan had been abandoned due to large numbers of people (police) claiming it was unwarranted and too sensitive of an issue” (Owusu-Bempah & Millar, 2010,p.99).
The question is why is there such reluctance on part of the police organization to create a policy or legislate for the collection of racial data? Owusu-Bempah & Millar offer the explanation that the “prospect of increased transparency and accountability is likely a contributing factors in the criminal justice system’s seeming reluctance to collect and publish criminal justice statistics disaggregated by race” (Owusu-Bempah & Millar, 2010,p.102). It may be an issue where the legitimacy of the organization will be less effected by blaming a few bad apples rather than the whole orchard. Additionally the results of collecting racial data in the United States and Britain have proven to be beneficial to minority groups in establishing they are victims of racial profiling. (Owusu-Bempah & Millar, 2010, Tanovich, 2004).
Racial profiling has also been related to the war on drugs and anti-terrorism, intrusively so after 911 with the latter issue. In the mid 1980s Canada followed the lead of the United States in its war on drugs, and Canada’s “weapon of choice became a creation of a profile of the drug courier, which ultimately became fixated on race” (Tanovich, 2006, p.87). As a result of this profile visible minorities were targeted as drug dealers and drug couriers by law enforcement officials. “Blacks became overrepresented in drug arrests in Canada as well as the United States” (Tanovich, 2006, p.87) and there was an increase in surveillance, aggressive front line crime control, periods of incarceration, and imprisonment for black people (Tanovich, 2006, ). The Ontario Systemic Racism Commission concluded that it was clear from their findings that in Ontario the increases were due to “the product of intensive policing of low income areas in which black people live” (Tanovich, 2006, p.88). Ironically in Wortly & Tanners study in 2000 a much higher rate of drug use was found among white students not black students (Tanovich, 2006). “If the police devote their resources and focus to detecting a particular offence, which is prevalent in society, among a particular community, they are likely going to find what they are looking for” (Tanovich, 2006, p.89).
Racial profiling does not just occur in low levels of policing. There is an impact on high levels of policing in Canada, mostly with issues of terrorism. Brodeur describes, “High policing as a paradigm for political policing; it reaches out for potential threats in a systematic attempt to preserve the distribution of power in a given society” (Brodeur, 1983, p.513). High policing encompasses all government branches, legislative, judiciary and executive and uses methods of surveillance, information gathering, use of undercover agents and informants and tries to maintain a low visibility. The police are used as a means for the protection of political activity not for the protection of society (Brodeur, 1983).
Liban Hussein a 31 year old Somalian Canadian was put on a Bush terrorist financing list as well as other terrorist lists. He was considered a security threat after being racially profiled based on his ethnicity and religion, the result of intelligence and information gathering. Two years later he was exonerated but after much disruption to his life economically and socially. Tanovich points out that the use of racial profiling will have only a negative impact on intelligence gathering” (Tanovich, 2006, p.115) because it is fraught with unsubstantiated information. Since September 11 there is extensive media reporting in favour of using some form of racial profiling in screening and security intelligence that can only be accomplished through high policing procedures and methods (Tanovich, 2006).(Also see Maher Azar).
Tanovich notes that the “use of race by the police as a basis to target visible minorities for criminal investigation, is not only a manifestation of systemic racism and an unreliable enforcement tool” (Tanovish, 2004, p.933), but it has resulted in a lack of accountability of the police, extensive use and misuse of police discretionary powers and negatively effects the reputation of Canada as a democratic, multicultural nation that promotes equal treatment under the law.
As a multicultural nation the provisions contained in the charter not only entitles every Canadian citizen to the freedoms and rights set out in it, but specific to this issue 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. The use of police discretionary power is in direct contradiction to the rights and freedoms contained within the charter when engaging in racial profiling. The police organization make claims that officers need the freedom to use their judgment in making decisions about potential offenders, but the police line is crossed when they specifically target an individual based on the color of their skin, ethnicity, or religion for investigation.
Despite denials by and within the legal and political realms to claims of racial profiling, the research conducted by the Toronto Star and Wortley & Tanner, and credible statistical evidence from police jurisdictions in the United States, and Britain, this presents evidence that visible minorities are targeted by law enforcement officials in stop and search procedures, based on racial characteristics. “Tanovich notes that the breeding ground for racial profiling is the day-to-day crime detection policing that occurs through vehicle and pedestrian stops” (Tanovich, 2004, 905). The Ontario Human Rights Code also proposed that “data collection is necessary for effectively monitoring discrimination, identifying and removing systemic barriers, ameliorating historical disadvantage and promoting substantive equality” (Ontario Human Rights Commission, 2010). “Data collection and analysis should be undertaken where an organization or institution has or ought to have reason to believe that discrimination, systemic barriers or the perpetuation of historical disadvantage may potentially exist” (Ontario Human Rights Commission, 2010).
Academics such a David Tanovich, Akwasi Owusu-Bempah, Paul Millar, provincial and federal commissions (Ontario Human Rights Commission), and a number of organizations such as the Canadian Law and Society Association (CLSA), and the African Canadian Legal Clinic, have written on and advocated for the essentiality of justice statistics by race. Their agendas have been to call for anti- racial legislation and policy formation that would require the police to collect racial data in stop and search procedures and compel them to document racial and ethnic characteristics. Additionally they have also called for oversight bodies such as national commissions on racial profiling, civilian oversight bodies, a transparent police complaint system and advisory boards for provincial law enforcement (Tanovich, 2004,2006, Owusu-empah & Millar, 2010).
Owusu-Bempah & Millar point out that social-science research on justice in Canada largely depends on data that is under the auspices of organizations within the criminal justice system, and government bodies charged with collecting statistics and information, an example of which was the CIPS data used by the Toronto star in their crime series (Owusu-Bempah &Millar, 2010). This type of data can best be described as subjective, and as the debate over the Toronto Star articles showed academics for hire can often manipulate the data and by virtue of their expertise sway public opinion, but most of all deflect culpability away from the police organization and accusations of systemic racism.
Specific recommendations have been made directed at the police organization, such as training and education in anti-racial profiling, public awareness campaigns designed to ensure that the public and police understand how discriminating against visible minorities affects communities, improving efforts at changing police culture and making the public complaints process more objective, fair, and accessible (Tanovich, 2004, 2006, Owusu-Bempah & Millar, 2010). Ultimately the effects on the community where there is a lack of accountability of the police results in mistrust, overrepresentation within the criminal justice system and minorities feel that they are being unfairly targeted and discriminated against.
The issue of racial profiling, systemic racism and collection of racial data would appear cyclical in process. In the sense that policy implementation and change in procedure is in large part the result of research conducted by social scientists, but this requires access to reliable data, both qualitative and quantitative. When the police organization, especially the hierarchy is in denial or reluctant to collect or release racial data for fear of damaging the image they present to the media and the public, the data, which provides the evidence of racial profiling, may be tainted, manipulated or unreflective of the true nature of discrimination when targeting minorities. The cycle continues when police organization blames the few bad apples but often use justifications, rationalizations and neutralization techniques to explain the actions and behaviour of their officers while deflecting the true systemic nature of racism. Once again the cycle starts as the organization continues to refuse to collect or process racial data. So when the media or visible minorities make denouncements of racial profiling by the police does the organization not have a responsibility to make their actions accountable to the public, to the media, and everyone that is affected? If there are no means by which law enforcement officials can be made to be accountable how are we to view them as legitimate? As Kersten states “the police as the legitimate agent of the sovereign state’s capacity to use force against citizens ought to form the very foundation of the states legitimacy in a democratic society” (Kersten, 2000, p.238).
Brodeur, J.P.(June 1983). High Policing and Low Policing: Remarks about the Policing of Political Activities. Social Problems. Vol.30. No.5. p. 507-520.
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.
Kersten, J. (2000). Police Powers and Accountability in a Democratic Society: Introductory Report. European Journal on Criminal Policy and Research. Vol.8, p. 237-245.
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.
Punch, Maurice. (2009). Police Corruption Deviance, accountability and reform in policing. Willan Publishing. Devon, UK.
Punch. M. (2000). Police Corruption and it’s Prevention. European Journal on Criminal Policy and Research. Vol.8, p.301-324.
Ontario Human Rights Commission. (2010). Racism and Racial Discrimination – Data Collection. Retrieved from: http://www.ohrc.on.ca/en/resources/factsheets/data/view
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
Tanovich, D. (2006). The Colour of Justice Policing Race in Canada. Canada. Publisher Irwin Law.
Tanovich, D. (2004). E-Racing Racial Profiling. Alberta Law Review. Vol.41, p. 905-933.
Toronto Star.(2002). Race Matters Series. http://www.thestar.com/racematters http://www.torontopolice.on.ca/publications/files/reports/harveyreport.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.