How Would Jagmeet Singh’s Ban on Racial Profiling Work?

Last week, NDP leadership hopeful and presumed frontrunner, Jagmeet Singh wrote an impassioned Twitter thread calling for a "federal ban on racial profiling."

"Racial profiling is violent and systemic yet the halls of power in Canada remain silent. I won't," said Singh, a Sikh man and Ontario MPP. He went on to describe how he'd been stopped by police for no reason 11 times in his life, including an incident where he was carded as a law student.

"In that moment it hit me. I had achieved academic [and] professional success yet I was still made to feel like there was something wrong with me," he tweeted.

Singh is right that racial profiling is a pervasive problem, particularly within the criminal justice system where we see black, brown, and Indigenous folks carded, arrested, and imprisoned at alarming rates. Some, like Sammy Yatim, Andrew Loku, Jermaine Carby, and Abdirahman Abdi, have been killed during their encounters with police. Just this morning, the CBC reported that a Toronto police officer was arrested for beating and partially blinding a black teenager. The officer, Const. Michael Theriault, was charged with aggravated assault for allegedly beating the victim, 19-year-old Dafonte Miller, with a steel pipe. Last week, the Toronto Star revealed Canada's spy agency, CSIS, stands accused of rejecting job candidates whose names sounded Muslim. But while Singh's words resonated with many people, how practical is the idea of banning racial profiling at the federal level? And would it actually work?

Under Canada's Charter of Rights and Freedoms and human rights legislation, racial profiling is already illegal. But Anthony Morgan, a Toronto-based civil rights lawyer, told VICE the government could include specific provisions in the human rights act that single out racial profiling, the same way we distinguish sexual assault from assault.

"We come to a point in society where we realize there is a very particular kind of scourge that is plaguing us and so there's a push to codify it specifically," he said.

Currently, to prove racial profiling at a human rights tribunal, Morgan said a plaintiff has to show there was "differential treatment", that the differential treatment was connected to race in some way (in legal terms a "causal link"), and demonstrate how the incident negatively impacted him or her. At that point, the accused, a cop for example, would have to come up with a reasonable explanation for their behaviour. Morgan said these steps could be "codified" in the law, potentially making it easier for individuals to report these cases.

"It would also send a much stronger message to federal agencies including law enforcement that this practice is not to be accepted," he said.

Other options, Morgan said, include making it an explicit criminal offence for a law enforcement agent to engage in racial profiling and allowing victims of racial profiling to directly sue the government or law enforcement.

Racial profiling is often difficult to prove, which is in part why police are rarely held accountable for it. Morgan stressed that in order for a "ban" to work, it would have to allow the courts to accept circumstantial evidence as proof of racial profiling. For example, is it a black person getting stopped in a predominantly white neighbourhood?

Toronto defense attorney Annamaria Enenajor echoed Morgan's concerns about the burden of proof.

She told VICE whenever racial profiling issues come up in court, the burden is on the claimant to prove they were discriminated against. And it's a tough hurdle to pass. Instead, the government could require police officers "clearly articulate why a stop was made or why an individual was pulled over and have a presumption exist protecting people from state interference."

Enenajor noted that the laws don't protect people against the "human dignity" issues Singh raised in his tweets—feeling like a second class citizen—but only kick in when it comes to things like having charges stayed or excluding evidence obtained through profiling.

The government should create "penalties that have teeth" for racially profiling, she added, including giving financial awards to victims.

"Penalties that actually cause people to change their behaviour and think twice about making a stop of a young black male in an expensive car."

Racial profiling amongst cops has been called out time and time again, and yet without consequences, the problem won't go away, she said.

"It should be professional misconduct by the police."

Caitlyn E. Kasper, staff lawyer at Toronto-based Aboriginal Legal Services, told VICE the issue isn't so much in creating new legislation but in an overhaul of recruitment, training, discipline and oversight in policing, "especially as it relates to the relationship of distrust between police and Indigenous police based in colonial traumas."

She said one solid step would be to collect across-the-board race-based data, which forces are not currently required to track.

But retired Kingston police chief Bill Closs, 71, collected that kind of data while he was on the force and he told VICE "generally speaking, police leaders and politicians didn't give a shit."

Closs spent a year having Kingston police officers write down exactly why they carded people, and he said the results—published in 2005—revealed biases based on skin colour and other factors.

"They actually told the truth of what made the citizens suspicious," he said, noting in one case an officer admitted he became suspicious of a car with two black men in the front only when two white women got into the back seat. In other case, an officer who stopped a white woman said "she was dressed like a prostitute." Closs estimates about 10 percent of a police force engages in profiling. However, when he was finished collecting carding data from his force, he said no other police force in the country wanted to hear about it, nor did any politicians.

"Police leaders, police chiefs, and police unions were absolutely opposed to it and said it wasn't necessary," he said, while politicians in Canada are too scared of pissing off police unions and leaders.

Closs, who also worked for the Office of Independent Police Review Department, an Ontario agency that deals with complaints against cops, said of the racial profiling cases "99.9 percent of all those were not guilty because it's just 'this black guy's perception, he's got no proof.'"

He is also critical of Ontario's use of force laws, saying they are easy to abuse—for example an officer can punch you or throw you to the ground for not taking your hands out of your pockets.

To address the issue, Closs said body cameras by police should be mandatory for the duration of any encounter with the public, so as not to be manipulated by officers.

"Let's say they're giving you a hard time but they're not recording you and finally when you get mad that's when they flip the button," he said, noting cops "hate the media or anybody else with a cellphone camera."

As far as diversity or unconscious bias training, he said if it's done in an accusatory way officers "shut down and don't listen."

"A racial profiling ban sounds good, looks good, but in reality changes little."

However, Morgan and Enenajor are more optimistic, and said Singh's proposal (the details of which remain to be seen) will at least bring the issue to the forefront.

"In terms of the whether or not it will amount to an actual ban on racial profiling, well, we have laws against murder, it hasn't banned murder, murder still happens," said Morgan. "So it's important to consider that no law is going to ban a practice but what it does is send a message to all of society that this is something we will not tolerate."

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