Substantive Nature of Law in regard to Racial Profiling within Canada’s Policing System

Posted: December 22nd, 2022

Substantive Nature of Law in regard to Racial Profiling within Canada’s Policing System

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Substantive Nature of Law in regard to Racial Profiling within Canada’s Policing System

Introduction

Racial profiling has been a major subject of concern across Canada and its neighboring United States. Numerous, cities, provinces and social campaigners have studied how race and ethnicity influences police arrests, shootings, and investigations (Cochran & Warren, 2012). Racial prejudice has been a subject of national concern for many years, triggering debates and controversy across media platforms, especially regarding the handling of crime suspects by police. However, a racial and criminal profiling differs significantly. Racial profiling is not limited to country or race, but can happen to individuals of any gender or race regardless of their nation of residence.

In the period between 2000 and 2017, Canada recorded approximately 460 fatal interactions between police and civilians (Kim, 2019). This problem worsened due to the lack of an integrated data depository to account for the violent altercations. This issue also portrays the lack of liability among the Canadian police agencies as they bear the sole capacity to gather and constantly release the vital information to the public domain, yet they opt for the contrary.

Fig. 1

As depicted in Figure 1 above, during the 17-year duration, the mean number of interactions violent interactions between the police and civilians was 25 with the year 2016 recording an a peak in police-induced fatalities of 40  in 2016 (Kim, 2019). According to a report by CBC, Toronto tops the list of police violence hotspots with 52 reported cases, followed by Montreal with 26, Edmonton and Vancouver tied at 23, and Calgary at 19. These statistics represented cities with the highest police and civilian populations in Canada.

Background Information

Toronto has experienced an upsurge in the number of newspaper articles and television reports condemning the Toronto Police Service (TPS) for universal racism and ethnic discrimination. In addition, numerous grievances have been filed with the Ontario Human Rights Commission blaming the members of the Toronto Police Service of racial prejudice. According to reports released by Ontario’s police watchdog Special Investigations Unit (SIU), while Toronto’s population comprised only 8.8% of blacks as at 2016, seven out of ten fatal shooting incidences by police involved blacks (Kim, 2019). The report also revealed that police shooting victims of African-descent had a lower likelihood of bearing weapons, less probable to have accosted police, and a fifty percent less probability of carrying a gun during the confrontations.

Fig. 2

Comparatively, the police use much less force against Caucasian Canadians –including armed and dangerous criminals-. As shown in Figure 2, 62 percent of white accused persons reportedly accosted or endangered the lives of police officers as opposed to 44 percent of accused blacks (Kim, 2019). Moreover, 67 percent of black individuals in SIU cases lacked ammunition at the time of the violent encounters with the police. In lethal shooting incidences, the whites comprised 20 percent as compared to 11 percent of blacks who accosted a police officer. These statistics reveal the disproportionate response that police in Canada accords to the different racial and ethnic groups.

How The CPS’s Racial Profiling Presents the Substantive Nature of Law in Action

The substantive nature of law stipulates that some actions are correct for all places and time, whereas others are constantly incorrect. Therefore, in no instance should two individuals vary when involved or responding to similar circumstances unless they had chosen to act irrationally (Gray, 2016). Since this state appears to be intuitive, and is universalistic, egotistical, and absolutistic, I will apply Linguistic examination and cultural anthropology in placing this theory in a practical context.

Law enforcement agencies have historically been authorized and mandated with the role of lawfully and efficiently carrying out activities such as averting crime, upholding order, and law implementation. According to Crank (2011), the expressed and implied authority to practice discretion in prohibiting crime, leading to criminal profiling decisions, accompanies these roles. Initially, psychologists and criminologists devised profiling approaches to aid in linking witnesses, victims, and perpetrators to crimes. In this regard, profiling helped in equipping law enforcers with the requisite investigative information and instruments to solve crimes and apprehend culprits. The criminal analysis normally entailed physical features, social grouping, as well as criminal or social linkages. Despite being an acceptable and somewhat effective approach, profiling contradicts the substantive nature of law. This is a case of relative morality since criminologists and psychologists warn that racial profiling may not be convenient for solving all crimes Therefore, employing  profiling substitute improved investigation practices may be counterproductive to the administration of justice.

Substantive natural law derives from universal morality (M-1). It has nothing to do with verbal inaccuracy or over-hypothesizing. According to the substantive natural law, there are various inborn liberties and obligations endowed to human beings. Some actions such as theft, murder, cheating, and torture contravene rules associated with just system (Gray, 2016). However, legal scholars deem this viewpoint arrogant and outdated for its lack of values. Furthermore, critics deem it as preceding and constraining the legal system. It is, thereby regarded to be undemocratic since a majoritarian parliamentary system may pass laws that undermine the natural law. Cicero believes that they do not deserve to be termed as laws and or obeyed by people, unless they are being compelled (Crank, 2011). Cicero gives an illustration of Lucretia’s rape incident and its illegality despite the absence of laws prohibiting rape in Rome.

Cases of Substantive Nature of Law

Castillo v. Castillo

A California couple was got into a car accident within the state. The wife filed a case against her husband in Alberta since the couple resided in that province. However, the case was filed inside the province’s two-year confines duration but after the lapse of the lapse of California one-year limitations duration. The husband’s argument was that the case ought to be discharged on grounds of being statute-barred, but the wife’s argument was that under Alberta’s Limitations Act, s.12, the two-year restrictions duration was applicable regardless of the expiration of California’s one-year restrictions duration.  According to section 12, the Province’s limitations law ought to be applied in case a corrective order is required in this Province, although, based on conflict of law regulations, the adjudication of the claim will occur under another jurisdiction’s substantive law. The wife’s deed was dismissed by The Court of Queen’s Bench as having been barred by statute under the California law. The court held that for the action to be held under s.12 of Alberta law, neither limitation duration should have lapsed before the beginning of the action. The ruling was upheld by the Court of Appeal.  

Unnecessary stops, Questioning, and Searching

In classic case of racial profiling  presented at the Court of Justice in Ontario in 2015, a black defendnat described his traffic stoppage as being “verbally abusive” and “aggressive” (Ontario Human Rights Commission, 2018). In the incident, two TPS officers stopped the individual past midnight for supposedly bypassing a red light prior to making a left turn into a laneway where the cops pulled him over. He was accused of declining to offer a sample of his breath in addition to a break of probationary terms. However, the court cleared the defendant on grounds that the police had grossly his Charter rights.

By use of a dashcam video as evidence, the Court determined that the officers employed the Highway Traffic Act halt as an “excuse” to undertake additional examination. The violation illegitimated what was initially a lawful confinement. In the video presented in court, one agent bashed the window of the man’s car while shouting at him to unlock the door (Higgins, Vito, & Grossi, 2012). The second officer instructed him to step out of the car as it was a “high drug zone” and intimidated that he would forcefully eject him through the co-driver window. The two agents did not request for his papers, and neither did they accept them when offered. Maintaining a calm, collected, and polite demeanor, the defendant reminded the officers that they ought to issue a ticket highlighting his supposed offence. At a certain point, both the agents walked off from his car only to return after a while with accusations from the female officer that the stench of alcohol was prevalent, albeit with the window still shut. Though the driver declined to issue a breath sample, no drugs or weapons were obtained in his car.

The court was upset by the fact that the agents justified their conducts due to the zone of the stop. The officers’ conduct violated the cardinal principle of law that, every person is eligible to impartial treatment in law. The conduct also disregarded the universal validity in the substantive law of nature by exposing the defendant to unfair or austere police harassment based on stereotypical assumptions that all people in a specific area must engage in, or be linked to criminal action in the region (Higgins, Vito, & Grossi, 2012). Persons under investigation should be treated impartially, irrespective of the notoriety, affluence, or crime level of the neighborhood of the crime scene. Under the substantive law of nature, racial discrimination is morally wrong in all circumstances.

Excessive Force

There are also documented instances of racial discrimination among TPS officers through use of excessive force. In a 2011 case the Ontario Superior Court of Justice determined that the litigant named Elmardy, was given a blow on the face and vigorously controlled because of his dark complexion (Jones, 2017). The prejudiced stop was followed by forceful action.

In September of 2016, a cheek stabbing of a man during a restaurant brawl in downtown Toronto led to the capture of a suspect. After his capture, his hands were cuffed and he was thrown to the boot of the cruiser, a dashcam focused in-car documented how he was pepper sprayed by a TPS officer (Legewie, 2016). The same officer also struck him severally with his button causing lacerations to his face. Responding to the incident, the Ontario Court of Justice concluded that the officer had applied undue vigor. The filmed evidence depicted concise “police brutality” since the facial assaults lacked justification towards accomplishing the capture and was against the substantive nature of law, which categorizes violence against any person, regardless of their race, as universally invalid (Legewie, 2016). The court further condemned police assault, c and pelting intimidations and substantial injury to the accused as an unwarranted abuse of lawful authority even if the accused had possession of narcotics and a knife at the time of arrest.

Arguments in Support of the Ontario Human Rights Report

According to the Ontario Human Rights Commission, racial profiling is “any undertaking for purposes of security, safety, or public protection based on labels such as ethnicity, race, religion, color, ancestry, or domicile of origin, or a blend of these, as opposed to a rational suspicion, to isolate a person for increased inspection or biased action” (Doolittle, 2009). The scope of this definition by far surpasses the one applied by courts, “the exercise of aiming racial factions for criminal scrutiny only or, partly, based on their complexion” (Doolittle, 2009). The broad racial discrimination definition by the Ontario Human Rights Commission leaves little leeway for racial or ethnic application of the law, as doing so would amount to legally sanctioning racial discrimination.

In the decision by the Ontario Human Rights Tribunal regarding a racial prejudice case filed by Ron Phipps against the TPS, the judge held , “In this case, similar to others related to racial discrimination, no direct evidence suggests that race influenced the officer’s resolution to undertake the ensuing actions” (Hayle, Wortley, & Tanner, 2016). However, this statement did not absolve the TPS officer from guilt as proven by this statement: “I conclude that Michael Shaw prejudiced against the plaintiff on March 9, 2005” (Hayle, Wortley, & Tanner, 2016). In this instance, the adjudicator employed circumstantial evidence as opposed to distinctive evidence in her verdict to find culpability. TPS’s Chief Blair claims that the verdict set “an intolerably high standard” and “regardless of an officer’s good intentions and high level of impartiality, none of it matters if an individual clings to the misconception that they are biased” (Hayle, Wortley, & Tanner, 2016).

In articles protesting against racial prejudice, media companies such as the Toronto Star Newspaper employed experiential data obtained from the Toronto Police Service’s CIPS database to examine 480,000 files associated with traffic stops and arrests. The report concluded that, “Harsh treatment is meted on Blacks arrested by Toronto Police compared to their white counterparts. Additionally, a disparate number of black drivers are given tickets for violations that is only identified after a traffic stop” (Ontario Human Rights Commission, 2018). According to most criminologists, civil rights activists, and community leaders, these discrepancies provide sufficient proof that police employ racial discrimination in establishing whom to stop. The report concludes that the number of apprehensions and tickets granted to blacks are inconsistent with the number granted to the white Toronto residents.

Minorities and social groups advance their privileges regarding methodical racial prejudice by the TPS by applying recent verdicts by Ontario’s Human Rights despite a deficiency of racial statistical data gathered by TPS. On June 18^th, 2009, Ontario’s Human Rights Tribunal ruled on a case involving a couple of TPS officials and a Canada Post letter carrier of African descent (Pickerill, Mosher, & Pratt, 2009). The pronouncement of the tribunal concluded that a white police officer racially prejudiced Ron Phipps. In her submission, the adjudicator indicated, “I judge that Michael Shaw victimized the plaintiff on March 9, 2005 according to the police service provisions on the grounds of color, against section 1 and 9 of the Code” (Pickerill, Mosher, & Pratt, 2009).

Various support groups in Canada further accuse the TPS of racial prejudice due to the TPS failure to employ race-based statistics. In their view, this affirms that, “there is an eminent fear that the only aim of the Police Board in contradiction of the data release is to guarantee that the public is not well-updated regarding racial profiling data” (Hayes, 2018).

Criticism of the Ontario Human Rights Commission Report

Despite providing a comprehensive overview of the state of racial and ethnic profiling in Canadian law enforcement, critics have found various inconsistencies in the conclusions of Toronto Star article. For instance, they contend that whereas the newspaper collected data through the CIPS database, the source only entailed files associated to apprehensions and traffic tickets dispensed to individuals (Miller, 2013). The downside of employing this single source is the fact that it fails to consider the number of individuals investigated by police devoid of apprehensions and ticket issuance. This would misrepresent the actual number of motorists stopped by police, distorting the newspaper’s conclusions by either imposing their allegations of systematic racial prejudice by TPS or invalidating it. Allan Gold (2003) also disagrees with the data collection techniques employed by the Toronto Star by highlighting the discrepancy between responsive and active policing. According to Gold, responsive policing could relate to allegations of racial prejudice whereas active policing will not. Regarding data collection, the newspaper employs both policing styles hence resulting in faulty conclusions.

Gold also disapproves the application of overall census numbers by Toronto Star in its data evaluation as well as the newspaper’s claim that it adopted a renowned baseline standard (2003). Gold further contends that no reliable researcher would employ general census figures and actually, the American literature on racial prejudice clearly underscores the application of the overall census as a standard as being a useless endeavor. He additionally notes that the development of the benchmark is critical and as such, the article by Toronto star ought to be disregarded.

In the latest Progressive Conservative leadership campaign, two Ontario Legislatures namely; Tim Hudak and Randy Hillier proposed the reconstitution of the Ontario Human Rights Tribunal claiming the dysfunctionality of the existing system (Hayes, 2018). Additionally, they proposed the adoption of an evidence based system that replicates the domestic court scheme as opposed to a scheme grounded on “hurt feelings”.

How Racial Profiling within the TPS can be used to educate the Public about the Rule of Law

Of critical importance is to reconsider racial prejudice through the criminal profiling perspective and diminish race to the part that it supposedly takes up in racial prejudice, that is, a prognostic element. Therefore, there is the argument that race should be treated in the same way as age, gender, age, or any other functional profile. This implies withdrawing the attention from race and associates it more generally with criminal profiling (Warren & Tomaskovic‐Devey, 2009). Trying to understand racial discrimination in the context of criminal profiling lays more emphasis on the ethical and moral standards of police practices. The paper will closely assess racial-based prejudice allegations touching on the Toronto Police Service to establish whether the service engages in methodical racial discrimination but rather in methodical criminal prejudice.

In reaction to the claims of ethnic discrimination on grounds of non-publications of statistics that are ethnic-oriented, the meaning of racial prejudice is not associated with the action of a law implementation officer tracking an assailant in which his exact portrayal entails ethnicity or race coupled with other classifying aspects. The phrase “racial discrimination” has widespread definitions and does not contain a globally acknowledged definition. Legewie (2016) believes that more research and data collection should be undertaken by law enforcement agencies, and warns that continued inaction will “guarantee that the problem of racial prejudice remains to haunt police forces into the unforeseen future” (Legewie, 2016). The Canadian public should be aware of the rule defining the substantive nature of law to understand the actions of people such as officers of the TPS. Under the =substantive rule of law, people are expected to apply relative morality when enforcing the law. The TPS officers are fully aware of the illegality of racial prejudice but they have grown up with the notion that social and racial classes are a moral aspect of the society that cannot be disregarded in the administration of justice.

References

Cochran, J. C., & Warren, P. Y. (2012). Racial, ethnic, and gender differences in perceptions of the police: The salience of officer race within the context of racial profiling. Journal of Contemporary Criminal Justice, 28(2), 206-227.

Crank, J. P. (2011). Scholarly debate on racial profiling: To what end? Canadian Journal of Criminology and Criminal Justice, 53(1), 79-85.

Doolittle, R. (2009, September 30). Racial bias exists on police force, chief says. Toronto (Ontario) The Toronto Star. Retrieved from http://www.thestar.com/article/703076.

Gold, A. D. (2003). Media hype, racial profiling, and good science. Canadian Journal of Criminology and Criminal Justice, 45 (3), 391-399.

Gray, J.M. (2016). The White Angel. Boston: Douglas and McIntyre.

Hayes, M. (2018, December 10). Black people more likely to be injured or killed by Toronto Police officers, report finds. The Globe and Mail. Obtained from: https://www.theglobeandmail.com/canada/toronto/article-report-reveals-racial-disparities-in-toronto-polices-use-of-force/ (Accessed 22 Nov. 2019).

Hayle, S., Wortley, S., & Tanner, J. (2016). Race, street life, and policing: Implications for racial profiling. Canadian Journal of Criminology and Criminal Justice, 58(3), 322-353.

Higgins, G. E., Vito, G. F., & Grossi, E. L. (2012). The impact of race on the police decision to search during a traffic stop: A focal concerns theory perspective. Journal of Contemporary Criminal Justice, 28(2), 166-183.

Jones, J.M. (2017). Killing Fields: Explaining Police Violence against Persons of Color, Journal of Social Issues, 73 (4), 872-883.

Kim, P. (2019, March 18). 17 years of police violence in Canada. PIVOT. Obtained from: http://www.pivotlegal.org/17_years_of_police_violence_in_canada (Accessed 22 Nov. 2019).

Legewie, J. (2016). Racial profiling and use of force in police stops: How local events trigger periods of increased discrimination. American Journal of Sociology, 122(2), 379-424.

Miller, K. (2013). The institutionalization of racial profiling policy: An examination of antiprofiling policy adoption among large law enforcement agencies. Crime & delinquency, 59(1), 32-58.

Novak, K. J., & Chamlin, M. B. (2012). Racial threat, suspicion, and police behavior: The impact of race and place in traffic enforcement. Crime & Delinquency, 58(2), 275-300.

Ontario Human Rights Commission (2018). A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service. Obtained from: http://www.ohrc.on.ca/en/public-interest-inquiry-racial-profiling-and-discrimination-toronto-police-service/collective-impact-interim-report-inquiry-racial-profiling-and-racial-discrimination-black (Accessed 22 November 2019).

Pickerill, J. M., Mosher, C., & Pratt, T. (2009). Search and seizure, racial profiling, and traffic stops: A disparate impact framework. Law & Policy, 31(1), 1-30.

Warren, P. Y., & Tomaskovic‐Devey, D. (2009). Racial profiling and searches: Did the politics of racial profiling change police behavior? Criminology & Public Policy, 8(2), 343-369.