Adeline Adkinson: Supreme Court of Canada Lastly Deals With Racial Profiling by Police

By: Meryl Friedland

PDF Version: Supreme Court of Canada Finally Addresses Racial Profiling by Police

Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

As a criminal defence lawyer I represent racialized accused persons and am keenly aware that my clients get stopped and searched by police for things that I would never be given a second glance for. I have no safety concerns when I get stopped for speeding; my clients can’t always say the same. I am a White person, with all the systemic privilege this status grants me. For this justice system to change, all participants have to work to rebuild it. In the courts, it can’t fall only to my racialized colleagues to stand up against racial profiling and other manifestations of systemic racism. We all have a part to play in continuing to build a more equitable society.

In this post, I will focus largely on Le, a Supreme Court of Canada decision that may provide an impetus for the change needed to end discriminatory practices such as racial profiling embedded in the justice system. Racial profiling occurs by police when an officer, consciously or unconsciously, subjects a person to heightened scrutiny or differential treatment based on racist stereotype, rather than reasonable grounds or suspicion (Le at paras 76-78). Both Le and Ahmad reference and call out racial profiling as an unacceptable policing practice that leads to improper and impermissible uses of state power. Defence lawyers, academics, and most importantly those impacted by it have cried out about racial profiling for years with little success before the courts. Now, our highest court has weighed in.

R v Le and Arbitrary Detention

In Le, the Supreme Court of Canada repeatedly called out racism and ultimately overturned a conviction that came as a result of police violations of Mr. Le’s rights under the Canadian Charter of Rights and Freedoms.

This post may be cited as: Meryl Friedland, “Supreme Court of Canada Finally Addresses Racial Profiling by Police” (June 26, 2020), online: ABlawg, http://ablawg.ca/wp-content/uploads/2020/06/Blog_MF_RacialProfiling.pdf

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