Racism in policing: arbitrary detention of racial minorities by the police
Date Updated: July 24, 2020
Written By: Ravi Prithipaul (Alberta Criminal Defence Lawyer)
Summary
Racism is an unfortunate fact of life but it becomes especially insidious in all aspects of criminal justice. We are currently witnessing in the United States of America how police brutality can manifest itself in racist environments with devastating consequences for blacks, Hispanics, and Native Americans. Canadians are also becoming increasingly conscious of the abuse of police power vis-à-vis minorities, particularly aboriginals and members of racially distinct groups. Our criminal justice system needs to respond more forcefully to complaints that police interactions with members of First Nations and visible minorities too often result in escalation, confrontation, bodily harm, and even death.
Detailed Law Breakdown
In Canada, the legal framework within which these issues are analyzed includes section 9 of the Canadian Charter of Rights and Freedoms, which states: “Everyone has the right not to be arbitrarily detained or imprisoned”. In 2019, the Supreme Court of Canada issued an important judgment which considered section 9 in the context of the arrest in Toronto of one Mr. Le, a man of Asian descent.
In R. v. Le, [2019] S.C.J. No. 34, three police officers noticed four young Black men and one Asian man, Mr. Le, in the backyard of a townhouse at a Toronto housing co-operative. The men did not appear to be doing anything wrong. The backyard was enclosed by a fence. Two officers entered the backyard and began questioning the young men about what was going on and required them to produce identification. Mr. Le responded that he did not have proof of identity, at which point an officer asked him what was in the satchel he was carrying. Le fled, was pursued and arrested, and found to be in possession of a firearm, drugs and cash.
At trial and at his first level of appeal, Mr. Le tried to argue that the police had no right to detain him and that the evidence the police found should be excluded. The argument failed, he was convicted, and the Ontario Court of Appeal upheld the conviction. The Supreme Court of Canada, however, allowed Le’s appeal and entered acquittals. What is notable about the Supreme Court’s judgment is the recognition that Mr. Le’s status as a member of a racial minority would inevitably affect his perception that the police had indeed “detained” him when asking him for identification: “An important consideration when assessing when a detention occurred is that Mr. Le is a member of a racialized community in Canada. Binnie J. in Grant found that ‘visible minorities who may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive’”.
Thoughts from a Criminal Lawyer’s Perspective
At the moment, news stories are plentiful about the mistreatment of Native Canadians and minorities at the hands of the police. Natives, who occupied the Americas long before the arrival of settlers of European descent, have experienced colonialism’s brutal legacy: displacement from their lands, alienation from their culture, physical and sexual abuse, racism, addiction, residential schooling, poverty, long-lasting intergenerational trauma, in short, cultural genocide. Over-representation of aboriginals in Canada’s prisons is notorious.
But it must not be forgotten that racism appears at the front end of the criminal justice system. “Carding” is the police practice of conducting street checks on persons who tend to be poor, marginalized, and racially distinct from mainstream society. Policing in this manner virtually creates criminality because it reinforces perceptions of powerlessness and vulnerability and often leads to confrontational or avoidant behaviour. The Supreme Court in Le said this of carding:
The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities (Tulloch Report, at p. 42). Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization…
The Le decision is an important judgment that builds on earlier decisions of the Supreme Court which stress the need for a heightened sensitivity to the concerns of racial minorities who come into contact with the police. Racial discrimination is a corrosive force in our world. We need to stop denying that racism is systemic: it visible everywhere if only we open our eyes. Criminal justice reform can only come about when we accept that reality and take concrete steps to identify racist tendencies, whether conscious or inadvertent, and stop them from impacting law enforcement and judicial decisions.
Ravi Prithipaul, Q.C. is himself a visible minority. His learning and experience as a criminal defence lawyer of nearly thirty years’ experience makes him an invaluable ally to those who are treated unjustly. If you or a loved one has concerns about the fairness of an arrest, find out if the police acted legally and within the scope of their lawful authority. Contact Mr. Prithipaul at 780 705 7737 or through his website: www.prithilaw.com.
Last modified: July 27, 2020
