Lisa Christian is a criminal defence lawyer and former crown prosecutor, with over 30 years of experience in Ottawa. Her clients are often people with no criminal records, who find themselves in situations that could affect their employment, mobility, reputation, education, or liberty. Her website is CriminalLawInOttawa.ca
Racial profiling defined
In law, racial profiling occurs when race or racial stereotypes are used, either
consciously or unconsciously, and to any degree, in the selection or treatment of a suspect.
Legal significance of racial profiling
Even where an officer has objective grounds to stop or arrest an individual, those grounds cannot legally justify the stop or arrest if they are tainted by any degree of racial profiling.
When a stop or an arrest is unlawful, because it was tainted by racial profiling, the evidence obtained as a result of the arrest should, in law, be excluded from the trial evidence under the Canadian Charter of Rights and Freedoms. Often this means that there is no remaining evidence, or not enough evidence remaining, on which to convict. The accused must be found not guilty.
The judge’s role
Judges must understand, and then apply, the correct legal test for determining whether there was racial profiling by police. It’s a particular challenge for them because usually their job involves deciding if a witness is lying or telling the truth. And, if they appear to be truthful, their testimony is accepted as being fact. But that reasoning doesn’t hold up in racial profiling cases, and this is acknowledged by our appeal courts. Here’s why:
Usually an officer will testify that they were not motivated by racism. A judge may find that the officer appeared truthful, and was not lying or intentionally misleading the court. Indeed, the officer may believe they are testifying truthfully. However, since the attitude that underlies racial profiling may be unconsciously held, a police officer may have racially profiled an accused person without even knowing it. Their testimony rings true but it is false when examined in the context of other evidence, which may be circumstantial. In that case, the judge must reject the evidence of the officer as being untrue, and find that racial profiling existed.
The treatment of racial profiling in Canada is an example of how law can be about exceptions to the rule, and evolving societal understandings and beliefs.
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