The Broad Power to Search: A Racial Profiling Veil

by: Renée E.M. Gregor, Associate

As Professor Tanovich states in his oft-cited text, “The colour of justice in Canada is white”.[1]  In Ontario specifically, our courts and jails are plagued by a vast over-representation of black males in the South and Indigenous males in the North.

The GTA is no stranger to the targeting of marginalized individuals in law enforcement practices.  A black individual faces a far greater chance of arousing the suspicions of police than someone who is white.   This is because racism in our society exists in a multi-faceted domain that encompasses conscious and sub-conscious realms.  The former is simplistically coined ‘overt racism’, which is, inherently, purposefully harmful.  The latter speaks to the presence of inadvertent, or concealed, beliefs of bias towards marginalized groups.

Sub-conscious racism provides a far greater threat to our criminal justice system because of its strong ability to lurk undetected in the shadows of legislation.  The evidentiary requirements of proving a non-overt racial profiling claim against the police in criminal proceedings can be challenging indeed.  For this reason, we must know where to look and scrutinize our evidentiary foundations with a fine-tooth-comb to ascertain whether suspicions of racial profiling are realistically aroused.

The majority of racial profiling cases involve a search.  Unfortunately, broadly drafted legislation authorizing the search of vehicles, vessels, and people can serve as a convenient mask for police engaged in racialized targeting.

The Liquor Licence Act, for example, dictates that no person shall have alcohol in a vehicle[2] unless it contains an unbroken seal or is packaged in a bag that is fastened closed or not otherwise readily available to any person in the vehicle.[3]   A police officer that has reasonable grounds to believe that alcohol is being unlawfully kept in a vehicle may, at any time, without a warrant, enter the vehicle and conduct a search of the vehicle and all of its passengers.[4]

Similarly, the Cannabis Control Act makes it illegal to operate a vehicle or boat that contains marijuana[5] unless it is in its unopened original packaging, packaged in a closed bag, or is not otherwise readily available to any person.[6]  A police officer that has reasonable grounds to believe that cannabis is being unlawfully kept in a vehicle or boat can search that vehicle or boat and any person located within.

The danger with such permissive legislation is that it allows the police to utilize its contents as a ruse to conduct targeted investigations for greater criminal activity.

Law enforcement officials need only surpass a small access threshold before the flood gates open to allow for a strategized ‘fishing expedition’; the primary purpose of which is to uncover evidence of greater crimes (most commonly drug and gun offences).

Police officers routinely patrol locations that are known to them to be ‘high crime’ areas and set-up surreptitious surveillance.   Marginalized communities almost always predominantly populate these targeted areas in the GTA.   In conducting such surveillance, police need only see an empty beer can in a car or smell marijuana before they are granted access to a vehicle and its patrons at large.   Externally, police are able to dub their investigation a “Liquor Licence Act Search”, but at its core that label is a gimmick to conceal an oblique motive that is driven, at its forefront, by a racist ideology that certain individuals are more likely than others to commit crimes.

Racially marginalized individuals in our communities are a vulnerable population.  For this reason, it is important that Parliament, when drafting legislation, be particularly mindful of the ways in which their laws can potentially make vulnerable groups increasingly prone to unlawful attacks on their personal autonomy and privacy.   Broadly drafted enforcement legislation serves as a vehicle for the perpetuation of both overt and sub-conscious racism; the existence of which is toxic to our criminal justice system and, ultimately, our society at large.

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[1] The Colour of Justice: Policing Race in Canada, (Irwin Law: Toronto, 2006)

[1] s. 32(1)

[1] s. 32(2)

[1]  s. 32(5)

[1]  s. 12(1)

[1]  s. 12(2)