Doing Away with Racial Profiling in Policing Without Doing Away with the Rule of Law

Authors

François Tanguay-Renaud, Osgoode Hall Law School of York University

Author ORCID Identifier

François Tanguay-Renaud: 0009-0001-0257-5153

Document Type

Special Symposium on Policing, Racial Profiling, and the Canadian Charter of Rights and Freedoms

Abstract

Since the turn of the millennium, Canadian appellate courts have been investing increasingly systematic efforts in demystifying and curtailing racial profiling in policing. These judicial efforts have so far been focused on the application of the legal criteria for arrest and detention as well as their regulation under section 9 of the Canadian Charter of Rights and Freedoms. In this article, I contend that this unidimensional approach is unsound and outline a corrective path forward. First, I argue that the prevailing judicial understanding of what racial profiling is and how it affects the lawfulness of arrests and detentions has the paradoxical effect of undercutting the rule of law, the advancement of which is the very purpose of section 9. It chiefly does so by requiring an overbroad range of arrests and detentions to be declared unlawful. Second, I contend that the current approach also fails to address racial profiling for the core wrong that it constitutes—namely, wrongful discrimination on the ground of race, which section 15 of the Charter expressly prohibits. I make the case that addressing the phenomenon under this complementary paradigm would make it possible for courts to censure and remedy arrests and detentions tainted by it even when, for rule-of-law-related reasons, they should not be declared unlawful. Thus, it would offer courts the ability to thread a more careful and complementary remedial needle. Finally, I raise the possibility of a third paradigm—that of judicial stays of proceedings for abuses of process—to help address cases that the other two paradigms are ill-suited to redress.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Tanguay-Renaud, François. "Doing Away with Racial Profiling in Policing Without Doing Away with the Rule of Law." Osgoode Hall Law Journal 62.1 (2025) : 309-363.
DOI: https://doi.org/10.60082/2817-5069.4102
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss1/8

References

1. Associate Professor, Osgoode Hall Law School, York University, Toronto. I wish to thank Sandrine Ampleman-Tremblay, Benjamin Berger, Vincent Chiao, Benjamin Ewing, Stephen Galoob, Ugo Gilbert-Tremblay, Tarunabh Khaitan, Sonia Lawrence, Gabriel Lefebvre, Eric Miller, Jennifer Nadler, Palma Paciocco, Sylvia Rich, Anthony Sangiuliano, and Terry Skolnik for helpful comments and discussions, as well as anonymous reviewers who provided insightful feedback. I also thank Jordana Borzellino for her research assistance.

2. The ONCA started to take explicit cognizance of the phenomenon of racial profiling in policing cases. See e.g. Brown v Regional Municipality of Durham Police Service Board, 1998 CanLII 7198 (ONCA) [Durham]; R v Richards, 1999 CanLII 1602 (ONCA) [Richards]. The SCC did not mention the phenomenon explicitly until 2008. See R v AM, 2008 SCC 19 at para 80 [AM]. The SCC then waited until 2015 to circumscribe it more clearly. See Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39 at para 33 [Bombardier].

3. The ONCA is not the only provincial court of appeal to have grappled with racial profiling in policing. However, when so doing, other courts have tended to defer to its pronouncements along with those of the SCC. See especially R v Ali, 2023 SKCA 127 at paras 49-54 [Ali]. For one salient exception from a recent decision of the Court of Appeal of Quebec, see Procureur général du Québec c Luamba, 2024 QCCA 1387 (leave to appeal to the SCC granted in Quebec (Attorney General) v Joseph-Christopher Luamba et al, 2025 CanLII 38363 (SCC)) [Luamba]. There, the QCCA addresses further dimensions of the issue related to the specific context of roving random traffic stop powers. Where relevant, I will also address this decision.

4. R v Brown, 2003 CanLII 52142 at para 9 (ONCA) [Brown].

5. Peart v Peel Regional Police Services, 2006 CanLII 37566 at para 94 (ONCA), leave to appeal to SCC refused, 2007 CanLII 10553 (SCC) [Peart]. Four judges of the SCC specifically endorse this passage in their dissent in R v Ahmad. See R v Ahmad, 2020 SCC 11 at para 169 [Ahmad].

6. Peart, supra note 5 at para 91.

7. Section 9, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The SCC has also explicitly discussed the problem of racial profiling in policing in the context of its elaboration of the doctrine of entrapment. See Ahmad, supra note 5 at paras 25, 28, 41 (majority) and 154, 157, 161, 164, 168-69, 172 (dissent). The Court has also spoken to the problem of discriminatory breaches of privacy interests in the context of search and seizure based on profiling. See R v Chehil, 2013 SCC 49 at paras 20, 25, 30, 39, 43 [Chehil]. However, the bulk of the judicial attention so far has been dedicated to arrest and detention. While I focus on arrest and detention in this article, many of my remarks are also applicable to these other contexts, mutatis mutandis, given the similar legal standards that regulate them.

8. 2019 SCC 34 at para 76 [Le].

9. The focal issue in Le was “the place and purpose of race as a consideration in the detention analysis” under s 9 of the Charter. The Court discusses racial profiling to distinguish it from that distinct issue. Ibid at para 74.

10. The ONCA explicitly adopts the Le definition of racial profiling in R v Dudhi. See R v Dudhi, 2019 ONCA 665 at para 54 [Dudhi]. See also R v Sitladeen, 2021 ONCA 303 at paras 50-51 [Sitladeen]. For prior yet similar definitions, see notably Brown, supra note 4 at paras 7-8 and Peart, supra note 5 at para 90.

11. Supra note 5 at para 93.

12. Ibid.

13. See Dudhi, supra note 10 at paras 54-55.

14. Ibid at para 55.

15. Ibid.

16. See notably Chris Rudnicki, “Implicit Bias and Racial Profiling: Why R. v. Dudhi’s Novel ‘Attitudinal Component’ Imposes an Unjustifiable Burden on Claimants” (2020) 68 Crim LQ 410 at 419.

17. Supra note 4 at para 8.

18. See Sitladeen, supra note 10 at para 43. The majority further relies on the Ontario Human Rights Commission report to endorse the possibility of “unconscious bias, where a person either does not recognize, or does not acknowledge his own bias” (ibid at para 49). For the Ontario Human Rights Commission report, see Policy on eliminating racial profiling in law enforcement (Ontario Human Rights Commission, 2019) at 27.

19. I survey key aspects of this literature in Part IV(A)(1), below.

20. Ahmad, supra note 5 at para 25.

21. Supra note 3 at para 51 [emphasis in original].

22. Ibid at para 95.

23. Supra note 3 at para 67.

24. Supra note 2 at para 24. In Durham, a precursor to the racial profiling cases of the ONCA and decided around the same time as Richards, Justice Doherty also affirms that officers “who select persons to be stopped based on their sex or colour […] act for an improper purpose.” See Durham, supra note 2 at 21.

25. Supra note 2 at para 33. This definition is reiterated in Le, supra note 8 at para 77.

26. See e.g. Montana Code Annotated § 44-2-117(1), online: archive.legmt.gov/bills/mca/title_0440/chapter_0020/part_0010/section_0170/0440-0020-0010-0170.html [perma.cc/D63M-W6HV]. Montana Code Annotated § 44-2-117(1) prohibits racial profiling by law enforcement, stating:

A peace officer may not engage in racial profiling.

The race or ethnicity of an individual may not be the sole factor in:

determining the existence of probable cause to take into custody or arrest an individual; or

constituting a particularized suspicion that an offense has been or is being committed in order to justify the detention of an individual or the investigatory stop of a motor vehicle (ibid).

See also Texas Code of Criminal Procedure, art 2B.051(2), online (pdf): statutes.capitol.texas.gov/docs/sdocs/codeofcriminalprocedure.pdf [perma.cc/T6F3-9GFN] (“‘Racial profiling’ means a law enforcement-initiated action based on an individual’s race, ethnicity, or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in criminal activity”).

27. Supra note 10 at para 62 [emphasis omitted].

28. Supra note 8 at para 76.

29. Ibid at para 76 [emphasis added].

30. Dudhi, supra note 10 at paras 55, 62.

31. Ibid at para 65, citing Peart, supra note 5 at paras 91, 93.

32. Dudhi, supra note 10 at para 65.

33. Ibid at para 62.

34. But see Luamba, supra note 3. That decision focuses on the legal criteria for detention (or lack thereof) in the context of random traffic stops (discussed in Parts III(B)(2) and IV(A), below). See also Shaw v Phipps, 2012 ONCA 155 [Shaw]. In Shaw, the ONCA addresses racial profiling in policing in the context of the judicial review of human rights tribunal decisions.

35. Dudhi, supra note 10 at para 62.

36. Ibid.

37. Criminal Code, RSC 1985, c C-46, s 495(1)(a) [Criminal Code]. Applications for arrest warrants are governed by a similar standard (ibid, ss 504, 507).

38. 1990 CanLII 125 at 250-51 (SCC) [Storrey]. At the time, the said section of the Criminal Code was numbered as s 450(1)(a).

39. Ibid. While the language of “reasonable and probable grounds” has since been simplified to “reasonable grounds” in the Criminal Code, the two expressions have been held to have the same meaning. See R v Loewen, 2011 SCC 21 at para 5.

40. 2004 SCC 52 at paras 34-35 [Mann].

41. AM, supra note 2 at para 80.

42. Chehil, supra note 7 at para 26. See also Mann, supra note 40 at paras 27-33.

43. Supra note 8 at para 78.

44. Supra note 10 at para 63.

45. See R v Grant, 2009 SCC 32 at 54-56 [Grant]; Le, supra note 8 at para 124.

46. Supra note 8 at para 78.

47. Supra note 2 at para 33 [emphasis omitted and added].

48. Supra note 10 at para 59. Justice Paciocco makes this pronouncement despite the (admittedly perplexing) fact that the Le majority reproduces the Bombardier definition after having asserted its more extensive account.

49. Sitladeen, supra note 10 at para 52.

50. Supra note 38 at 251-52. See also Ali, supra note 3 at para 49; Luamba, supra note 3 at para 68.

51. Supra note 10 at para 64 [emphasis omitted].

52. Ibid at para 62. He further notes: “In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be ‘based on’ race or racial stereotypes” [emphasis omitted].

53. Supra note 7 at para 30. Whereas Chehil was a case concerned with police powers of search and seizure, the Court’s comments on the standard of reasonable suspicion are more generally applicable.

54. Ibid at paras 30, 47. See also Mann, supra note 40 at para 30; R v Stairs, 2022 SCC 11 at paras 66-67.

55. When I speak of overbreadth in this article, I use the word in its ordinary sense—akin to over-inclusiveness—and not to refer to any specific legal or constitutional doctrine.

56. Supra note 7, s 9.

57. See Grant, supra note 45 and accompanying text; Le, supra note 8 at para 124.

58. See Le, supra note 8 at para 78. The majority sanctions this reasoning when it affirms that “racial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion.”

59. I dissect and defend this claim at length in other work. See François Tanguay-Renaud, “Section 9 of the Canadian Charter and Arbitrary Laws: A Taxonomy, An Organizational Ideal, and a Path Forward” (2024) 57 UBC L Rev 167 at 192-217, DOI: https://doi.org/10.2139/ssrn.4982373. To be sure, according to the SCC, the purpose of s 9 is to protect individual liberty against unjustifed qua arbitrary interferences. Thus, the Court has insisted, “[t]his guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law.” See Grant, supra note 45 at paras 20-21, 54; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 88. As I argued in the aforementioned article, the Court has interpreted this last clause to mean that, to pass s 9 muster, detentions must be in accordance with laws that are themselves not arbitrary in the sense that they satisfy what the ideal of the rule of law formally and substantively requires of laws. Such laws should provide detention criteria, these criteria should be rationally related to the purpose of the detention powers at issue, and so forth. See Tanguay-Renaud, supra note 59 at 172-192, 200-217. The SCC has also insisted that detentions must be carried out in a manner that is reasonable, presumably, once again, as assessed from the perspective of the rule of law. See Le, supra note 8 at para 124. No doubt, there is more to the ideal of the rule of law than that which s 9 guarantees, as I will discuss. However, my assumption in what follows is that all aspects of the rule of law—whether they are specifically protected by s 9 or not—are aspects of one unified ideal. As such, they should not undermine each other if the ideal is to prevail.

60. See e.g. Tanguay-Renaud, supra note 59 at 226-27.

61. Re: Resolution to amend the Constitution, 1981 CanLII 25 at 805-806 (SCC).

62. Re Manitoba Language Rights, 1985 CanLII 33 at 748 (SCC) [Manitoba Language Rights Reference]. See also Reference re Secession of Quebec, 1998 CanLII 793 at para 71 (SCC).

63. Manitoba Language Rights Reference, supra note 62 at 749.

64. R v M(CA), 1996 CanLII 230 at para 81 (SCC).

65. Supra note 37, s 718.

66. Ibid, s 495(2).

67. Supra note 40 at para 34.

68. The Morality of Law, revised ed (Yale University Press, 1969) at 81-91.

69. Supra note 3 at para 51 [emphasis in original].

70. Ibid. See also Peart, supra note 5 at para 93; Sitladeen, supra note 10 at para 49, n 4.

71. See e.g. Bertram Gawronski, Wilhelm Hofmann & Christopher J Wilbur, “Are ‘Implicit’ Attitudes Unconscious?” (2006) 15 Consciousness & Cognition 485 at 486, DOI: https://doi.org/10.1016/j.concog.2005.11.007; Edouard Machery, “The Bleak Implications of Moral Psychology” (2010) 3 Neuroethics 223 at 227, DOI: https://doi.org/10.1007/s12152-010-9063-7; Daniel Kelly, “Implicit Bias and Social Cognition” in Byron Kaldis, ed, The Encyclopedia of Philosophy and Social Science (SAGE Publications, 2013) 459 at 460, DOI: https://doi.org/10.4135/9781452276052.n172.

72. See e.g. Aiden P Gregg, Beate Seibt & Mahzarin R Banaji, “Easier Done than Undone: Asymmetry in the Malleability of Implicit Preferences” (2006) 90 J Personality & Soc Psychology 1, DOI: https://doi.org/10.1037/0022-3514.90.1.1; Alice Follenfant & François Ric, “Behavioral Rebound Following Stereotype Suppression” (2010) 40 European J Soc Psychology 774, DOI: https://doi.org/10.1002/ejsp.649. Note that the claim is not that individuals cannot have any control at all over their implicit biases, but that they cannot control them through an act of will such as choosing not to have them. Various forms of indirect control may still be possible. On this point, see Michael Brownstein, “Attributionism and Moral Responsibility for Implicit Bias” (2016) 7 Rev Philosophy & Psychology 765, DOI: https://doi.org/10.1007/s13164-015-0287-7 [Brownstein, “Attributionism”]. See also Jules D Holroyd & Daniel Kelly, “Implicit Bias, Character and Control” in Alberto Masala & Jonathan Webber, eds, From Personality to Virtue: Essays on the Philosophy of Character (Oxford University Press, 2016) 106 at 106-33, DOI: https://doi.org/10.1093/acprof:oso/9780198746812.003.0006.

73. See Joshua Glasgow, “Alienation and Responsibility” in Michael Brownstein & Jennifer Saul, eds, Implicit Bias and Philosophy, Volume 2: Moral Responsibility, Structural Injustice, and Ethics (Oxford University Press, 2016) 37, DOI: https://doi.org/10.1093/acprof:oso/9780198766179.003.0003.

74. See Keith Frankish, “Playing Double: Implicit Bias, Dual Levels, and Self-Control” in Michael Brownstein & Jennifer Saul, eds, Implicit Bias and Philosophy, Volume 1: Metaphysics and Epistemology (Oxford University Press, 2016) 23, DOI: https://doi.org/10.1093/acprof:oso/9780198713241.003.0002 [Brownstein & Saul, Volume 1].

75. See Neil Levy, “Neither Fish Nor Fowl: Implicit Attitudes as Patchy Endorsements” (2015) 49 Noûs 800 at 812-16, DOI: https://doi.org/10.1111/nous.12074.

76. See Michael Brownstein & Jennifer Saul, “Introduction” in Brownstein & Saul, Volume 1, supra note 74 at 1-2.

77. For a discussion of some leading studies related to implicit racial bias, see Daniel Kelly & Erica Roedder, “Racial Cognition and the Ethics of Implicit Bias” (2008) 3 Philosophy Compass 522 at 523-25, DOI: https://doi.org/10.1111/j.1747-9991.2008.00138.x; B Keith Payne, “Conceptualizing Control in Social Cognition: The Role of Automatic and Controlled Processes in Misperceiving a Weapon” (2005) 89 J Personality & Soc Psychology 181, DOI: https://doi.org/10.1037//0022-3514.81.2.181; Jennifer L Eberhardt et al, “Seeing Black: Race, Crime, and Visual Processing” (2004) 87 J Personality & Soc Psychology 867, DOI: https://doi.org/10.1037/0022-3514.87.6.876.

78. Charles Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism” (1987) 39 Stan L Rev 317, DOI: https://doi.org/10.2307/1228797.

79. Rudnicki, supra note 16 at 425. See also David M Tanovich, “E-Racing Racial Profiling” (2004) 41 Alta L Rev 905 at 911-17, DOI: https://doi.org/10.29173/alr1313.

80. Rudnicki, supra note 16 at 425.

81. See R v Caslake, 1998 CanLII 838 at para 13 (SCC) [Caslake]. In relation to searches incident to arrest, Lamer CJ writes, “since the legality of the search is derived from the legality of arrest, if the arrest is later found to be invalid, the search will be also.” The same is true for searches incident to investigative detentions. See Mann, supra note 40.

82. See Le, supra note 8 at para 78. The majority asserts that “[r]acial profiling is also relevant under s 24(2) when assessing whether the police conduct was so serious and lacking in good faith that admitting the evidence at hand under s 24(2) would bring the administration of justice into disrepute.”

83. See Criminal Code, supra note 37, s 25. Section 25 contemplates that officers may be justified in using force non-consensually, but only when such force is reasonably necessary for the purpose of doing what they are authorized by law to do.

84. Even if some implicit biases may be controlled through indirect strategies, such indirect control may not be possible in all cases or may not be possible at the moment of detention or arrest. On implicit bias, see Brownstein, “Attributionism,” supra note 72; Holroyd & Kelly, supra note 72.

85. Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, vol 1 (Queen’s Printer for Ontario, 1995) at 2-3.

86. Supra note 10 at para 55.

87. See supra notes 37-39 and the accompanying text.

88. Supra note 37, s 495(2).

89. See supra notes 81-83 and the accompanying text.

90. See Criminal Code, supra note 37, s 34(3). Subsection 34(3) specifies that the defence of defence of the person may be invoked against law enforcement if the defender believes on reasonable grounds that law enforcement is acting unlawfully.

91. Sceptics may also be tempted to go one step further and seek to distinguish racial profiling from merely being influenced by race, or from legitimately using race as part of a suspect description. On these finer distinctions, see Benjamin Eidelson, Discrimination and Disrespect (Oxford University Press, 2015) ch 6, DOI: https://doi.org/10.1093/acprof:oso/9780198732877.001.0001.

92. See Part II, above.

93. See Le, supra note 8 at para 124. The majority finds there that for a detention not to be arbitrary under s 9 of the Charter, it “must be authorized by law; the authorizing law itself must not be arbitrary; and, the manner in which the detention is carried out must be reasonable” [emphasis added].

94. Supra note 2 at para 33.

95. Dudhi, supra note 10 at para 64 [emphasis omitted].

96. “The Jurisprudence of Mixed Motives” (2018) 127 Yale LJ 1106 at 1134-39, 1159-61.

97. See Criminal Code, supra note 37, s 718.

98. Admittedly, under s 24(2) of the Charter, police violations of rights that are unrelated to the conduct of suspects may lead to the exclusion of key evidence against them, which may result in them getting off the hook. However, in Grant the SCC makes clear that such exclusion should not be automatic but subject to a careful balancing exercise that includes consideration of society’s interest in the adjudication of a case on the merits. Supra note 45 at para 71.

99. See Dudhi, supra note 10 at para 64.

100. Supra note 81 at para 27.

101. Ibid.

102. See supra notes 31-33 and the accompanying text.

103. 543 US 146 (2004) at 153.

104. “Hyperlexis and the Rule of Law” (2021) 27 Leg Theory 126 at 130-38, DOI: https://doi.org/10.1017/S1352325221000094.

105. Ibid at 138-45.

106. Ibid at 143.

107. See e.g. Gabriel J Chin & Charles J Vernon, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States” (2015) 83 Geo Wash L Rev 882; Devon W Carbado & Jonathan Feingold, “Rewriting Whren v. United States” (2022) 68 UCLA L Rev 1676.

108. Rakhi Ruparelia, “‘I Didn’t Mean It That Way!’: Racial Discrimination as Negligence” (2009) 44 SCLR (2d) 81 at 92-93, citing Lawrence, supra note 78 at 319.

109. See e.g. Whren v United States, 517 US 806 (1996) at 813 [Whren]. “[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”

110. Dudhi, supra note 10 at para 65.

111. Ibid.

112. Supra note 45 at para 133.

113. See further in Part IV(A), below. The SCC has always insisted that a discriminatory purpose is not a necessary condition of a subsection 15(1) infringement. See Andrews v Law Society of British Columbia, 1989 SCC 143 at 173-74; Eldridge v British Columbia (Attorney General), 1997 CanLII 327 at para 62 (SCC) [Eldridge]. This position is in sharp contrast to the position espoused by the US Supreme Court, which is that the Equal Protection Clause of the Fourteenth Amendment does not forbid state action that unintentionally leads to racial disparities. See Washington v Davis, 426 US 229 (1976) at 240; Village of Arlington Heights v Metropolitan Housing Development Corp, 429 US 252 (1977) at 265-66; McCleskey v Kemp, 481 US 279 (1987) at 298. This position radically curtails the kinds of racial profiling that can be addressed under the Equal Protection Clause, as compared to under s 15 of the Charter. No doubt, this proviso colours the invitation of the US Supreme Court to use the Equal Protection Clause to address racial profiling in policing. See Whren, supra note 109 at 813.

114. RSO 1990, c H8, s 216(1). Other provinces also authorize such stops. See e.g. Highway Safety Code, LRQ, c C-24.2, s 636; Motor Vehicle Act, RSBC 1996, c 318.

115. R v Ladouceur, 1990 CanLII 108 at 1287 (SCC) [Ladouceur].

116. R v Hufsky, 1988 CanLII 72 at 632-33 (SCC) [Hufsky]; Ladouceur, supra note 115 at 1276-77.

117. Supra note 116 at 636-37. See also Ladouceur, supra note 115 at 1278-88.

118. Supra note 115 at 1267.

119. Supra note 2 at 238.

120. See e.g. Brown, supra note 4 at para 10; Peart, supra note 5 at para 91; Dudhi, supra note 10 at para 60.

121. Durham, supra note 2 at 238.

122. 2010 SCC 24 at para 39.

123. On this point, see Sujit Choudhry & Kent Roach, “Racial and Ethnic Profiling: Statutory Discretion, Constitutional Remedies, and Democratic Accountability” (2003) 41 Osgoode Hall LJ 1, DOI: https://doi.org/10.60082/2817-5069.1429; Tanguay-Renaud, supra note 59 at 214-17.

124. Compare Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 [Little Sisters].

125. See Luamba, supra note 3. See also Highway Safety Code, supra note 114, s 636.

126. See Luamba, supra note 3.

127. Ibid at paras 134-35.

128. Supra note 2 at 239. For defences of similar suggestions, see Bernard E Harcourt & Tracey L Meares, “Randomization and the Fourth Amendment” (2011) 78 U Chicago L Rev 810, DOI: https://doi.org/10.2139/ssrn.1665562; Adam Omar Hosein, “Racial Profiling and a Reasonable Sense of Politically Inferior Status” (2018) 26 J Political Philosophy 1, DOI: https://doi.org/10.1111/jopp.12162.

129. On the importance of such vetting, see Ewert v Canada, 2018 SCC 30.

130. Supra note 10 at paras 23-24.

131. The SCC recognizes in Ahmad that “[t]here will rarely be evidence of intentional racial profiling or targeting of the vulnerable.” Supra note 5 at para 28.

132. Dudhi, supra note 10 at para 75.

133. Supra note 4 at para 44. This holding has been followed ever since. See e.g. Peart, supra note 5 at para 95; Dudhi, supra note 10 at para 75; Sitladeen, supra note 10 at para 43; Ali, supra note 3 at paras 58, 63. See also Luamba, supra note 3 at paras 69-71.

134. See Anthony G Greenwald et al, “Measuring Individual Differences in Implicit Cognition: The Implicit Association Test” (1998) 74 J Personality & Soc Psychology 1464, DOI: https://doi.org/10.1037//0022-3514.74.6.1464. On other prominent instruments, see Mahzarin R Banaji & Curtis D Hardin, “Automatic Stereotyping” (1996) 7 Psychological Science 136, DOI: https://doi.org/10.1111/j.1467-9280.1996.tb00346.x (sequencing priming); B Keith Payne et al, “An Inkblot for Attitudes: Affect Misattribution as Implicit Measurement” (2005) 89 J Personality & Soc Psychology 277, DOI:https://doi.org/10.1037/0022-3514.89.3.277> (the “Affect Misattribution Procedure,” or AMP); Brian A Nosek & Mahzarin R Banaji, “The Go/No-go Association Task” (2001) 19 Soc Cognition 625, DOI: https://doi.org/10.1521/soco.19.6.625.20886 (the “Go/No-go Association Task,” or GNAT).

135. See e.g. Hart Blanton et al, “Strong Claims and Weak Evidence: Reassessing the Predictive Validity of the IAT” (2009) 94 J Applied Psychology 567, DOI: https://doi.org/10.1037/a0014665; Brian A Nosek et al, “The Implicit Association Test at Age 7: A Methodological and Conceptual Review” in John A Bargh, ed, Social Psychology and the Unconscious (Psychology Press, 2007) at 265; Frederick L Oswald et al, “Predicting Ethnic and Racial Discrimination: A Meta-Analysis of IAT Criterion Studies” (2013) 105 J Personality & Soc Psychology 171, DOI: https://doi.org/10.1037/a0032734.

136. See generally Gregory Mitchell & Philip E Tetlock, “Antidiscrimination Law and the Perils of Mindreading” (2006) 67 Ohio St LJ 1023.

137. Peart, supra note 5 at para 131; Dudhi, supra note 10 at paras 75-76.

138. Supra note 10 at para 54 [emphasis added].

139. Supra note 4 at para 45. See also Peart, supra note 5 at para 95; Ali, supra note 3 at para 62; Luamba, supra note 3 at para 69.

140. Supra note 10 at para 54, n 5. See also David M Tanovich, “Applying the Racial Profiling Correspondence Test” (2017) 64 Crim LQ 359 (discussed in this case).

141. Supra note 5 at para 96. See also Sitladeen, supra note 10 at para 54. The court in Sitladeen states: “The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling.”

142. Supra note 8 at para 80.

143. Such markers may generate what is referred to in the psychology literature as an “anchoring bias.” See Thomas Mussweiler & Fritz Strack, “Hypothesis-Consistent Testing and Semantic Priming in the Anchoring Paradigm: A Selective Accessibility Model” (1999) 35 J Experimental Soc Psychology 136, DOI: https://doi.org/10.1006/jesp.1998.1364.

144. Brown, supra note 4 at para 45.

145. Supra note 10 at para 75.

146. See e.g. Luamba c Procureur général du Québec, 2022 QCCS 3866 [Luamba QCCS] (“[a]ujourd’hui, des indicateurs factuels se sont développés permettant de présumer du profilage racial faute d’une preuve directe” at para 16).

147. Peart, supra note 5 at para 95.

148. See supra notes 31, 110-112 and the accompanying text.

149. See e.g. Sophia Moreau, “Equality Rights and Stereotypes” in David Dyzenhaus & Malcolm Thorburn, eds, Philosophical Foundations of Constitutional Law (Oxford University Press, 2016) 282 at 292, DOI: https://doi.org/10.1093/acprof:oso/9780198754527.003.0015; Eidelson, supra note 91 at ch 6.

150. Supra note 3.

151. Supra note 7.

152. See R v Sharma, 2022 SCC 39 at para 28 [Sharma]; R v CP, 2021 SCC 19 at paras 56, 141; Fraser v Canada (Attorney General), 2020 SCC 28 at para 27 [Fraser].

153. For example, in Little Sisters a majority of the SCC held that customs agents had discriminated based on sexual orientation by targeting their enforcement efforts at homosexual erotic materials being imported by a lesbian bookshop, while adopting a relatively lax attitude to the importation of heterosexual materials by mainstream booksellers. Supra note 124. See also Eldridge, supra note 113; Lovelace v Ontario, 2000 SCC 37.

154. As currently interpreted, s 15 does not stand in the way of implicit racial bias that influences police action to some degree yet falls short of contributing to a relevant distinction in effect. While the Le definition may formally extend to such “racial profiling,” I doubt that it should count as profiling at all—or at least as profiling that the law should be concerned about—if the officer does not have conscious control over the race-related attitude in question and it does not contribute to making any meaningful difference in the world.

155. Supra note 2 at para 33, cited in Le, supra note 8 at para 77.

156. Supra note 8 at para 78.

157. Sharma, supra note 152 at para 31 [emphasis omitted].

158. Ibid at para 45.

159. Ibid at para 49.

160. Fraser, supra note 152 at paras 58-59; Sharma, supra note 152 at para 49.

161. From Impact to Action: Final report into anti-Black racism by the Toronto Police Service (Ontario Human Rights Commission, 2024), online: www.ohrc.on.ca/en/impact-action-final-report-anti-black-racism-toronto-police-service [perma.cc/RB95-HM3C] [OHRC Report].

162. See Lorne Foster et al, Race Data and Traffic Stops in Ottawa, 2013-2015: A Report on Ottawa and the Police Districts (Ottawa Police Service, 2016) at 17-19. For more recent data, see Lorne Foster & Les Jacobs, Traffic Stop Race Data Collection Project III Progressing Towards Bias-Free Policing: Ten Years of Race Data on Traffic Stops in Ottawa and an 18-Month Action Plan (The Ontario Tech/York Research Team, 2024), online (pdf): pub-ottawa.escribemeetings.com/filestream.ashx?DocumentId=188294 [perma.cc/4EYG-2FV2].

163. See Victor Armory et al, Les interpellations policières à la lumière des identités racisées des personnes interpellées: Analyse des données du Service de Police de la ville de Montréal (SPVM) et élaboration d’indicateurs de suivi en matière de profilage racial (SPVM, 2019) at 9-11.

164. See Scot Wortley, Halifax, Nova Scotia: Street Checks Report (Nova Scotia Human Rights Commission, 2019) at 33.

165. Supra note 8 at para 97.

166. Supra note 152 at para 49.

167. Law v Canada (Minister of Employment and Immigration), 1999 CanLII 675 at para 77 (SCC).

168. The fact that it took fourteen witnesses and three experts to substantiate the existence of racial profiling in Luamba QCCS may be taken to militate against this contention. However, the more such evidence is led and proof is established in various cases, and the more judicial notice of the phenomenon and its differential impact is taken, the easier the process will inevitably become. Supra note 146.

169. Sharma, supra note 152 at para 52, citing Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (McGill-Queen’s University Press, 2010) at 62-63 [emphasis in original].

170. See Sharma, supra note 152 at para 53.

171. Peart, supra note 5 at para 93. See also Dudhi, supra note 10 at para 65.

172. Richards, supra note 2 at para 23. This paragraph cites the written submissions of the intervening African Canadian Legal Clinic.

173. For a succinct overview, see Terry Skolnik, “Racial Profiling and the Perils of Ancillary Police Powers” (2021) 99 Can Bar Rev 429 at 438-39.

174. For an overview of relevant studies, see Abigail E Sewell, Kevin A Jefferson & Hedwig Lee, “Living Under Surveillance: Gender, Psychological Distress, and Stop-Question-and-Frisk Policing in New York City” (2016) 159 Soc Science & Medicine 1 at 2, DOI: https://doi.org/10.1016/j.socscimed.2016.04.024. See also OHRC Report, supra note 161 at ch 4.

175. See Stephanie Wallace, James Nazroo & Laia Bécares, “Cumulative Effect of Racial Discrimination on the Mental Health of Ethnic Minorities in the United Kingdom” (2016) 106 Am J Public Health 1294 at 1298-99, DOI: https://doi.org/10.2105/AJPH.2016.303121.

176. See Monica C Bell, “Police Reform and the Dismantling of Legal Estrangement” (2017) 126 Yale LJ 2054 at 2066-67, 2086-89.

177. See Sharma, supra note 152 at para 55.

178. See e.g. Police (Street Checks and Carding) Amendment Act, 2021, SA 2021, c 14; Collection of Identifying Information in Certain Circumstances – Prohibition and Duties, O. Reg. 400/23, under Community Safety and Policing Act, 2019, SO 2019, c 1, Sched 1; Ruth Montgomery et al, Vancouver Police Board Street Check Review (PYXIS Consulting Group, 2019) at 23-26.

179. See e.g. Michael Tulloch CJ, Report of the Independent Street Checks Review (Queen’s Printer, 2018) at 44; Wortley, supra note 164 at 104; Armory et al, supra note 163 at 8-11.

180. Supra note 8 at para 95.

181. Henceforth, I will speak of unjustified discrimination to refer to discrimination that violates the Charter, all things considered, and, therefore, calls for judicial remediation under it.

182. Schedule B to the Canada Act 1982 (UK), 1982, c 11.

183. See Luamba QCCS, supra note 146 at paras 775-858; Luamba, supra note 3 at paras 222-23.

184. Elsewhere, I suggested that reasonable grounds to believe and reasonable suspicion are broad and inarticulate standards that may provide de facto latitude for discrimination. See Tanguay-Renaud, supra note 59 at 180-83, 206-207. However, I did not argue that such standards should be found discriminatory following a s 15(1) analysis. Nor did I argue that, were such standards ever to be found discriminatory, they could not be justified under s 1 of the Charter.

185. See Mann, supra note 40 at paras 23-35.

186. See Storrey, supra note 38 at 249-50.

187. Supra note 7.

188. See R v Ferguson, 2008 SCC 6 (“this Court has repeatedly affirmed that the validity of laws is determined by s. 52 of the Constitution Act, 1982, while the validity of government action falls to be determined under s. 24 of the Charter” at para 61).

189. The SCC has noted that subsection 24(1) “appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights.” See R v 974649 Ontario Inc, 2001 SCC 81 at para 18.

190. Supra note 7; Grant, supra note 45 at para 68. A key factor in this analysis is “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” See Grant, supra note 45 at para 79.

191. 2010 SCC 6 at paras 3, 47, 55 [Nasogaluak].

192. For a related suggestion, see Steven Penney et al, Criminal Procedure in Canada, 3rd ed (LexisNexis, 2022) at 929-30.

193. See Nasogaluak, supra note 191 at paras 47, 55, 64 (“If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence” at para 47).

194. 2010 SCC 27 at paras 24-31 [Ward].

195. In contrast, in Grant, the SCC excluded deterrence as a justification for exclusion of evidence under subsection 24(2). See supra note 45 at para 73.

196. See Cheryl M Webster & Anthony Doob, “The Superior/Provincial Criminal Court Distinction: Historical Anachronism or Empirical Reality?” (2003) 48 Crim LQ 77 at 83-84.

197. See Ward, supra note 194 at para 58.

198. For a revealing survey, see Terry Skolnik, “Three Stages of Criminal Justice Remedies” (2024) 57 UBC L Rev 565 at 591-93. There are some notable exceptions in the racial profiling context, such as in Elmardy v Toronto Police Services Board, 2017 ONSC 2074. In that case, the divisional court justified an award of fifty thousand Canadian dollars in Charter damages based, in part, on the facts that officers engaged in racial profiling and unjustified discrimination, used excessive force, and lied at trial. However, such cases remain few and far between (ibid at para 40).

199. Public Service Alliance of Canada v Canada (Department of National Defence), [1996] 3 FC 789 at para 16 (CA).

200. See supra notes 161-164.

201. See especially Skolnik, “Three Stages of Criminal Justice Remedy,” supra note 198 at 601-608. Note, however, Skolnik’s discussion of the limitations that constitutional class actions themselves have, such as the need for successful class certification and defined limitation periods (ibid at 608-12). See also Elizabeth Emery, “A Wrench in the Social Justice Toolbox: Assessing the Constitutional Class Action as a Tool for Addressing Racial Discrimination” (2021) 17 Can Class Action Rev 159.

202. For examples of constitutional class actions having resulted in awards of many millions of dollars, see Brazeau v Canada (Attorney General), 2020 ONSC 3272 (award of twenty million Canadian dollars); Francis v Ontario, 2020 ONSC 1644, aff’d 2021 ONCA 197 (award of thirty million Canadian dollars). See also Good v Toronto (Police Services Board), 2016 ONCA 250, aff’g in part Sherry Good v Toronto Police Services Board, 2014 ONSC 4583. There, the ONCA upheld the divisional court’s class certification for a lawsuit related to unlawful detention of protesters, leading the Toronto Police Service to settle for 16.5 million Canadian dollars. For a recent example of a successful class action for discriminatory racial profiling specifically, see Ligue des Noirs du Québec c Ville de Montréal, 2024 QCCS 3241.

203. In other words, individuals must not pay to join the class and are not on the hook financially if the lawsuit is unsuccessful. See further McCarthy Tétrault, Defending Class Actions in Canada: A Guide for Defendants, 5th ed (LexisNexis, 2020) at chs 1-2.

204. Canadian Policing: Why and How it Must Change (Delve Books, 2022) at 63.

205. See Floyd et al v City of New York et al, 959 F Supp 2d 540 (SDNY 2013). This case and subsequent litigation offer a notable example of efforts to address widespread racial profiling and discrimination against New York residents in the context of the police practice of stop and frisk. This class action litigation resulted in a consent decree requiring the police to collect data and to have its performance monitored. For a timeline of the litigation and a repository of the relevant judgments, remedial injunctions, motions, and reports filed over the years, including reports from the court appointed monitor, see Centre for Constitutional Rights, “Floyd, et al. v. City of New York, et al.” (last modified June 3, 2025), online: ccrjustice.org/home/what-we-do/our-cases/floyd-et-al-v-city-new-york-et-al [perma.cc/7WWR-ZRC2]. For a more general survey of judicial exercises of supervisory jurisdiction in the United States, South Africa, and India, see Amir Attaran & Jon Khan, “Solving the ‘Khadr Problem’: Retention of Jurisdiction—A Comparative Analysis” (2015) 34 NJCL 145 at 155-61.

206. See Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at paras 60-88.

207. For a range of recent reform proposals directed at the executive and legislative branches of government, see Akwasi Owusu-Benpah & Zilla Jones, A Roadmap for Transformative Change: Canada’s Black Justice Strategy (Department of Justice Canada, 2024) at 29-34, online (pdf): www.justice.gc.ca/eng/cj-jp/cbjs-scjn/transformative-transformateur/pdf/CS-24-110-CBJS-GV-DA_06-25-24-EN.pdf [perma.cc/5UDC-ZGU4]. See also Roach, supra note 204. This article only focuses on judicial responses, which are inevitably limited in their reach and effects.

208. 1985 CanLII 47 at 136-37 (SCC).

209. Ibid at 137.

210. R v Babos, 2014 SCC 16 at para 31.

211. Ibid at para 35.

212. Ibid at paras 32, 39.

213. Ibid at para 32.

214. For well-articulated calls for courts to move past such reluctance, see e.g. Christine Boyles, “The Role of Equality in Criminal Law” (1994) 58 Sask L Rev 203 at 204-205; Rosemary Cairns, “An Opportunity for Equality: Kokopenace and Nur at the Supreme Court of Canada” (2014) 61 Crim LQ 465 at 466-67; Terry Skolnik, “Expanding Equality” (2024) 47 Dal LJ 197 at 225-27.

215. It has been suggested to me that an argument could be made that the current judicial approach to racial profiling in policing is justifiable as a form of affirmative action. See Charter, supra note 7, s 15(2). As recognized by the SCC under this section of the Charter, the state may be able to justify distinctions that confer advantages on some or deny benefits to others in the context of ameliorative programs. See generally R v Kapp, 2008 SCC 41. While I am unable to do justice to this provocative suggestion here, I will simply note that it, too, calls for a shift in focus towards an anti-discrimination analysis, and away from an approach exclusively grounded in the internal logic of police powers. It also does not address the rule of law concerns discussed in this article.