[Makarov]

I often participate in these types of threads but am late to this one. Its always disappointing to see some of the attitudes (and the misinformation on which they are based) that still exist in our community. Anyway, thought it might be helpful to post some recent (2019) comments from the Supreme Court of Canada on the topic of racialized persons' interactions with police in Canada:

[89] The information necessary to inform the reasonable person is readily available from many sources and authorities which are not the subject of reasonable dispute. Many authoritative studies, research and articles were cited to the Court to help establish the social context of the relationship between the police and racialized communities. In their submissions to this Court, multiple interveners made arguments on the basis of reliable studies and reputable reports that predate this appeal. This information about race and policing plays a crucial role and may also inform many issues, including fact finding, credibility assessments, determining what evidence is accepted as persuasive, assessing if there has been a detention and whether it is arbitrary under s. 9, and whether evidence should be admitted under s. 24.

[90] Members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada (R. T. Fitzgerald and P. J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011) 53 Can. J. Crimin. & Crim. Just. 449, at p. 450). In 2003, the Ontario Human Rights Commission (“OHRC”) issued a report titled Paying the Price: The Human Cost of Racial Profiling (online). The OHRC summarized then existing research studies, which established that racial minorities are both treated differently by the police and that such differential treatment does not go unnoticed by them. The following excerpt demonstrates the extent, breadth, and reliability of reports which began to chronicle the issues in the 1970’s:

. . . there have been numerous studies which have confirmed differential treatment of racialized groups in different contexts. The African Canadian Legal Clinic has identified at least 15 reports issued since the 1970s dealing with police/minority relations in Canada. Early Ontario reports included those of the Walter Pitman Task Force (1977) and a 1979 Report by Gerald Emmett Cardinal Carter to the Civic Authorities of Metropolitan Toronto and its Citizens.



In 1988, the Solicitor General of Ontario appointed Clare Lewis as chair of the Race Relations and Policing Task Force. The Task Force’s 1989 report concluded that visible minorities believed they were policed differently: “They do not believe that they are policed fairly and they made a strong case for their view which cannot be ignored.” The Task Force found that racial minorities would like to participate in law enforcement and crime prevention but are “denied integration into community life when labelled as crime prone.” The report noted that the worst enemy of effective policing is the absence of public confidence and emphasized that police reliance on a “bad apple theory” to explain incidents does not help solve police race relations problems. The Task Force presented 57 recommendations to the Solicitor General covering monitoring, hiring and promotion, race relations training, use of force and community relations.



Stephen Lewis’ 1992 Report to the Premier on Racism in Ontario on the issue of police/visible minority relations concluded that visible minorities, particularly African Canadians, experienced discrimination in policing and the criminal justice system. Stephen Lewis recommended that the Task Force on Race Relations and Policing be reconstituted owing to perceived inadequacies with the implementation of the 57 recommendations in its 1989 report. A second report of the Task Force was published in November 1992 which examined the status of the implementation of the recommendations from the 1989 report and offered additional recommendations.



In 1992, the Ontario government also established the Commission on Systemic Racism in the Ontario Criminal Justice System. This Commission studied all facets of criminal justice and in December 1995 issued a 450 page report with recommendations.



To date, this is the most comprehensive report on the issue of systemic racism in Ontario’s criminal justice system. The review confirmed the perception of racialized groups that they are not treated equally by criminal justice institutions. Moreover, the findings also showed that the concern was not limited to police.



In addition to the various task forces, social scientists, criminologists and other academics have studied racial profiling using different social science research methods. Some have used qualitative research techniques and field observations while others have employed quantitative research and examined official records. Regardless of the method used, these studies have consistently showed that law enforcement agents profiled racial minorities. [Footnotes omitted; pp. 9-10.]



(See also Fitzgerald and Carrington, at p. 450.)

[91] The most recent report of the OHRC, entitled A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service, was issued in November 2018. It is the latest in what the OHRC says is its 15-year commitment to removing race based discrimination and was an interim report of its year-long inquiry into the relationship between the Toronto Police Service (“TPS”) and the Black community. In this report, the OHRC used quantitative and qualitative research methods to understand the experiences of members of the Black community with policing (p. 16).

[92] The report covers the period of time between January 1, 2010 and June 30, 2017.

[93] Overall, the OHRC expressed serious concerns. The study revealed that “Black people are much more likely to have force used against them by the TPS that results in serious injury or death” and between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a police shooting that resulted in civilian death (p. 19). The OHRC report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21, 26 and 37). The report reveals that many had experiences that have “contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment” (p. 25).

[94] More recently, after the appeal was heard, Justice Michael H. Tulloch, of the Court of Appeal for Ontario, issued the Tulloch Report. The report focuses on the historical practice of carding in Ontario and the regulation entitled Collection of Identifying Information in Certain Circumstances — Prohibition and Duties, O. Reg. 58/16. It documents how, over time, the practice of carding evolved to no longer solely target persons of interest to detectives, but rather anyone the police deemed “of interest” during the course of their duties (pp. 38-39). The Tulloch Report is relevant because it focuses on the perceptions of those subject to police encounters similar to the kind that occurred here. Justice Tulloch notes that “[h]istorically, Indigenous, Black and other racialized communities have different perspectives and experiences with practices such as street checks and carding” (p. 37). Not only do these communities have fundamentally different perceptions and experiences with carding, the impact of carding on minority youth, especially those who live in less affluent communities, is acute. As Justice Tulloch notes (at pp. 41-42):

Youth, especially Indigenous, Black and other racialized youth, and youth in low-income housing, are disproportionately impacted by street checks. “[W]hile the ‘street’ constitutes a meaningful part of everyday life for many marginalized youth, their presence and visibility in that space makes them ready targets for heightened police surveillance and intervention”. A street check is often a young person’s first contact with the police. [Footnote omitted.]

[95] 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 (see N. Nichols, “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods” (2018), 27 Soc. & Legal Stud. 79, at p. 86; see also Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017), at pp. 31-40).

[96] These reports represent the most current statement on the relevant issues, and they originate from highly credible and authoritative sources. They are the product of research that included the time period at issue in this case. More importantly, they document actions and attitudes that have existed for a long time. A striking feature of these reports is how the conclusions and recommendations are so similar to studies done 10, 20, or even 30 years ago. These reports do not establish any new fact, but they build upon prior studies, research and reports and present a clear and comprehensive picture of what is currently occurring. Courts generally benefit from the most up to date and accurate information and, on a go-forward basis, these reports will clearly form part of the social context when determining whether there has been an arbitrary detention contrary to the Charter.

[97] We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359). Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused. When three officers entered a small, private backyard, without warrant, consent, or warning, late at night, to ask questions of five racialized young men in a Toronto housing co-operative, these young men would have felt compelled to remain, answer and comply.

SOURCE: R. v. Le, 2019 SCC 34 @ https://www.canlii.org/en/ca/scc/doc...2019scc34.html