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AntI-Racial profiling Training Materials: THE MYTHS

AntI-Racial profiling Training Materials: THE MYTHS . Prepared by LEAP and Professor David M. Tanovich (Faculty of Law, University of Windsor) (08/12/09). The Myths. Myth#1: Racial profiling is a “bad apples” problem Experiential evidence confirms that it is a systemic problem

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AntI-Racial profiling Training Materials: THE MYTHS

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  1. AntI-Racial profiling Training Materials: THE MYTHS Prepared by LEAP and Professor David M. Tanovich (Faculty of Law, University of Windsor) (08/12/09)

  2. The Myths • Myth#1: Racial profiling is a “bad apples” problem • Experiential evidence confirms that it is a systemic problem • “Paying the Price: The Human Cost of Racial Profiling” (Ontario Human Rights Commission, 2003) • Documented four hundred stories from racialized and Aboriginals in Ontario

  3. Experiences of Black police officers in Toronto • In October of 2003, 36 Black and South Asian officers met • A majority of officers described how they had been stopped while off-duty • 3 officers reported that they had been stopped more than once in the course of a week • 6 officers reported having been stopped more than 12 times in the course of a year • Source: Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin Law, 2006) at 35-36 [hereinafter The Colour of Justice]

  4. Social science evidence also confirms the systemic nature of the problem • Ontario Systemic Racism Commission (1995) • Toronto Youth Crime and Victimization Study (2000)

  5. 1995 Ontario Systemic Racism Commission Report • 43% of Black male residents reported having been stopped by the Toronto police in the previous two years as compared to 25% of White male residents • The Colour of Justice, supra at 74-76

  6. 2000 Toronto Youth Crime and Victimization Study • Scot Wortley and Julian Tanner (UofT) • 3,393 students in Toronto • 51% of Black youth reported having been stopped two or more times in the previous two years, compared to 23% of White youth • 23% of Black youth reported having been searched two or more times in the last two years, compared to 8% of White youth • The Colour of Justice, supra at 76-78

  7. Myth#2: Differential treatment can be explained by differential offending rates for street crimes like drugs and guns • 2000 Wortley and Tanner study addressed this argument • Controlled for factors likely to attract police attention • Criminal activity • Drug and alcohol use • Gang activity • Public leisure activities • “Hanging out” • Attending house parties, nightclubs, raves

  8. 34% of Black youth who had not engaged in any type of behaviour likely to attract police attention reported being stopped on two or more occasions in the past two years as compared to 4% of similarly situated White youth • 23% of Black youth in same category reported being searched by the police as compared to 5% of White youth • The Colour of Justice, supra at 76-78

  9. Myth#3: Racial profiling occurs where race is the only reason for the police conduct • Racial profiling occurs when race or racialized stereotypes impact on suspect selection or treatment even if there are other grounds except where the police are tracking a known offender who is described in part by race • Constitutional and human rights approach ban any reliance on race outside of the suspect description context

  10. As the Ontario Court of Appeal held in Peart v. Peel Regional Police (2006), 43 C.R. (6th) 175 (Ont. C.A.) at para. 91: • “Racial profiling is wrong. It is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver's colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer's action …”

  11. What is racial profiling? • The essence of racial profiling is heightened surveillance or scrutiny of Aboriginal or racialized individuals based on stereotypes about the usual suspect or location for offences like drugs or guns, a profile that includes race as one characteristic. • Racial profiling is also implicated where the police construct a person or situation as more dangerous than it is because of stereotypical assumptions about the face of violent crime in Canada.

  12. Myth#4: Racialized officers don’t profile • Two recent cases involving racialized officers and recognition by court that they are not immune from stereotyping • Peart v. Peel Regional Police (2006), 43 C.R. (6th) 175 (Ont. C.A.) • R. v. Singh (2003), 15 C.R. (6th) 288 (Ont. S.C.J.)

  13. In Singh, for example, Justice O’Connor observed: • “I fail to see that the race of the officer is relevant to the matter. It seems that any person of any race could consciously or unconsciously believe that persons of a particular race, his own or others, have a propensity toward criminal activity and thus should be targeted for attention by the police. This belief could arise from a variety of sources, including the misinformed anecdotal musings of associates, inaccurate media information or a misunderstanding of information, reports and studies etc. disseminated by police or governmental agencies. Or, of course, it could be the product of racial prejudice. But racial prejudice is not the sole motivation for racial profiling.”

  14. Research in the United States confirms that there is actually little difference in pre-text stops of Black drivers by White or Black officers • “According to the data, racial disparities in stops, searches and the like seem to have little or nothing to do with the officer’s race.” • “If both black and white officers seem to use traffic stops and searches disproportionately against blacks and other minorities, this implies that profiling is about more than the racism of a few racist whites with badges. Rather it is an institutional problem, and an institutional practice …” • Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (2002) at 100-102

  15. Myth#5: Racial profiling is largely manifested in “Driving While Black” (DWB) cases • Manifestations include: • Looking Muslim • “War on Terrorism” • Policing “grow-op” cases • Searching land registry office for home owners with South-East Asian names • Street encounters • “208” questioning (i.e. stopping, questioning and filling out contact cards) in the absence of reasonable suspicion that the individual is involved in criminal activity

  16. Differential treatment on arrest or stop • Differential policing of certain parks or areas looking for minor provincial or municipal offences • Curfew checks • Identification checks on passengers of motor vehicle • Arresting someone for “cause disturbance” because they loudly protest having been stopped by the police • Excessive use of force • Negligent use of race as part of a suspect’s description • JJ Harper (Winnipeg) (1989) • Jason Bogle (“Takedown of Lawyer Stokes Fear of Racial Profiling” Montreal Gazette (4 January 2006) (Toronto) • Hurricane Carter (Toronto) (1996) • Marcellus Francois (Montreal) (1991)

  17. Interpreting innocuous or equivocal conduct as suspicious • For example, two Black teenagers standing on the street corner in a high crime area with two or more friends seen as possibly members of a gang or engaged in a drug deal • Failing to make eye contact at the police or making eye contact or walking away from police by Aboriginal individual interpreted as suspicious and grounds for investigation • Cultural competence training important to ensure understanding of other innocent behaviour that may be interpreted in a negative light

  18. Myth#6: Politeness, lack of hostility by officer is inconsistent with racial profiling • R. v. Brown (2003), 173 C.C.C. (3d) 23 at para. 81 (Ont. C.A.) • As a largely unconscious phenomenon, most officers are not even aware that their behaviour is influenced by stereotypes

  19. Myth#7: Racial profiling is not officially sanctioned by the police • Following 9/11, the RCMP issued a profile of the “adversary” in their words in a Criminal Intelligence Brief • At the Arar Inquiry, Michel Cabana admitted that the profile was an express invitation to use racial profiling • From 1997-2006, the Criminal Intelligence Service Canada (CISC) published annual reports that linked drugs with particular racialized groups

  20. For example, in the 1997 CISC Report, it was noted: • “Criminal elements within various Caribbean immigrant communities are still involved in street level cocaine sales. In Western Canada, the involvement of Asian-based crime groups in cocaine trafficking is increasing. Iranians, Romanians, Lebanese, Jamaican, Korean and South Americans are increasingly involved in the importation and trafficking of cocaine while Chinese, Vietnamese and Laotians are stepping up their connections at all levels of cocaine trafficking. Vietnamese traffickers from Alberta control the distribution of cocaine in the Northwest Territories.” • The Colour of Justice, supra at 93-94

  21. This kind of information serves no purpose to the day-to-day activities of a police officer except to invite stereotypical policing • How does the fact (assuming it is even accurate) that a particular racialized group is involved in a particular kind of drug activity relevant when the police are engaging in pro-active policing on our streets? • It is not relevant since it does not speak to behaviour

  22. Myth#8: Police stops are a minor inconvenience • Harm of racial profiling is extensive • Criminalization of diversity • Over-representation of Aboriginal and racialized communities in jail • Disenfranchisement of Aboriginal and racialized communities • Severe psychological harm to the thousands of victims • Change in behaviour • Wrongful detentions and arrests

  23. Physical harm and sometimes death • Mistrust of police and criminal justice system • Mistrust and over-representation leads to entrenchment of gangs • Undermines public confidence/support • Extends beyond those who directly experience it (e.g. family, friends, neighbours)

  24. Unnecessary risk posed to officer safety • Unreliable use of limited police resources • Canada Customs and Revenue Agency 26-month study of drug loo seizures (536 cases analyzed) • False positive rate (i.e. the person fit the profile and was subjected to a search but no contraband found) was 75% at Terminal 1; 79% at Terminal 2; and, 83% at Terminal 3 • The Colour of Justice, supra, at page 64

  25. Myth#9: If racial profiling is unconscious, it will be impossible for me as an Officer to change my behaviour • There is no question that recognizing when we stereotype is one of the biggest challenges we face • However, proper training will assist in changing the way we interpret events to ensure that it is grounded in behaviour and not assumptions • Lifelong training necessary to adapt to Court decisions and new understandings/manifestations of the racial profiling phenomenon

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