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Developing Adjudicative Standards

RACIAL PROFILING LITIGATION: DEVELOPING ADJUDICATIVE STANDARDS Prepared by LEAP and Professor David M. Tanovich (Faculty of Law, University of Windsor) (23/11/09). Developing Adjudicative Standards. 1. Definition 2. The Phipps Test

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Developing Adjudicative Standards

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  1. RACIAL PROFILING LITIGATION: DEVELOPING ADJUDICATIVE STANDARDS Prepared by LEAP and Professor David M. Tanovich (Faculty of Law, University of Windsor) (23/11/09)

  2. Developing Adjudicative Standards • 1. Definition • 2. The Phipps Test • 3. Using Brown and the “correspondence test” to apply the Phipps Test • 4. Understanding Correspondence • The Varied Manifestations of Racial Profiling • 5. Specific Adjudicative Standards • Exercising Statutory Powers • Exercising Investigative Detention Powers • Race-Based Suspect Descriptions • 6. General Adjudicative Standard

  3. 1. Definition • Racial profiling in policing occurs when racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment outside of the context of looking for a particular suspect who has committed an offence and who is identified, in part, by their race  

  4. 2. The Phipps Test • In Phipps v. Toronto Police Services Board [2009] HRTO 877 at para. 17, the Tribunal set out the following helpful framework for adjudicating racial profiling cases: • 1)         Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

  5. 2)         It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence. • 3)         A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

  6. 4)         There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. • 5)         The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

  7. 3. The Brown “Correspondence” Test • Classic adjudicative standard comes from the Ontario Court of Appeal case of R. v. Brown (2003), 173 C.C.C. (3d) 23 (Ont. C.A.) where the Court recognized that most cases will have to be proved circumstantially • “… Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling … the record is then capable of supporting a finding that the stop was based on racial profiling. …”

  8. “The indicators of racial profiling recognized in the literature by experts and in the case law can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case.” • Peart at paras. 96 • The indicators can be used to establish a prima facie and to rebut any explanation by the police as unreasonable

  9. Given what we know about the racial profiling phenomenon • Judicial findings and recognition • Discussed in the next presentation under judicial notice • Experiential evidence (i.e. manifestations) • Social science evidence • Discussed in the next section on expert evidence we can develop specific and more general adjudicative standards

  10. 4. Manifestations (as revealed by experiential evidence) • (i) Where a police officers admits that they factored in race as part of the suspicion calculus • This is most common in cases involving “grow operations” where the officer will indicate in the search warrant that every case he has been involved with or heard about involves South-East Asians • R. v. Nguyen, [2006] O.J. No. 1221 (C.J.); R. v. Nguyen, [2006] O.J. No. 272 (S.C.J.); R. v. Mac, [2005] O.J. No. 527 (S.C.J.)

  11. (ii) Where the police use highly discretionary statutory powers (e.g. vehicle stop or incivility offence powers) to conduct criminal “fishing expeditions” • Pelletier v. Laberge, [2009] J.Q. No. 3446 (Que. S.C.); R. v. Khan (2004), 24 C.R. (6th) 48 (Ont. S.C.J.) [hereinafter Khan]; Johnson v. Halifax (Regional Municipality) Police Service, [2003] NSHRBID No. 2 [hereinafter Johnson]; R. v. Harris (2007), 225 C.C.C. (3d) 193 (Ont. C.A.)

  12. (iii) Where the police use general investigative powers of stop and question (i.e. pre-Mann detention power) to target racialized neighbourhoods • R. v. Ferdinand, [2004] O.J. No. 3209 (S.C.J.) • Contact card questioning and tracking on police computer • See also, Turenne, “Racial Profiling: Guidelines for Investigations” (2006) at 1.1.2 [hereinafter Guidelines for Investigation]

  13. (iv) Differential policing of certain parks or areas looking for minor provincial or municipal offences (e.g. incivility offences in Montreal) to use as a pretext for a criminal investigation

  14. (v) Where the police misinterpret innocent or ambiguous conduct as incriminatory in applying the Mann power • Phipps v. Toronto Police Service, [2009] OHRTD No. 293 [hereinafter Phipps]; R. v. Campbell, [2005] Q.J. No. 394 (Crim. & Pen. Div.); R. v. Peck, [2001] O.J. No. 4581 (S.C.J.)

  15. Common innocent or equivocal behaviour includes: • body movements (e.g. putting hand in back pocket [R. v. Digiacomo (2008), 55 C.R. (6th) 132 (Ont. C.J.)]; • nervousness; • failure to make eye contact [R. v. Brown (2008), 55 C.R. (6th) 240 (S.C.C.)]; • failure to answer questions; • manner of walking [R. v. Grant, 2009 SCC 32]; • clothing; • contents of car [R. v. Calderon (2004), 188 C.C.C. (3d) 481 (Ont. C.A.)]

  16. (vi) Where the police prolong or intensify an investigation in the absence of objectively reasonable grounds or where they would not have done so if the individual were White • Abbott v. Toronto Police Services Board, [2009] HRTO 1909; Phipps; Bernier v. Simard, [2007] J.Q. No. 12973 (J.C.Q.); Nassiah v. Peel (Regional Municipality) Services Board, [2007] OHTRTD No. 14 (hereinafter Nassiah)

  17. (vii) Where the police over-react to a situation of perceived danger • R. v. Walcott (2008), 57 C.R. (6th) 223 (Ont. S.C.J.) (use of taser during arrest)

  18. (viii) Where the police use putative entrapment techniques like opportunity buys • R. v. Sterling (2004), 23 C.R. (6th) 54 (Ont. S.C.J.) • R. v. Imoro (2008), 59 C .R. (6th) 109 (Ont. S.C.J.)

  19. (ix) Where the police incite the commission of an offence like cause disturbance, mischief or resist arrest to justify their unwarranted investigation of the individual • R. v. Osbourne, [2008] O.J. No. 1135 (C.J.) • R. v. A.(L.), [2005 ] O.J. No. 6285 (C.J.)

  20. (x) Where the police negligently use race in searching for an identified suspect • Phipps; JJ Harper; Jason Bogle (Toronto lawyer); Rubin “Hurricane” Carter; Marcellus Francois • Any Negro Will Do: Race and Suspect Description - the Slippery Slope towards Racial Profiling (CRARR, 2009)

  21. 5. Specific Adjudicative Standards • Exercising Statutory Authority • Racial profiling occurs where, in the absence of a reasonable and racially neutral explanation, a police officer exercises a statutory power as a pretext to conduct a criminal investigation of a racialized individual

  22. Pre-text vehicle stops (and presumably any use of a statutory power as a pretext for a criminal investigation) are unconstitutional: see Brown v. Durham Regional Police (1998), 131 C.C.C. (3d) 1 at 13 (Ont. C.A.) • Pre-text stops are part of the racial profiling phenomenon • Brown at paras. 42,48; Peart at para. 110; Kampe v. Toronto Police Services Board, [2008] HRTO 304

  23. Proving that the exercise of authority was a pretext can be done using a totality of the circumstances approach • (1) Is the activity under investigation consistent with the normal duties of the officer (e.g. we would not expect ETF officers to issue tickets for routine offences)? • (2) Did the officer have to go out of their way to make the stop? How long did it take for the officer to stop the vehicle, for example?

  24. (3) The location of the stop. For example, does it take place in an affluent neighbourhood or so-called “high crime” area? • (4) The make of the vehicle or other factor consistent with “out of place” reasoning • (5) Was there a call to dispatch or call for back-up? What reason is given for the stop? • (6) The nature of the questioning of the individual. Is it consistent with the purported reason for the stop or a criminal fishing expedition? • (7) Are those with the individual questioned? • See Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: Irwin Law, 2005) at 130-135

  25. Investigative Detentions • Racial profiling occurs where, in the absence of a reasonable and racially neutral explanation, a police officer conducts an investigative Mann detention of a racialized individual in the absence of objectively reasonable grounds to suspect that the individual has committed a recent or on-going crime

  26. Racial profiling in these circumstances is the most reasonable inference to be drawn given: • the social context evidence • burden of proof is only that profiling is a probable explanation • reasonable suspicion a low threshold that is already overly deferential to the police • the most common offences investigated by proactive street policing are linked to racialized stereotypes of the usual offender

  27. Tracking Identified Suspects • Racial profiling occurs where, in the absence of a reasonable and racially neutral explanation, a police officer maintains that a racialized individual matches the description of a known suspect where (i) there are clearly distinguishing features between the two individuals; or, (ii) the officer cannot articulate what other parts of the description he or she was relying on (e.g. height, weight, age, location, or other features)

  28. 6. General Adjudicative Standard • Totality of the circumstances approach to the “correspondence” test in developing a more general adjudicative standard

  29. Relevant considerations: • (1) A young Black male driving an expensive car • Brown at para. 46 • (2) Looking into the car at some point before stopping the vehicle • Brown at para. 46 • (3) Inconsistent evidence on when the police saw the racial background of the occupants • Peart at para. 114

  30. (4) Discrepancies or other irregularities in the officer’s notes • Brown at para. 46; Guidelines for Investigation at 1.1.6 • (5) Deviations from standard practice • Johnson at para. 57 • (6) Stopping a racialized person where he or she appears “out of place” • Brown at para. 87

  31. (7) An explanation for the investigation that lacks credulity or defies common sense • Khan; Phipps; Guidelines for Investigations at 1.1.4 • (8) Failing to investigate or treating differently similarly situated White individuals • Abbott v. Toronto Police Services Board, [2009] HRTO 1909; Phipps; Guidelines for Investigations at 1.1.7; Hum v. R.C.M.P. (1986), 8 C.H.R.R. D/3748 at para. 29697; Johnson at paras. 51, 57 • See also the discussion of the general indicators identified here by the Ontario Human Rights Commission in their Policy and Guidelines on Racism and Racial Discrimination (2005) at 19

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