Racial and Ethnic Profifiling: Statutory Discretion, Constitutional Remedies, and Democratic Accountability

Osgoode Hall Law Journal

Volumn 41, Issue 1, 2003, Pages 1-36

  Choudhry, Sujit ^a   Roach, Kent ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

Canada; Constitutional law; Counterterrorism; Racial profiling in law enforcement

Indexed keywords

EID: 85207171249     PISSN: None     EISSN: 28175069     Source Type: Journal    
DOI: 10.60082/2817-5069.1429     Document Type: Article

References (123)

1. For the remainder of this article, “profiling” refers to racial, ethnic, and religious profiling.
2. For a detailed definition of profiling that explains the different uses to which ethnicity and race can be put in the investigative context, see Sujit Choudhry, “Protecting Equality in the Face of Terror: Ethnic and Racial Profiling and s. 15 of the Charter” in Ronald J. Daniels, Patrick Macklem & Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) 367 at 368-70.
3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
4. R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes],
5. Charter, supra note 3, s. 1. The constitutionality of profiling is discussed in Choudhry, supra note 2.
6. S.C. 2001, c. 41 [Bill C-36].
7. Bill C-17, An Act to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety, 2nd Sess., 37th Pari., 2002 (2nd Reading 31 October 2002) [Bill C-17].
8. Irwin Cotier, “Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy” in Daniels, Macklem & Roach, supra note 2, 111 at 119; Canada, Senate, Special Senate Committee on the Subject Matter of Bill C-36, First Report (1 November 2001).
9. This framework was first set out by Justice Lamer in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 [Slaight], and was subsequently applied by the Court in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 and Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.
10. Commentators agree that many cases declaring laws to be invalid result in legislative replies, but disagree as to the exact number. See Peter W. Hogg & Allison A. Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn’t Such A Bad Thing After All)” (1997) 35 Osgoode Hall L.J. 75; Christopher P. Manfredi & James B. Kelly, “Six Degrees of Dialogue: A Response to Hogg and Bushell” (1999) 37 Osgoode Hall L.J. 513; Peter W. Hogg & Allison A. Thornton, “Reply to ‘Six Degrees of Dialogue’” (1999) 37 Osgoode Hall L.J. 529.
11. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 [Little Sisters], For commentary, see Janine Benedet, “Little Sisters Book and Art Emporium v. Minister of Justice: Sex Equality and the Attack on R. v. Butler” (2001) 39 Osgoode Hall L.J. 187; Jo-Anne Pickel, “Taking Big Brother to Court: Little Sisters Book and Art Emporium v. Canada (Minister of Justice)” (2001) 59 U.T. Fac. L. Rev. 349; Bruce Ryder, “The Little Sisters Case, Administrative Censorship, and Obscenity Law” (2001) 39 Osgoode Hall L.J. 207.
12. Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001) [Roach, Judicial Activism].
13. R.S.C. 1985, c. C-46.
14. Bill C-36, supra note 6, s. 4.
15. Immigration and Refugee Protection Act, S.C. 2001, c. 27 [Immigration Act].
16. Ibid., s. 55(2)(b), proclaimed in force 28 June 2002, C. Gaz. 2002.II.1637.
17. Aeronautics Act, R.S.C. 1985, c. A-2 [Aeronautics Act], Section 4.7 would be repealed by Bill C-17, supra note 7, s. 5. Going forward, the screening of passengers would be addressed in regulations. At the time of writing, draft regulations had not been released to the public.
18. Ibid. at s. 4.7(5).
19. Ibid. at s 4.7(6).
20. Canadian Aviation Security Regulations, S.O.R./2000-111.
21. Aeronautics Act, supra note 17 at s. 5.
22. Supra note 15.
23. Immigration Act, R.S.C. 1985, c. 1-2, as rep. by Immigration and Refugee Protection Act, S.C. 2001, c. 27.
24. For a useful discussion, see June M. Ross, “Applying the Charter to Discretionary Authority” (1991) 29 Alta. L. Rev. 382.
25. R. v. Therens, [1985] 1 S.C.R. 613 [Therens].
26. Slaight, supra note 9.
27. R. v. Hufsky, [1988] 1 S.C.R. 621 [Hufsky].
28. R. v. Ladouceur, [1990] 1 S.C.R. 1257 [Ladouceur].
29. R.S.O. 1980, c. 198, s. 189a, as am. by 1981, c. 72, s. 2.
30. Hufsky, supra note 27 at 633.
31. Ibid.
32. Supra note 25 at 645.
33. Ibid.
34. Ladouceur, supra note 28 at 1264-67 [emphasis added].
35. These cases were cited by Justice Iacobucci in dissent in Little Sisters, supra note 11 at 1226-29.
36. 2 S.C.R. 145 [Hunter].
37. Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 10(1) and (3).
38. 1 S.C.R. 30 [Morgentaler].
39. Supra note 13, s.251, as rep. by Criminal Code, 1993, S.C. 1993, c. 28, s. 78.
40. Morgentaler, supra note 38 at 62.
41. 1 S.C.R. 91 [Bain).
42. Supra note 13, s. 634(2).
43. Therens, supra note 25 at 623.
44. 2 S.C.R. 495.
45. R.S.C. 1985 (2nd Supp.), c. 1.
46. 2 S.C.R. 151.
47. Ibid. at 205.
48. Ibid. at 205.
49. Supra note 4 at 136.
50. Ibid.
51. 2 S.C.R. 606 [Nova Scotia Pharmaceutical) where Justice Gonthier recognized for the Court that “the justifications invoked for the doctrine of vagueness under both s. 7 and s. 1 are similar”: Ibid. at 631.
52. Our argument raises the question of whether common law rules, given their lack of democratic pedigree, should be permitted to meet the “prescribed by law” requirement. Regulations also pose a problem because of the limited role of legislative oversight in the formulation of regulations. Our position is that, although legislation is preferable from a democratic standpoint, at least common law rules and regulations with “clear statements” would publicly articulate the violation of a constitutional right and would prevent “invisible” violations of Charter rights through internal department policies. For a similar point, see Lorraine Eisenstat Weinrib, “The Supreme Court of Canada and Section One of the Charter” (1988) 10 Supreme Court L.R. 469 at 477, n. 21.
53. 2 S.C.R. 1299.
54. 3 S.C.R. 229 at 386 [McKinney].
55. R.S.C. 1985, c. C-41 (3d Supp.), Sch. VII, Code 9956(a), as rep. by Customs Tariff, S.C. 1997, c. C-36, s. 213.
56. Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69. Also see Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1.
57. Nova Scotia Pharmaceutical, supra note 51.
58. 1 S.C.R. 139 [Commonwealth]
59. For the argument that departmental guidelines that have not been formally promulgated should nonetheless count as “law” for the purposes of s. 1 under certain circumstances, see Lome Sossin & Charles Smith, “Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government” 40 Alta. L. Rev. [forthcoming in 2003]; and Lome Sossin, “Discretion Unbound: Reconciling the Charter and Soft Law” (Canadian Charter of Rights and Freedoms: 20 Y ears Under the Charter Conference, Association for Canadian Studies, Ottawa, 19 April 2002) [unpublished].
60. The importance of interpreting the Charter to protect the interests of the politically powerless was made by Justice Wilson in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
61. Little Sisters, supra note 11. Ibid. at 1189, Justice Binnie concluded that “there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation.” He also stated, ibid. at 1168, that: “Parliament is entitled to proceed on the basis that its enactments ‘will be applied constitutionally’ by the public service.”
62. Ibid. at 1225-26.
63. The majority relied on this precedent, ibid. at 1193.
64. We recognize that the section 52 remedy would have also been preferable from a rights-protecting perspective. While section 24 remedies have usually been geared to providing compensation for violations after they have occurred, the section 52 remedy contemplated by Justice Iacobucci in Little Sisters is a remedial route that encourages the government to take precautions to prevent future violations of the Charter. Although it is possible to craft section 24(1) remedies that aim to prevent Charter violations in the future, there is little Canadian experience with such remedies.
65. For a similar point, see Pickel, supra note 11 at 358, and Ryder, supra note 11 at 227.
66. Conversely, some section 24(1) remedies such as the general declaration of constitutional entitlement in Mahe v. Alberta, [1990J1 S.C.R. 342, and Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624, may promote dialogue by allowing the government to select the precise means to implement the entitlement. See generally Kent Roach, “Remedial Consensus and Dialogue Under the Charter. General Declarations and Delayed Declarations of Invalidity” (2002) 35 U.B.C. L. Rev. 211 [Roach, “Remedial Consensus and Dialogue”].
67. 1 S.C.R. 45.
68. In this sense, constitutional minimalism, which avoids declarations of invalidity, may not promote democratic dialogue between the courts and the legislatures to the same extent as a s. 52(1) approach which results in a declaration of invalidity. See Roach, Judicial Activism, supra note 12 at 63-65, 147-152.
69. Bill C-36, supra note 6 at s.83.33.
70. R. v. Swain, [1991] 1 S.C.R. 933 [Stvain]; Schachter v. Canada, [1992] 2 S.C.R. 679 [Schachter].
71. In Bain, supra note 41 at 104, Justice Cory stated: “The suspended declaration does not leave the defence without a remedy during the interim. The accused may always attempt to demonstrate that there has been an abuse of the stand by provisions by the prosecution.”
72. See Anthony J. Duggan & Kent Roach, “A Further Note on Final Note: The Scope and Limits of Judicial Law Making” (2001) 36 Can. Bus. L.J. 115 at 135-38.
73. For example, the Ontario Court of Appeal has held that statutes of limitations do not apply to Charter damage claims, but this decision has not been followed by other courts of appeal (compare Prete v. Ontario (Attorney-General) (1993), 110 D.L.R. (4th) 94 (O.C.A.), with McGillivary v. New Brunswick (1994), 111 D.L.R. (4th) 483 (N.B.C.A.), and Nagy v. Phillips (1996), 137 D.L.R. (4th) 715 (A.C.A.).
74. Supra note 70 at 720.
75. 3 S.C.R. 347 [Guimond].
76. Ibid. at 360. Lower courts have also demonstrated reluctance to combine the two types of remedies. See, for example, Walsh v. Bona (2000), 186 D.L.R. (4th) 50 at 84 (N.S.C. A.). But see Lucas v. Toronto Police Service Board (2000), 51 O.R. (3d) 783 (Ont. S.C.J.) [Lucas]. In Lucas, the court held that the rule that damages and a constitutional declaration should not be issued together is “not an absolute one. The general reason for the principle is that the state should not be retrospectively liable for damages caused prior to the declaration of invalidity.” But this rationale does not apply when damages are sought for a prosecution under a law already declared unconstitutional.
77. th) 564 [Mackin].
78. Ibid. at 569.
79. Ibid. at 598-99. Justice Gonthier later seems to hint that negligence as well as abuse of power might be sufficient for a damage award when he concludes, ibid. at 600, “I do not find any evidence that might suggest that the government of New Brunswick acted negligently, in bad faith or by abusing its powers.”
80. McKinney, supra note 54 at 410-11.
81. At the same time, there may be some cases such as wrongful dismissals resulting from profiling where pecuniary damages may be extensive.
82. David Rudovsky, “Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches without Cause” (2001) 3 U. Pa. J. Const. L. 296 at 354.
83. See Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000), where $245,000 in damages was awarded for racially motivated arrest and use of excessive force. See also, Hall v. Ochs, 817 F.2d 920 (1st Cir. 1987), where $375,000 in damages was awarded for racially motivated police misconduct. One famous class action commenced by African-American lawyer Robert Wilkins, who was stopped on returning from a family funeral, led to a settlement with the Maryland police that they not engage in profiling and that they keep statistics concerning stops. These statistics indicated that 80 per cent of those detained and searched were African-American or Hispanic. This result has led to fresh litigation. See Maria V. Morris, “Racial Profiling and International Human Rights Law: Illegal Discrimination in the United States” (2001) 15 Emory Int’l L. Rev. 207 at 239-40.
84. Crossman v. The Queen (1984), 9 D.L.R. (4th) 588 at 600 (F.C.T.D.); Lord v. Allison (1986), 3 B.C.L.R. (2d) 300 at 316 (S.C.); Chrispen v. Kalinowski (1997), 117 C.C.C. (3d) 176 at 191 (Sask. Q.B.).
85. (2001), 197 D.L.R. (4th) 165 (B.C.S.C.).
86. Ibid. at 185.
87. Ibid. at 186.
88. Ayangma v. Prince Edward Island (2000), 194 Nfld. & P.E.I.R. 254 at 290-91 (P.E.I.S.C. (T.D.)).
89. Du-Lude v. Canada, [2001] 1 F.C. 545.
90. Ibid. at 557-58.
91. In Mackin, supra note 77 at 600, the Supreme Court sounded a note of caution about awarding the fuller indemnity of solicitor and client costs. See Kent Roach, Constitutional Remedies in Canada (Aurora: Canada Law Book, 2002 as updated) at para. 11.970 [Roach, Constitutional Remedies].
92. Punitive damages against municipalities are not allowed in the United States. For a persuasive argument that such damages may best deter constitutional violations, see Ciraolo v. New York (City of) 216 F.3d 236 at 242-50 (2d Cir. 2000), Justice Calabresi concurring. See also Peter H. Schuck, Suing Government: Citizen Remedies For Official Wrongs (New Haven: Yale University Press, 1983). For the Canadian context, see Lome Sossin, “Crown Prosecutors and Constitutional Torts: The Promise and Politics of Charter Damages” (1993) 19 Queen’s L.J. 372.
93. Ashby v. mite (1703), 2 Ld.Raym. 938 at 956.
94. Rookes v. Barnard, [1964] A.C. 1129 at 1226 (H.L.).
95. See Bauderv. Wilson (1988), 43 C.R.R. 149 (B.C.S.C.); Patenaude v. Roy (1994), 123 D.L.R. (4th) 78 (Q.C.A.).
96. R.S.Q. c. C-12.
97. Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at 262.
98. Augustus v. Gosset, [1996] 3 S.C.R. 268 at 311.
99. Indeed, victims of profiling may receive more effective relief by making human rights complaints against the officials who engaged in profiling. Human rights commissions may be more prepared to order or negotiate settlements that result in complex mandatory relief. A recent human rights complaint by African-Canadian law student Selwyn Pieters about profiling by the Canada Customs and Revenue Agency (CCRA) resulted in a settlement that included not only an apology and a cash payment of an undisclosed amount, but also commitments by the CCRA to “implement a pilot project intended to develop statistics on referrals to secondary examination, based on race, colour, national and ethnic origin and gender of referrals,” to consider collecting such data on a permanent basis, and to provide anti-racism and cultural diversity training for customs officers. See Minutes of Settlement Between Selwyn Pieters and Department of National Revenue (now Canada Customs and Revenue Agency), 30 January 2002 [unpublished]. Similar settlements and consent decrees have been negotiated in the United States. See Rudovsky, supra note 82 at 359-63.
100. Even in the context of the explicitly positive rights to instruction and institutions under s. 23 of the Charter, the Supreme Court has stressed its preference for reliance on declaratory as opposed to injunctive relief: Mahe v. Alberta, [1990] 1 S.C.R. 342 at 392-93; Re Public Schools Act, [1993] 1 S.C.R. 839 at 860-61. This remedial consensus is explored in greater depth in Roach, “Remedial Consensus and Dialogue”, supra note 66.
101. 3 S.C.R. 624 at 631.
102. Little Sisters, supra note 11 at 1203.
103. Ibid. at 1252.
104. Ibid. at 1254.
105. Roach, “Remedial Consensus and Dialogue”, supra note 66 at 233.
106. A less intrusive alternative would be for the court to issue declaratory relief but to retain jurisdiction and allow or require the successful Charter applicant to return to the court to seek further relief. A majority of the Nova Scotia Court of Appeal recently held that this approach was unavailable in a minority language education case under section 23 of the Charter, on the formalistic basis that the trial judge had become functus once he had issued the requested declaratory relief. Doucet-Boudreau v. Nova Scotia (Dept. of Education) (2000), 185 N.S.R. (2d) 246 (T.D.), rev’d with respect to remedies (2001), 203 D.L.R. (4th) 128 (N.S.C.A.), leave to appeal to S.C.C. granted, [2001] S.C.C.A. No. 459 (QL).
107. Roach, Constitutional Remedies, supra note 91 at para. 7.350.
108. City of Los Angeles v. Lyons, 103 S. Ct. 1660 (1983).
109. See e.g. New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at 66.
110. R. v. Edwards, [1996] 1 S.C.R. 128.
111. At the same time, even American courts have found that organizations such as the NAACP may have standing to challenge profiling on the basis that the rights of their members would be infringed by such practices. See Maryland Conference of NAACP Branches v. Maryland Dept. of State Police, 72 F.Supp. 2d 560 (D.Md. 1999); Rodriguez v. California Highway Patrol, 89 F.Supp. 2d 1131 (N.D. Cal. 2000).
112. Courts should consider the difficulties that individuals would face bringing Charter challenges to profiling and should not mechanically deny public interest standing to a group on the basis that more directly affected individual victims of profiling could bring a challenge. But see Canadian Council of Churches v. Canada (Ministry of Employment and Immigration), [1992] 1 S.C.R. 236.
113. The same cannot be said of those who face subsequent administrative proceedings, because administrative boards and tribunals may be found not to have jurisdiction to exclude unconstitutionally obtained evidence. See Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.
114. R v. Strachan [1988] 2 S.C.R. 980; R. v. Grant, [1993] 3 S.C.R. 223. There may be some limits if the relation between the impugned evidence and the Charter violation is remote and tenuous. R. v. Goldhart, [1996] 2 S.C.R. 463.
115. If the evidence is a statement or bodily substance conscripted from the accused, it will be excluded to protect the accused’s fair trial, with little consideration of the seriousness of the Charter violation: R v. Stillman, [1997] 1 S.C.R. 607.
116. R v. Simpson (1993), 12 O.R. (3d) 182 (C.A.).
117. R v. Regan (2002), 209 D.L.R. (4th) 41 at 67.
118. Ibid. at 91, 94.
119. See Jean Leclair, “Réflexions critiques au sujet de la métaphore du dialogue en droit constitutionnel canadien” Revue du Barreau [forthcoming in 2003].
120. Of the dozen legal scholars who testified before the House of Commons Standing Committee on Justice and Human Rights, and the Senate Special Committee on Bill C-36, the hearing transcripts show that only three squarely addressed racial and ethnic profiling in their oral testimony, with a fourth discussing the overlapping, but distinct, phenomenon of ideological profiling: Errol Mendes (Special Senate Committee on Bill C-36, Proceedings, Issue 8 (5 December 2001), online: < http://www.parl.gc.ca/37/1/parlbus/commbus/senate/Com-e/sm36-e/08evae.htm?Language=E&Parl=37&Ses=l&comm_id=90>, House of Commons, Standing Committee on Justice and Human Rights, Evidence (6 November 2001), online: Parliamentary Internet (racial profiling)), Don Stuart (Special Senate Committee on Bill C-36, Proceedings, Issue 8 (5 December 2001), online: (racial profiling); Kent Roach, ibid. (racial profiling), and Jamie Cameron (House of Commons, Standing Committee on Justice and Human Rights, Evidence (6 November 2001), online: (ideological profiling)).
121. For example, Herb Dhaliwal (then Minister of Fisheries and Oceans, now Minister of Natural Resources) having once been profiled himself, denounced the practice during the debates leading to the enactment of Bill C-36. See Choudhry, supra note 2 at 368 and Kent Roach, September 11 Consequences for Canada (Montreal: McGill-Queen’s University Press, 2003) at 64-66, 70-74.
122. Kent Roach & Sujit Choudhry, “Brief to the Special Senate Committee on Bill C-36” (5 December 2001) [unpublished]. This brief was excerpted by The Toronto Star (6 December 2001) A36.
123. If our views that profiling violates the equality rights of the racial and ethnic groups targeted and cannot be justified under section 1 as an effective and proportionate law enforcement technique are accepted, explicit authorization of profiling would require that the legislation be enacted notwithstanding section 15 of the Charter.