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Racial profiling is a specific type of racial discrimination that pertains to safety and security. The OHRC currently defines racial profiling as:
[A]ny action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion, or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.[22]
Racial profiling is often not viewed as a serious human rights issue in the way that other forms of racial discrimination are. Many people and organizations generally understand that denying someone a job or an apartment based on race, colour or ancestry, or harassing someone at work because of their faith, violates people’s human rights.
However, in the past and today, many institutions, police leaders and people in the general public have denied the existence of racial profiling, or have viewed it as warranted. For example, in the past, some law enforcement institutions actively used practices that over-scrutinized people from racialized and Indigenous communities, in the name of increased safety and security. [23]
Although racial profiling has been more recently understood as illegal and harmful to racialized and Indigenous communities, belief in its effectiveness and legitimacy persists. We still see some institutions and the general public supporting practices that may amount to racial profiling because they are viewed as useful, benign and/ or justified compared to other forms of racial discrimination.[24] For example, in 2015, when weighing in on the debate about carding,[25] the then-Chief of the Hamilton Police Service outlined what he felt was a suitable discretionary approach to collecting information:
When we send officers to this area in response to the shooting, we are going to be stopping, talking and investigating young black males. We are going to be stopping and talking to as many people as possible because we do not know who might be a suspect, person of interest, victim, witness or a person who may wish to be a confidential informant. We don’t know until we gather the information.[26]
In response, the OHRC called this a “textbook description of racial profiling.” Using this approach, anyone who happens to be a “young Black male” will be stopped and questioned without evidence or suspicion of evidence of wrongdoing, but solely because they are young Black males.[27]
Because it may not be viewed as seriously as other forms of racial discrimination, the OHRC’s consultation focused specifically on racial profiling. This work can help affected communities understand what racial profiling is and how it may be different from other forms of racial discrimination. It is important for institutions to know what types of practices may constitute racial profiling and the specific approaches they can take to address it. Presenting consultation participants’ experiences of racial profiling shows the adverse impacts it has on people in racialized and Indigenous communities, and also shows its significance as a pressing human rights issue affecting Ontarians.
2.1. Scope of report
When we started this consultation, the aim was to highlight perspectives and reports of racial profiling. However, along the way we learned that to do justice to people’s experiences, we had to talk about racial profiling within a broader context. Other forms of racial discrimination and racism, such as inequitable treatment, harassment, systemic discrimination, everyday racism and hate activity, are persistent in the lives of racialized and Indigenous peoples, in addition to racial profiling. [28] Many consultation participants gave multiple examples of these.
Many of these experiences could constitute violations of people’s rights under the Code, but they may not be what the OHRC would typically define as “racial profiling” because they do not take place in the context of safety and security. However, these experiences can create the conditions that give rise to incidents of racial profiling and often happen alongside it.
At work, [I’m lucky] if I get past the screening phase, as my name suggests I am a minority. Out shopping, I am the probable shoplifter. Taking a walk, I am the probable wife snatcher or burglar (Black male, age 45-54).
There is also a “grey zone” when talking about racial profiling. Consultation participants cited many examples of racial discrimination, which, depending on the specific facts, could amount to what the OHRC defines as racial profiling. The definition of racial profiling focuses on the notion that a person’s or organization’s actions are motivated by safety, security or public protection. There are situations of racial discrimination that on the surface may not look like racial profiling, but on greater inquiry, they may very well be.
Although the focus of this report remains on racial profiling, to better reflect communities’ broad concerns, we decided to present experiences and perceptions of other forms of racial discrimination as well. By doing so, we hope to more holistically portray how all these forms of discrimination create barriers to equally accessing employment, housing and services in Ontario. We have identified these other experiences of racial discrimination in several subsections in “Qualitative reports of racial profiling” (section 3.1.2).
Although we use the term “racial profiling,” we recognize that it can also intersect with creed profiling. Muslims and people of other faiths may experience both. Creed profiling may happen when people are subjected to heightened security, scrutiny and surveillance because of their outward appearance or perceived belonging to a certain creed faith, based on stereotypes about people of that creed, or because of their associations with particular ethnic and racial groups.
This report discusses organizations and sectors that are covered by Ontario law, which must comply with the Code. It also addresses some sectors that are out of the Code’s jurisdiction, such as airports and border and national security agencies. These are covered by the Canadian Human Rights Act.[29]
[22] Ontario Human Rights Commission, Policy, supra note 5 at 21.
[23] For example, as part of the “war on drugs” in the U.S. in the 1980s, a drug courier profile that was “fixated on race” was used by the Drug Enforcement Agency to train drug enforcement officers to conduct pretext vehicle stops for drug searches. David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40:2 Osgoode Hall LJ 145 at 151; Sheri Lyn Johnson, “Race and the Decision to Detain a Suspect” (1983) 93:2 Yale LJ 214. See also Alejandro Del Carmen, Racial Profiling in America (New Jersey: Pearson Prentice Hall, 2008) at 10-13; Jennifer Preston, “Trooper Says State Police in New Jersey Discriminate” The New York Times (6 February, 1999) online: The New York Times www.nytimes.com/1999/02/06/nyregion/trooper-says-state-police-in-new-jersey-discriminate.html (retrieved February 23, 2017).
[24] For example, a U.S. survey found that the majority of respondents opposed the use of racial profiling practices. However, a third (33.5%) said they agreed that to prevent crime, law enforcement officers should be allowed to search people’s bags or packages based on a racial/ethnic profile of suspected criminals. Devon Johnson et al, “Attitudes Toward the Use of Racial/Ethnic Profiling to Prevent Crime and Terrorism” (2011) 22:4 Criminal Justice Policy Rev 422.
[25] Street checks/carding are “non-arrest police approaches that involve and/or are for the purpose of asking for, recording and/or obtaining identification, personal information and/or information about an individual’s circumstances.” Carding Regulation Joint Response, supra note 11. The OHRC was a signatory to the Joint Response.
[26] See Interim Chief Commissioner Ruth Goba, Letter to the Editor, The Spec (29 October 2015) online: Ontario Human Rights Commission www.ohrc.on.ca/en/news_centre/op-ed-hamilton-spectator-commenting-%E2%80....
[27] Ibid.
[28] For more information about the different forms of racial discrimination and a discussion of racism generally, see the OHRC’s Policy, supra note 5.
[29] Canadian Human Rights Act, RSC 1985, c H-6