Racial Profiling: Rights without Remedies
In theory, being pulled over by the police or singled out by customs’ officials
because of the colour of your skin is a clear violation of the right to equality. Victims of
profiling suffer legal disadvantages and have their human dignity denied by stereotypes
associating them with crime. In practice, however, it is difficult to prove profiling in court. It
is even more difficult to obtain a meaningful remedy.
First you must establish a Charter violation. There are some modest signs that the
law governing police powers is slowly becoming more sensitive to equality values.
In 1990, the Supreme Court upheld the constitutionality of random traffic stops with
only four judges in dissent worrying about the effects of such police powers on racialized
minorities. By 2001, a majority of the Supreme Court (again with four judges in dissent)
took notice of the disproportionate effects that strip searches could have on Aboriginal and
African-Canadian communities who are over-represented in the justice system. This is
progress given the incremental way in which the law evolves.
Even if you can prove a Charter violation, you need a remedy. People will generally
only go to the trouble and expense of making a legal claim if some tangible remedy can be
obtained. In profiling cases, however, a legal claim will result in more grief than gold.
The strongest remedies are only available when incriminating evidence is discovered
on the person profiled and the person is charged. Evidence can be thrown out if obtained
while violating the accused’s rights against unreasonable search and seizure, arbitrary arrest
and/or equality rights. The accused can even ask that the whole case be thrown out of court.
Even in these cases, however, there may be no remedy. In almost all cases, the
courts will not throw criminal cases out if a fair trial is still possible. Courts are also
reluctant to throw evidence such as guns and drugs out of a criminal trial. They will balance
how bad the police were against how bad they think the accused was. Hopefully, the balance
would in most cases tilt towards the accused in cases of profiling, but there are not many
cases proving this point.
But what about the factually innocent victim of profiling? These are the people who
have the greatest grievance against the state for being hassled. Because stereotypes
associating groups with crimes are often wrong, there are likely far more victims of profiling
who have no incriminating evidence to be excluded and no charges to be dismissed.
These people are largely stuck. They can sue for damages, but the awards for simple
damages of a Charter right have often been trivial. A person who sues the police has to find
a lawyer willing to take the case; start the case in 6 months; and then run the risk of having
to pay the costs of the expensive lawyers that defend the police if the police win. It is
honourable but also a bit crazy to accept these costs and run these risks for a $500 damage
award and an important point of principle.
In the United States, some class actions have aggregated the damage claims of
profiling victims. At that point, the damages may come closer to the costs of the case. The
chances of influencing police behaviour may also be greater. We may yet see profiling class
actions being attempted in Ontario, but the courts may conclude the cases are too different to
bring together in one lawsuit.
The victim could also seek a court order changing police behaviour, but Canadian
courts are reluctant to make such orders. Courts may declare there is a problem, but nothing
may actually happen. No remedies against legislatures are available because Canadian
criminal law is silent on the issue of profiling: it neither prohibits it or authorizes it.
Many see complaints to the police as a waste of time. Complaints to a human rights
commission may be more productive, but they are often slow and only rarely result in a
public hearing.
In most cases, victims of profiling will have no legal remedy. And as lawyers have
long known, if there is no remedy, there is no right.
Kent Roach is a Professor of Law at the University of Toronto. He is the author of
Constitutional Remedies in Canada and of the forthcoming book September 11:
Consequences for Canada.