Ontario Human Rights Commission calls on police to address racial profiling

To help police “eliminate racial profiling,” the Ontario Human Rights Commission presented a new policy proposal to the Ontario Association of Chiefs of Police on Friday.

The policy includes recommendations for government, police services, police boards and police oversight committees and is a “first of its kind in Canada,” says the OHRC. The policy identifies the difference between illegal racial profiling and legitimate criminal profiling based on reliable suspect description, examines the phenomenon of racial under-policing – where marginalized groups receive negligent police services – and gives guidance on the discriminatory consequences of predictive policing and other methods using artificial intelligence.

“It’s heartening that we are no longer debating the existence of racial profiling or the harm it causes Indigenous peoples and racialized communities,” said Renu Mandhane, chief commissioner of the OHRC, in a written transcript of her remarks on Friday, which the OHRC provided to Law Times.

“We all know that police have an increasingly complex and difficult job,” she said. ”But – to echo the Supreme Court in its most recent decision on racial profiling – with extensive powers come great responsibilities.”

The policy suggests seven “key principles” for police organizations to change their approach to racial profiling: acknowledgment of the existence of and harm caused by racial profiling and the impact that has on trust in the justice system, engagement with racialized and Indigenous communities, policy guidance, race-based data collection to reduce disparities in the nature and frequency of police interactions, monitoring and accountability, organizational change and a multi-year action plan.

“I call on police leaders across the province to follow through on the commitments they have made today,” said Mandhane.

In Ontario, 30 per cent of residents are Indigenous or racialized, and it is imperative all groups in the province “benefit equally from police services,” Mandhane said. This requires suspicion and scrutiny not be dealt prejudicially but also that marginalized communities not be ignored, she said.

The problem of racial under-policing has come to prominence in the aftermath of the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the OHRC defines the concept as “failure to take appropriate action to protect the safety or security of an individual or group of people based on race, colour, ethnic origin, ancestry, religion, place of origin or related stereotypes, rather than proper investigations or preventative actions,” said Mandhane.

The OHRC policy includes guidance on how new policing techniques involving artificial intelligence could reproduce and perpetuate racial bias.

“Put simply: if your data is tainted by racial bias, machine learning will replicate this bias,” Mandhane says.

The policy looks at both systemic and individual profiling. The policing policies identified as contributing to systemic racial profile include deployment that targets particular neighbourhoods or groups, proactive vehicle or pedestrian stops, “enforcement incentives and performance targets that reward stereotyping,” stereotype-based priorities, certain national security or anti-terrorism techniques, predictive policing algorithms that rely on racial-based data and the under-policing of Indigenous and racialized communities.

In what the OHRC called a “historic step forward,” at the Toronto Police Services Board meeting the day before the OHRC delivered the policy, the TPSB approved a policy of race-based data collection. The police will document the race of anyone subject of “searches, interactions involving use of force, charges, apprehensions and arrests,” said the TPSB.

Race-based data collection is integral to curbing racial discrimination in law enforcement, said the OHRC in a deputation made to the TPSB, and which the OHRC included in its policy.

“Going as far back as the Clare Lewis Report in 1989, race-based data collection has been recognized as the foundation for identifying racial disparities and potential discrimination,” Mandhane said.

“Once fully implemented, this Policy will require race-based data collection across the full range of police-civilian interactions, and will make the Toronto Police a national leader in race-based data collection,” she said.