Western Law racial profiling research project to connect Charter breaches to race factor

As protests continue to erupt in the U.S. over the police killings of unarmed Black men, human rights lawyer Sunil Gurmukh and Western Law are about to launch a research project into racial profiling in Canadian policing.

“What I want people to know, is that north of the border, there is systemic anti-Black racism and anti-Indigenous racism in policing,” Gurmukh says.

In the Hidden Racial Profiling Project, Gurmukh and student researchers will examine recent cases involving major municipal police forces. They will look for Charter violations such as arbitrary detention, unreasonable search and seizure and excessive force and then contact defence counsel and accused in those cases to determine the race of the victim of the police misconduct.

“I have two goals. First, I want to make invisible racial profiling, visible, and get the attention it deserves. And second, I hope to inspire the next generation of human rights lawyers,” says Gurmkukh.

“I expect to uncover many cases that involve Indigenous or Black victims that are consistent with racial profiling and will make those cases visible.”

Gurmukh says the underlying issue has been illustrated by Professor David Tanovich of the University of Windsor Faculty of Law, who has written about the failure of defence counsel to make allegations of racial profiling on behalf of their clients, calling it the “erasure of race in Charter cases.”

One “clear example” of failing to connect a Charter breach to race was the 2010 decision from the Ontario Court of Justice, says Gurmukh. In R. v. Bonds, 2010 ONCJ 561, the court concluded Ottawa police officers had violated the rights of Stacy Bonds, whom they had unlawfully arrested for public intoxication.

“She was not publicly intoxicated or a threat to herself or anyone else. She was taken to a holding cell at the police station and strip-searched by multiple officers, including a male officer who used scissors to cut off her bra. She was left half naked in the cell for over three hours and soiled her pants,” he says.

“The decision makes no mention of the fact that Miss bonds is black. And the decision makes no mention of the issue of racial profiling. But the facts are clearly consistent with racial profiling.”

Gurmukh counsel at the Ontario Human Rights Commission and he says the views expressed in the forthcoming research are his own and do not necessarily reflect those of the OHRC. Gurmukh is also counsel for the OHRC’s ongoing inquiry into racial profiling and racial discrimination in the Toronto Police Service. The most recent of the inquiry’s two interim reports, A Disparate Impact, was released Aug. 10.

A Disparate Impact included two reports from criminologist Dr. Scot Wortley, who looked at Toronto Police Service data from 2013 to 2017. While Black people represent 8.8 per cent of Toronto’s population, made up 32 per cent of charges. But those charges were “more likely to be withdrawn and less likely to result in a conviction,” which “raises systemic concerns about charging practices,” said the OHRC.

Black people were also disproportionately represented in cannabis charges; “out-of-sight driving charges;” Special Investigations Unit investigations resulting in death, serious injury or sexual assault allegations and “lower-level use of force” not rising to the SIU threshold.

“The data analyzed in both interim reports is disturbing,” says Gurmukh.

“The goal of inquiry was – and still is – to build trust between the Toronto Police and Black communities, to empirically study the issues, to pinpoint the problem areas and to make strong recommendations to address the roots of the problem.”