Particularly in light of the United States, there has been police-citizen race tension as racial profiling in law enforcement remains a contentious issue. The racial profiling discussion has never been settled. The supporters of racial profiling believe that it is a tool to effectively expose criminal movements’ in particular racial groups. On the other hand, the opponent of racial profiling believes that it preserves racial humiliations and is basically not an efficient tool in policing (Tator & Henry, 2006). The paper offers an outline and explores the ongoing debate of the Canadian judicial involvement in racial profiling and the contentious issues around it in law enforcement. It also discusses the conflict between the practice of racial profiling in Canada and the Canadian charter of rights and freedoms, widespread practice of racial profiling and its significance in Canada. The use of racial profiling by law enforcement has attracted much attention due to the effects it has on an innocent individual’s rights on the basis of the appearance of that individual thus remaining a controversial subject. The pursuit of a person belonging to a particular racial group, centered on the supposed criminal propensity of the entire group, is the description of racial profiling by the Ontario Court of Appeal. Racial profiling can be practiced by any individual of any race. It is unjustifiably punitive for police officers to apply racial profiling. The assumption about appearance significantly and negatively impacts an individual’s charter rights. As a means towards greater national security, some policymakers suggested they knew what a terrorist looks like and encouraged racial profiling of Muslims and Arabs, subsequent attacks on the September 11, 2001 (9/11) downing of United Flight 93 in Pennsylvania and on the World Trade Center and the Pentagon. In Canada, arguments over racial profiling are hardly new. Though, the nature of the discussion and the tenor was changed by 9/11. Without uncertainty, a hitherto unmarked level of attention by the part of the media and legislators in regard to racial profiling was generated by the September 11 terror attack. Prior to 9/11, exclusively not from the perspective of criminal law, the racial profiling discussion mainly focused on African Canadians. While the issue did not extend discussion from either popular or scholarly spheres, it did command sporadic public responsiveness.
Overview and General Considerations of Racial Profiling
In 2011, there was an increase in the number of minorities in Canada to 19.1% of the total population. Issues related to race are normally in the forefront of public concern with the increase in diversity. As a result of the application of state power Canada has not escaped the challenges of racial biases. For instance, the race-based pursuit of Muslim and Arab Canadians resulted from security fears following September 11, 2001. For example, there were efforts to form special police divisions to crack down and eliminate illegal immigrants as an approach of Canada’s counterterrorism efforts by former Ontario Premier Mike Harris. The Premier stated that the unit emphasized preventing terrorism through deportation, although, Muslims and Arabs were not openly identified as targets of the new strategy. Subsequently, little uncertainty was left as to the religious or ethnic identity of those subjected to special inspection from the law enforcement personnel or the police. The case of Donald Marshall Jr. is a famous Canadian example of state power influenced by racial bias. In this case, for the murder of Sandy Seale Marshall was wrongfully convicted, the Canadian justice system repeatedly let him down, in part because he was a native. John Maclntyre the Sergeant of Detectives of the Sydney Police Department, actions manifested this biasness. Irrespective of lack of evidence, John decided early in the inquiry that Marshall committed the crime supporting this conclusion. In the town’s overall sense that Indians were less worthy than whites, John considered Marshall a troublemaker. John carried out his inquiry in a way that supported his presupposition that Marshall was guilty. In the incarceration of this innocent Canadian, racial profiling played a key role (Tator & Henry, 2006).
Charter of Rights and Freedoms
The application of racial profiling infringes the charter values of security and liberty of the person, by law enforcement in their acting capacity as state agents. This is particularly so in stopping and investigating individuals by the police officers while using racial profiling. For instance, an individual may be considered under detention because in large part to their race when a law enforcement officer resolves to stop and investigate them on the basis of the racial profile. Every person has a right not to be subjectively detained or imprisoned as per section 9 of the charter and the detention of a person based on racial profiling engages that section. If detention is solely on the basis of the detainee then it is subjective. Alternatively, all persons are equal before the law and outlaws discrimination on race basis, ethnic or national origin, and color, among other aspects as stated in section 15 of the charter and racial profiling may violate it. However, section 15 cases in regard to race are minimal; the Supreme Court of Canada has fewer instances directly dealing with a race under section 15. The complications of proving racial discrimination are highlighted in the limited application of section 15 in racial profiling cases. Lastly, demonstration of evidence is generally circumstantial in nature in racial profiling.
Criticisms of Racial Profiling. The ability of ability of enforcement to correctly distinguish races is a crucial concern when allowing the application of racial profiling, particularly when various racial groups share the same physical features. For instance, it is not easy for a police officer to effectively distinguish Punjabis who are alleged as having drug trade and gang association in British Columbia from other south Asians. The same issue of distinction is evident between persons of Vietnamese descent who are heavily involved in marijuana plantations and the Japanese. These instances show that racial identifiers are not easy to determine and correctly relate to a culprit or a suspect. Besides, a blanket explanation of any racial group can be vague and subjective. It is essential to avoid the use of racial profiling particularly in ethnically diverse cities where there is the challenge of correctly identifying different races and avoiding the application of blanket explanations can be improved (Forcese & Roach, 2015).
Economic and social factors can influence racial profiling since it does not exist in a vacuum. Socioeconomic realities challenging racialized minorities can perpetuate racial attitudes. There is an upsurge in socioeconomic marginalization with the extremely high rate of poverty among racial minorities faced by radicalized groups throughout Canada. Over recent years, there has been an upsurge in social and economic inequalities among radicalized individuals caused by intensified racialization in labor markets in the increasing economic restructuring. The racialization and segregation of low-income neighborhoods, as well as increased income disparities, are some of these inequalities. These factors turn into anti-social behavior, the minorities are disproportionate victims of contact with the system of criminal justice. The police officers can develop a racial profile and as a result, have certain biases due to the higher rates of contact with the justice system. The more that a group is pursued the greater the chances that criminality will be discovered is a phenomenon that presents a cyclical risk.
Racial Profiling and the War against Terrorism
As an overall matter, subjecting a subgroup to special search with the aim of preventing or stopping crime, violence, or some other unwanted activity is done through profiling which includes separating of the population from the bigger whole on the grounds of specific principles that allegedly relates to risk. Racial profiling thus involves the use of race as an alternative for risk either entirely or partially. In the setting of the war against terrorism, the idea of whether or not race should be substituted for real knowledge on a person’s relation to, or propensity for, terrorist activity is the center of racial profiling. As in the United States, whether Muslims and Arabs should be treated as a group more likely to threaten Canada or international security is the chief issue in Canada’s war against terrorism. Within weeks of September 11, Mike Harris then Premier of Ontario established a special police division aimed at tracking down and deporting illegal immigrants. Around the same period, there was approval of racial profiling by 48 percent of Canadians. Interestingly, Arabs and Muslims have become the target of common suspicion irrespective of large demographic, religious and other dissimilarities among them (Grinspun & Shamsie, 2007).
In early October 2001, the Canadian parliament reacted to the September 11 attacks in the United States with a number of legislative activities in an effort established to secure Canada’s national interest and offer support to the global efforts to eliminate terrorism. Airport security, the criminal law, intelligence services, tax law, employment and laws controlling financial organizations are the aspects of a massive and compound collection of practices, laws, policies and regulations in which the fight against terrorism takes its form. Significantly, laws do not condone nor restrict racial profiling; the legislative fight against terrorism is silent on racial profiling. Arabs and Muslims in Canada are subjected in a different relationship to laws that link racial profiling than Japanese Canadians, for instance, in 1941 after the bombing of Pearl Harbor there was explicit marginalization and incarceration on the basis of race (Grinspun & Shamsie, 2007).
However, racial profiling takes place in Canada irrespective of lack of open authorization of racial profiling in the war against terrorism legislation. Canadian law excludes equality-seeking groups in its application and no longer targets individuals openly on the basis of race. It is almost not possible to gauge the level in which racial profiling is practiced in anti-terrorism in Canada. This is in part since racial profiling occurs on the ground and regularly as a result of optional decision-making which is not well standardized. Hitherto, numerous signs show that Canadian Arabs and Muslims are subject to racial profiling. First, there is a failure to effectively monitor racial profiling thus establishing chances for racial profiling due to the silence of the legislature regarding the practice. Second, there is a suggestion by numerous high profile cases that racial profiling occurs in Canada’s war against terrorism. Finally, the policies and directives established by the organizations mandated to fight the war against terrorism are not explicitly approved as the enacted laws do not openly approve or encourage racial profiling.
Measures Aimed at the Arab and Muslim Communities in General
For heightened security surveillance there is a focus on procedures and policies that pursue the Arab and Muslim group in general when advocates debate on racial profiling. Not surprisingly, the public and politicians had a focus to airport security to probe whether the attack on the Pentagon and world trade center, and the crash of United Flight 93 could have been prevented with an improved screening of passengers at airports since the terrorist of September 11 turned commercial airliners into weapons of mass destruction. The question of whether Arabs and Muslims should be subjected to advanced search at airports since the hijackers were believed to be Arabs or Muslims. The airport security personnel and workers of commercial airlines have some choice to regulate if a person or their possessions should be subject to advanced search than other passengers, although, transport Canada does not officially accept racial profiling. This choice or preference involves the power to remove a passenger from an aircraft. Hence, due to Arab or Muslim physical appearance, for instance, women who wear hejab or some information shows that a person is Arab or Muslim, they are susceptible to advanced search. Although it happened in the United States, in a case where a secret service agent on his way to protect President Bush and his family on Christmas day was ejected from an American Airlines flight, has some applicability to Canada because it depicts the tendency of at least some pilots who work across national borders to take Arabs and Muslims as security risks (Ramraj, 2012).
Racial Profiling and Pre-9/11 Images of Arabs and Muslims
The long-standing and intensely believed stereotype about Arabs and Muslims tend to twist rational decision making thus making racial profiling a challenging tool in anti-terrorism. Historically it has been a common stereotyping about Arabs and Muslims even before 9/11. In Canada and United States Arabs and Muslims are normally seen as fanatical, violence-loving enthusiasts. This intensely imbedded image of Arabs and Muslims prior to September 11 and is well documented. Decision makers have a high chance to filter interpret facts through the view of stereotypes instead of making a personal and rational examination on the basis of certain facts of a particular case when they work against a background of fixed but regularly unconscious stereotypes. It has long been accepted that there is no pure unmediated gaze by thoughtful decision makers and philosophers. People always understand facts through a situated view that reflects the ordinary believed assumptions of daily life. Consequently, presumptions and prejudices shape people’s examination of things beyond themselves (Tator & Henry, 2006).
Accordingly, there is a desire to have personal decision making instead of judgments based on claimed group characteristics. The criticism of stereotyping signifies the confusing and at times tortured section 15 charter jurisprudence. Rational decision making is polluted by stereotyping and the Canadian courts have realized it. In R. v. Brown, when there was a rejection of submissions that an officer who pulled over Toronto Raptors guard Brown the Ontario Court of Appeal ruled that a trial judge showed biasness and may have been driven by racial profiling. The point is not that people are continually and unavoidably confined within their prejudices, and it is probable to go beyond prejudice. However, people should examine themselves and study their assumptions and such a revolution project needs self-scrutiny and self-examination. Racial profiling does the opposite and that’s where the problem is instead of making preconceived assumptions and overturning stereotypes. Racial profiling initiate’s decision makers to work based on an inbuilt assumption Arabs and Muslims are terrorists thus preserving decision making based on stereotypes (Ramraj, 2012).
With the help of four signatory countries to the UKUSA security agreement, the United States operates a surveillance program for signals intelligence, collection and study network known as echelon initially a secret government code name. These nations include the United Kingdom, Australia, Canada and New Zealand also referred to as the five eyes. During the cold war the program was created to monitor the military and diplomatic communications of the Soviet Union and its allies in the eastern bloc and it was formally established in 1971. The system known as echelon by the end of the 20th century had become a worldwide system for the capture of commercial and private communications evolving from beyond military and diplomatic origins and it is helpful in the war against terrorism. Under the UKUSA agreement, the nation signatories cooperate for signal intelligence and the intelligence alliance is referred to as the five eyes which very crucial in anti-terrorism.
In conclusion, an immensely complicated question that looks for simple answers represents the racial profiling issue. Unluckily, there are no cheap ways to eliminate terrorism. Prior to 9/11 people have to continue living with some level of uncertainty. Hitherto, there will be no solutions or comfort for the people who turn to racial profiling as narration for doubt. In Canada, there will only be the production of illusions of security while intensifying the disempowerment and sense of susceptibility of racialized people.
- Forcese, C., & Roach, K. (2015). False security: The radicalization of Canadian anti-terrorism.
- Grinspun, R., & Shamsie, Y. (2007). Whose Canada?: Continental integration, fortress North America, and the corporate agenda. Montreal [Que.: McGill-Queen’s University Press.
- Ramraj, V. V. (2012). Global anti-terrorism law and policy. Cambridge: Cambridge University Press.
- Tator, C., & Henry, F. (2006). Racial profiling in Canada: Challenging the myth of “a few bad apples”. Toronto: Univ. of Toronto Press.
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