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CRIMINAL AND RACIAL PROFILING
Munyonzwe Hamalengwa
April 30th 2002
Criminal and racial profiling cases will inundate the criminal and civil dockets in the near future as victims realize that they were targeted for negative and unequal treatment by the police, customs, immigration, judges and others in the criminal, civil and administrative justice systems because of their race or culture. The Supreme Court of Canada in the recent Golden case recognized and accepted the evidence that was tendered that African Canadians are criminally and racially profiled for road stoppages and are more likely to be searched including being strip-searched as opposed to others. The Court has already accepted that challenge of the jury for racial cause is proper (see Williams case) as is contextual judging in which experience can inform a judge’s decision and pronouncements from the bench (see R.D.S. case). The Parks decision of the Ontario Court of Appeal in 1993 probably started this trend, which was followed by the Wilson decision, also of the Ontario Court of Appeal.
The Superior Court of Justice in the recent Brown case went the furthest in accepting that criminal and racial profiling does exist and it affects black defendants.
Tribunals have also weighed in against criminal and racial profiling. Selwyn Pieters recently won an out of tribunal settlement involving Canada Customs who had racially profiled him when he crossed the border from the U.S. into Canada.
I have two cases of criminal and racial profiling, one in Scarborough and another in Oshawa where evidence is strong and the Courts are evaluating it before pronouncing judgment. A civil suit is being prepared in Hamilton where a client of mine was detained for three days for fail to appear. He had never failed to appear and when the Crown realized the mistake, they released him without an apology.
To prosecute a criminal and racial profiling case, however, evidence is required, otherwise, you will come out empty-handed, you will perhaps be run out of court, and you will annoy and offend a lot of people, who may very well have been just doing their jobs without any racial animus in mind. To amass the evidence, I have adapted the following questionnaire from a book by Kenneth Meeks, entitled Driving While Black (New York, Broadway Books, 2000). This is turn was adapted from the American Civil Liberties Union (ACLU) manual.
Information About You:
· First and last names
· Address: City, Province and Postal Code
· Telephones: Home and office, fax, (e-mail, pager, mobile)
· Date of birth, sex and occupation
The Traffic Stop
· Where the stop occurred (city and province)
· Date and time of day
· Make, model and year of your vehicle
What Happened
· Give the exact location of the stop (street or highway) and your travel plan (points of origin and destination).
· Describe the events with as much detail as possible. Were you cited or ticketed? Were your license and registration checked? Were you asked to consent to a vehicular or personal search?
· If you refused a search, did the police take additional action? If you consented to the search, what happened? Was anything found (e.g. contraband such as weapons or drugs?)
· Do you believe you were stopped based on constitutionally protected characteristics such as your race or national origin? Did the officer specifically say or do anything to make you believe race played a factor? If so, indicates your race or national origin and explain the basis for this belief.
· Did you make a complaint to anyone about this stop or search? If so, to whom did you make a complaint? What, if anything, was the response?
· If you were not ticketed or cited, was an explanation given for why you were stopped? If so, what explanation was given?
· What agency was the officer affiliated with (e.g. local or provincial police, etc.)? If known, give the name(s) of the police officer(s) who stopped you and/or name(s) of any witness(es):
· Were there any passengers in the vehicle in which you were riding or driving? If so, were they also questioned or searched? If so, explain in more detail, including their names and addresses, if appropriate.
· How long did the entire traffic stop take, and did the stop significantly disrupt your travel plans?
Meeks in his book makes the following observations which with certain modifications could apply to Canada:
“Over the course of American history, minorities have been granted specific protection by the Constitution, but only because specific people have brought specific cases before the American judiciary system. In court, one person can initiate a case that changes the whole American legal system. With respect to black history, long before Dr. Martin Luther King, Jr., and the passage of the civil-rights legislation in the 1960s, Thurgood Marshall and the NAACP Legal Defense Fund were breaking down walls through the courts very much the same way that Reginald Shuford and the ACLU are doing today. Minorities have had long histories marching through the streets rallying for justice. The Reverend Al Sharpton is always involved in a protest march or demonstration in some New York City neighborhood. Marching through the streets demanding justice is great for a “call to arms” – so to speak – among the masses, but if you want to change the American legal system, take your case to court. These days it’s hard for a march to truly affect the American legal system.”
And we must also continue marching in the streets as we bring legal suits in courts.
* Munyonzwe Hamalengwa is a Toronto lawyer specializing in criminal, constitutional and immigration law. He can be reached at via e-mail at mhamalengwa@sympatico.ca.
Member Of:
Criminal Lawyers Association The Law Society Of Upper Canada
Last Modified: August 7, 2007
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