With allegations of racial profiling in Arizona’s new immigration law abuzz throughout the media this week, it was interesting for me to come upon the speaking notes for a recent speech by Jennifer Lynch, Q.C., Chief Commissioner of the Canadian Human Rights Commission (CHRC); the speech, “The Effectiveness of Profiling from a National Security Perspective”, brings the issue closer to home.
Briefly, the stated intent of the law passed by the Arizona State Legislature is to ensure the security and well-being of American citizens living in Arizona, by protecting them from illegal immigrants and drugs. The new law, which comes into effect in July 2010, requires local and state law enforcement to question people they suspect are in Arizona illegally about their immigration status. It also makes it a state crime to be in Arizona illegally; meaning, immigrants unable to produce documents showing they are allowed to be in the United States could be arrested, jailed for up to six months and fined $2,500 US, and ultimately deported.
As a result, if you look like an immigrant, you are a target of the law. In Arizona, which shares a border with Mexico, this law is specifically aimed at Hispanics, and results in what we call racial profiling.
Other states are experiencing the same feelings as in Arizona; Texas, in particular, is thinking of enacting similar legislation.
Going back to the Canadian perspective, the CHRC Chief Commissioner’s speech was prepared for her role as a witness before the House of Commons Standing Committee on Transport, Infrastructure and Communities, studying and assessing aviation safety and security in Canada. The study will examine Safety Management Systems, which consist in part of behavioural recognition techniques, a vital element of aviation security screening.
It’s a whole other issue you might say, but it’s one that is similar and aiming at safeguarding national security in Canada.
Aviation safety and security is a bigger discussion in itself, but the Chief Commissioner was focusing on aviation safety and passenger profiling. Experts suggest that focusing on baggage is not the best approach to ensuring aviation safety and security. Rather, the focus should be on the person. This usually means profiling to try to determine in advance which passengers pose the greatest risk. Security officers use the technique to flag passengers who seem to be acting suspiciously. While it is behaviour that officers are tagging, not race, national origin, religion or ethnicity, there are concerns that behaviour pattern recognition can turn easily into racial profiling, or subject innocent people to illegal searches without a strong pretext.
In fact, profilers are prohibited from relying on race or other discriminatory factors to identify potential terrorists. However, the CHRC’s concerns about discriminatory profiling persist.
Lynch states, and I think it is an important point:
“When national security and human rights are discussed, it is often suggested that we must give up one to have the other.”
In the context of national security, the commission’s jurisdiction would be triggered if an allegation arose that a national security measure discriminates against individuals based on one or more of the prohibited grounds. The key is whether or not the security measure is justifiable.
The goal of the Chief Commissioner’s speech was to confirm that profiling can be an effective tool in safeguarding national security; however issues of national security must co-exist with human rights protection to ensure, among other things, that passengers are not singled out on the basis of race, religion or national origin.
She also stated that further research should be conducted on the use of profiling using a rigorous approach to development and validation that incorporates a solid evaluation component. This confirms recent statements by Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission.
“Collecting human rights-based data can help, whether you’re looking for indications of racial profiling or for opportunities to expand to new markets. Each of our partners agrees that this kind of information is the right thing, and also the smart thing, to collect.”
Does this human rights-based approach make profiling more acceptable than the Arizona way?
Notwithstanding the above discussion, it is becoming evident that more and more people—mainly within North America—are blaming US and Canadian immigration policies for presumed concerns and issues of national security. Many worry that by allowing great amounts of immigrants from poor and war-torn countries, we are “harbouring” terrorists or providing them with a safe place to plan their attacks. Are these concerns genuine, or are they just another way to hide racial intolerance? And can we ever really look past a person’s ethnicity or religion—often shown by their skin colour or clothing—to profile a person in a “reasonable”, human rights-based way?