Systemic Racism as a Basis for Excluding Evidence

Introduction

The existence of racism in our legal system is no surprise.

David Tanovich has written extensively how the Charter has still largely been ineffective in addressing racism in the criminal justice system. Faisal Mirza has explained how mandatory minimum sentences disproportionate affect black Canadians, and he wrote this in 2001, before the additional sentences added in 2009.

We can go even further back to 1993, and the Commission on Systemic Racism in the Ontario Criminal Justice System, which described a widespread and prevalent prejudice against blacks as follows:

First what we are dealing with at root, and fundamentally, is anti-Black racism. While it is obviously true that every visible minority community experiences the indignities and wounds of systemic discrimination throughout Southern Ontario, it is the Black community which is the focus. It is Black people who are being shot, it is Black youth who are unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools…it is Black employees, professional and non professional, on whom the doors of upward equity slam shut.

The situation today has not improved significantly, and many would argue that in some ways it has become worse. The Toronto Police Service’s (TPS) tumultuous relationship with the black community exemplifies these challenges, and at the heart of this is racial profiling by police officers themselves.

Controversial Policies in Toronto

One of the most controversial TPS policies has been the Community Contacts Policy, also known as “carding,” an intelligence gathering technique where individuals who have not committed any office are stopped, questioned, and documented into a database. Criticisms of this strategy center on the disproportionate number of black people questioned.

Opposition to carding led to changes announced by the province in 2015, which were enacted under O. Reg. 58/16. On Nov. 17, 2016, TPS revised their policies in light of these regulations. However, the African Canadian Legal Clinic has stated that these regulations still do not go far enough to “provide adequate protection for the fundamental rights and freedoms of African Canadians, as they do not prohibit anti-Black racism and racial profiling in the collection of individuals’ identifying information.”

The other major TPS program under scrutiny is the Toronto Anti-Violence Intervention Strategy (TAVIS), initiated in 2006 in response to a spike in gun violence in Toronto. This program utilizes an “intensive community mobilization strategy” through “high visibility policing” in neighbourhoods which are deemed to be at high risk. Unfortunately this often translates into a disproportionately high amount of contact and friction between police and racialized communities in these neighbourhoods.

A January 2017 report by the Transformational Task Force discussed the need for a culture change, including public expectations around “police accountability, bias, systemic and individual racism, and discrimination.” One of the key recommendations in this report was to disband TAVIS. The June 2016 interim report explained the rationale,

We are recommending that TAVIS be disbanded and existing members be redeployed to other Service priorities. Although the 2012 redesign of the program addressed many community concerns, the program, as originally implemented, focused on law enforcement to curb incidents of violent crimes. It did not sufficiently emphasize sustainable community-based strategies to build safe neighbourhoods. There were unintended impacts on communities, especially among racialized youth who felt unfairly targeted, which in turn impacted trust and confidence in the Service.

In its place, the province is introducing a new program called Furthering Our Communities Uniting Services (FOCUS), which will adopt an interdisciplinary approach that includes local police with community workers, city staff, and health workers, to meet weekly when there is a risk of violence.

The goals of FOCUS include reducing and preventing incidents of crime by addressing social and economic determinants of safety, instead of relying exclusively on heavy-handed policing. A 2014 report by the Ontario Association of Chiefs of Police describes the approach, adopted from Saskatchewan, as follows,

Focusing on crime, crime fighting, and crime prevention, is a lot like the health sector when it used to focus on illness, disease and their treatment. Neither deal with the root causes of their respective maladies…

The 2011 World Conference on Social Determinants of Health brought together delegates from 125 member states and resulted in the “Rio Political Declaration on Social Determinants of Health.” It affirmed that health inequities are unacceptable, and noted that they arise from the societal conditions in which people are born, grow, live, work, and age, including early childhood development, education, economic status, employment and decent work, housing environment, and effective prevention and treatment of health problems. Is it time for us to consider a similar declaration on the social determinants of safety — at municipal, provincial and federal levels of government?

While this new approach may improve police relations with racialized communities, Tanovich’s point that such discourse rarely makes it into judicial decisions still holds true.

Legal Challenges to TAVIS

A number of human rights complaints have been attempted towards TAVIS, several dealing with minors. One complaint to the Human Rights Tribunal of Ontario was by a lawyer claiming to be targeted under TAVIS because of his race during the G20, but he was unsuccessful.

At times, TAVIS has come up in passing during findings of police misconduct, as in Wilson and Toronto Police Service. These scant references barely encapsulate the experiences of Toronto residents under the TAVIS program. Gita Rao Madan describes these experiences while expressing concerns over the activities engaged upon under the discourse of “relationship building” in her 2016 MA thesis, Policing in Toronto Schools: Race-ing the Conversation,

Under the guise of relationship building and becoming familiar faces in the community, TAVIS officers have aggressively assaulted and drawn guns on young people on the streets of their neighbourhoods, performed strip searches in broad daylight, and arbitrarily stopped hundreds of racialized people without cause in public areas to question them and gather intelligence—a practice known as carding, which has been targeted primarily at Toronto’s Black community.

But there are only a handful of cases which discuss TAVIS in the context of s. 24(2) exclusion of evidence. None of them properly include race as part of that analysis.

In R. v. Reeves, Justice Bloomfeld reviewed the conduct of two officers deployed under TAVIS who arrested the defendant due to the presence of firearm and drugs on his possession. The defendant claimed his ss. 8, 9 and 10(a) Charter rights were violated due to egregious conduct of conscious and flagrant disdain for the defendant’s constitutional rights committed in bad faith. The impact on the accused was substantial, including a charged and violent encounter involving substantial physical force. Justice Bloomfeld concluded in upholding the exclusion of the evidence on the basis of the officers’ conduct,

86. Despite the seriousness of the offences, the obtaining of reliable evidence in this case cannot supply sufficient justification for effectively condoning the wilful ignoring and violation of Charter rights. Police officers are justifiably respected as emblematic of the Charter values and rights that empower them as custodians of public safety. Here, the officers betrayed the public trust and abused their authority to detain and search citizens in the name of public protection. In doing so, they abandoned any effort to honour the values in the Charter… To admit the evidence obtained through the flagrantly unlawful detention and search in this case would undermine public confidence in the administration of justice.

A more pointed analysis of TAVIS in the context of s. 24(2) occurred in R. v. K.(A.), where Justice Weagant put these TPS policies directly under scrutiny,

[5] This case is about the street practices of a Toronto Anti-violence Intervention Strategy unit. In particular, it is about the controversial practice of ‘carding’, a practice involving stops of citizens by the police, whether there is an offense being committed or not, and recording the contact and personal information about the citizen on a “208” card. This case involves the way this was done at the time of the alleged offense. The Toronto Police Board has since passed a new policy on the use of carding, according to the local press.

The officers deployed under TAVIS here came across 4 individuals in the vicinity of Ryerson University. The defendant in this case was a minor. Justice Weagant noted that TAVIS practices played a role in the interaction of the officers with the group.

Although Justice Weagant found that the officers may have been following routine TAVIS procedures, he found that once a person becomes of interest, “anything and everything they do becomes suspicious.” The young men involved did not have anything visibly on their possession which would suggest they were involved in a crime, even though a gun was subsequently found. They were simply trying to get into their car.

The ss. 8, 9 and 10 Charter violations here were found to be in good faith given the modus operandi of TAVIS at the time, but there was a pattern of serious violations that reflected a disregard for the rights of the citizen that favoured exclusion. The impact on the accused, which resulted in him being grounded face first and sustaining a fractured jaw, also favoured exclusion.

Finally, Justice Weagant considered the United Nations Convention on the Rights of the Child in the preamble of the Youth Criminal Justice Act to find that society also had an interest in ensuring that the officers maintained a “heightened duty to jealously guard the young person’s constitutional rights.”

Using Race to Exclude Evidence

In neither Reeves or K.(A.) were the defendants’ race (they were all black) ever part of the consideration for exclusion under 24(2). That’s not to say that racial profiling never plays a role under the Grant analysis.

In R v Neyazi, Justice Patrick Smith of the Ontario Superior Court of Justice excluded drugs found during an illegal search because the search was based on racial profiling.

In doing so, he adopted Tanovich’s comment that there “has been a historical lack of judicial scrutiny of criminal profiling,” and at para 195 provided the following factors derived from various cases:

• Racial profiling can rarely be proven by direct evidence but is a matter of inference from the circumstances.
• The attitude underlying racial profiling is one that may be consciously or unconsciously held and racial profiling can be the product of overt, subconscious or institutional racial bias.
• Racial profiling does not necessarily reflect any racial bias. It may reflect an officer’s legitimate perception of the reality of the world in which the officer operates.
• Racial profiling may occur even if that person is a member of the particular race that is targeted.
• Racial profiling can occur when race is used in conjunction with other factors.
• Racial profiling can occur in circumstances where the state actor is not rude or hostile.
• Where racial profiling is alleged, evidence that the police officer involved attempted to mislead the court as to when he realized the driver of the vehicle was of a particular race can support the racial profiling allegation.

Justice Smith cited the definition used by the Court of Appeal for racial profiling in R. v. Brown,

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.[adopted from R. v. Richards]

Although not on point in Neyazi, the court in Brown notably cited at para 9 the following passage from the Commission study,

The Commission’s findings suggest that racialized characteristics, especially those of black people, in combination with other factors, provoke police suspicion, at least in Metro Toronto. Other factors that may attract police attention include sex (male), youth, make and condition of car (if any), location, dress, and perceived lifestyle. Black persons perceived to have many of these attributes are at high risk of being stopped on foot or in cars. This explanation is consistent with our findings that, overall, black people are more likely than others to experience the unwelcome intrusion of being stopped by the police, but black people are not equally vulnerable to such stops.

Justice Smith also described how profiling can applies in a blanket fashion to individuals of a group or in an area,

[185] References to race or ethnicity will be erroneous and offensive if a state actor concludes that a person of a given background is engaged in criminal activity because previous criminal activity has been linked to persons of the same background (R. v. Nguyen, at para. 22). For example, if a police officer is given information that previous illegal operations involved people of a certain ethnic background, and that the occupiers of the home in question are part of that same ethnic group, it would be erroneous and offensive for the officer to conclude, since all previous cases involved people of that ethnicity, and people of that ethnicity are involved in this crime, that the home in question must therefore contain an illegal operation.

In concluding that the evidence in this case should be excluded due to the presence of racism, he cited the long-lasting systemic implications for the administration of justice if society did not see the justice system as acting fairly and in accordance with the equality guarantee in the Charter,

[229] As stated by the Supreme Court in R. v. Grant, “the short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice” (at para. 84).

Exclusion of Evidence with TAVIS due to Racism

Despite the troubled history of TAVIS, the collection of evidence under the auspices of racism has not resulted in exclusion under s. 24(2).

One case which helps illustrate these challenges is the Court of Appeal’s 2013 decision in R. v. Allison. The Court of Appeal here upheld Justice Thorburn’s decision at the trial level not to exclude the evidence under s. 24(2), despite allegations of racism. The case formed the basis of the 2017 Julius Alexander Diversity Moot.

The officers in this case were deployed under TAVIS to 23 Division, due to concern of a shooting two days prior in 33 Division, “to go into the community, approach and converse with individuals and otherwise be proactive to ensure community safety.”

While there, the officers came in contact with 5 male members in that neighbourhood, 4 of whom were black. They filled out “208” cards for all of these individuals. The 6th individual, who was on a bicycle, was pursued and found to have a gun on his possession.

In upholding the trial level court’s decision under the third prong of the Grant test, the Court of Appeal incorrectly cited the following as one of the contextual factors,

The police were patrolling a high crime area where there had been a fatal shooting two days earlier.

The police were in fact patrolling a different neighbourhood, 20 km away on the other side of the city, albeit one that has a high crime rate and also a significantly higher proportion of racialized communities.

There was notably no evidence whatsoever found at any court that the arrest had anything to do with the shooting, and the trial judge made a finding of fact that the accused was only a courier for the gun, and was not necessarily involved directly in any violent activity.

In finding that there was no racial profiling present, Justice Thorburg relied on the testimony of one of the officers about the demographics of the neighbourhood,

[72] There is also no evidence the officers engaged in discriminatory practices. The uncontradicted evidence of the police officers in this case is that most of the people in the immediate neighbourhood in which Mr. Allison was found were black. It is not surprising therefore, that four of the five people police spoke to before encountering Mr. Allison were black.  Moreover, there is no suggestion that there was anything untoward in the approaches to members of the community.
[emphasis added]

This evidence was also incorrect.

The demographics of the Jamestown neighbourhood where the incident occurred are primarily South Asian and Filipino, with blacks comprising less than a quarter of the population.

The officers failed to approach any females, which they would be expected to do if their goal was to proactively go into the community simply to “converse.”

Reconsidering a Statistical Analysis of Racism

When taken into the context of the TAVIS program, a very different picture emerges for cases like Allison.

Roger Rowe points to several sources in Allegations of Profiling: How Much Disclosure of Investigative Records is Appropriate that give rise for concern. He cites a Toronto Star review of 1.3 million 208 cards that demonstrates that blacks are three times more likely to be stopped by whites by the police,

“It doesn’t matter what type of neighbourhood you live in or what type of neighbourhood you’re travelling through, if you are black you are much more likely to attract the attention of the police and therefore have a contact card filled out,” says University of Toronto criminologist Scot Wortley, who reviewed the Star analysis.

The TPS chief at the time, in reviewing these figures, acknowledged that racial bias played a big part in these disparities.

Finally, Rowe refers to pages 36 and 79 of the trial transcript in R. v. Buckley, [2010] O.J. No. 6194. Rowe was counsel in this case, and he used the testimony of Dr. Scot Wortley as part of the record. Wortley, a criminologist and expert in police racial profiling in police investigations, used census data to compare the representation of young black males in contact card data, and compared it with representation in the population. He employed the methodology used in R. v. Khan and R. v. Cunningham and Matthews (4 March 2009), Toronto, Court File # C-50414, finding that 80 percent of those stopped had no criminal record in the preceding 5 years.

The court referred to Wortley’s explanation of racial profiling,

9 Dr. Wortley testified that racial profiling is a term that has been used in many contexts and in his view has become somewhat confusing. He defined racial profiling as over surveillance of a particular group by the Justice System than other racial groups. Within the academic community there is a debate whether race has to be the only factor, most academics he said would argue that race had to be a factor but could be combined with others such as age or neighbourhood. He described four possible explanations for why racial profiling may occur:

(1) malus, an individual holds an animus to a particular group, he felt this was rare;

(2) stereotyping, where individuals believe that a particular group of a certain age, race, or background are more likely to be involved in crime,

(3) systemic, which has nothing to do with the individual officer or stereotypes held by the individual officer. He testified that some scholars have argued that systemic racism might result from positioning special units in high minority communities. Officers working in those areas are given a mandate to patrol those areas, in a more concentrated or aggressive fashion that other areas of the community. Systemic racial profiling in his view is often difficult to understand. It has nothing to do with the individual propensities of the officers on the street,

(4) as a result of police directives where police managers direct “this is who we want stopped”. As in the case of systemic racism as defined by Dr. Wortley, this would have nothing to do with the propensities of the individual officer.
[emphasis added]

The defendant’s attempts to obtain the 208 cards in Buckley were ultimately unnecessary, as the accused was acquitted based on inconsistencies in the officers’ testimony. However, the Dr. Wortley’s testimony in the case that there was “virtually no peer reviewed academic research on the subject of racial profiling in Canada” provides some challenges for future Charter challenges on the basis of profiling. The court explained how this potentially may occur,

35 It is clear that racial profiling exists. If it occurs in a particular case, it can lead to Charter remedies. While it is accepted that racial profiling occurs, it will rarely be shown by direct evidence, the defense must normally rely on circumstantial evidence to support its claim. Statistical information could in some cases tend to show racial profiling had occurred…

My ruling is confined to this Application, I do not wish to be seen as suggesting that a statistical analysis would never meet the “likely relevance” test. It has simply not occurred here, it may be that a valid comparator or benchmark could be fashioned…
[emphasis added]

Conclusions

With the demise of both the carding practices and the TAVIS program, the legal system has an opportunity to reflect on the practices of policing and its relationship with racialized communities. In particular, there is an opportunity to distill the data, if it is released to researchers in an anonymous manner, to reveal any patterns of discrimination or bias which may emerge.

Although the intended goal of carding and TAVIS was to create and collect databases of populations in high crime areas, who also happen to be largely racialized, the unintended consequence is we now have a record of these same interactions by the police. Contextual factors explaining deployment for strategic reasons based on actual intelligence may demonstrate that in some instances the use of targeted deployment was based on best practices and not motivated by subconscious prejudices. Providing this information, beyond the FOI data obtained by the media, could indeed demonstrate that in most cases the police operate in good faith.

But this data also provides opportunities for law enforcement to reflect on all of the negative and unnecessary interactions that have occurred over the past decade, and strained relationships between the two. This will be a necessary precondition in moving towards community-based and interdisciplinary approaches to determinants of safety.

Finally, developing robust studies that demonstrate when prejudices do operate, future cases of policing should also be subject to 24(2) exclusions on racial profiling, even if the officers themselves are operating in good faith by simply following orders.

Policies or programs which are themselves discriminatory in nature certainly place the justice system into as much disrepute as unnecessary physical violence. Officers should be just as zealous in guarding the constitutional rights of young offenders as they are vulnerable populations that are already subject to disproportionate treatment in our justice system.

Omar Ha-Redeye and Selwyn Pieters judging the 2017 Julius Alexander Diversity Moot