R v Ali, 2023 SKCA 127
[49] It is important to understand that an otherwise lawful detention or arrest is rendered arbitrary whenever police conduct is “tainted by any degree of racial profiling” (R v Sitladeen, 2021 ONCA 303 at para 52, 405 CCC (3d) 346. See also R v Dudhi, 2019 ONCA 665 at paras 62–63, 379 CCC (3d) 334; and Le at para 78). For this reason, it will be helpful to begin with what is meant by racial profiling under the criminal law in the context of s. 9 of the Charter.
[50] In Le (at para 77), Brown and Martin JJ., writing for the majority of the Supreme Court, adopted the following definition of racial profiling from Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 33, [2015] 2 SCR 789:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed.
(Emphasis deleted by Brown and Martin JJ.)
[51] We observe that the reasons in Le allow that racial profiling may be unconscious, meaning implicit attitudes or stereotypes that affect decisions without awareness. The jurisprudence in this area also refers to racial profiling that is subconscious, which we understand to mean that it involves processes beneath the level of conscious awareness that influence perceptions and judgments. Although there is significant overlap between the two terms, we prefer to use the broader, subconscious racial profiling, to describe biases operating outside conscious control.
[52] Importantly, in Le Brown and Martin JJ. distinguished between racial profiling, which concerns the motivation of the police, and “the place and purpose of race as a consideration in the detention analysis” under s. 9 of the Charter, which calls for an analysis of the interaction from the contextualised perspective of the private citizen (at para 74). The majority described the detention‑stage analysis as a wide‑ranging inquiry involving factors drawn from outside the objective interaction between the police and a private citizen:
[75] At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.
[76] In contrast, the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment (Ottawa Police Service, Racial Profiling (June 27, 2011), Policy No. 5.39 (online), at p. 2).
[53] In this appeal, the distinction drawn in Le is of consequence because Mr. Ali alleges that the police officers in question engaged in racial profiling after lawfully detaining him. He does not invoke the detention‑stage considerations described in Le about how a reasonable person of his race, colour, ethnic or national origin or religion would perceive the police actions that led to his detention. As previously noted, Mr. Ali accepts the trial judge’s finding that his initial roadside detention for a traffic offence was untainted by racial profiling. In addition, there was no evidence at trial of the sort referred to and considered in Peart v Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 43 CR (6th) 175 (CanLII) (Ont CA) [Peart], about negative cross-racial interactions with police.
[54] It is also important to keep front of mind that the onus in a Charter application such as this is on the applicant, who must establish, on a balance of probabilities, that racial profiling occurred in their interaction with the police: R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at 277–278. In Peart, Doherty J.A. explained that an applicant seeking to meet this onus may be assisted by “social” facts alongside the evidence of the police interaction:
[95] Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling. The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct: [R v Brown (2003), 2003 CanLII 52142 (ON CA), 173 CCC (3d) 23 (Ont CA)], at paras. 44-46.
[96] The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case. Those indicators, sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings of adjudicative facts, that is the “who”, “what”, “why”, “when”, and “where” of any given case, grow out of the trier of fact’s assessment of the evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to provide the appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v. Spence (2005), 2005 SCC 71 (CanLII), 202 C.C.C. (3d) 1 at paras. 56-58 (S.C.C.).
[55] Therefore, Mr. Ali bore the onus of establishing, on a balance of probabilities, that the police had either consciously or subconsciously used race as an indicator of potential unlawful conduct on his part by attributing a propensity for criminality to him due to his race. The fact that proof of racial profiling will rarely come from direct evidence does not mean that an inference of racial profiling can be drawn from the bare evidence that an interaction between the police and a private citizen was cross‑racial. The fact an interaction was cross‑racial does not satisfy the evidential burden of proof on a balance of probabilities that racial profiling occurred. If the law were otherwise, a presumption of racial profiling would automatically arise whenever a police officer of one race, colour, ethnic or national origin or religion interacted with a person of another. To draw the inference, the trial court must be persuaded that the evidence of the police action that is said to be the product of racial profiling, and the evidence of the circumstances surrounding it, establish that it is more probable than not that that action was racially motivated in some way.
