107
Racial Proling
and Racially
Motivated
Detentions
4
I. Introduction .............................................
II. Law and Doctrine .........................................
A. The Supreme Court of Canada: R v Le ...................
B. Lower Court Jurisprudence ............................
III. Racial Bias in Context ......................................
A. Trac Stops ........................................
B. Investigative Detention ...............................
C. Race and the Use of Criminal Proles ...................
D. Ancillary Police Powers at Common Law .................
IV. Conclusion ..............................................
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108 Detention, Arrest, and the Right to Counsel
I. Introduction
Canadian courts recognize that racial profiling is a systemic problem in policing.
Our legal community may have been slow to recognize this reality due to an unfor-
tunate inclination to perceive ourselves as superior to our southern neighbour. But
as TullochJA (as he then was) of the Ontario Court of Appeal recognized in R v
Theriault, “[s]ystemic and overt racism have long sustained unequal treatment before
the law, leading to a crisis of confidence in the administration of justice in some
communities.”1 The scope and breadth of this social problem is stunning. Count-
less studies have shown that racial profiling not only influences an ocer’s decision
to stop, question, or detain a person but it can also aect how an ocer deals with
the person as the encounter evolves. For example, the impact of racial profiling can
be felt during trac stops,2 searches,3 DNA sampling,4 arrest decisions,5 and the
use of excessive force.6 The significant role that race plays during the investigative
process translates to the court process. Race can inform a variety of issues that a
judge will need to confront during trial, including fact finding, credibility assessments,
determining what evidence is accepted as persuasive, assessing whether a detention
occurred, examining whether the detention was arbitrary, and determining whether
evidence should be admitted under section 24 of the Canadian Charter of Rights and
Freedoms.7 This chapter will focus on the role that race plays during police investiga-
tions, including how race infiltrates the decision by the police to detain a person and
the interaction that ensues.
Since 2003, the Ontario Human Rights Commission (OHRC) has conducted a
number of inquiries and produced several reports outlining the prevalence of racial
profiling in police interactions with minority communities, the impact of profiling
1 2021 ONCA 517 at para 212.
2 See e.g. Nassiah v Peel (Regional Municipality) Services Board, infra note 11; Peart v Peel Regional
Police Services, infra note 38 at para 94. See also Ministry of Community Safety & Correctional
Services, Report of the Independent Street Checks Review, by the Honourable Michael H Tulloch
(Ottawa: Queen’s Printer for Ontario, 2018), online (pdf ): <https://opcc.bc.ca/wp-content/
uploads/2019/06/StreetChecks.pdf> [Tulloch Report].
3 R v Mitchell, infra note 93 at paras 112, 113. See also Nassiah, ibid at para 134.
4 Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to
the Oce of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police
Practices for DNA Sampling (2014), online: <https://www.ohrc.on.ca/en/ohrc-submission
-oce-independent-police-review-director%E2%80%99s-systemic-review-opp-practices-dna>.
5 Nassiah, infra note 11 at paras 124, 126; McKay v Toronto Police Services Board, 2011 HRTO 499
at paras 143-49, 159.
6 McKay, ibid at paras 150-53; Maynard v Toronto Police Services Board, infra note 127 paras
177-90.
7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[the Charter]; R v Le, infra note 17 at para 89.
© 2025 Emond Montgomery Publications. All Rights Reserved.
