Racial profiling occurs where race or racial stereotypes are used to any degree in suspect selection or subject treatment”. [FN] 

R. v. Le, 2019 SCC 34, at para. 76;

R. v. Dudhi, 2019 ONCA 665, at para. 62. 

Racial profiling can occur even where there is a lawful basis for suspect selection or suspect treatment. That an individual could be lawfully arrested, for instance, does not mean that he/she was lawfully arrested.  Having the grounds to arrest does not, in itself, remove the possibility of racial profiling, and thus does not remove the possibility that the arrest was unlawful. 

A decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.

R. v. Dudhi, 2019 ONCA 665, at para. 62. 

Racial profiling is as difficult to prove as it is pernicious. It is seldom proven by direct evidence, but instead inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.

Peart v. Peel Regional Police Services Board (2006),

43 C.R. (6th) 175 (Ont. C.A.), at para. 95.

Attitudes or beliefs do not come and go in the moment. They are held.  A statement or an action of a police officer which exposes the officer as having a conscious or unconscious racist attitude or belief can be after-the-fact circumstantial evidence of the officer’s state of mind at the time of suspect selection or subject treatment. The officer’s state of mind may, in turn, be relevant to the issue of whether a decision made by the officer in relation to the suspect was infected by illegitimate thinking about race.  

See Dudhi, at para. 78.                                              

                                           

Stuart O’Connell. O’Connell Law Group. (All rights reserved to author).

[FN] There are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.