The Further Erasure of Race in Charter Cases

Abstract

Despite a very sophisticated and rich jurisprudence on racial profiling, there are very few criminal cases in Canada where the issue has been litigated. This is as true today in 2016 as it was in 2006 when I wrote this article examining cases from 2003-2006. This piece from 2006 explores why there is such litigation silence. It also develops arguments about how race and systemic racism are relevant in thinking about the meaning of detention under section 9 of the Charter and in the interpretation of behaviour that the police often believe gives rise to the necessary reasonable suspicion to conduct an investigative detention. Finally, the piece identifies the relevance of the failure of the police to collect race data on street interactions in thinking about admissibility under section 24(2) of the Charter.

Postscript: In 2009, the Supreme Court of Canada dismissed an appeal in R v Grant 2009 SCC 32, one of the cases discussed in this article. While the Court recognized the relevance of "minority status" to the question of detention, the majority opinion did not address the issue in discussing whether or not Grant was detained. Nor did it address the broader issue of racial profiling or its relevance in thinking about whether the evidence should be excluded under section 24(2) of the Charter.

Keywords: Criminal Procedure, Racial Profiling, Detention, Canada, Policing, Charter, Exclusion of Evidence