Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention

Osgoode Hall Law Journal 40.2 (2002) : 145-187.

46 Pages Posted: 16 Mar 2017

See all articles by David M Tanovich

David M Tanovich

University of Windsor - Faculty of Law

Date Written: 2002

Abstract

This is one of the first articles written in Canada on racial profiling and policing. While dated, the piece set out standards that can be used to prove racial profiling and recommended enhanced Charter standards to facilitate adjudication. As noted in the Introduction:

In Part IV of this article, the current standards under section 9 of the Charter are examined as a means of checking racial profiling. Unfortunately, problems of limited application, proof, and cognitive distortion plague these standards and they appear inadequate to combat a growing problem in urban police forces. Consequently, in Part IV, an attempt is made to devise enhanced Charter standards through the development of an equality-based conception of arbitrary detention. Four new section 9 standards are advanced: (1) placing the onus on the Crown to establish that a so-called routine traffic stop of a black driver was not motivated by race, (2) placing the onus on the judiciary to ensure that conduct claimed to warrant a criminal investigation is interpreted in a race-neutral manner, (3) deeming all criminal investigatory stops as detentions, and (4) deeming all unlawful detentions of racial minorities as arbitrary. These new standards should serve to strengthen our commitment to equality, ensure greater Charter compliance, and stimulate institutional reform.

These remain relevant.

Keywords: Racial profiling, Canada, Arbitrary Detention, Charter of Rights and Freedoms, Anti-Black Racism

Suggested Citation

Tanovich, David M, Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention (2002). Osgoode Hall Law Journal 40.2 (2002) : 145-187.. Available at SSRN: https://ssrn.com/abstract=2933248

David M Tanovich (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4
Canada
519-253-3000 (ext. 2966) (Phone)

HOME PAGE: http://www.uwindsor.ca/law/tanovich/

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