Implicit Bias and Racial Profiling: Why R V Dudhi's Novel 'Attitudinal Component' Imposes an Unjustifiable Burden on Complainants
(2020) 68:4 Crim LQ 410-428.
19 Pages Posted: 7 Dec 2020
Date Written: October 13, 2020
In the recent case of R v Dudhi [2019 ONCA 665], the Ontario Court of appeal recognized that racial profiling in Canada is “as difficult to prove as it is pernicious.” This paper contends that the Dudhi court, perhaps inadvertently, has rendered the task yet more difficult by introducing the “attitudinal component” to the racial profiling test. By requiring racial profiling claimants in the criminal context to establish that the officer accepts that race or racial stereotypes are relevant to offending or dangerousness, the Dudhi court imposes a new and unjustified burden. I conduct a post-Charter review of the jurisprudence and academic literature to show that this requirement finds no support in the racial profiling precedents, in critical race scholarship, or in the scientific literature on social cognition and implicit bias. I conclude the paper by sketching some possible responses that may assist claimants in overcoming this novel hurdle to racial profiling claims.
Keywords: Criminal law, racial profiling, charter of rights and freedoms, arbitrary detention, implicit bias
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