Trial courts take direction from previous appellate level decisions. However, as can be seen below, trial courts have generated the most police powers out of all three levels we categorized in this section. Trial court judges are essential to the fact finding process within the criminal justice system. Once the facts have been agreed upon in a trial, they are accepted by appellate courts if there is an appeal by the losing side at the trial level. This suggests that trial courts have an impact on appellate level decisions and the facts and arguments heard at the trial level are often relied upon during the appeal process.
Trial courts take direction from previous appellate level decisions. However, as can be seen below, trial courts have generated the most police powers out of all three levels we categorized in this section. Trial court judges are essential to the fact finding process within the criminal justice system. Once the facts have been agreed upon in a trial, they are accepted by appellate courts if there is an appeal by the losing side at the trial level. This suggests that trial courts have an impact on appellate level decisions and the facts and arguments heard at the trial level are often relied upon during the appeal process.
Common Law Police Powers Deployed from 2020-2021:
Common Law Police Powers Deployed from 2020-2021:
In the past 35 years, the Supreme Court of Canada has generated several key police powers that have changed the criminal law landscape. Alongside warrantless roadside detentions (R v Dedman), the Supreme Court has provided police with the ability to detain individuals during a police investigation and search incident to the investigatory detention for police safety (R v Mann). The Supreme Court has also provided police with the power to use sniffer-dogs without a warrant (R v Kang-Brown, R v AM), and warrantless cell phone searches incident to arrest (R v Fearon).
HOW DOES THE EXPANSION OF COMMON LAW POLICE POWERS REINFORCE SYSTEMIC RACISM?
How has the expansion of common law police powers affected racial minorities and disadvantaged groups?
The impact of common law police powers, such as investigative detention, random roadside checks, and stop-and-frisk searches, have had far-reaching consequences for racialized and disadvantaged groups.
Evidence shows that racial profiling by police forces has led to a general distrust in the police and the criminal justice system within the affected communities. The evidence also highlights the impact that police street checks have on an individual's mental health.
Additionally, ‘low visibility’ street checks on racialized minorities and Indigenous peoples never end up before a judge which often leaves the police conduct immune to judicial review.
What happened in R v Mann?
In Mann, police were called to investigate an ongoing break and enter and stopped Mann, an Indigenous male, because, according to the police, he "fit the description" of the suspect they were looking for (paragraph 5). The police detained Mann, searched his pockets and found marihuana and small plastic baggies (paragraph 5).
Racial profiling in light of R v Mann's reinterpretation of investigative detentions has only amplified the decades-long problem of systemic racism within the Canadian criminal justice system. The decision in Mann narrowed the scope of section 9 which was meant to guard against arbitrary detention by the state. After Mann, police have been able to use their "discretion to detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary" (Mann, paragraph 44). Further, after the ruling, police were given the green light to "engage in protective pat-down" searches of the detainee if there were safety concern related to the officers (paragraph 44).
Mann undoubtedly changed the legal landscape surrounding detentions and s. 9 of the Charter. However, more recent cases suggest that the Supreme Court has begun shifting towards addressing the issue of over-policing racialized and Indigenous peoples. See the profile on R v Le for more details.
How have these expanded powers impacted the relationship between racialized communities and the police?
Although racial profiling and systemic racism have existed within the criminal justice system for longer than the post-Charter expansion of common law police powers, it is arguable that more discretion has been put in the hands of police in the exercise of their duties since the ruling in R v Mann.
In the years after Mann, the controversial practice of carding was brought to the forefront in a Toronto Star report on racial bias and policing. Reports highlighted the overrepresentation of Black individuals in the data that the police collected. More and more reports have trickled out that highlight the disparaging number of racialized individuals that were targeted by police across the country in mass surveillance operations.
More recently, we have witnessed social unrest and mass protests such as the Black Lives Matter (BLM) movement, in response to a lack of change in policing practices. Movements like BLM are an attempt to expose the disparaging social inequality that Black citizens face due to the over-policing of Black communities, the continuance of racial profiling by police, and the overrepresentation of Black people in the criminal justice system. These issues have created an adversarial relationship between racialized communities and the police forces that are obligated to serve in the communities’ best interests.
Many violent and sometimes deadly encounters between police and racialized individuals in Canada and the United States have only received public scrutiny and accountability because of the ubiquity of cellphone cameras and social media. Further, reports have concluded that accountability and oversight are severely lacking in police departments. Racialized and Indigenous persons continue to complain of negative, undue street checks by police officers with some believing that the motivation for these encounters is based on racial biases.
Studies show that Black individuals are much more likely to be stopped and searched by police.
R v Le (2019) and Racial Profiling
R v Le is a 2019 Supreme Court of Canada decision that addressed the issue of over-policing racialized communities in the context of investigative detentions. Two police officers saw 5 racialized individuals in the private backyard of a townhouse and proceeded to step over the fence and enter the yard of the property. A third officer joined the other two. The young men were detained and questioned. One of the men, the accused, was asked about the contents of his satchel but fled the scene. A firearm was later found and he was charged with an offence.
The Supreme Court found that the police were in violation of the accused's section 9 rights and had arbitrarily detained the accused (Le, at paragraph 30). The Court considered the perspective of racialized persons and their negative encounters with police (at paragraph 75). The fact that an individual is in a "high-crime" area does not provide sufficient reason for detaining that individual (at paragraph 59). There has to be a direct connection between the investigation and the reason for the detention in order to be justified (at paragraph 131). The majority chose to exclude the firearm as evidence (at paragraph 160), signalling a shift in the Court's opinion and possibly future cases.
Carding is a controversial police practice where an officer stops an individual on the street and collects personal information from them which is entered into a police database. In 2010, through a freedom of information request attained by the Toronto Star, carding data showed that racialized minorities were grossly overrepresented in this data in every neighbourhood of Toronto that this practice was followed. Other major Canadian cities participate in similar types of street checks and the data shows a higher proportion of racialized individuals are targeted.
What is Carding?
What have the courts done about this issue?
The Supreme Court of Canada has issued a ruling in R v Le that seeks to address the problem of racial profiling and arbitrary detention within racialized communities. The ruling took into account the experiences of racialized individuals and their interactions with police in the context of arbitrary detentions (R v Le, at paragraph 75). It may also signal a shift towards more dialogue within the legal system about these issues.
According to academics, Le was an important step in the right direction because it provides the groundwork and space for meaningful conversation to occur about racial profiling in the criminal justice system. Future decisions by judges will likely be impacted when similar Charter issues are brought before a court (see R v Thompson, 2020 ONCA 264 at paragraph 63 for an example of Le's impact thus far).
References:
-
Khoday, Amar, "Ending the Erasure?: Writing Race into the Story of Psychological Detentions—Examining R v Le." Supreme Court Law Review , vol. 100, no. (2d) 165, 2021.
-
Owusu-Bempah, Akwasi, "Race and policing in historical context: Dehumanization and the policing of Black people in the 21st century." Theoretical Criminology, vol. 21, no. 1, 2017, pp. 23-34.
-
"Racialization of Carding and Street Checks." Legal Aid Ontario.
-
Skolnik, Terry, "Racial Profiling and the Perils of Ancillary Police Powers." Canadian Bar Review, vol. 99, no. 1, 2021, pp. 1-35.
-
Socka, Paul, "Police Carding: Highly Unlikely To Satisfy Charter Standards For Consent Searches." Criminal Reports, vol. 41, no. 76, 2017 (Westlaw).
-
Tulloch, Michael H., "Report of the Independent Street Checks Review." Ministry of the Attorney General.
-
Wortley, Scot, and Akwasi Owusu-Bempah, "The usual suspects: police stop and search practices in Canada." Policing and Society, vol. 21, no. 4, 2011, pp. 395-407.