David M. Tanovich (University of Windsor – Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN.
Here is the abstract:
In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”
Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.
Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada.
It is suggested that this evidence requires a reconsideration of the argument made in Peart v Peel Regional Police Services that there should be a rebuttable presumption of racial profiling in litigation. Parts II and III are presented in a largely non-traditional format to enhance accessibility and appreciation of the nature and scope of the problem. The paper concludes with a discussion of the relevance of the impact of racial profiling in assessing whether to exclude evidence found in breach of the Charter even where there is no finding of racial profiling in the particular case. This is an important contribution to our exclusionary rule jurisprudence and should be relied on in any case involving a racialized or Aboriginal accused. Finally, an Appendix is included which documents twenty-seven (27) positive judicial and tribunal findings of racial profiling by police in Canada in the post-Charter era.