In R. v. Nguyen (2009), Justice William Bassel of the Ontario Court of Justice threw out evidence obtained by the Toronto police because their search warrant was tainted by racialized stereotypes. According to a report of the case in the Toronto Star, the police targeted Mr. Nguyen following a tip from an anonymous source that "the front yard is looked after enough to avoid suspicion" and "two years ago Asian people bought the house." In finding a section 8 Charter breach, Justice Bassel observed "what possible relevance can the fact that the supposed owners are Asian have, other than to subtly mark this fact as an improper stereotypical message ... that here goes again yet another Asian grow operation?"
Nguyen is now the fourth recent case involving direct evidence of racial profiling. In R. v. Nguyen,  O.J. No. 1221 (Ont. C.J.), the Information to Obtain a Search Warrant included a statement from a police officer that all of the marijuana grow operations he had investigated involved individuals of Asian descent. As the trial judge put it, "the information as presented, suggests that since all previous cases involved Asians, all Asians or Vietnamese are involved in this care, and, therefore, the home in question must contain a marijuana grow operation. This suggestion is erroneous and offensive." In R. v. Mac,  O.J. No. 267 (S.C.J.), the Information to Obtain a Search Warrant included a statement from a police officer that "through my experience I have found that most of these operations are being run by East Asian organizations." And, finally, in R. v. Van Trong Nguyen,  O.J. No. 272 (S.C.J.), the lead investigator attended the local registry office and searched for homes in Barrie, Ontario owned by individuals with Vietnamese names.
What makes these cases so troubling is that the officers admitted that they took into account the racialized background of the individual in their investigation. It reveals how stereotypes often become so normalized that they appear to be reasonable and cause us to fail to critically step back and think about the fallacious reasoning upon which the observation is grounded. The vast majority of marijuana is grown in Canada by Whites as they make up the majority of the population and the majority of users and traffickers. Consider, for example, that Corrections Canada reported that in 2004, 75% of drug offenders in federal institutions were White. Click here for the report. If the police focus all of their attention on one particular group, they will, because crime is widespread in all segments of our society, find some cases of criminality. But they will have done so at considerable cost. Their conduct will perpetuate stereotypes that will further marginalize already vulnerable groups. It will have subjected countless individuals to unwarranted harassment and psychological harm and it will waste valuable resources preventing the police from detecting even more illegal activity.
Another reason that police officers do not realize that their conduct is problematic is as a result of training and how racial profiling is defined by many police forces. Many police agencies use a definition of racial profiling set out by CALEA (Commission on Accreditation for Law Enforcement Agencies). CALEA Standard 1.2.9 prohibits profiling where race is the only factor used in the exercise of discretion. In fact, CALEA uses a Canadian case out of Brantford as part of their training materials. In that case, the officer admitted that one of the factors he took into consideration was that "the owners were of the same race as in similar, illegal grow house arrests." CALEA argues that the arrest was the result of good unbiased policing because other factors were taken into account including high electricity consumption and large heat loss. See Case Number 48.
Posted by Professor Tanovich