Can Racial Profiling be Eradicated in Montreal?

A couple months ago, a Quebec Superior Court ordered a new trial for Joel Debellefeuille, who refused to show identification when stopped by Montreal police. The police report pointed out “reasons” for the stop including the fact that the car belonged to a man by the name of Debellefeuille but the person they had stopped was a black man who did not “correspond at first sight to the owner”. The report also stated that Debellefeuille sounded like a Quebecois family name and not a name of another origin. Finally, the intercepting officer specifically wrote that the primary reason he stopped Debellefeuille was because of his race.

Cases like this one - coupled with the fact that in the first half of 2011 they received 10 complaints against the Montreal police force for racial profiling – caused the Quebec Human Rights Commission to create a report with 93 recommendations to address racial profiling and discrimination in Quebec.

As a result, Mayor Gérald Tremblay and Montreal police chief Marc Parent have outlined a ‘zero tolerance’ policy surrounding racial profiling with the goal of having a better understanding of vulnerable groups in society. The proposal calls for equal access to jobs, housing and social programs as well as monetary aid from the Province to help fight poverty and the resulting issues that arise from it.  The Mayor also stresses the responsibility that the public has in making Montreal a more tolerant community. At a press conference on the new initiative, Mayor Tremblay spoke of Montreal as an example of multiculturalism and stressed that, “Profiling in any shape or form is unacceptable”.

However, there is valid concern that the plan, press conferences and statements, however well intentioned, will end up simply being symbolic and ignoring both the root causes of profiling while also failing to provide consequences for when it occurs. For instance, Fo Niemi, director of the Centre for Research Action on Race Relations commented on the policy stating that, “The real skepticism lies in the position of the Police Brotherhood Union on racial and social profiling, and how it will work with the police management team to equip all officers with better management skills to police a diverse city. To date, the position is not clearly articulated where the plan of action is concerned.”

Niemi says that two recommendations specifically would have an immediate impact. First, that Montreal police revise the tactics being used by their anti-gang unit, which, he says, has been known to target young black men as being suspected of being gang members. The second is that Montreal police alter their policies regarding incivilities, which can include any public conduct deemed to be uncivil such as talking loudly, jaywalking or spitting in the street. The willingness of police to stop and fine people for these actions give them the leeway to go after a broad range of people as they choose.

The effectiveness of the ‘zero tolerance’ policy will depend on willingness at all levels of policing to keep an open mind and implement true changes that are meant to reach the root cause, not to quell negative press. What seems to be lacking are any concrete plans on how these police officers will be trained to think different about minority populations. Do these elected officials truly believe that years of inherent biases can be eradicated simply by stating that they are inappropriate? What would the most important changes be in trying to rid policing of racial bias and profiling? Similarly, what would the appropriate penalties even be for officers that participate in profiling, whether intentional or not?

Posted by Melissa Crowley (Windsor Law II)

RCMP Training Postponed Amid Racial Profiling and Abuse Findings

On January 27, the RCMP scrapped a program to send hundreds of police officers to Arizona for drug recognition training after learning that a recent U.S. Department of Justice Report found “reasonable cause to believe” that the Maricopa County Sheriff’s Office had engaged in a practice of misconduct that violated the U.S. Constitution and Civil Rights Act, 1964. The Report, at page 2, also indicates that the violations are to such an extent that the DOJ is prepared to commence civil proceedings against the Sheriff’s Office if it does not comply with a federal judicial process to reform the detachment’s practices immediately.

The DOJ found cause to believe that violations occurred in the following areas: 1. Discriminatory practices including unlawful stops, detentions and arrests of Latinos; 2. Unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices, including but not limited to practices relating to its discriminatory treatment of Latinos; and 3. Discriminatory jail practices against Latino inmates with limited English proficiency by punishing them and denying them critical services.  

The Justice Department found a number of long-standing and entrenched systemic deficiencies that caused or contributed to these patterns of unlawful conduct, including:  1. Failure to implement policies guiding deputies on lawful policing practices; 2. Allowing specialized units to engage in unconstitutional practices; 3. Inadequate training and supervision; 4. An ineffective disciplinary, oversight and accountability system; and 5. A lack of sufficient external oversight and accountability.   

In addition to these formal pattern or practice findings, the investigation uncovered additional areas of serious concern, including:  1. Use of excessive force; 2. Police practices that have the effect of significantly compromising MCSO’s ability to adequately protect Latino residents; and 3. Failure to adequately investigate allegations of sexual assaults.  

The Report is drawing concern in Canada because the Maricopa County police detachment has partnered with the RCMP for years, with Maricopa officers instructing in Canada and RCMP officers doing “field certification” at the county’s jail. That field work has included having RCMP officers, from both municipal and provincial forces, practice drug recognition training on individuals arrested for allegedly driving while impaired. Although Deputy Commissioner Doug Lang cancelled the partnership with Maricopa within days of being alerted to the Report by the British Columbia Civil Liberties Association, noting that it brings “into question” certain police practices in Maricopa County.

But some are speculating that the implications span wider than Maricopa County and may impact criminal investigations and cases that are already before Canadian courts, as the Maricopa Sheriff’s Office is said to be responsible for training upwards of 85 percent of all drug-recognition experts in North America. As a result, B.C. Civil Liberties Association Executive Director David Eby has called on the RCMP to conduct a retroactive review to determine if the training RCMP officers have received over the years is reliable and complies with Canadian societal norms and constitutional standards.

According to the Montreal Gazette, RCMP Inspector Allan Lucier responded by saying that although the drug recognition materials the RCMP uses were developed in the United States, they have been modified to ensure they conform to Canadian laws.

Mericopa County Sheriff Joe Arpaio has called the investigation and attempted reforms politically orchestrated and an “invitation to illegals”. Arpaio is also currently under fire for his office’s failure to properly investigate more than 400 sex crimes, which has also prompted calls for his resignation. The Justice Department has given Arpaio 60 days to reach a court enforceable agreement to reform policing practices and systemic deficiencies at the Mericopa detachment.

Posted by Jeremy Tatum (Windsor Law III)

Crown Withdraws Charges After Court Raises Concerns About Racial Profiling

Two victims of what one judge described as racial profiling are relieved that the Ottawa Crown Attorney’s Office exercised its discretion in withdrawing all charges during a preliminary hearing on June 23.

Jordan Noel, 22, and Loik St-Louis, 24, were stopped on Rideau and Waller streets in August 2010 while driving Noel’s mother’s Cadillac. According to St-Louis, the officer in charge, Constable Robin Ferrie, never advised the pair why they were being stopped or detained.

Provincial Court Judge Dianne Nicholas heard from Cst. Ferrie that the Cadillac was part of a random spot check under the Highway Traffic Act, but, when pressed by Justice Nicholas why he called for backup, Ferrie noted that the men were in a high drug area and alerted the officer’s suspicion because they did not make eye contact with him as Ferrie drove by. Yet later in cross-examination Ferrie conceded that his investigation notes made no mention that not looking at him is what raised the officer’s suspicion. Instead, the notes indicated that “suspicious males in a vehicle in a high drug area” and “two young males driving a Cadillac” were the reason for the stop.

Ferrie went on to testify that Noel nervously explained the vehicle belonged to his mother and, according to Ferrie, too promptly handed over his license and registration, casting further suspicion in the officer’s mind that the vehicle might be stolen.

However, Justice Nicholas was quick to question that line of reasoning asking, “how many white women do you stop in the market just because they’re driving a car? How many in the last month?” Ferrie was unable to provide the court with any estimate or example.  

Moreover, “Because two black guys in a car don’t look at you, you’re calling for backup? […]You’re going to check whether he has permission from his mother to drive a car and two other police cars show up, like come on?”, asked Justice Nicholas.  Ferrie noted that it turned out Noel’s mother had not known her son had taken the vehicle.

While the two continued to be detained and Ferrie conversed with Noel’s mother using the number Noel provided the officer, the two backup officers arrived on scene.  One discovered five grams of crack cocaine, thirteen grams of marijuana, a drug scale and approximately $1,685 in cash during a search of the vehicle. All items were seized and taken into property. The two were arrested, taken into police custody and formally charged. The cash would later go missing in the police evidence room, though Noel and St-Louis were repaid earlier this week.

In the landmark decision in R. v. Brown, Morden J.A., for the Ontario Court of Appeal, critically observed at paras. 8 and 44 that:

The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. […] A racial profiling claim could rarely be proven by direct evidence. […] Accordingly, racial profiling […] must be done by inference drawn from circumstantial evidence.

The court went on to accept that a finding of racial profiling is capable of being supported where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why she or he singled out the accused person for attention.

With the charges facing Noel and St-Louis, although Justice Nicholas heard no direct evidence of racism on the part of Constable Ferrie, she inferred from the evidence before the court that it sounded like the two had been racially profiled.

Following the lunch recess when both parties returned to court, the prosecutor announced the Crown would be withdrawing all charges. “I think that’s an appropriate use of your discretion”, replied Justice Nicholas. 

Of note, the Crown Policy Manual requires that when considering whether or not to continue the prosecution of a charge, Crown counsel must determine if there is a reasonable prospect of conviction and, if so, whether it is in the public interest to continue or discontinue the prosecution

It would seem that having been alerted to some of the same concerns expressed by the court, Crown counsel was alive to his or her duty as a Minister of Justice to ensure that the criminal justice system operates fairly to all, including the accused, victims of crime and the public. (R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.); R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.))

Posted by Jeremy Tatum (Windsor Law III)

Not just a ‘wake-up’ call for Quebec

The recent report on Racial Profiling and Systemic Discrimination of Racialized Youth by Quebec’s Commission des Droits de la Personne et des Droits de la Jeunesse (Commission for Human Rights and the Rights of Youth) has received substantial praise from experts, authorities and community members since its release on March 25, 2011.

This report is the product of months of public hearings, at which seventy-five individuals, including researchers, community members, and representatives from various organizations and institutions, gave testimony, presented research, and offered analysis on racial profiling in Quebec’s public services. The Commission’s purported aim in this fact-finding mission was to ‘find solutions, not assign guilt’ in regards to racial profiling in Quebec’s Public Security Sector, Education Sector, and Youth Protection System.

In relation to the Public Security Sector, the Commission specifically recognized that “numerous studies have demonstrated that security forces, and notably the police, tend to scrutinize and suspect racialized minorities more often, without factual or valid grounds, and punish them disproportionately in the application of laws and by-laws”[Report, p.10]. With this in mind, the Commission explored an impressively broad range of topics relating to racial profiling in the context of policing and public safety. Firstly, the Commission examined “targeted scrutiny of racialized minorities”, including: racial profiling in the context of the fight against criminality and street gangs, the fight against incivility and the discretionary application of municipal by-laws, under-protection of racialized persons by the police, recognition and prohibition of racial profiling in laws and policies, data collection, supervision of police actions, and partnerships and accountability; secondly, the Commission investigated “recourse available for citizens”, including: the Police Ethics Commissioner’s system, Criminal Investigations of police incidents involving severe injuries or death.

Evidently, there is a great deal to be garnered from the Commission’s findings and 93 recommendations, which include ‘sweeping changes’ to the Quebec Charter of Rights, the Police Act, the police code of ethics and calls for more sensitivity training and an increase in the hiring of minorities.

Overall, this report is certainly deserving of all the accolades it has received and the Commission should be commended for this groundbreaking endeavour.

Whether the recommendations come to fruition, and lead to improved policy, procedures, and legislation is, however, an entirely different question. It is not clear whether this report, like most policy reports, will be a catalyst for significant reform and ultimately alter the behaviour of individuals. However, there is no question that the very existence of this report is a step in the right direction, as is the Commission’s realization that individuals who have experienced racial profiling want “an increase in society’s awareness of what they experience, along with an acknowledgement of the need for change and the implementation of concrete actions”[Report, p.3].

It is imperative to recognize, however, that the Commission’s findings apply not only in Quebec; all of Canada stands to benefit from this report and all Canadians should take heed of the recommendations.

Specifically, all Canadians should take note of the Commission’s finding that there is a significant dearth of data on racial profiling, particularly in the Public Security Sector. According to the Commission, the Kingston Police Service’s systemic data collection project is the only one of its kind. This fact is distressing. Without proper data to outline the nature and breadth of racial profiling as a problem, we cannot devise effective solutions; accurate data is crucial to all efforts to end racial profiling. Furthermore, as highlighted by former Kingston Police Chief W.J. Closs, data collection has many incidental benefits. Collecting data helps individual police officers develop to a “self-critical” attitude, which will enable them to better identify their own biases [Report, p. 37]. Given the high value of data collection, one can only hope municipal police services in Quebec, and across the country, follow the Commission’s recommendations and start collecting and publishing data on racial profiling.

Moreover, Canadians need to acknowledge that racial profiling affects a great many people in our society on a daily basis. The prevalence of racial profiling is clearly demonstrated throughout this report, and is most succinctly expressed in the report’s preface by a few choice words from a mother in Montreal, who states it is “normal to get pulled over” and she regularly warns her children to avoid the police. This mother’s statements illustrate that racial profiling and, more broadly, discrimination on the basis of race, remain pressing issues for many Canadians.

Finally, it is important for all Canadians to recognize that ending racial profiling requires action be taken beyond the individual level. It is not enough to reprimand individuals after a complaint is filed, instead we must seek to prevent racial profiling before it occurs, and consequently systemic reform is essential.

The true impact of this report remains uncertain; it is unclear whether the Commission’s recommendations will receive due consideration in Quebec and throughout the country, or whether this report will simply gather dust on desks of civil servants. Whether the former or the latter occurs will depend to a large extent on the existence of progressive leadership within our public institutions. One can only hope that this report receives the consideration it deserves and the necessary reform follows; the development of policies, procedures and organizational structures that ensure all Canadians receive equal treatment when interacting with public services would certainly be worthy of praise.

Posted by Ashley Henbrey (Windsor Law II)