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. McFarlane (Re)

In McFarlane (Re) (Ont CA, 2022) the Court of Appeal confirms that racism exists in Canada:
[33] .... And anti-Black racism, including both overt and systemic anti-Black racism, is a reality in Canadian society: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 1. ...
. R. v. B.G.

In R. v. B.G. (Ont CA, 2022) the Court of Appeal considered evidence that may be adduced as to "ethnic and national" cultural distinctions in a criminal case:
[11] An ethnic or national culture consists in part of shared beliefs and norms, social institutions, and patterns of behaviour. It can include duties and obligations, and other beliefs about what ought to be done and not done, and what constitutes a good life. The norms of any particular culture is a question of fact to be resolved according to evidence led at trial, including expert evidence if not a matter of everyday experience of the average person: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 241.

[12] Where relevant to a matter in issue, it is permissible for the trier of fact to consider whether the beliefs and practices of a particular culture provide some evidence about what a particular person believes, or explain that person’s apparent behaviour: R. v. Boswell, 2011 ONCA 283, 277 CCC (3d) 156, at paras. 25-26; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 124, 128-30, 133, per Cory J. It is, however, impermissible to invite the trier of fact to adopt a stereotype about cultural practices unsupported by evidence and use it to draw conclusions about a witness’s beliefs or actions.
. 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc.

In 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc. (Ont CA, 2021) the Court of Appeal affirmed that the court could take judicial notice of anti-black racism:
[12] The Landlord also takes issue with the application judge’s observations with respect to anti-Black racism. In addressing this question, it is important to consider both the evidence and the application judge’s use of the evidence.

[13] There was language in the Landlord’s affidavits that suggested its concern to find a tenant that would attract “like minded family-oriented customers” as opposed to a “liquor bar” was stereotypical labelling. The evidence supported the application judge’s conclusion that the real issue for the Landlord was the fact that the “Tenant is a Black-owned and operated business and caters to an Afro-Caribbean community”.

[14] The application judge was entitled to take judicial notice of anti-Black racism in Canada. He found that whether the Landlord’s racial stereotyping was conscious or not, it was a matter he could take account in the exercise of his discretion to grant relief from forfeiture. As he put it, at para. 38, “the societal realities pertaining to Black businesspeople like the Tenants must be factored into the exercise of the Court’s discretion in considering equitable remedies like injunctions and relief from forfeiture.”

[15] Based on all the evidence, including the Tenant’s evidence and the evidence of the Landlord’s own witnesses, the application judge was entitled to conclude that anti-Black racism was relevant to the Landlord’s refusal to negotiate a renewal of the lease, regardless of whether the Landlord’s actions were consciously motivated by racism.
. R. v. Sitladeen

In R. v. Sitladeen (Ont CA, 2021) the Court of Appeal set out the leading law on racial profiling in the criminal context:
[43] In the seminal decision of this court on the issue of racial profiling, R. v Brown, the court established a number of principles regarding the operation and effect of racial profiling by police:
• The definition of racial profiling was adopted, at para. 7, from the decision of Rosenberg J.A. in R. v. Richards (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286 (Ont. C.A.). (quoted by the trial judge – see para. 20 above)

• The attitude that underlies racial profiling may be consciously or unconsciously held.[2] Consequently, a police officer need not be an overt racist to engage in conduct based on unconscious racial stereotyping: at para. 8.

• Crown counsel did not challenge the existence of the phenomenon of racial profiling by the police[3], and the court noted that that responsible position was supported by significant social science research: at para. 9.

• A police officer who stops a motorist based on their race or colour has no articulable cause for the stop: at para. 10.

• A racial profiling claim is rarely going to be proved by direct evidence. That would require an admission by the officer that racial stereotypes influenced the decision to stop the accused. Accordingly, if racial profiling is to be proven, it “must be done by inference drawn from circumstantial evidence”: at para. 44.
[44] Morden J.A. also discussed a method for proving racial profiling. He accepted, at para. 46, the suggestion put forth by accused’s counsel that in the context of the facts of the Brown case, an inference of racial profiling could be drawn where there was evidence “support[ing] the argument that the officer was not being truthful about the real reasons for the stop.” That method is the oft-quoted “correspondence test” from para. 45 of Brown, referred to by the trial judge:
[45] [W]here 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 he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling.
[45] Morden J.A. accepted, at para. 45, that the proposed test was “a way in which racial profiling could be proven” (emphasis added). However, he did not say it was the only way to articulate and apply the test. He noted that it did not set the hurdle too low or too high, recognizing the potential for unfairness to honest police officers performing their duties in a professional and unbiased manner, and to victims of racial profiling by making it virtually impossible to receive s. 9 Charter protection.

[46] A few years later, in Peart, where Doherty J.A. rejected a claim of racial profiling, he discussed the Brown test and did not refer to “lying.” He stated, at para. 131:
[131] R. v. Brown, supra, does not break any new ground in describing the fact finding process used in litigation. R. v. Brown acknowledges that some facts, of which racial profiling is an example, are not generally susceptible to proof by direct evidence, but are proved by inference from established primary facts. R. v. Brown also recognizes that where circumstantial evidence is directed at a fact in issue, the inferences to be drawn from that circumstantial evidence can assist in assessing the credibility and reliability of direct evidence offered as proof of the same factual issue. This is also nothing new. Factual determinations are made by a consideration of the totality of the relevant evidence be it direct or circumstantial. [Emphasis added.]
[47] Doherty J.A., at para. 133, accepted as accurately reflecting the essence of the decision in Brown, the following summary by the trial judge in Peart:
The court [in Brown] accepts that one way of proof of racial profiling is to compare the facts with the indicia of racial profiling to provide a basis for an inference that the officer is untruthful as to why the plaintiff was singled out. The record is then “capable of supporting” a finding of racial profiling.
[48] I highlight these two passages because they show that the focus of the correspondence test is not necessarily whether the circumstances demonstrate that the officer was lying, i.e. deliberately misleading the court, but rather, whether the circumstances give the court a basis to reject the officer’s evidence as untrue because they are indicative of racial profiling.

[49] This approach to the correspondence test is consistent with the concept of unconscious bias, where a person either does not recognize, or does not acknowledge his own bias.[4] An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.

[50] R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, was not a racial profiling case, but explored the role of systemic racial discrimination in the perception of an accused as to whether he is being detained by police. In that context, the Supreme Court commented on racial profiling by police and confirmed, at para. 76, that racial profiling occurs when race or racial stereotypes are used, either consciously or unconsciously, and to any degree, in the selection or treatment of a suspect.

[51] This court elaborated on that comment from Le in its recent decision on racial profiling in R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546. There, one of the arresting officers referred to “brown drug dealers” in a radio transmission to police colleagues before he arrested the accused. The accused claimed that the arrest was tainted by racial profiling. The trial judge, however, rejected the claim on the basis that the arrest was justified on other grounds. This court held that the trial judge erred in so doing.

[52] In Brown, this court stated, at para. 11, that to prove a s. 9 breach, the applicant must show that there was no articulable cause for the stop and it was based on colour. Paciocco J.A. for this court in Dudhi explained, at paras. 62-63, that the statement does not mean that in such cases, the racial profiling component is irrelevant to the analysis. To the contrary, where an officer has objective grounds to detain an individual, those grounds cannot justify that decision if they are tainted by any degree of racial profiling:
[62] In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be “based on” race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.

[63] Put simply, passages such as para. 11 of R. v. Brown, and para. 33 in Bombardier, are entirely consistent with the proposition accepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.
[53] He concluded, at para. 64:
[64] This outcome is sensible, even leaving aside questions about what reasonableness entails. If objective considerations could negate improper subjective reliance on race or racial stereotypes, the subjective component of these legal standards would be ignored. That should not be. As was recently explained in R. v. Lai, 2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess: see also R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 27. A body of law that permits officers to exercise their power when subjectively, their decisions are influenced by race or racial stereotypes, has little to commend it.
[54] To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police[5], and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.


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