Despite recent claims to the contrary, racial profiling and the over-policing of racalized and low income communities are long-standing features of the Canadian justice system. In law, the “reasonable suspicion” standard governs many initial contacts with the police. In R v Ahmad, the Supreme Court of Canada claimed that this standard is uniquely designed to avoid indiscriminate and discriminatory police conduct as it allows for “exacting curial scrutiny” of whether the actions of the police align with society’s sense of justice, decency and fair play. The finer points of the reasonable suspicion standard, in light of the Supreme Court of Canada’s most recent findings on race relations in Canadian policing, are the focus of this post.

1. Introduction

Where the state wishes to intrude upon a citizen’s private sphere for the purpose of criminal investigation, it is expected to have justification to do so. The grounds required will differ depending on the nature of the infringement, but the standards most frequently employed in Canadian constitutional law are “reasonable and probable grounds” (i.e. probable cause) and “reasonable suspicion.”

A reasonable suspicion is the lower threshold of the two and is employed in many contexts. For example, a police officer may detain someone for investigation where there are reasonable grounds to suspect that he or she is connected to a particular crime. In search and seizure law under s 8 of the Canadian Charter of Rights and Freedoms, a reasonable suspicion will justify deploying a drug dog, entering a home in exigent circumstances, authorizing the use of tracking devices for non-stop surveillance and obtaining orders compelling the production of private documents or data.

2. The Light of Curial Scrutiny

As discussed in my last post, the Supreme Court of Canada most recently considered the reasonable suspicion standard in the entrapment case of R v Ahmad. There, the constitutional dimensions of the standard were particularly important because, as the court acknowledged, entrapment is “a breeding ground for racial profiling” (para 25).

Writing for the majority, Justice Sheilah Martin extolled the virtues of the reasonable suspicion standard. She wrote that it “allows for exacting curial scrutiny of police conduct for conformance to the Canadian Charter of Rights and Freedoms and society’s sense of decency, justice, and fair play because it requires objectively discernible facts” (para 24). She described the standard as “uniquely designed to avoid indiscriminate and discriminatory police conduct” (para 25) and explained that by insisting on an objective assessment, “[r]easonable suspicion thus shift the protection of the public against unreasonable intrusions from the shadows of police discretion to the light of curial scrutiny” (para 29).

3. What are Grounds to Suspect? Look to the Stars

This framework begs the question of which suspicions will be characterized as “reasonable” upon review. The companion cases of R v Chehil and R v MacKenzie are the leading cases from the Supreme Court of Canada on this issue. In Chehil, Justice Andromache Karakatsanis articulated the contours of the reasonable suspicion test on behalf of a unanimous court. She wrote that such a suspicion can arise from “a constellation of factors” (including innocuous ones) and such factors need only indicate the possibility of criminal behaviour, not a probability (para 35).  To illustrate the point, Justice Karakatsanis leaned heavily on the constellation metaphor and drew a parallel between forming a reasonable suspicion and the interpretative art of stargazing:

[R]easonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.  Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. (Para 32.)

While exculpatory, neutral, or equivocal information cannot be completely disregarded, a police officer has no duty to seek out exculpatory factors or rule out innocent explanations. Further, a subtle but important aspect of the analysis is that officers may give evidence about what particular factors mean to them based on their training and experience. The facts in MacKenzie offer a sense of the kind of “constellation” sufficient to give rise to a reasonable suspicion.

Mr MacKenzie was stopped by two police officers for speeding after they observed him travelling 112 km/h in a 110 km/h zone on the highway between Calgary and Regina. While the police had no intention of issuing a ticket, they pursued him to give him “some type of warning.”  Mr MacKenzie slowed to 89 km/h as he passed the police cruiser and then pulled over approximately 2 km down the road. Cst Sperlie approached the driver’s side window and Mr MacKenzie spontaneously stated that he knew he was speeding and he would slow down. Rather than sending Mr MacKenzie on his way, the officer kept him detained on the side of the road.

Over the course of the stop, Cst Sperlie developed a suspicion that Mr MacKenzie could be a drug trafficker.  As summarized by Justice Louis LeBel (writing in dissent) the officer’s suspicion was based on “markers that apply broadly to innocent people […] which were at best highly equivocal: slowing down upon sight of the police and pulling over after speeding; acting highly nervous when confronted by the police; sweating on a warm day; breathing rapidly as an asthmatic; having pinkish eyes; using the primary highway route to make a quick turnaround trip between two major cities; correcting an initial response when asked about travel dates; and lacking a criminal record” (para 124).

While the court was split in its decision, the officer’s suspicion was found to be “reasonable” as the factors needed only give rise to the possibility of criminal behaviour, nothing more.

4. The Over Policing of Racialized and Low-Income Communities

In evaluating the extent to which the reasonable suspicion standard is meaningfully serving and protecting all Canadians from discriminatory policing, one might consider the state of affairs described by the Supreme Court of Canada in the 2019 case of R v Le. 

In Le, the court considered the issue of race relations between the public and the police in the context of an arbitrary detention under s 9 of the Charter. Three police officers were investigating someone in the area of a Toronto housing co-operative. They were told by a security guard that one of the townhouses was a “problem address” because of concerns about drug trafficking. The officers went to the townhouse and saw five young men (four Black and one Asian) talking in the back yard. The men were unknown to the police and did not appear to be doing anything wrong. The officers entered the yard without a warrant and questioned the young men as to what was going on, who they were, and whether they lived there. They had them produce identification and yelled at one of them to keep his hands where officers could see them. (Paras 6-15.)

Justice Russell Brown and Justice Sheilah Martin wrote for the majority of the court. On the question whether the men were arbitrarily detained (they were), Justices Brown and Martin discussed the issue of racial profiling by the police and the state of the evidence on the relationship between the police and racialized communities.

The court reviewed numerous reputable studies and reliable reports submitted by the parties. They held that racial profiling occurs “when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment” (para 76). The evidence (which covered the period from the 1970s to 2017) confirmed that racial minorities in Canada experience disproportionate levels of contact with the police and the criminal justice system, and receive differential treatment during those encounters. The most recent report from the Ontario Human Rights Commission considered by the court (here) revealed the following recurring themes: “a lack of legal basis for police stopping; questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests” (para 93). Many of the people impacted experienced fear, trauma, humiliation, lack of trust and had an expectation of negative police treatment (para 93).

At the conclusion of their discussion on the issue of race relations, the majority stated, “[w]e do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities” (para 97).

5. Stargazing as a Meaningful Safeguard

In Ahmad, Justice Martin wrote that “Courts must be able to assess the extent to which the police, in seeking to form reasonable suspicion over a person or a place, rely upon overtly discriminatory or stereotypical thinking, or upon ‘intuition’ or ‘hunches’ that easily disguise unconscious racism and stereotyping” (para 25).

It is difficult to see how the reasonable suspicion standard can expose unconscious biases when the police need only cobble together enough grounds to establish the possibility of criminality to meet a standard that expressly contemplates and tolerates the targeting of innocent people. The reasonable suspicion standard has been in widespread use in Canadian constitutional law for years. Yet, the evidence demonstrates that problems with unjustified stops, unequal treatment and discriminatory over-policing persist.

Astrology is a school of thought in which the circumstances of your birth dictate the conditions of your life. Followers consistently massage innocuous events into ipso facto proof of the magical predictive power of the stars. In this regard, the constellation analogy used in Chehil is apt. In Canada, the evidence is clear and unequivocal that the colour of a person’s skin and the neighbourhood in which they live is very likely to shape the frequency and nature of their contact with police. We deserve better. If the Canadian legal system wants to meaningfully confront issues of systemic discrimination, it will take more than doubling down on the reasonable suspicion standard. It will take an aggressive interrogation of how and why state actors tend to cast their suspicions as they do and an honest look at how our current tests and thresholds support and reinforce the status quo.