The Ontario Court of Appeal released the decision in R . v. Dudhi , 2019 ONCA 665. The decision is about racial profiling, a concept which sadly seems to be recurrent in criminal law.

In Dudhi , Justice Paciocco writing for the Court, explains the concept of racial profiling as having two components : (1) an attitudinal component; and (2) a causation component (par. 54 of the decision).

The attitudinal component is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree , decisions by persons in authority regarding suspect selection or subject treatment (par. 55).

Race Being A Factor For Arrest

The idea that race must motivate the decision of persons in authority to any degree is important, because this means that if race was a factor in the police officer’s thinking during his police actions, then that would satisfy the causation component even if the officer had reasonable grounds to arrest a person. In the context of the case of Dudhi , the police officer made a racist comment about Mr. Dudhi after he had already formed grounds to arrest him. The argument was being made that given that the racist comment about Mr. Dudhi’s skin colour was made after there was reason to arrest Mr. Dudhi, his racist thinking could not have affected his action and decision to arrest. The Ontario Court of Appeal rejected that argument and indicated that the comment reflected an attitude or belief, and attitudes or beliefs do not come and go in the moment. They are held (par. 78).

Where race is 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 (par. 63) and racial profiling has two components, an attitudinal component and a causation one.