Over-Policing of Minorities & Charter Values: How the Charter Value of Equality Should Shape the Standard of Care

Introduction

The question at the heart of this article is whether the appropriate standard of care in negligence related to the maintenance and use of police databases by law enforcement and other related agencies should be interpreted in light of the Charter value of equality. In the authors’ view, the standard of care in negligence cases against law enforcement has been a relatively low bar and has been informed by law enforcement policies. The authors take the position this is true of cases involving police databases as well.

Recently, the Supreme Court of Canada and the Ontario Court of Appeal have recognized that the over-policing of minorities violates the equality guarantees in s. 15 of the Charter. In the authors’ view, the data stored in police databases reflects the reality of this discriminatory over-policing. Put differently, the authors take the position that over-policing results in the over-representation of racial minorities in police databases. Given the underlying constitutional violations associated with over-policing, it is the authors’ position that cases involving the negligent maintenance or use of such databases engage the Charter value of equality.

Charter rights are conceptually distinct from Charter values, but Charter values nevertheless underpin each Charter right and give it meaning. Charter values can apply even where a Charter right is not engaged. Tort law has long been developed in light of Charter values.  In the authors’ view, the tort of negligence should be similarly developed. Specifically, when formulating and applying the standard of care in relation to the maintenance and use of police databases, courts should appropriately scrutinize existing policies and procedures, including any discriminatory impact of seemingly neutral policies.

a. Charter values have long applied to tort law

Using Charter values to interpret tort law is not new. As the Supreme Court most recently explained in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), “Charter values are those that ‘underpin each right and give it meaning’” and “are inseparable from Charter rights”, which reflect them.[1] Moreover, the Court affirmed its longstanding view that Charter values can be used “in the development of common law rules.”[2]

Tort law has long been developed in light of Charter values. For example, the law of defamation has been shaped by the Charter value of freedom of expression. In Grant v. Torstar Corp., the Supreme Court established a new defence of responsible communication on matters of public interest because the pre-existing rule unduly encroached upon the Charter value of freedom of expression.[3] In WIC Radio Ltd. v. Simpson, the Supreme Court relied on the Charter value of freedom of expression to broaden the “honest belief” test to avoid the risk of chilling debate on matters of legitimate public interest.[4]

In Jones v. Tsige, the Ontario Court of Appeal expanded the common law to recognize the tort of intrusion upon seclusion, on the basis of the Charter value of privacy.[5]

In the authors’ view, interpreting the standard of care in negligence in a manner that accords with Charter values is consistent with how courts have used Charter values to develop tort law, more generally.

b. The Charter value of equality is engaged in cases of the negligent  maintenance or use of police databases because the databases are tainted by s. 15 violations

The Supreme Court of Canada and the Ontario Court of Appeal have recognized that racialized communities are over-policed in R. v. Le[6] (“Le”) and R. v. Pike (“Pike”),[7] respectively. In the authors’ view, these discriminatory policing practices are likely reflected by the data contained in police databases. Discriminatory policing practices violate s. 15 of the Charter and, in the authors’ view, thereby taint police databases. As such, the authors take the position that the Charter value of equality is engaged and should be used to interpret the common law of negligence in cases involving the use and maintenance of such databases.

In Le, the accused was carded while in a private backyard that the police had entered without a warrant or consent, and with no reason to believe there was any ongoing criminal activity. When the police asked the accused what was in his satchel, he fled. He was pursued and arrested by police, at which point, they found a firearm, drugs and cash. The accused argued that the evidence was obtained by an unreasonable search and seizure, and that he was arbitrarily detained, contrary to ss. 8 and 9 of the Charter. In reviewing the reports and data on carding and policing of racial minorities more generally, the Supreme Court concluded that there is disproportionate policing of racial minorities and low-income communities:

The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities (Tulloch Report, at p. 42). Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization…We 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 (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359).[8] [Emphasis added.]

In Pike, there were two accused individuals charged with possessing and importing child pornography. The accused individuals successfully challenged the constitutional validity of the s. 99(1)(a) of the Customs Act, under which the search had been conducted. The Court held that this provision authorizes border officers to search devices without any reasonable basis, and therefore violates the protections against unreasonable search and seizure enshrined in s. 8 of the Charter. In the course of addressing the constitutionality of the impugned provisions, the Court stated:

Linked to these reliability concerns is the risk that border officers will, consciously or unconsciously, target travellers based on their race or racial stereotypes. We must be cognizant of this risk because it is still an everyday reality in the lives of many racialized people in our diverse province and country.[9] [Emphasis added.]

Le and Pike acknowledge a deeply entrenched reality for racial minorities: they are over-policed. By extension, the authors take the position that the discriminatory practices that result in over-policing are unavoidably reflected in law enforcement databases. In the authors’ view, police databases are therefore tainted by s. 15 violations and cases of negligent maintenance or use of such databases engage the Charter value of equality, specifically when formulating the standard of care.

c. The Charter value of equality requires that the standard of care in negligence be interpreted and applied to avoid the perpetuation of systemic discrimination

A recent decision, Shanthakumar v. CBSA (“Shanthakumar”) (decided by Justice Aggarwal and upheld by the Ontario Court of Appeal), did not explicitly apply the Charter value of equality but, in the authors’ view, the case illustrates why, when and how the Charter value of equality can and should apply to the formulation of the standard of care in negligence cases involving police databases.[10]

Law Enforcement Policies as the Standard of Care

When courts decide what the appropriate standard of care is in a negligence case involving law enforcement, they can consider law enforcement policies. However, these policies, even if seemingly neutral, can have a discriminatory effect. In the authors’ view, courts should carefully scrutinize the discriminatory impact of facially neutral policies before accepting that compliance with such policies meets the standard of care.

In Shanthakumar, an elderly South Asian couple was detained at the border overnight because of a false record in the Canadian Police Information Centre (“CPIC”). The RCMP tried to argue that there was no breach of the standard of care because they complied with their policy of requiring written documentation before making a change to CPIC. While seemingly neutral, the RCMP’s policy was scrutinized and its impacts described critically by Justice Agarwal:   

…the RCMP didn’t need to wait for a tran of the May 15th proceedings to remove the information from the CPIC system. Officer Williams spoke to the Crown prosecutor the day before to know that the charges were being stayed. He could’ve orally verified that the charges were stayed any time after May 15th. He could’ve asked for a copy of the endorsement. Even if he needed the tran, he didn’t explain why he waited over 7 weeks to ask for a copy, putting Shanthakumar and Mylabathula, unbeknownst to them, in constant legal jeopardy. And then, of course, the information about Shanthakumar and Mylabathula was removed from the CPIC system on July 5th without the need for a tran of the court proceeding.

The RCMP has allowed an information database to undermine both Shanthakumar’s and Mylabathula’s constitutional guarantee to a presumption of innocence and this court’s orders. As this case shows, it doesn’t matter that Shanthakumar and Mylabathula’s undertakings were vacated. It doesn’t matter that a court endorsed on the record that the Crown had stayed the proceedings against them. If the information remains on the CPIC system, it’s as if these events never happened. Shanthakumar and Mylabathula were arrested by the CBSA and the Niagara Police because the RCMP failed its duty to them.[11]

In the authors’ view, these types of errors are more problematic for racialized minorities who are over-policed and therefore more likely to be in databases, such as CPIC, in the first place. As such, a facially neutral policy (i.e. the RCMP requiring written documentation before making a change to CPIC) may disproportionately affect racial minorities. In the authors’ view, courts should consider this discriminatory effect when deciding whether law enforcement’s compliance with any such policy meets the standard of care.

Conclusion

In assessing negligence in cases related to police databases, the authors take the position that courts should use the Charter value of equality to avoid the further perpetuation of systemic discrimination and mitigate the impact of over-policing on racial minorities.

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