POLICING AND PROFILING

When a police officer saw two men of Asian descent purchasing rubber
boots and a water sprayer in Northern Ontario, was he engaging in
racial profiling by following them? Yes, he was. Was he wrong to do so? No.

The case of Han Chu Hu and Zhi Ji Chi in Timmins is an uncomfortable
one for Canadians. The state should not, as a general rule, use its
coercive powers based on the stereotyping of minorities; it should
treat each person as an individual. And there is no question that the
Ontario Provincial Police used racial profiling in deciding that the
two men might be involved in a marijuana grow-op. White men in
Timmins do not attract suspicion when they buy gardening equipment at
Canadian Tire. A police officer began to track their movements,
eventually obtained a search warrant (surely on grounds more solid
than the men's race) and discovered 40,000 marijuana plants.

Defence lawyer Peter Lindsay says the Crown knew it would attract
justified charges of racial profiling, and to avoid them made a plea
bargain that resulted in the two men being sentenced to house arrest,
rather than jail, in return for a guilty plea. (The Crown denies,
implausibly, that this was the reason for the plea bargain, saying
the two men were not the prime movers in the grow-op.) "Fairness is
more important than getting a particular conviction," Mr. Lindsay
said. "This was about as clear-cut a case of racial profiling as you
could possibly get. How much more offensive to Canadian values can you get?"

But the circumstances of the case suggest racial profiling is not always wrong.

When his suspicions were triggered, Constable David Martin in no way
interfered with the personal liberty of the two men. He did not stop
or search them. This was not comparable to the profiling carried out
by the New Jersey state police, who in stopping drivers on the New
Jersey Turnpike in the 1990s tended to search black drivers for drugs
far more often than white ones. Const. Martin set out to gather more
information on the men. There was evidence, for instance, of large
amounts of electricity being consumed by the farms.

There is a slippery-slope argument to be made that allowing any
racial profiling is dangerous, that being alert to Shopping While
Asian-Canadian (in Timmins) leads inevitably to criminalizing Driving
While Black (in Montreal or Toronto). But if that is the case, a
police officer who learns that a Saudi visa student is taking flight
lessons should not be able to look any further.

Airport border guards would have to consider men from Muslim conflict
zones as no more worth watching than men from, well, Timmins. We
would all have to pretend there was no such thing as Islamic terrorists.

Idealism is not enough; the realities of policing need to be
considered. The Ontario Court of Appeal had this to say when Peel
Regional Police ran a computer check on a car operated by two black
men, who then fled at high speed: "The police do not need reasonable
grounds to conduct investigations as long as the police conduct does
not interfere with any individual rights." But the court went on to
say that the essential question was whether the officer who ran the
computer check was "motivated to do so in part, at least, because of
the colour of the appellants' skin." In other words, police don't
need a good reason to check up on someone, but they shouldn't have a
bad reason.

That lack of clarity may have been what led the prosecutors to accept
a seemingly unfavourable plea bargain.

If the case had gone to trial, the Crown might have been pilloried as racist.

But there was no racism here, no denial of rights based on race,
nothing offensive to Canadian values.