How is racial profiling proven in Ontario?
By inference. Direct evidence — an officer saying race was the reason — almost never exists, and the Court of Appeal has confirmed you do not need it. Profiling can be established from circumstances, it need only be a factor rather than the only one, and an officer's honest belief that they were not profiling is not an answer.
The doctrine is strong. Where it came from explains why the remedies attached to it are thin.
You do not have to be charged to be profiled
This is the point most often misunderstood, so state it precisely. The legal wrong does not require a charge. A stop with no charge, a detention that ends in release, a street check, a search that finds nothing — each can be arbitrary detention under s. 9 of the Charter, discrimination in services under the Code, or a tort.
| What happened | Routes available to you |
|---|---|
| Stopped, questioned, released. No charge. | Human rights application · civil claim (arbitrary detention, false imprisonment, Charter damages) · oversight complaint. The Code is the only one where the discrimination is itself the wrong. |
| Detained or arrested, then released without charge. | The same three — and usually a stronger factual record. An occurrence report, notebook entries, a dispatch log and possibly custody records will exist. Get them. |
| Charged, then withdrawn or stayed. | The file now exists in full and the Crown's disclosure is yours. Civil and Code routes remain, and the withdrawal is itself evidence. |
| Police attended, prepared paperwork, did not proceed. | An occurrence was created, notes were made, a supervisor approved a plan, and the drafted paperwork is a record. Code (services, and reprisal if it followed a complaint), misfeasance in public office, oversight complaint. Request the whole file including the reason recorded for not proceeding. |
| Charged and prosecuted. | All of the above, plus the criminal route — where the law is most developed and legal aid may attach. |
What it means that profiling law is criminal law
The doctrine everyone cites — that racial profiling can be proven by inference, that it need only be a factor, that an officer's honest belief is no answer — was largely developed in cases where the person raising it was facing charges. That has three consequences a claimant should understand before choosing a forum.
1 · The law is good, and it was made by people who wanted something else
An accused person invoking profiling wants evidence excluded. They are not asking for compensation, an apology, a policy change, or a finding the service must answer for. So the jurisprudence is rich on how profiling is proven and comparatively thin on what should follow from it. A complainant inherits an excellent liability framework attached to a remedial vacuum.
2 · You do not need to be charged to be profiled — but you do need a prosecution to use that door
This distinction is easy to get wrong, so state it precisely. The legal wrong does not require a charge. A stop with no charge, a detention that ends in release, a street check, a failed arrest attempt, a search that finds nothing — all of these can be arbitrary detention under s. 9 of the Charter, discrimination in services under the Code, or a tort. The Supreme Court's leading recent detention case involved young men in a backyard, and Shaw v. Phipps involved a letter carrier delivering mail.
What requires a prosecution is the remedy in the criminal stream. Exclusion of evidence under s. 24(2) exists only inside a prosecution — there must be evidence, and a proceeding to exclude it from. So:
- Stopped, questioned, released — no charge. No criminal forum exists for you. Your routes are the Human Rights Code (services), a civil claim (arbitrary detention, false imprisonment, Charter damages), and a LECA complaint. The Code is the only one where the discrimination is itself the wrong.
- Detained or arrested, then released without charge. Same three routes, and usually a stronger factual record — there will be an occurrence report, notebook entries, a CAD log and possibly custody records. Get them.
- Charged, then withdrawn or stayed. Still no s. 24(2) remedy (there is no trial), but the file now exists in full and the Crown's disclosure is yours. Civil and Code routes remain, and the withdrawal itself is evidence.
- Police attended, prepared the paperwork, and did not proceed. Officers arrive with an arrest package already drafted — and then leave without executing it, sometimes because a lawyer is present or because procedural questions get asked. Nothing happened, in the sense that no charge, no detention and no record of arrest exists. But something did happen, and it is documented: an occurrence was created, notebook entries were made, a supervisor approved a plan, and the prepared arrest paperwork itself is a record. No criminal forum exists (nothing to exclude), and false imprisonment is hard without detention. The available routes are the Code (services, and reprisal if it followed a complaint), misfeasance in public office civilly, and a LECA complaint — and the single most valuable step is an access request for the whole file, including the drafted paperwork, the authorisation, and the reason recorded for not proceeding. Repetition matters here: one attendance is an incident; a second, years later, is a pattern, and pattern is what a reprisal claim is built from.
- Charged and prosecuted. Now the criminal door opens — and it is the door with the most developed law, the best-resourced opponent for the state to face, and legal aid attached.
3 · A criminal finding does not transfer automatically
A trial judge's conclusion that officers profiled a person can be powerful evidence in a later Code application or civil claim, but it is a finding in a different proceeding on a different question. It does not decide the Code case. It is a starting point.
What the civil cases actually plead — and whether they cite the Code
We read the Ontario police-board civil appeals in the corpus to answer a specific question: when police accountability reaches the Court of Appeal outside the human-rights stream, what is the cause of action, and does the Human Rights Code appear at all?
| Case | Cause(s) of action | Code invoked? |
|---|---|---|
| Good v. Toronto (Police Services Board), 2016 ONCA 250 | Class proceeding — breach of Charter rights of ~1,000 people detained at the G20; certification under the Class Proceedings Act, 1992 | No — Charter |
| Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 | Charter and common-law police powers (G20 street stop) | No — Charter |
| Asghar v. Toronto Police Services Board, 2019 ONCA 479 | Pleaded "racial profiling", "improper purpose", "malicious falsehood" — police argued these are not recognised causes of action | Raised as a concept, not as a Code claim |
| Marcellin v. London (Police Services Board), 2024 ONCA 468 | Defamation, dismissed below under the anti-SLAPP provision (Courts of Justice Act s. 137.1); appeal allowed | No |
| Khorsand v. Toronto Police Services Board, 2024 ONCA 597 | Administrative law — judicial review, procedural fairness; held not reviewable | No — and this is the point |
| Briggs v. Durham (Police Services Board), 2022 ONCA 823 | Human Rights Code — race, colour, ethnic origin; reprisal | Yes |
| Shaw v. Phipps, 2012 ONCA 155 | Human Rights Code — racial profiling in services | Yes |
What the class-action route shows that the Code cannot
Good is the clearest example. Roughly 1,000 people were arrested or detained during the G20; conditions at the detention centre involved "[s]ignificant delays, overcrowding, and a breakdown in prisoner care." The Divisional Court certified two class proceedings; the Court of Appeal heard the police board's appeal with the Canadian Civil Liberties Association intervening. Costs of the original certification motion alone: $125,728.03.
Two lessons sit in that one number. Aggregation is possible — a thousand people's treatment can be litigated together, which no human-rights application can do. And it costs six figures before the merits, which is why it is available only where counsel will take the risk. The Code is free and cannot aggregate; the class action can aggregate and is not free.
What this means if you were profiled
- You inherit an excellent liability framework attached to a thin remedial one. The law on how profiling is proven is strong because accused people built it. The law on what should follow from it is comparatively undeveloped.
- A criminal finding does not transfer automatically. A trial judge's conclusion that officers profiled you can be powerful evidence in a later Code application or civil claim, but it is a finding in a different proceeding on a different question. It is a starting point, not a decision.
- Profiling is not itself a tort. In civil court it must be pleaded through a recognised cause of action — negligent investigation, false imprisonment, battery, misfeasance in public office, Charter damages — with race as the factual explanation for why the conduct occurred. Under the Code, discrimination is the wrong itself.
- Get the records first. Every forum runs on the institution's own documents. How to request them.