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Sunil Gurmukh

Making the invisible, visible

Racism in policing is a Canadian problem and Black and Indigenous communities are bearing the brunt of the consequences

An influential human rights lawyer and counsel at the Ontario Human Rights Commission, Sunil Gurmukh, LLB’08, is partnering with Western Law on the Hidden Racial Profiling Project. Here he speaks with writer Jeff Renaud on the project, the problem and what drives his passion to do this work.

Criminal law, intellectual property law, entertainment law – there are a lot of sexier, higher-paying lawyer gigs out there. Why human rights?

In the back of my mind, I always wanted to help people. But I got my first real exposure to human rights while articling at Hicks Morley. They represent employers like banks, school boards, police services and large companies. And I was interested in labour and employment law because I wanted to litigate. I wanted to be on my feet and labour and employment law is about people. So it seemed like a good fit. I wrote a response on behalf of a police services board to a complaint alleging racial profiling in policing that was filed with the Human Rights Tribunal of Ontario. That’s what really piqued my interest in human rights.

After articling, I switched sides. I became a staff lawyer at the African Canadian Legal Clinic, a specialty clinic of Legal Aid Ontario that fought anti-Black racism. It just sort of snowballed from there. I’ve litigated cases about racial profiling and delivered public education sessions to Black youth. I’ve published articles, written reports and submissions and taught a class on racial profiling. But, most importantly, I’ve learned from lived experience. When you’re holding the hands of a young Black man and his mom as he tells you about being tasered twice while handcuffed… it was listening to that lived experience that really made me passionate about addressing racial profiling in policing.

Is systemic racism a part of your own personal history?

Personally, I don’t feel I’ve been the victim of discrimination or racial profiling in policing. But, I’m using my privilege, my education, my law degree and the oath I took to protect the rights of people in Ontario to address these issues.

You were involved in the Ontario Human Rights Commission (OHRC) report released in August, A Disparate Impact, the second such OHRC report focused on an inquiry into racial profiling and discrimination of Black persons by the Toronto Police Service. The report doesn’t mince words: 
Black people are more likely to be arrested by the Toronto police.
Black people are more likely to be charged and over-charged by the Toronto police.
Black people are more likely to be struck, shot or killed by the Toronto police.

It’s 2020. How can these inequalities still exist in the Canadian criminal justice system?

My personal view is that police services haven’t been taking a hard look at these issues, because the data wasn’t being collected or analyzed or reported on, and so you can only address what’s being measured. Only now is there more uptake. Only now are police services really starting to collect race-based data. And I think quite honestly, it was a blind spot. I think it was easier for police to dismiss stories, but when you have the hard data, it can’t be denied. And now when you have more video, it can’t be denied.

What is racial profiling and why is it such a threat to BIPOC communities in Canada?

In the Commission’s recent policy on eliminating racial profiling in law enforcement racial profiling is defined as “any act or omission related to actual or claimed reasons of safety, security or public protection by an organization or individual in a position of authority that results in greater scrutiny, lesser scrutiny or other negative treatment based on race, colour, ethnic origin, ancestry, religion, place of origin, or related stereotypes.”

It affects not just the person, not just the victim, but it affects their friends, their families, their entire communities.

If I was to break that down, and we applied it to the police, it’s the police doing something or failing to do something when they’re acting in their capacity as an officer that results in greater attention, greater scrutiny or less attention, less scrutiny because of race.

That can mean stopping someone, questioning, searching, it could be using force or it could be on the other end. It could be not investigating as thoroughly because of race. That would be racial profiling. So why is it so offensive? It’s so offensive because it’s so damaging. That greater scrutiny, the fact that Black and Indigenous Peoples are more likely to be charged, more likely to be arrested, contributes to the over-representation of Black and Indigenous Peoples in jails.

There are significant negative effects, not to mention the physical harm of being the victim of excessive force. There are also serious mental health consequences. It affects not just the person, not just the victim, but it affects their friends, their families, their entire communities.

What do you hope to accomplish with the Hidden Racial Profiling Project?

I want to take academic scholarship on racial profiling to the next level. Together with Western Law students, we will identify recent cases involving major Canadian municipal police forces, including rights violations such as arbitrary detentions, unreasonable searches and excessive force.

We expect to uncover many cases involving Indigenous or Black victims that are consistent with racial profiling and we’re going to make those cases visible.

Arbitrary detention means you’re being detained, you’re being stopped and you can’t leave. And it’s done without reasonable suspicion. What we’re going to do is contact defence counsel and the accused to determine the race of the victims in these cases because, often, race isn’t even mentioned. We expect to uncover many cases involving Indigenous or Black victims that are consistent with racial profiling and we’re going to make those cases visible.

In the 2018 case R. v. Hines, the Ontario Court of Justice concluded Tyrone Hines was the victim of excessive force when he was pepper sprayed by a Toronto police officer while handcuffed in the backseat of a cruiser. He was also hit with a baton in the face during the arrest. The court decision makes no mention of the fact Mr. Hines is Black or the issue of racial profiling. But, in my opinion, it’s clearly consistent with racial profiling. There is a more physical response or disproportionate use of force which is a particularly damaging manifestation of racial profiling.

I hope this work will inspire students to be human rights lawyers or advocates. I taught an intensive course on racial profiling and policing last year at Western Law. My students were incredible. So many insightful comments and thoughtful questions. I want to provide students interested in racial justice with an applied practical research opportunity that will help them become strong advocates. I hope this project will contribute to the discourse on anti-Black racism and anti-Indigenous racism in policing in Canada so people this is not just a problem south of the border. It’s a problem in our own country.

“Our own country.” Those are such important words because as Canadians we often like to point a finger at the U.S. Are we really any further ahead than our neighbours to the south?

Black people have similar experiences here in Canada as they do in the U.S. Quite frankly, I don’t think we’re much further ahead. In many ways, we’re behind because many states in the U.S. collect race-based data so the data can be acted upon, but that’s just not the case here.

As Canadians, we feel we’re polite and somehow, we don’t act on racial stereotypes. We feel we’re a kinder nation. We don’t actually feel this is a problem. However, the lived experiences of Black communities and Indigenous communities tell us otherwise. The reluctance to acknowledge the problem could be part of what we see in the media. We see so much attention being paid, especially now, to anti-Black racism in policing in America but we don’t see the same attention being paid north of the border. It could be a reflection of what Canadians are seeing and it could be a reflection of how Canadians see themselves. I hope this project will help change those views.

According to the CBC, there were 461 fatal encounters with police in Canada from 2000 to 2017. Black people were nine per cent or 43 of the victims but less than three per cent of Canada’s population. Indigenous Peoples were 15 per cent or 69 of the victims but less than five per cent of Canada’s population. Indigenous Peoples were more than a third of people who were fatally shot by the RCMP between 2007 and 2017. We’ve seen serious concerns about racism and sexism and police investigations of missing and murdered Indigenous women and girls – that is across Canada.

In 2015, families of murdered Indigenous women told the United Nations about “a failure by the police to treat cases of missing Aboriginal women in an urgent manner and to carry out adequate investigations.” We’ve seen the report in 2018 coming from the Office of the Independent Police Review Director that found the Thunder Bay police engaged in systemic racism against Indigenous Peoples. Those are only some examples but, clearly, racism in policing is not just an American problem or a just a Toronto problem. It’s a Canadian problem. And Black and Indigenous communities are bearing the brunt of the consequences.

*The views in the forthcoming research and related activities are those of Mr. Gurmukh and do not necessarily reflect those of the Ontario Human Rights Commission.