October 10, 2001
Charlie Gillis, with files from Sarah Schmidt
National Post
Ethnic profiling is about to become a fact of life in Canada and will likely receive some form of assent from the country's courts, a constitutional law expert predicts.
"We have to assume that some level of profiling will not only be done but upheld," said Ed Morgan of the University of Toronto. "It is only rational law enforcement to do some kind of profiling -- if you have evidence to fit the profile.
"Now what will our courts do with it when it becomes explicit? ... My prediction is the Canadian courts will strike some sort of balance that allows this kind of profiling at points of entry."
Mr. Morgan, who has served as counsel for both the Canadian Jewish Congress and the Canadian Arab Federation, made the remarks before serving on a panel struck by the Ontario Bar Association.
The symposium offered lawyers a chance to discuss the legal ramifications of the Sept. 11 attacks on the United States, at a time when basic assumptions about civil liberties are coming into question.
Mike Harris, the Ontario Premier, last week announced the creation of a police unit assigned to search out and deport illegal immigrants. While Mr. Harris did not say racial profiling was in order, he suggested the unit would help protect Ontarians from terrorism.
In Ottawa, the federal government has promised a package of anti-terrorist legislation that critics say could further stigmatize immigrants based on their ethnicity.
Mr. Morgan believes Canada will soon face many of the moral questions with which U.S. courts have already wrestled, including the acceptability of ethnic profiling in law enforcement.
The U.S. experience suggests courts may uphold profiling in some locations and circumstances, he said. The U.S. Supreme Court for example, allowed immigration profiling in a variety of locales, including border checkpoints, fixed patrol spots on highways and ports of entry.
But the court forbade moving patrols from engaging in the practice on the grounds it would derogate the liberties of law-abiding migrants and U.S. citizens.
Michael Greene, chairman of the Canadian Bar Association's immigration section, said Immigration Canada inspectors are already practising a form of profiling -- with the general acceptance of the legal community.
"If you fit the profile for a high-risk group, then you won't, for instance, get a visitor's visa," he said. "We don't oppose that kind of profiling. But it would be wrong to profile, say, all Muslims."
Reg Whitaker, a political scientist and author of Double Standard: The Secret History of Canadian Immigration, warns that, while profiling can provide a government with a handy means of risk analysis, it comes with risks.
"From the point of view of those on the receiving end, they get tarred with that brush, and they see it as racial discrimination," he said in a recent interview.
"It inevitably involves actual injustices."