Charter rights and Dignity_student

Fights

• MARTER AND FRE ANAD

• Protecting Equality in the Time of Terror

What's Old is New Again

• Title: Protecting Equality in the Face of Terror: Ethnic and Racial Profiling and S. 15 of the Charter

• Source: The Security of Freedom: Essays on Canada's Anti-Terrorism Bill, R. Daniels, P. Macklem & K. Roach, eds., pp. 163-78, Toronto: University of Toronto Press, 2001

• Author: Sujit Choudhry

• Date Written: 2001

• Focus: Examines racial and ethnic profiling in the context of the Canadian Charter of Rights and Freedoms and its constitutional implications. Highlights the significant lack of analysis on the constitutionality of profiling despite its prominence post-September 11.

Keywords

• Equality

• Discrimination

• Racial Profiling

• Ethnic Profiling

• Terrorism

• Constitutional Law

Context of Terror

September 11, 2001

• Notable Event: Terrorists hijack commercial flights, impacting Twin Towers and Pentagon.

Legislative Response

• USA Patriot Act (Oct. 26, 2001)

  • Expanded law enforcement powers.

  • Raised concerns regarding civil rights.

• Canada's Bill C-36 Anti-terrorism Act

  • Similar concerns over privacy and Charter rights.

  • Choudhry cautions against overlooking threats to values by wartime measures.

Racial Profiling Discussion

• Post-9/11, racial profiling gained renewed prominence in both Canada and the US.

Canadian Response

• Maj.-Gen. MacKenzie suggested thorough checks for passengers from countries supporting terrorism, labeling it common sense, not ethnic profiling.

• National Post emphasized racial profiling necessity for safety consensus.

• Counterarguments highlight its potential discrimination under S. 15 of the Charter.

Bill C-59 Overview

• Introduced in 2017, received royal assent updating national security legislation.

• Enhanced powers for CSIS including cyberattack capabilities.

• Aims to address previous legislation’s criticisms while ensuring Charter compliance.

Section 15 of the Charter

• S. 15(1): Asserts equality before the law without discrimination (prohibited grounds: race, ethnic origin, etc.)

• Central Issue: Is racial profiling a justified infringement of the right to non-discrimination?

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Definition & Purpose of Racial Profiling

Narrow Definition

• Profiling involves detaining or arresting based solely on race or ethnicity.

Broader Implications

• Inclusion of race or ethnicity as a decisive factor in investigations.

• Historical examples: Japanese internment during WWII, highlighting discriminatory practices.

Legal and Social Implications

• Pretext Stops: Law enforcement practices like stop-and-frisk can lead to systemic issues.

• Discrimination identified through scrutiny that captures historical context of racial inequalities.

Examination of Racial Profiling's Impact

• Consequences on dignity and self-worth among targeted groups.

• Existence of stereotyping leading to broader social ramifications.

Choudhry's Argument

Dignity Focus

• Racial profiling undermines individual dignity, categorized as both universal generalization and over-generalization.

Proportionality Test

• Evaluates necessity of restrictions against pressing objectives like national security.

• Requires examination of minimal impairment and overall justification under S. 1.

Alternative Approaches

• Proposes comprehensive scrutiny for all individuals to eliminate profiling stigma.

• Acknowledges potential resource burdens but emphasizes benefits of equality and dignity.