The Reasonable Suspicion Standard: A Green Light towards Racial Stereotyping? - Samantha Onchulenko

This blog will address whether the standard of reasonable suspicion is an appropriate standard. The test relies on the possibility of criminality, and not the probability of criminality. The reasonable suspicion standard facilitates the ability of police officers to stop, detain, and search individuals without the probability of criminal activity, which could validate racial profiling. I will argue that the reasonable suspicion standard allows police officers to legitimize their actions under the guise of having a reasonable suspicion of the possibility of a crime.

The case of R. v. McKenzie, 2022 MBCA 3 (“McKenzie”) outlines the law relevant to this area and provides an example of a case where the police conduct was found to be justified. McKenzie deals with the issues of investigative detention of the accused and the search of a fanny pack. The decision is concerned with whether police powers were exercised lawfully and reasonably in the given context.[1]

The Facts

The accused was observed to be jogging through backyards.[2] The accused was clenching his left side of his body with his elbow.[3] Constable Beattie recognized the accused from police intelligence reports which stated that he was a member of a street gang and known to carry a weapon.[4] Beattie, who had extensive training in weapons offences and the manner in which people carry weapons, believed the accused’s mannerism was an attempt to conceal a weapon between his left arm and his body.[5] It was at this point that Beattie decided to “detain the accused for an investigative purpose related to a weapons offence and yelled at the accused to stop.”[6] Beattie caught the accused, pinned him against the wall of a house, lifted the flap of the fanny pack open, and shined his flashlight into the fanny pack, which revealed a handgun.[7] The accused was arrested and the drug evidence in his jacket was discovered after the arrest took place.[8]

The Law

The Waterfield framework determines when common law police powers are permitted to interfere with an individual’s liberty or property.[9] Under the Waterfield framework, the lawfulness of a police action turns on whether the action involves a justifiable exercise of police powers associated with the duty, and whether the interference was reasonably necessary for the carrying out of the particular duty.[10]

A police officer may detain an individual for investigative purposes where they have reasonable grounds to suspect the individual is connected to a particular criminal activity and that such a detention is reasonably necessary in the circumstances.[11] Of note, this power is not confined solely to a specific known criminal act, but also encompasses criminal activity that is “reasonably suspected.”[12]

There are various standards for determining whether an officer had the authority to conduct an investigative detention. The case focused on the reasonable suspicion standard. The purpose of the reasonable suspicion standard is to determine what the police knew at the time so the individuals’ rights can be balanced with society’s interest in the detection and punishment of crime.[13] This standard is a lower standard than the reasonable grounds standard, as it rests on the reasonable possibility of crime, rather than the reasonable probability of crime.[14] The Supreme Court has acknowledged that more innocent individuals will fall under the reasonable suspicion standard.[15]

Trial Court Decision

The accused requested to have the firearm and drug evidence excluded, as the accused alleged violations under s. 8 and s. 9 of the Charter.[16]

The trial judge found the accused was not arbitrarily detained, and the search of the accused’s fanny pack was reasonable.[17] The trial judge then added that “if she was wrong, she was satisfied that the police had acted in ‘good faith’ in a fast-moving and potentially dangerous situation.”[18] The trial judge concluded that “admitting the evidence seized would not bring the administration of justice into disrepute.”[19]

Court of Appeal Decision

On appeal, the accused argued the trial judge erred in her application of the law related to the alleged Charter violations and that she misconstrued the facts.[20] The Court of Appeal held there was no merit to the accused’s argument that because Beattie recognized the accused from police intelligence reports, this should have brought with it reliability concerns.[21] The court was not persuaded the trial judge erred as to the evidentiary foundation on which the investigative decision was based.[22] The court also rejected the accused’s argument that there were no objective factors to substantiate any reasonable suspicion.[23]

The court relied on the way the accused was holding himself, the fact that he was running, that he attempted to flee, as well as his criminal reputation and propensity to carry weapons in determining that the facts gave rise to a reasonable suspicion to detain the accused for a weapons offence investigation.[24]

The Reasonable Suspicion Standard According to Steven Penny

Suspicion standards determine “the nature and degree of justification needed” before the police can intrude on individuals’ rights to liberty and privacy.[25] Ample judicial resources are spent arguing over what these standards mean and how to apply them, particularly in situations where the defence is arguing for the exclusion of evidence under s. 24 (2) of the Charter.[26] This was the exact scenario in McKenzie. Steven Penny points to inconsistencies in language used by courts in describing probability thresholds and argues for greater clarity.

Interestingly, the courts have not settled on how to define the thresholds, which adds to the uncertainty. Steven Penny highlights some of the grounds for suspicion, which include police experience, training, as well as inferences from criminal profiling. This is cause for concern, as many fear reliance on criminal profiling, police experience, and training overestimates the true probability of criminality and may cause social harms, such as racial discrimination.[27]

Reasonable Suspicion Standard and Stereotyping

The Supreme Court of Canada has recognised that with the use of the reasonable suspicion standard, more innocent individuals will get caught under the broad net the reasonable suspicion standard casts.[28] With no explicit explanation from the court regarding how to quantify the reasonable suspicion standard, it seems as though the administration of justice may be brought into disrepute if it ultimately validates racial profiling.

When reading McKenzie, I identified the possibility of racial stereotyping being used by police when they have at their disposal the use of the reasonable suspicion standard to justify investigative detention and search and seizure of individuals. The ability of police officers to disguise acts of racial stereotyping as a fear for their safety could lead to many s. 8 and s.9 Charter violations being justified through use of the standard.

Submissions as to s. 8 and s. 9 Charter violations could be persuasive where the reasonable suspicion standard is employed. Perhaps we have an individual who is walking funny, who looks suspicious, and who is a visible minority. Perhaps this prompts the police to racially stereotype the individual, leading to unreasonable detention while the individual is stopped and searched. Should the individual then argue that their s. 8 and s. 9 Charter rights were violated due to this investigative detention and search and seizure, the police should not be entitled to use the reasonable suspicion standard to disguise their act of racial profiling as a justified action. The court in McKenzie states the purpose of the reasonable suspicion standard is to allow the court to review what the police knew at the time of the incident and to balance the individual’s rights with society’s interest in the detection and punishment of crime.[29] The court should set out criteria for the use of this test to prevent the use of profiling.

Because the courts have yet to clarify the threshold needed to satisfy the standard of reasonable suspicion, the standard has been left open to judicial interpretation, which will vary widely depending on the facts of a particular case. This creates the potential for mischief; that mischief being that police officers, who all have experience, training, and concerns about particular identifiable groups, are afforded an avenue to stop anyone, as long as in their own mind they have come to the conclusion that there is a possibility of criminality. Absent the explicit mention of objective criteria required in order to satisfy the reasonable suspicion standard, the court is effectively allowing police officers to conduct a search when only the possibility of a crime exists. This test, as it is currently interpreted, seems to be open to abuse.

In McKenzie, Constable Beattie’s justification for stopping the accused was determined to be, on paper, that he had feared for his safety, when the facts suggest the officer stopped him because he was a former criminal.

Does the reasonable suspicion standard give the police and law enforcement the green light to disguise racial profiling as a valid means of infringing on the rights to liberty and privacy of Canadian citizens? Let me know your thoughts in the comments below.

[1] R v McKenzie, 2022 MBCA 3 at para 1 [McKenzie]. [2] Ibid at para 6. [3] Ibid. [4] Ibid. [5] Ibid at para 8. [6] Ibid. [7] Ibid at para 9. [8] Ibid. [9] Ibid at para 10. [10]Ibid at para 11. [11]Ibid at para 13. [12]Ibid at para 14. [13] Ibid at para 16. [14] Ibid at para 17. [15] Ibid at para 19. [16] Ibid at para 3. [17] Ibid. [18] Ibid. [19] Ibid. [20] Ibid at para 4. [21] Ibid at para 23. [22] Ibid at para 25. [23] Ibid at para 26. [24] Ibid at para 27. [25] Steven Penney, “Standards of Suspicion” (2017), 65 Crim LQ at 23 (West Law). [26] Ibid. [27] Ibid at 26. [28] Supra note 1 at para 19. [29] Ibid at para 16.