Susan Clairmont: Hamilton police said this week that racial profiling is unintentional. It is not

Racial profiling is intentional.

Period.

That's what experts - and the law - say about it.

But the Hamilton Police Service thinks otherwise.

Racial profiling, by its very nature, represents a state of mind that is unintentional," according to the service.

The stunningly incorrect statement was sent to The Spectator earlier this week in response to a judge's ruling that four Hamilton officers racially profiled two young Black men in a traffic stop.

The statement, which a spokesperson said came from the Office of Chief Frank Bergen, cannot be left hanging out there unchecked.

That is far from the truth. Racial profiling is intentional," Kanika Samuels-Wortley, assistant professor of criminology at Carleton University, says unequivocally. To say otherwise is just coming up with an excuse," she says.

Racial profiling is an action. It is something a police officer does, not just something an officer thinks.

While a police officer - or any of us - may have an unconscious bias," the decision to pull over Black drivers who are doing nothing illegal is an intentional act.

Hamilton police tried to use unconscious bias to apply it to racial profiling, where the two do not relate whatsoever," says Samuels-Wortley. They are trying to take away any responsibility for the action of their officers."

Last month, the Court of Appeal for Ontario released a decision on a racial profiling case, saying: Racial profiling is an act of decision-making - a reasoning process leading to a decision. It is not a general disposition or attitude. Racial profiling may result from conscious or unconscious bias that diverts a decision-maker from proper individualized reasoning."

It did not matter whether the bias was consciously held or unconsciously held, or whether the officers were aware of their reasoning or not," the court said.

What matters is the intentional action.

The Hamilton police statement from earlier this week continued: The finding that an action by a police officer was motivated at least in part by unconscious racial profiling does not mean that the action was found to be deliberately motivated by racism."

Justice George Gage did not find the officers were motivated by unconscious racial profiling. He said the four officers may have had unconscious or conscious bias.

Gage's ruling also determined the men in the car were not properly advised of their rights. The searches that followed were ruled illegal because their charter rights had been violated. Evidence gained from those searches was found inadmissible.

The men, who faced firearms charges, were found not guilty of all counts.

Court heard a loaded handgun and fentanyl were seized in the searches.

Racial profiling takes away the legitimacy of who police are and what they represent," Samuels-Wortley says.

There are those who will think that this is great police work because officers managed to get a gun and drugs off the street," she says. But what about all the other times Black drivers have been stopped for no reason and nothing was found?

While cases in which something is found may wind up in the court system where they can be counted, the times when nothing is found cannot be tracked, says Noa Mendelsohn Aviv, director of the equality program at the Canadian Civil Liberties Association.

She adds that racial profiling is not, by definition, unintentional."

The racism and the bias that leads to racial profiling may be deliberate, it may be intentional, it may be conscious, it may be unconscious, it may be systemic, it may be structural - it may be any combination of those things," Mendelsohn Aviv says.

The courts sometimes use the term unconscious bias," Mendelsohn Aviv says, because it has been necessary to move away from an idea of racism that is only when you have a card-carrying member of the KKK going out and threatening violence. If that's the only way you understand racism, then you are not understanding the experiences of racialized people."

Susan Clairmont is a Hamilton-based crime, court and social justice columnist at The Spectator. Reach her via email: sclairmont@thespec.com