Disambiguating the Wrongs of Racial Profiling in Policing and Championing their Structural Remediation: A Reply

This is a reply to Terry Skolnik, Fernando Belton, and Jeanne Mayrand-Thibert's article "The Law of Racial Profiling" (https://papers.ssrn.com/sol3/papers.cfm?abstract_id5499382). I focus on two of their claims, which I take to be the core intended contributions of their article: (1) that racial profiling in policing jointly violates sections 15 and 9 or 8 of the Canadian Charter of Rights and Freedoms; and (2) that courts ought to be more willing to order and monitor the implementation of structural remedies aimed at stamping out the phenomenon. While I believe that the first claim rests on the true yet underappreciated proposition that racial profiling generally amounts to wrongful discrimination, I resist the implication that, all things considered, such discrimination always yields arbitrary or unreasonable police conduct and corresponding violations of sections 9 or 8 of the Charter. In respect of the second claim, however, I not only to endorse it, but seek to bolster it by showing that possible objections to it on grounds of separation of powers sit uncomfortably with Canadian courts' track record of creating and structuring new police powers that facilitate racial profiling.