Creating a Rebuttable Presumption of Profiling in Cases of Alleged Profiling of Muslims and Other Minorities in Canada

This paper addresses the subject of profiling in the Canadian context both in the narrower and broader senses. It discusses the close connection between wider discretionary power and profiling; the need and justification of rebuttable presumptions and its constitutional basis and discusses possible ways to end profiling in line with the contextual analysis of equality under s. 15 of the Canadian Charter of Rights and Freedoms. The paper proposes for the shift in the burden of proof away from a victim of profiling to the law enforcement authority—in an alleged case of profiling—in the context of a search, or an arrest, of a Canadian Muslim or member of other minorities by police and other law enforcement authorities, and demonstrating that such search or arrest was not motivated by race, religion, or ethnicity. Thus creating a rebuttable presumption of profiling against the law enforcement authority when they use their discretionary power in search or arrest of a member of a racial, religious, or ethnic minority group. A member of Canadian law enforcement authority against whom profiling is alleged can rebut the presumption by proving that race, religion, or ethnicity was not a factor in using their discretionary power to stop, search, or detain the alleged victim of profiling.