This paper was accepted and published by Ontario Human Rights Commission for its February 2016 #Racialprofiling policy dialogue. It examines how categories of racial identity have been legally constructed, and how these artificial classifications have been unjustly implemented in the Canadian Government’s policies and the legal system.

1. Casting out intersectionatily
through racial profiling
Hodan A. Mohamed and Ruba Ali Al-Hassani

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Racial Profiling Policy Dialogue | February 2016 | Page 1
Introduction
European-centered epistemology and governing structures fail to recognize how
racism intersects with gender, ethnicity, religion, class, and indigeneity. In order to
adequately address racial profiling, we need to acknowledge how the experiences of
racialized individuals and communities are theoretically and legally erased. A bottom-
up intersectional representation embedded in the education, legal, and employment
sectors challenges a system of racial hierarchy, rather than reacts to individualized
cases of racial profiling.
Prior to the introduction of the modern notion of multiculturalism, the state’s
institutions have largely rested on the idea that people of European origin are
the country's original citizens and those mainly responsible for its development
and protection. This narrative plays a central role in enabling and justifying the
‘exceptional’ treatment of non-white communities, where their constitutional and
legal protections are at times deemed conditional, and a form of accommodation.
Consequently, racial profiling becomes what Sherene Razack calls the ‘casting
out’ of the racialized subject from the law itself. This is where the treatment of
Indigenous, Black, and particularly Muslim people constitutes:
A state of exception whereby the law itself has (paradoxically) been used to
suspend the rule of law, to place people in a state of indeterminacy regarding
their protection under the law, and to cast certain bodies outside the rules of
the political community (Razack, 50).
Research Overview
According to the Ontario Human Rights Commission, racial profiling is defined as:
...Any action undertaken for reasons of safety, security or public protection
that relies on stereotypes about race, color, ethnicity, ancestry, religion, or
place of origin rather than on reasonable suspicion, to single out an individual
for greater scrutiny or different treatment (OHRC, 6).
At surface value, this definition seems to be broad and encompassing. However,
it assumes that racial identity and visibility are unitary, absolute, and one-dimensional,
when they are in fact hybrid and intersectional. Social Psychology and Sociology
scholars emphasize the importance of multiple identities, “the idea that people have
multiple identities, or occupy different intersecting social positions, raises the question
of how these positions are dealt with and negotiated” (Verkuyten, 178). The way in
which racial profiling is defined impacts legal and political policy. As such, racial
profiling cannot be challenged without a firm understanding of the intersectionality
of identities. Although ethno-confessional identity and visibility can be fluid and
ambiguous, there are constant attempts to define them in absolute, restrictive terms

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that overlook the multiple layers of marginalities of intersectional identities. As a result,
people deemed racially different on such restrictive terms may find themselves shuffled
and re-categorized, or rendered racially invisible to others when they do not fit into
strict categories. Throughout history, ‘whiteness’ has had hegemony over these
conceptualizations of identity.
There is an erroneous, romanticized assumption that Canada is a “post-racial” or
“race-less” society, with little or no history of racism. It is important to revisit history
in order to examine how categories of racial identity have been legally constructed,
and how these artificial classifications have been implemented in the Canadian
Government’s racist policies. The socio-legal construction of racial identity in Canada
is revealed in a number of landmark court cases.
King v. Pickard (1908) was an Alberta case where Stony Plain man’s indigeneity
was denied, and his “Indian-ness” was determined by the court. This case was not
an exception, rather part of a series of recurrent cases between 1908 and 1950
(Backhouse, 25). For instance, in Rex v. Quong Wing (1912), a Moose Jaw resident’s
racial identity was contested and subsequently confirmed by the Supreme Court of
Canada. Moreover, in King v. Viola Irene Desmond of 1946, the plaintiff was arrested
and charged for refusing to leave the “whites only” main floor of a movie theatre in New
Glasgow, Nova Scotia. Her racially diverse background added a tenuous component to
the legal proceedings, as it made a solid racial identification difficult (Backhouse, 27).
In the end, her identity was left for the Courts to determine. These cases reveal certain
hegemony over the construction of non-white peoples’ identities.
This long history of monopoly over the construction of identity has evolved to include
recent immigrant communities, such as Muslims, with various racial backgrounds and
intersectionalities. For instance, in 1993, Bill C-86 denied permanent residency status
to “conventional refugees”, particularly and arbitrarily targeting Somali and Afghan
communities who did not have “satisfactory” identifying documents. The Canadian
Government had provided no substantial guidelines of what a satisfactory document
might have entailed, citing security concerns. Such arbitrary decisions and executions
of the law did not impact similar European refugees, who had fled to Canada after the
dissolution of the Former Yugoslavia. This reflects clear, systemic profiling of Muslim
and non-white people as a threat to Canada and its security. The perception of
Muslims as a national threat has evolved with time, which has inspired unconstitutional
measures such as security certificates.

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Under Security Certificates, a ‘national threat’ suspect may be detained for indefinite
periods without due process or knowledge of the charges brought against him/her.
Security certificates have largely targeted non-white persons, many of whom have
been Middle Eastern and Muslim men. This has been the trend both before and after
the 2001 attacks on the World Trade Centre.1
Since these attacks, rendition has been
a common, unconstitutional “security measure”, where persons are deported to a
second or third country where s/he would face torture.
A high profile rendition case is that of Maher Arar, who was deported from the United
States to his country of origin, Syria. For over a year, he underwent torture, and was
repatriated only after heavy political pressure. According to the Canadian Commission
of Inquiry Report, Arar’s rendition had relied on falsified RCMP intelligence reports and
deliberate smears by Canadian officials racially profiling him. The Report recommended
the federal government compensate Arar for the injustice. Justice Dennis R. O'Connor,
who was appointed as the Commissioner of Maher Arar inquiry, said that:
Mr. Arar [...] has suffered "devastating" mental and economic consequences as
a result of his ordeal. I am able to say categorically that there is no evidence to
indicate that Mr. Arar has committed any offence or that his activities constitute
a threat to the security of Canada. The RCMP should never share intelligence
reports with other countries without written conditions about how that
information is used (Sallot, 2006).
The 800-page-long Commission Report had been redacted for national security
purposes. However, it called for independent investigations of cases involving three
other Canadian Muslim men - Abdullah al-Malki, Ahmad el-Maati, and Muyyed
Nurredin – who were imprisoned and tortured in their Middle Eastern native countries
in similar cases of racial profiling.
Despite a wealth of research by criminologists and law enforcement experts on the
inefficiency of racial profiling, it is still practiced through the use of security certificates,
carding, intelligence surveillance, and border security measures like ‘no-fly lists’ and
‘random checks’. Most recently, Bill C-51 was passed as an anti-terrorism law, allowing
racial profiling via government surveillance. C-51 also extends powers for the Canadian
Security and Intelligence Services to engage in unprecedented, ‘legal’ foreign surveillance
activities, which may pursue Canadians domestically and abroad. Such measures concern
not only Muslims who would usually be targeted by such activity, but anyone who may be
racially profiled as a national threat.
1
Adil Charkaoui (Morocco, 2003), Mohamed Harkat (Algeria, 2002), Mahmoud Jaballah (Egypt, 2001), Hassan
Almrei (Syria, 2001), Mohammed Mahjoub (Egypt, 2000), Wahid Khalil Baroud (Palestine, 1994), Mohammed al-
Husseini (Lebanon, 1993), Saleh Mousbah Zakout (Palestine, 1993), and Issam al-Yamani (Palestine, 1988).

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These legal cases and anti-terrorism measures demonstrate the transitory nature of
racial designation and the fictitious nature of the exercise. Racialized people have been
defined and addressed in accordance with imagined identities and threats. Legislators,
lawyers, and judges use the concept of “race” to fashion legal outcomes that provide
unearned rights, privileges, and resources to those defined as “white”, while wresting
these from groups defined as “non-white”. The legal results of racialization appear to have
been predominantly detrimental to those excluded from classification of “whiteness”.
Conclusion
Without a clear, public recognition of Canada’s long history of racism, it is impossible
to direct it towards healing and legal progress. Existing Canadian legal and governing
structures have effectively relied on racial profiling in law enforcement, national
security, and political practices. The ‘casting out’ of racialized people from legal
practices has not only violated the Canadian Charter of Rights and Freedoms, but has
also created a sense of mistrust between racialized peoples and state institutions. Anti-
racism scholars Noel Ignatiev and John Garvey have argued that the ‘white race’ is not
a natural, but a historical category, and that historically constructed racial identities can
be undone (Ignatiev and Garvey, 35-36). In that light, a new body of academic
literature engages in the re-conceptualization of racial profiling within the law in a more
nuanced framework that neither pathologies nor criminalizes non-white Canadians.
The OHRC’s definition of racial profiling inadvertently contributes to racial profiling. It
normalizes the politicization and criminalization of racialized bodies, by identifying
people within restrictive terms, as opposed to recognizing nuanced intersectional
identities. A framework, which perceives racial identity as hybrid and intersectional
would impede any attempt at racial profiling under the guise of security or law
enforcement. Racial identification would not be permitted to maintain racial hierarchies,
but only to dismantle them. Identities would no longer be shuffled into restrictive bodies,
and bodies would no longer be policed. “Racism is beyond one individual, [...] it is
a social and political dimension that converts into a set of internal psychological
processes” (Hook, 531). We would recommend that OHRC redefine racial profiling
by directly engaging in a more nuanced dialogue with those communities negatively
impacted by it.
______________________
Hodan A. Mohamed, B.A. (UToronto), is an M.A. candidate at the Ontario Institute
for Studies in Education, the University of Toronto. Ruba Ali Al-Hassani, M.A.
(UToronto), LL.M. (Osgoode), is an S.J.D. candidate at Osgoode Hall Law School,
York University. Both are co-founding members of the Canadian Association
of Muslim Women in Law.

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Racial Profiling Policy Dialogue | February 2016 | Page 5
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