It’s Not A Post-Racial World: R. v. Suberu and the Failure of Objectivity

The Supreme Court’s recent decision in R. v. Suberu, 2009 SCC 33, is disappointing. In attempting to clarify an issue set forth in R. v. Mann,, 2004 SCC 52, the SCC has inadvertently demonstrated that the new reasonable person standard is not, in fact, entirely reasonable.

As the SCC sets out, in Mann it was held that not all police interactions with the public qualify as detentions, and in R. v. Grant, 2009 SCC 32, this was clarified so that detention would crystallize when a reasonable person in the subject’s position would conclude that he or she had been detained. These are reasonable positions to take, and this post does not seek to quarrel with them.

However, the theoretically objective nature of the Grant standard is one with the potential to be abused (presumably unintentionally) by judges unwilling or unable to consider that the reasonable person standard, when applied to interactions with the police, must address a shift in that standard when accounting for persons of certain races and classes predisposed to not trusting police officers or trusting them less.

In Suberu, the majority fails to address this in the slightest. While we should hope that the system will treat members of all races and classes equally, the truth is that Canada’s policing history is one with significant failures in the realm of race relations and outreach. According to The Toronto Star in 2002, police records demonstrated that white persons were nearly 20% more likely to be released at the scene on a single drug possession charge (rather than be arrested) than black persons, and that blacks were twice as likely as whites to be held for a bail hearing as a white person on the same charge. Blacks have been shown to be nearly twice as likely to have been stopped by police within a two-year period than whites, and three times as likely to have been stopped on multiple occasions within the same timeframe. Blacks and South Asians are much more likely to believe that police treat their racial group worse than others; a majority of all racial groups believe that blacks receive less fair treatment by police than whites. (A good summary of these attitudes can be found in this article as well as this PDF link.)

Similarly, poor people are more likely to feel wary of police than middle-class or rich people. In an article for the Canadian Journal of Criminology, Catherin Kaukinen and Sandra Colavecchia note that people from lower societal classes are less likely to be supportive of the justice system overall.

Given this plethora of data, it is crucially important that judges – who are overwhelmingly likely to be A) white and B) if not born into the upper class, then certainly at least transplanted into it due to their career path – bear in mind that their perception of the “reasonable person” must remain fluid; what the reasonable white person might think when confronted by a police officer is unlikely to be identical (or even only similar) to what the reasonable black or South Asian person might think.

Suberu is an excellent example of the failure of judicial imagination in this regard. At paragraph 33 of the decision, McLachlin C.J. and Charron J. write:

The question is whether the police conduct, taken as a whole, supported a reasonable conclusion that Mr. Suberu had no choice but to comply. As Mr. Suberu walked past Constable Roughley, he said, “He did this, not me, so I guess I can go.” Constable Roughley followed him to his van and as Mr. Suberu entered it, said, “Wait a minute, I need to talk to you before you go anywhere.” In the context, these words admit more than one interpretation. They might be understood as, “I need to talk to you to get more information”. They might also be construed as an order not to leave, suggestive of putting Mr. Suberu under police control. In interpreting these words, it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu’s movement. He simply spoke to him as he sat in his van.

Firstly, it should be noted that the writer of this post is white and male and from a reasonably comfortable background, and therefore overflowing with societal privilege to a great degree – and I’m not entirely comfortable speaking with a police officer when sitting in a car. Police officers take the opportunity to question people in their cars for a reason: speaking while standing to someone who is sitting adds additional authority to the speaker. (This is why students sit in classrooms, while teachers usually stand.) Additionally, sitting in a car reduces mobility and one’s sense of personal liberty (a sense already alarmed when one is conversing with an armed police officer, no matter how polite they might be).

But even ignoring this obvious truth, note that McLachlin C.J. and Charron J. take pains to describe Mr. Suberu’s experience in the most beneficient light. A member of a visible minority group doesn’t hear “I need to talk to you before you go anywhere” and likely think “this police officers needs my input to uphold the law.” To a member of a visible minority group – especially one predisposed to distrust police – that phrase is cause to immediately begin worrying if they are a suspect. Should that not immediately, under the Grant criteria, be grounds to demonstrate reasonable belief of detention?

This, then, is the failure of Suberu – the application of a one-size-fits-all standard that unfortunately appears to be grounded in white privilege. If all that is reasonable when dealing with a police officer is what is reasonable for a white person (or a rich person, for that matter) to believe, then how can it be considered a truly objective standard?

One can understand the difficulty in applying the Grant standard to a minority that considers itself to be persecuted; where a reasonable individual considers themselves detained giving cause for warnings about right to counsel can be an issue that can make the day-to-day work of police officers unwieldy at best and impossible at worst. But if the Grant standard cannot work in the real world, where minorities do feel persecuted (and not unfairly, many would argue), then what use is it?