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Abstract: This is a reply to Professor François Tanguay-Renaud's article titled "Doing away with Racial Profiling without Doing away with the Rule of Law" in the Osgoode Hall Law Journal. It explores our respective agreements and disagreements. Although we disagree with many of Professor Tanguay-Renaud’s premises, arguments, and conclusions, we agree on certain important points. More specifically, we concur that section 15 of the Charter should play a larger role in criminal law and procedure, and that it captures the distinct harms and wrongs of racial profiling in ways that section 9 of the Charter cannot. We share the view that courts should embrace broader structural remedies—such as constitutional class action lawsuits and structural injunctions—that seek to counteract racial profiling more effectively than traditional remedies. Despite our significant disagreements—and notwithstanding the very different ways that we analyze racial profiling—we agree that current theoretical and remedial approaches to racial profiling can (and should) be improved. We disagree on three main points: (1) that section 9 of the Charter’s underlying purpose is to advance the rule of law; (2) that the section 9 racial profiling test framework is overbroad in the ways Professor Tanguay-Renaud suggests; and (3) that the legal framework for racial profiling normatively entrenches the under-policing of racialized persons. This reply will focus primarily on where—and why—we part ways.
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