Court of Appeal for Ontario

Date: August 22, 2019 Docket: C64147 Judges: Watt, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Rusheed Martine Dudhi Appellant

Counsel:

Mark Halfyard, for the appellant
Aaron Shachter, for the respondent

Heard: March 21, 2019

On appeal from the convictions entered by Justice George S. Gage of the Ontario Court of Justice on June 14, 2017, with reasons reported at 2017 ONCJ 398.

Paciocco J.A.:

OVERVIEW

[1] During the arrest of Rusheed Dudhi, a man of colour, the arresting officer made a comment over the radio to his police colleagues about "brown" drug dealers. Mr. Dudhi relied on that comment and on the surrounding circumstances to argue that he was racially profiled and therefore arbitrarily detained, contrary to s. 9 of the Charter. While the comment clearly troubled the trial judge, he did not agree that an arbitrary detention took place. In his view, there was no link between the comment and the reason for the arrest.

[2] However, the trial judge did find a separate s. 9 breach, because he concluded that Mr. Dudhi's arrest for breach of recognizance was precipitous and unreasonable on a different basis. The arresting officer had seen Mr. Dudhi using a cellphone, but the arresting officer had reason and the means to inquire into whether the recognizance condition prohibiting Mr. Dudhi from possessing a cellphone was still in force. The arresting officer nonetheless relied on that condition to go ahead with the arrest, without checking. As it happened, the condition had been varied and Mr. Dudhi was no longer prohibited from possessing a cellphone.

[3] Notwithstanding the breach, the trial judge declined to exclude the narcotics found in Mr. Dudhi's vehicle on the basis that the admission of this evidence would not bring the administration of justice into disrepute.

[4] For the reasons that follow, I would allow Mr. Dudhi's appeal. I am of the view that the trial judge erred by improperly assessing Mr. Dudhi's racial profiling claim. He also erred in finding that the search incidental to the unlawful arrest complied with s. 8 of the Charter, and in his s. 24(2) analysis.

[5] I would therefore allow the appeal and set aside Mr. Dudhi's conviction of possessing cocaine for the purpose of trafficking, as well as a related breach of recognizance conviction.

MATERIAL FACTS

[6] On September 16, 2014, Cst. James Clayton of the Hamilton Police Service was conducting undercover surveillance in connection with a drug investigation. One of the vehicles of interest to the surveillance team was a blue BMW being driven by a white male.

[7] In the very late afternoon, he saw a vehicle that matched that description – a BMW of the same colour and model – driven by Mr. Dudhi. Cst. Clayton followed in his unmarked car.

[8] At the time, Cst. Clayton was in radio contact with fellow surveillance officer, Cst. Darryl Oosterhoff. Transcribed radio communications, made an exhibit at Mr. Dudhi's trial, provide a significant record of what happened next.

[9] While following Mr. Dudhi, Cst. Clayton asked Cst. Oosterhoff to verify the original target vehicle's licence plate. Mr. Dudhi then pulled into a parking lot of a strip mall. Cst. Clayton did so too, to maintain observation.

[10] Within a minute of asking for confirmation of the original target vehicle's license plate, Cst. Clayton noticed that the vehicle he had encountered was not being driven by the white suspect he was looking for, but by a black man. He called off the request for the license plate of the suspect vehicle, saying "[d]isregard. It's the wrong guy here."

[11] Within roughly 30 seconds, Cst. Clayton asked Cst. Oosterhoff to run the license plate of Mr. Dudhi's BMW. He explained:

And I got eyes on a blue BMW that there's a middle age black guy driving, and he's uh, looking for someone, driving around. He's parked over in this plaza near the Montana's and uh, he was mean mugging me hard so I'm going to pay attention to this guy.

[12] In his evidence-in-chief, Cst. Clayton did not use the expression "mean mugging" when describing what prompted his interest in Mr. Dudhi. He testified that when he was in the parking lot, with no other vehicles around, Mr. Dudhi drove in front of his vehicle. Cst. Clayton testified in cross-examination that he believed that Mr. Dudhi was engaging in some counter-surveillance.

[13] After being told of Cst. Clayton's interest in Mr. Dudhi, Cst. Oosterhoff asked, "[w]ant me to call the plate in?" Cst. Clayton replied, "[v]ery much so."

[14] Slightly over two minutes later, Cst. Clayton reported that Mr. Dudhi was out of the car, "[d]oing a lot of walking and waiting."

[15] Approximately one minute later, Cst. Clayton asked "[a]nything on that plate Darryl?"

[16] Cst. Oosterhoff replied:

It's taking me so long because it's such a good one. [The Records Clerk is] going to pull more conditions from the file. So it's Rusheed Dudhi born in "88". He's accused with us on a [recognizance] of failure to comply x 2 and [possession for the purpose of trafficking]. Conditions include no contact with people of criminal record, curfew 9 p.m., no drugs and no cell phone or telecommunication device or pager, etc. [Emphasis added.]

[17] In fact, Cst. Clayton did not wait for all of Mr. Dudhi's conditions to be pulled from the file. He responded, "[w]ell he's on a cell phone, get your butt over here." He directed Cst. Oosterhoff to "take him down in his car."

[18] During Mr. Dudhi's trial, Cst. Clayton affirmed the importance of providing a complete and detailed description of a suspect to other participating officers, and he said that he had a good opportunity to see Mr. Dudhi when outside of his vehicle. However, the only description he offered over the radio was, "[h]e's a brown-skinned, is there any description of him from Records? Because he's a huskier guy" (emphasis added).

[19] Shortly after, Cst. Clayton observed Mr. Dudhi get into the back seat of a white Mercedes SUV. Cst. Clayton provided Cst. Oosterhoff with the license plate of that vehicle, and then said:

I'm not following because he's just going to do a loop and come back to his vehicle I'm assuming. But this is going to be a drug deal. I've already got him on his phone at 18:28-ish when he's playing around texting so there's grounds for this guy.

[20] Three to four minutes later, Mr. Dudhi returned to the parking lot on foot. The trial judge accepted Cst. Clayton's testimony that Mr. Dudhi stared at Cst. Clayton, got into the BMW, and drove away.

[21] Cst. Clayton pursued Mr. Dudhi in his unmarked car, radioing the surveillance team of the BMW's movements. He commented while doing so, "[d]efinitely a drug deal and he's definitely picked up."

[22] Mr. Dudhi drove in what Cst. Clayton concluded, and the trial judge accepted, was an evasive manner.

[23] Cst. Michael O'Hagan, who had joined in the pursuit, also joined in the radio conversation. He asked, referring to the original surveillance suspect, "[i]s this our target?"

[24] Cst. Clayton responded: "[n]o, it's another brown guy who is a drug dealer" (emphasis added). These are the key words relied upon by Mr. Dudhi to establish his racial profiling claim.

[25] When the officers were in a position to do so, they "took down" the BMW by boxing it in at an intersection. Cst. Clayton, the first officer to arrive, asked the driver whether he was Rasheed Dudhi. Mr. Dudhi affirmed that he was. Cst. Clayton removed Mr. Dudhi from the vehicle and told him that he was under arrest for failing to comply with the conditions of his release because he had a cellphone.

[26] Mr. Dudhi immediately indicated that his "no cellphone" release condition had been varied. He eventually produced a judicial interim release order dated June 1, 2012, which allowed him to possess a single cell phone, the number of which was to be provided to Det. Read of the Hamilton Police Service. But before Mr. Dudhi produced this order, the officers noticed that, in addition to the cellphone he had in his hand, there was another cellphone in the centre console of the vehicle. So, they continued the arrest.

[27] Mr. Dudhi was searched, as was the interior of his vehicle. The officers testified at trial that this warrantless search was conducted incident to arrest, for further evidence of a breach of recognizance offence. They denied that they were conducting a drug search.

[28] During the search of the car, in the recessed well under the loose plastic cover of the rear seat fold down armrest, Cst. Oosterhoff found a concealed compartment with a finger hole to permit opening. Inside he located 497.32 grams of cocaine, having a street value of $28,000 to $35,000.

[29] As a result, Mr. Dudhi was charged with possession of cocaine for the purpose of trafficking, and two counts of breach of recognizance. The latter included one count for violating the no cellphone condition, and another count for violating the condition to abstain from possessing narcotics.

THE TRIAL AND THE JUDGMENT

[30] At trial, Mr. Dudhi brought a Charter challenge. On consent, the trial judge conducted a blended trial, without a separate Charter voir dire, so that the officers' evidence would not have to be repeated. At the close of the Crown's case, the trial judge received submissions on the Charter arguments, and then proceeded with the trial. It is convenient in these reasons to separate the Charter issue from the trial finding.

A. The Charter Challenge

[31] Mr. Dudhi's Charter motion alleged that he was arbitrarily arrested contrary to s. 9, and that he had been unreasonably searched contrary to s. 8.

[32] Mr. Dudhi advanced two grounds for his arbitrary arrest claim.

[33] First, he said his arrest for breaching the no cellphone condition was precipitous. The arresting officer knew that there were "more [judicial interim release] conditions" on his electronic file, and that a review of those additional conditions might reveal that Mr. Dudhi was no longer subject to a cellphone prohibition. As it happened, a variation to the recognizance had removed the cellphone prohibition relied upon for Mr. Dudhi's arrest. Mr. Dudhi argued that the decision to proceed with his arrest, without confirming that the condition justifying the arrest was still in force, was therefore arbitrary.

[34] Second, Mr. Dudhi claimed that the arresting officer engaged in racial profiling, violating his right to be free from arbitrary detention.

[35] With regard to s. 8, Mr. Dudhi contended that the officers conducted a pretence search. Mr. Dudhi argued that the focus of the officers' investigation was on a suspected drug deal. He claimed that the officers conducted the search of his vehicle for narcotics under the pretence that they were searching incidental to his arrest for breaching the no cellphone condition.

[36] The trial judge accepted Mr. Dudhi's first s. 9 argument:

I find that proceeding with an arrest on the basis of information that all concerned knew was incomplete was both arbitrary and not objectively reasonable and the stop and arrest was therefore a breach of Dudhi's right under section 9 of the Charter to be free from arbitrary detention.

[37] In his testimony during the blended trial, Cst. Clayton claimed race played no part in Mr. Dudhi's investigation, arrest, or search. He was later challenged about this in cross-examination:

Q: I'm going to suggest to you when you said earlier – I'm quite shocked at the idea that race never played in this investigation in any way. I'm going to suggest that comment that you say there notes "another brown guy is a drug dealer", I'm going to suggest that that shows this…

A: I'm not racist, if that's what you're saying. I'm not racist. Race did not have anything to do with this.

[38] After confirming that there would be no re-examination, the trial judge asked follow-up questions:

Q: Officer, the original target … was he also a black?

A: He was a white male.

Q: So can you help me with what you meant by "another brown guy"?

A: Another drug dealer, that was my reference, and he was a brown male. There's no racial overtones to suggest that I'm targeting someone of race. It was a drug investigation originally, being – a blue BMW motor vehicle being driven by a white male. My investigations are never racially motivated or targeted, only through police intelligence and observations.

Q: But you didn't say "another drug dealer".

A: That's correct.

[39] During argument on the Charter motion, the trial judge made it clear that he was having difficulties accepting that a racial profiling Charter breach had been made out. His concerns focused on the timing of Cst. Clayton's impugned statement, after Cst. Clayton had formed his grounds for arrest. He challenged Mr. Dudhi's counsel on this:

And my only point is that it's not clear to me how I can take that objectionable statement and transfer it back to what happened at the mall.

[40] After further argument on the point, he said:

Well, the problem I see with that argument, counsel, is that it kind of ignores everything that happens at the mall after the eyeballing. Now if the constable had been eyeballed, and thought to himself, "Well, he's got brown skin and he's previously been charged with trafficking. I think I'll follow him and stop him just to see what he's up to", I might agree with you. But the officer didn't do that.

[41] The trial judge addressed the racial profiling challenge only briefly in his decision, rejecting it with these words:

The comment "another brown guy who is a drug dealer" does not reflect well on Officer Clayton. His explanation for why he used that expression was not convincing. Nevertheless the comment was made after he had information on the basis of which he legitimately believed he had grounds to arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by Dudhi's behaviour at the mall. In other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action.

[42] The trial judge did not find that a s. 8 breach occurred either. The Crown conceded before us that he should have. To rely on the search incident to arrest power requires a lawful arrest, and the trial judge found that Mr. Dudhi's arrest was arbitrary. The entire arrest was tainted, as was the search conducted incident to it.

[43] The trial judge did not directly address Mr. Dudhi's separate s. 8 pretence search argument, but it is clear he rejected it. In the course of his s. 24(2) ruling, the trial judge said that the search had been conducted incidental to the breach of recognizance arrest, and that the search was confined to the area arm's length from the driver seat and in the location where the two cell phones were located. Therefore, "a search of the interior of the vehicle for the presence of other cellphones within the reach of the driver was justified".

[44] Notwithstanding the s. 9 breach he did find, the trial judge admitted into evidence the drugs found in the vehicle, based on the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge concluded that the failure by the officers to "dig deeper" into the status of Mr. Dudhi's release conditions was not a deliberate effort to circumvent Charter rights, and "falls closer to the less serious negligence or lack of due diligence end of the continuum". He also found that the seriousness of the breach was attenuated because Mr. Dudhi could have been stopped for "[Highway Traffic Act] purposes", or to see if the cellphone Mr. Dudhi was using complied with the amended release conditions. He noted that the expectation of privacy in a vehicle "sits at a lower level than a residence", and then concluded, "[i]n summary, none of the Grant factors favours exclusion."

B. The Trial

[45] Based on the evidence he admitted, the trial judge found Mr. Dudhi to be guilty of possession of cocaine for the purpose of trafficking, and breach of recognizance for possessing those narcotics.

[46] Mr. Dudhi was acquitted of another count of breach of recognizance for possession of more than one cellphone, because the Crown failed to prove that the second cellphone was connected to a network and capable of supporting communication.

[47] Mr. Dudhi's convictions occurred in the face of defence evidence. He testified for the defence, as did his brother, Anthony Reid. Not surprisingly, the incredible and implausible story they told did not raise a doubt in the trial judge's mind.

[48] In essence, the brothers testified that even though Mr. Dudhi was the registered owner of the vehicle he was driving, Mr. Reid actually owned and financed the motor vehicle. Mr. Dudhi permitted Mr. Reid to put the vehicle in Mr. Dudhi's name because Mr. Dudhi's credit rating was better.

[49] Mr. Reid's evidence was that he hid the drugs in a stash box he had installed in the vehicle before he was arrested and incarcerated in February or March of 2013. Although Mr. Dudhi was using the car, he did not tell Mr. Dudhi about the drugs, including after he was released on strict conditions in December 2013. Mr. Reid said he hoped to get the $30,000 worth of cocaine from the vehicle himself, after his release conditions lightened up. Mr. Reid explained that he did not come forward after Mr. Dudhi's September 2014 arrest, only doing so in 2015 after he "found God".

[50] For his part, Mr. Dudhi confirmed that he had never been told and was unaware the drugs were in the car.

[51] The Crown contends that the rejection of this manifestly implausible testimony was inevitable, but concedes that the trial judge erred in rejecting Mr. Reid's testimony by relying on the fact that he "first disclosed in circumstances wherein his admission could not be used against him". This concession is appropriate. Absent a proved motive to testify falsely, such as "a plot to lie or to obtain favours", it is an error of law to discredit a witness's evidence because they are testifying under the protection of s. 13 of the Charter: R. v. Jabarianha, 2001 SCC 75, [2001] S.C.R. 430, at paras. 26-27. There was no evidence to bring this case into the Jabarianha exception.

[52] The Crown asks us to apply the curative proviso to this error. The invitation is tempting, but in my view, we need not decide whether we will do so, given how I would resolve the appeal issues related to the Charter.

ISSUES

[53] The contested Charter issues on appeal can be framed simply, as follows:

A. Did the trial judge err in rejecting the s. 9 racial profiling challenge?

B. Did the trial judge err in not excluding the narcotics pursuant to s. 24(2)?

ANALYSIS

A. THE TRIAL JUDGE ERRED IN REJECTING THE CLAIM OF RACIAL PROFILING

(1) The Meaning of "Racial Profiling"

[54] Racial profiling has two components: (1) an attitudinal component; and (2) a causation component. As Brown and Martin JJ. explained in R. v. Le, 2019 SCC 34, at para. 76, for the majority of the Court:

[T]he concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment. [Citations omitted.]

[55] The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous: Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

[56] There are passages in the case law that can be taken to suggest that racial profiling does not occur unless there is no reasoned foundation for the suspect selection or subject treatment other than race or racial stereotyping. In other words, if there is other information that would meet the required legal standard – whether that required legal standard is "reasonable suspicion" [also known as "articulable cause"] or "reasonable grounds" – racial profiling does not exist even if race or racial stereotypes contribute to suspect selection or subject treatment.

[57] A passage from Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33, quoted by Brown and Martin JJ. in Le, at para. 77, can be strained to read this way:

Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny. [Emphasis added.]

[58] There is a similar passage in R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.), at para. 11, that the Crown relies upon before us to argue that "[t]o succeed on an application alleging a s. 9 breach on the basis of racial profiling, an applicant must show that it was more probable than not that there was no articulable cause for the stop, specifically that the stop was based on the person's colour."

[59] This is not the law. As Brown and Martin JJ. said in Le, at para. 76, racial profiling occurs where race or racial stereotypes are used "to any degree in suspect selection or subject treatment" (emphasis added). Similarly, in Peart, at para. 91, Doherty J.A. explained:

[Racial profiling] is wrong regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver's colour is engaged in racial profiling even though the speed of the vehicle could have justified the officer's action: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.). [Emphasis added.]

[60] The case law that relates racial profiling to the absence of reasonable suspicion or reasonable grounds must be understood in the context of the principle that policing decisions based on race or racial stereotypes are not, by definition, objectively reasonable decisions. For example, in R. v. Brown, at para. 10, Morden J.A. cited Brown v. Durham Regional Police Force in explaining that "[i]f a police officer stops a person based on his or her colour (or on any other discriminatory ground) the purpose is improper and clearly would not be an articulable cause" (citations omitted).

[61] Similarly, I read para. 33 of Bombardier as consistent with the proposition that a decision made in reliance on race or racial stereotypes cannot provide the reasonable basis for that decision. In Le, Brown and Martin JJ. made this same point after quoting para. 33 of Bombardier, when they said that "a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion": at para. 78.

[62] In my view, it is self-evident that a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment.

[63] Put simply, passages such as para. 11 of R. v. Brown, and para. 33 in Bombardier, are entirely consistent with the proposition accepted in Le and Peart. Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.

[64] This outcome is sensible, even leaving aside questions about what reasonableness entails. If objective considerations could negate improper subjective reliance on race or racial stereotypes, the subjective component of these legal standards would be ignored. That should not be. As was recently explained in R. v. Lai, 2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal standards plays an important role in ensuring that the police act for legitimate purposes and turn their minds to the legal authority they possess: see also R. v. Caslake, [1998] 1 S.C.R. 51, at para. 27. A body of law that permits officers to exercise their power when subjectively, their decisions are influenced by race or racial stereotypes, has little to commend it.

[65] Moreover, it would undermine other relevant interests at stake to accept that racial profiling does not occur even when race or racial stereotypes influence a decision, unless there is no reasonable foundation for that decision. In Peart, Doherty J.A. explained in simple terms, at paras. 91 and 93, why racial profiling is "wrong". It is "offensive to fundamental concepts of equality and … human dignity". It not only undermines effective policing by misdirecting resources and alienating members of the community, it "fuels negative and destructive racial stereotyping". This mischief, including the offence against equality and human dignity, operates whenever race or racial stereotypes contaminate decision-making by persons in authority.

[66] In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.

(2) The Trial Judge Erred in his Analysis of the Causation Component

[67] The trial judge committed two errors in his racial profiling reasoning, each relating to the causation component. First, he believed improperly that the racist comment made by Cst. Clayton could not support a racial profiling finding because it was uttered after the decision to arrest had already been made. Second, he gave undue weight to what he felt were reasonable grounds that would have justified Mr. Dudhi's arrest in any event.

[68] The place to begin is with the trial judge's findings relating to racial profiling. As I read the trial judge's decision, he found that Cst. Clayton's conduct satisfied the attitudinal component, but not the causation component. Therefore, he concluded that racial profiling did not occur.

[69] For convenience, I will repeat the trial judge's brief analysis of the racial profiling allegation:

The comment "another brown guy who is a drug dealer" does not reflect well on Officer Clayton. His explanation for why he used that expression was not convincing. Nevertheless the comment was made after he had information on the basis of which he legitimately believed he had grounds to arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by Dudhi's behaviour at the mall. In other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action.

[70] As can be seen, the trial judge did not expressly find that Cst. Clayton satisfied the attitudinal component of racial profiling. However, that finding is necessarily implicit in his reasoning.

[71] Cst. Clayton testified that when he commented, "[n]o, it's another brown guy who is a drug dealer", he was simply saying that this was another drug dealer, other than the initial surveillance target, and that this person was a brown male. In his decision, the trial judge found that this innocent explanation was "not convincing", and that the comment did not "reflect well on Officer Clayton". These features of the decision make plain that the trial judge found Officer Clayton harboured racial stereotypes, consciously or unconsciously. It is equally clear that the trial judge concluded the actual explanation for the comment was that it reflected an offensive, stereotypical link between race and crime. Even though he couched his finding gently, by referring to the "suggestion of racialized thinking inherent in the remark", the only rational interpretation of his finding is that the comment reflected Cst. Clayton's belief that there is a link between brown skin and drug dealing.

[72] The trial judge stopped short, however, of finding that this attitude contributed to Cst. Clayton's decision to arrest Mr. Dudhi. The trial judge said "it did not inspire any precipitous or improper action."

[73] It is open to a trial judge in an appropriate case to find that despite an officer's demonstrated conscious or unconscious racist attitude, that attitude did not influence the decisions that were made. As Brown and Martin JJ. recognized in Le, at para. 80, "it is still open to a trial judge to determine that something that often occurs [namely, racial profiling] did not actually happen in the particular case before them." I would therefore not interfere with the trial judge's finding, had it been properly arrived at. The difficulty I have here is that this finding was not, in fact, properly arrived at.

[74] First, as indicated, the trial judge gave undue and improper emphasis to the timing of the impugned statement – the fact that it was made after Cst. Clayton had already decided to arrest Mr. Dudhi.

[75] To understand the problem with this thinking, it is helpful to appreciate that racial profiling is as difficult to prove as it is pernicious. As Doherty J.A. recognized in Peart, at para. 95:

Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.

[76] This makes it necessary for judges to consider all of the circumstances surrounding the police action. The trial judge failed to do so because he allowed the timing of the statement to dull its impact.

[77] During argument, the trial judge put to Mr. Dudhi's counsel "it's not clear to me how I can take that objectionable statement and transfer it back to what happened at the mall." The trial judge then went on to find that racial profiling had not been established in part because the comment was made after the observations that provided the grounds for arrest.

[78] It was an error for the trial judge to isolate the officer's comment in this way. It is well established that after-the-fact conduct by an accused person can be important circumstantial evidence in revealing their earlier state of mind: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. Similarly, if an officer's state of mind is a material issue that officer's relevant subsequent conduct, including comments made by the officer, can equally be used as circumstantial evidence of the officer's earlier state of mind. Here, the comment reflected an attitude or belief, and attitudes or beliefs do not come and go in the moment. They are held. This is an important circumstance that remains relevant, even where a statement revealing the attitude or belief is made proximate to, but after, an impugned decision has been made. In those rare cases where conscious or unconscious racist attitudes or beliefs are exposed by evidence at trial relating to the event in question, the trial judge must closely consider whether the attitudes or beliefs – shown to be held by the officer at the time – may have contributed to the decision made. This can only properly be done by closely examining all of the circumstances of the case.

[79] Here, for example, there was other evidence consistent with racial profiling. Mr. Dudhi is a man of colour who was driving an expensive car, a well-known risk factor for racial profiling: R. v. Smith, 2015 ONSC 3548, 338 C.R.R. (2d) 1, at paras. 182-183; R. v. Khan (2004), 189 C.C.C. (3d) 49 (Ont. S.C.), at para. 68. Within roughly 60 seconds of recognizing that Mr. Dudhi was not the suspect who was to be put under surveillance, Cst. Clayton communicated Mr. Dudhi's skin colour when describing his suspicious behaviour. Cst. Clayton also precipitously chose to arrest Mr. Dudhi before completing his inquiry into the release conditions. These features do not make inevitable a finding that Cst. Clayton was racial profiling at the time but, as I say, they are consistent with racial profiling. The trial judge should have paid closer attention to these features of the case when considering whether the attitude reflected in Cst. Clayton's "brown guy who is a drug dealer" comment may have influenced the decision he made to arrest Mr. Dudhi.

[80] In addition, the officer provided what the trial judge found to be an incredible explanation for the comment he made. As Morden J.A. accepted in R. v. Brown, at para. 45:

[W]here the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven.

[81] Of course, here the trial judge did not find that Cst. Clayton lied directly about why he singled out Mr. Dudhi for attention. But the trial judge did find that Cst. Clayton gave incredible testimony about why, in the course of the arrest, he made a comment that portrayed racist thinking. The trial judge should have considered whether the officer's attempt to deny that the comment was racist was an attempt to mask the thinking that went into the decisions the officer made.

[82] The trial judge also erred by giving undue weight to the presence of reasonable grounds in defeating a racial profiling finding.

[83] Recall that in addition to relying on the timing of the statement, the trial judge rejected the claim of racial profiling because the officer "had information on the basis of which he legitimately believed he had grounds to arrest Dudhi" and "his interest in Dudhi had been legitimately tweaked by Dudhi's behaviour at the mall." The trial judge then continued, "[i]n other words, although there is a suggestion of racialized thinking inherent in the remark, it did not inspire any precipitous or improper action."

[84] I am troubled by the trial judge's use of the phrase "in other words". This phrase equates the presence of reasonable grounds with the conclusion that the "racialized thinking inherent in the remark" did not inspire improper action. There is no such fast link. The presence of reasonable grounds does not disprove racial profiling.

[85] To be sure, as Strathy C.J.O. observed in R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97, at para. 20, aff'd on other grounds, 2016 SCC 14, [2016] 1 S.C.R. 180: "[t]he absence of objective grounds for detention, or the fabrication of grounds, can lead to an inference that the detention was racially-motivated." Similarly, the presence of objective grounds is no doubt relevant in providing an alternative, innocent explanation for a decision to detain. However, the trial judge put things far too strongly. The presence of objective grounds does not undermine a finding of racial profiling. As described, racial profiling can exist, "regardless of whether the police conduct that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race": Peart, at para. 91.

[86] To be clear, I am not purporting to find that racial profiling occurred in this case. I am simply expressing my view that the trial judge's racial profiling analysis was undertaken in error.

B. THE TRIAL JUDGE ERRED IN HIS SECTION 24(2) ANALYSIS

[87] Mr. Dudhi also alleges that the trial judge committed errors in his section 24(2) analysis. The Crown conceded before us that the trial judge's s. 24(2) analysis was deficient. Specifically, the trial judge believed wrongly that "none of the Grant factors favours exclusion." The Crown agrees with Mr. Dudhi that some of the considerations required by R. v. Grant do favour exclusion. The Crown also conceded that the trial judge failed to demonstrate that he had conducted a proper balancing.

[88] The Crown asked us to remedy these deficiencies by conducting the s. 24(2) analysis and finding that the admission of the evidence would not bring the administration of justice into disrepute. We cannot accept the Crown's invitation. If racial profiling did occur, this is an aggravating factor that elevates the seriousness of the breach: R. v. Li, at para. 78. It may be, as Mr. Dudhi urged before us, that even absent racial profiling, racially inappropriate conduct by an officer falling short of racial profiling that occurs in the course of effecting an arbitrary detention makes the breach more serious, but I will leave that proposition unresolved given that it was not argued before the trial judge. The immediate point is that it cannot be determined whether the admission of the evidence would bring the administration of justice into disrepute until a new trial has settled all of the relevant circumstances that inform a proper s. 24(2) decision.

[89] Since a new trial is required, it is helpful to identify two other difficulties in the trial judge's s. 24(2) decision that were properly raised before us.

[90] First, I cannot accept the trial judge's finding that the failure of the officers to "dig deeper" before arresting Mr. Dudhi "falls closer to the less serious negligence or lack of due diligence end of the continuum." This conclusion reflects an error in principle: the continuum spans good faith to bad faith. Negligence or the lack of due diligence does not fall at either end of that continuum. In Le, at para. 143, Brown and Martin JJ. observed that good faith "is not demonstrated by pointing to mere negligence in meeting Charter standards", and that courts may be required to dissociate themselves from evidence obtained as a result of police negligence in meeting Charter standards. The negligence demonstrated by the officers in this case is far removed from good faith and actually sits more proximate to the bad faith end of the breach spectrum: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 100-103; R. v. Dhillon, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras. 49-51; R. v. Burke, 2009 QCCA 85, 312 D.L.R. (4th) 196, at paras. 76-82, aff'd on other grounds, 2009 SCC 57, [2009] 3 S.C.R. 566.

[91] Second, I cannot agree with the trial judge's view that even had the police learned that the cellphone prohibition had been varied, they could have stopped Mr. Dudhi in any event under the authority of the Highway Traffic Act. I agree with Mr. Dudhi's submission on this point. Had the police used the Highway Traffic Act to pursue a drug investigation, this would have been a pretence stop, contrary to the Charter: R. v. Harris, 2007 ONCA 574, 225 C.C.C. (3d) 193, at paras. 30-32, 63; Brown v. Durham Regional Police Force, at paras. 31, 38-39.

[92] Nor could Mr. Dudhi have been stopped, as the trial judge believed, to check to see whether the cellphone he possessed complied with the terms of this new recognizance. There were no grounds available to the officers to believe that the cellphone Mr. Dudhi was observed with did not comply with the terms of his new recognizance. He would have been arbitrarily detained had he been pulled over to check randomly whether he was complying.