Court File and Parties

Ontario Court of Justice

Date: November 24, 2017

Court File No.: Brampton 17-2784

Between:

Her Majesty the Queen

— and —

Damaine Sitladeen

Before: Justice Patrice F. Band

Counsel:

• M. Morris, counsel for the Crown
• J. Miglin, counsel for Mr. Sitladeen

Reasons for Judgment

Released November 24, 2017

Introduction

[1] That Damaine Sitladeen is factually guilty of a number of firearms-related offences was not the issue in this trial. The issue was whether he was detained, investigated, arrested and/or searched because he is a Black man. If he was the victim of racial profiling, then the evidence is inadmissible and he is entitled to acquittals.

[2] Racial profiling is a wrong that exists in our criminal justice system. Because the attitudes underlying it often exist only subconsciously, it is hard to prove. To do so requires that inferences be drawn from the existing circumstantial evidence. When alleged, it is a controversial and sensitive issue for the persons involved. The cynic and the skeptic will easily come to (opposite) judgments. I am not permitted to take such an approach. My task is more difficult. The law does not contain any presumptions in this area. I must look at the evidence objectively and dispassionately.

[3] In many such cases, reasonable people aware of all the evidence can arrive at different conclusions. This means that valid racial profiling claims can be dismissed legitimately, leaving ruses unexposed, the problem rooted in place and the accused and others demoralized. In other cases, a positive finding may be unfair to an officer. I am as keenly aware of those possibilities as I am that, with the exception of Mr. Sitladeen, everyone involved in this trial – police, counsel and me – is Caucasian.

[4] A brief recitation of the non-controversial facts will help to put this very difficult issue, and the evidence that its resolution depends upon, into context.

Brief Overview of the Evidence

[5] Damaine Sitladeen is a young Black man. Shortly before 3:00 a.m. on Sunday, March 5, 2017, he was driving a rented Ford Focus in Brampton when a Peel Regional Police car rolled up from behind him to his driver's side, shone a light in his direction, fell back and then effected a traffic stop using its emergency lights. (This method is known as "combination stop.") Two police officers approached the Ford Focus – PC Robert Delmar to the driver's side and PC Jane King to the passenger side. PC Delmar told Mr. Sitladeen that he had concerns about his sobriety and asked him for his driver's license and documents. Mr. Sitladeen could not produce a driver's license. He did not have one. Nor did he provide the requested documents. Instead, he misidentified himself by giving PC Delmar his brother's name: Donovan Sitladeen. PC Delmar obtained the keys to the car and a pill bottle he had seen inside, and placed them on the roof. He then went to run some checks on the name but, in doing so, he misspelled Sitladeen.[1] The checks generated results with a "partial score."[2] They revealed the possibility that Donovan Sitladeen was the subject of two driving suspensions, a weapons prohibition, was known to be "armed and dangerous" and was of interest to the Toronto Police Service.

[6] PC King then alerted PC Delmar that prescription pills found in the car bore the name of Damaine Sitladeen. Unaware that he had misspelled Sitladeen, PC Delmar simply substituted Damaine for Donovan. The results left him unable to confirm the driver's identity.

[7] Uncertain about the driver's identification and aware of the possibility that his license was suspended, PC Delmar decided to arrest Mr. Sitladeen. By now a third officer, PC Brandon Statham, had arrived. Mr. Sitladeen was not cooperative, and was taken to the ground onto his stomach. A fourth officer, PC Tisdale, had also become involved.

[8] After the struggle, Mr. Sitladeen was handcuffed and rolled onto his back. In the process, PC Statham saw the butt of a handgun sticking out of his waistband and seized it. It was later proved to be a loaded, semi-automatic, .40 caliber Glock pistol with an over-sized and prohibited magazine. Mr. Sitladeen was not authorized to possess firearms and was prohibited from doing so by virtue of a s. 109 Criminal Code order.

The Witnesses

[9] The Charter voir dire and trial proceeded in "blended" fashion. The Crown called Officers Delmar, King, Statham and Smith. PC Delmar and PC King were patrolling together in one cruiser. PC Statham arrived while they were investigating Mr. Sitladeen. (PC Tisdale, who did not testify, arrived some time proximate to the arrest.) Detective Smith's evidence related only to the admissibility of Mr. Sitladeen's videotaped statement. Its voluntariness was ultimately conceded.

[10] The Defence called no evidence on the voir dire or trial proper, but relied on the contents of Mr. Sitladeen's statement.

The Issues and Positions of the Parties

[11] The arguments raised by the Defence can be summarized as follows:

Section 9 – "Driving while Black" – Pretext Stop

The traffic stop, purportedly to check sobriety, was a pretext or ruse to enable police to detain and search Mr. Sitladeen. It was racially-motivated, in whole or in part, and was therefore arbitrary and contrary to s. 9 of the Charter. Everything that followed was unlawful and the evidence obtained is inadmissible.

The Defence bears the burden of demonstrating, on a balance of probabilities, that the real reason for the stop was the fact that Mr. Sitladeen is Black. In other words, there was no articulable cause for the stop or, if there was, it was accompanied by a racial motive.

In this case, as Defence counsel conceded, a finding that the police were aware of Mr. Sitladeen's race before they decided to pull him over would be crucial.

Section 8 – the continued investigation was racially-motivated

In the alternative, if the traffic stop was lawful, the Defence argues that the continued actions of the police were motivated by Mr. Sitladeen's race. His arrest was not based on reasonable and probable grounds. It was unlawful and contrary to the Charter. So, too, the search of his person. As a result, the evidence ought to be excluded.

Defence counsel acknowledged that failure to demonstrate that the traffic stop was racially-motivated would weaken Mr. Sitladeen's alternative position.

The Crown bears the burden of demonstrating, on a balance of probabilities, that the police complied with s. 8 of the Charter in arresting and searching Mr. Sitladeen. Defence counsel urged me to look not only at what the police did, but at what they did not do. He argued that what unfolded was inconsistent with, and out of proportion to, the stated HTA concerns, which he characterized as "minor."

[12] The Defence did not plead s. 7 of the Charter or argue that the manner of Mr. Sitladeen's arrest violated his Charter rights per se.

[13] The following is common ground between the parties:

• The Highway Traffic Act ("HTA") does not authorize a police officer to arrest a person for failing to produce a driver's license;
• The HTA vests in police officers the discretion to arrest a person for driving while suspended; and,
• If the decision to stop Mr. Sitladeen was racially-motivated, even in part, the evidence obtained as result is inadmissible pursuant to s. 24(2) of the Charter.[3]

The Law of Racial Profiling

[14] In the leading case of R. v. Brown, the Ontario Court of Appeal defined racial profiling as follows:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.[4]

[15] The Court also articulated the test that I am to apply to the issue:

A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.

… where 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.[5]

[16] In R. v. Safarzadeh-Markhali, the Court indicated, by way of illustration, that "absence of objective grounds for detention, or the fabrication of grounds, can lead to an inference that the detention was racially-motivated."[6]

A Preliminary Matter: Professor Tanovich's Recent Article on Racial Profiling

[17] The Defence wished to file Professor D. Tanovich's recent article entitled "Applying the Racial Profiling Correspondence Test."[7] Professor Tanovich is a respected academic and author who has been cited by the Supreme Court of Canada and all levels of court in this province. This article is the latest of a number he has written on the topic.

[18] The Crown was opposed to my receiving it, citing the fact that the article contained hearsay and opinion evidence, both of which are presumptively inadmissible. The Crown was also concerned that Professor Tanovich's article attempts to dictate how to interpret the law of racial profiling – a task that is mine to undertake – and that it does so with a particular slant.

[19] This was a judge-alone trial in which the parties agreed that I would have to read the article in order to rule on the issue. Rather than delay the proceedings, I advised them that I would review it during my deliberations and let them know if I decided that I could not receive it. Alternatively, I assured them that I would do my best to disabuse myself of any inadmissible hearsay, opinion or bias that it might contain.

[20] It must first be said that in Peart v. Peel Regional Police Services Board, the Ontario Court of Appeal acknowledged that "studies, academic writings and experts" have assisted the courts in coming "to recognize a variety of factual indicators that can support" an inference that police conduct was racially-motivated. While such indicators can assist a court in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case," the Court cautioned that they "cannot dictate the findings that a trier of fact will make in any given case."[8] In other words, the existence of certain social facts cannot predetermine the adjudicative facts that will be found in any given case.

[21] That said, I am sensitive to the Crown's concerns for a number of reasons.

[22] It is true that under the heading "Part III – The Indicators," Professor Tanovich's article relies on a variety of news media for a number of statistical claims that do not appear to have been tested in court.

[23] Professor Tanovich's article is also a piece of advocacy. It calls for the reformulation of the racial profiling test by urging the acceptance of a rebuttable presumption and reverse onus.[9] This was presented to the Court of Appeal in Peart, supra, but not accepted.

[24] The article is also a call to action of sorts, serving to "support the raising of race-based Charter claims" where, in Professor Tanovich's opinion, counsel have failed to do so "in appropriate cases."[10]

[25] Most important, for my purposes, is that while the article sets out to explain "how and when the correspondence test can be applied,"[11] its recitation of that test is incomplete. Whereas Professor Tanovich states, correctly, that "the relevant adjudicative standard for racial profiling cases comes from Brown," and purports to reproduce what "Justice Morden, for the Court, held," he reproduces only the following:

Where the evidence shows that the circumstances […] correspond to the phenomenon of racial profiling […] the record is then capable of supporting a finding that the stop was based on racial profiling. [paras. 44-46] [emphasis added]

[26] The second ellipsis omits the phrase "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."[12] While perhaps an effective way to focus counsel's efforts to identify and marshal facts, Professor Tanovich's version eliminates an element that is crucial for judges intending to operationalize the test.

[27] To answer the Crown's objection directly: I do not use Professor Tanovich's article as a manual on how to apply the test. But the article does shed light on a number of factors and stereotypes at play in the social context in which this case and others have arisen. Among them is the stereotype attaching to a young Black male driving an expensive car or the suspect nature of a wholly disproportionate response to a minor transgression. I rely on it for that limited purpose.

Other Features of this Case

[28] PC Delmar was the main focus of Defence counsel's approach, as he played the largest role in the investigation. A number of factors arose in the development of this case that Defence counsel underlined: the timing of the officers' notes, the additional will-says PCs Delmar and King completed after meeting with Acting Crown Attorney David Maylor and the "combination stop" they used to pull Mr. Sitladeen over. These warrant presentation at this time.

Timing of the officers' notes

[29] Before completing their notes, PCs Delmar, King and Statham all met with detectives from the Criminal Investigations Bureau to debrief them. As PC Statham explained, this is a matter of internal policy, as the detectives take over investigations involving firearms. They each completed their notes a short time afterwards.

[30] This approach can raise a number of concerns.[13] It can lead to the conclusion that the evidence given in court is not purely based on the independent recollections of the officer testifying. It can raise the spectre of collusion. It is also inconsistent with the thrust of the law in this area, which indicates that officers are under a duty to make their notes as soon as practicable, among other things: see Wood v. Schaeffer.[14] All of this can serve to undermine the public's confidence in law enforcement and the criminal justice system.

[31] There are, of course, times when various officers should review others' notes for accuracy, such as those involving "central field notes." But in this case, I can see no practical reason why the individual officers should have met with the detectives prior to completing their notes. Mr. Sitladeen was in custody and the firearm had been seized.

[32] However, I did not find that the officers colluded. As I will discuss further below, PCs Delmar and King's evidence was inconsistent on a potentially important point: the manner of Mr. Sitladeen's driving. Second, unlike PC Statham, PC Delmar did not testify about a comment he had made to PC Statham about his initial motivation for the traffic stop – that being a concern about the driver's sobriety. This was an obviously important point. Third, had they colluded, one would have expected them to come up with a better account of PC Delmar's grounds for arresting Mr. Sitladeen. Put another way, this did not seem to be an after-the-fact effort to justify a hunch-based search.

[33] Also, I was satisfied that PC Delmar's evidence was his own. He appeared to be doing his best to respond to questions asked of him. His evidence was clear and detailed and he did not seem to have conspicuous memory lapses. In coming to this conclusion, I considered the fact that the events giving rise to this case took place only earlier this year. I believed PC Delmar that he had, and was relying on, his own independent recollections.

The will-says

[34] A few weeks prior to trial, and after Defence counsel had filed his Charter notice alleging racial profiling, Crown Attorney Maylor met with PCs Delmar and King separately. As a result, each officer was directed to provide a will-say.

[35] While PC Delmar was aware that a Charter notice had been filed, it was not shown to him. According to PC King, the Crown met with her to go through her notes and she expanded on them. He then asked her to include in her will-say what she hadn't included in her notes.

[36] PCs King and Delmar's will-says contain entries that are not included in their notes. The will-says flesh out the manner in which the stop was conducted and provide the name of that method (a "combination stop"). They also explicitly indicate the moment that grounds were formed to perform the traffic stop – prior to pulling alongside the car.

[37] There is nothing inherently wrong or necessarily suspicious about a Crown Attorney meeting with police officers prior to the trial of a serious matter in order to flesh out their evidence in further detail. Given the Crown Attorney's role as quasi-Minister of Justice, one would expect him or her to do so when something as odious as racial profiling is being alleged. It is not surprising that additional notes would be generated as a result.

[38] I will discuss the import of the additional entries in my discussion of the traffic stop, below.

The "combination stop"

[39] Neither counsel nor I had ever heard of a "combination stop." In order simply to demonstrate that the method is among the alternatives to pursuit that are acceptable and recommended by the Peel Regional Police Service, on consent, the Crown filed Peel Regional Police Directives entitled "Stopping and Approaching a Suspect Vehicle" and "Suspect Apprehension Pursuit."[15] The former defines a combination stop as "a method of stopping a vehicle in such a manner to prevent a pursuit by obtaining occupant and vehicle descriptors…" The latter explains how it is conducted (by pulling up alongside the vehicle to obtain occupant identifiers, dropping back and commanding it to stop using emergency lights). It also states that it is done "on the principle that the vehicle is less likely to flee knowing police are able to identify the driver or any other occupants" and that it should be "conducted on roadways with multiple lanes in the same direction."

[40] At counsel's invitation, I reviewed both documents in their entirety. They agreed that the various techniques are described simply as alternatives and not in cascading order according to risk or to some other standard limiting their use.

[41] With those matters introduced, I turn now to the merits of the case. I discuss the initial traffic stop and the events that followed it separately. I do this for the sake of organization. However, my credibility findings are based on the entirety of the evidence.

The Traffic Stop – Analysis

[42] PC Delmar testified that he and PC King were on patrol in the area of Derry and Torbram Rds. on Sunday, March 5, 2017 shortly before 3:00 a.m. In the area are licensed clubs, lounges and strip clubs as well as a large industrial park. In PC Delmar's experience, the area is a problem with respect to impaired driving, liquor license and marihuana offences.

[43] They were traveling behind a red Ford Focus at approximately 2:46 a.m. as it was travelling westbound on Derry Rd. approaching Torbram Rd. and entered into a lane reserved for right turns. It was signaling appropriately. But rather than turn, it veered to the left into a thru-lane without signaling its intention to do so. It went through the intersection and then reactivated its right turn signal. The only entrances on the right led into industrial parks. While it was signaling, the Ford Focus did not slow down. It then swerved within its lane. PC Delmar found this driving to be abnormal.

[44] He conducted a check and found out that the Ford Focus was a rental.[16] This gave him no useful information about the driver. Concerned about the driver's sobriety, he decided to pull the Ford Focus over. Aware that he would not be able to describe the driver or any occupants of the car if it fled, he decided to undertake a combination stop. By pulling up beside the Ford Focus and shining an "alley light" towards it, he was able to see a lone Black male driver, aged 20 to 30 with a beard. He then dropped back and turned on his emergency lights.

[45] The Ford Focus pulled over and came to a stop. In the process, its right tires made contact with the curb. This added to PC Delmar's suspicions.

[46] PC Delmar told Mr. Sitladeen he had concerns about his sobriety and asked him for his driver's license and documents.

[47] PC King's evidence was consistent with PC Delmar's except that she said that the Ford Focus kept its signal on through the intersection and that she did not see it swerve in its own lane.

[48] Defence counsel's position is that the traffic stop was racially-motivated. He argued that the officers learned of Mr. Sitladeen's race by pulling up beside him and that this took place before they decided to pull him over. In support of this contention, Defence counsel pointed to the fact that the officers' notes do not indicate when they decided to pull-over the Ford Focus. Nor do they refer to a "combination stop." He noted the inconsistency in their versions concerning the turn signal and the swerving. He also pointed to Mr. Sitladeen's statement.

[49] I accept PC Delmar's evidence as to Mr. Sitladeen's driving over that of PC King. His was clearer and more thorough. As the driver, it made sense to me that his evidence would be more detailed. He also added that the swerving was "not dramatic." In addition, PC Delmar's evidence that Mr. Sitladeen had turned off his signal after choosing not to turn right onto Torbram Rd. is confirmed by Mr. Sitladeen's statement, an excerpt of which is found below.

[50] In this case, I am not troubled by the fact that PC Delmar's notes did not make explicit reference to the formation of grounds to pull over the Ford Focus or mention a "combination stop" by name. His notes contained functional and detailed descriptions of both of those concepts. He also testified that he uses the combination stop regularly and had thought nothing of it when the Crown first asked him about it. I believed him about that.

[51] Mr. Sitladeen's account of the stop is as follows:

SITLADEEN: But I-, investigated? I was, I was basically like stopped-, the way, the way everything happened is like…

OFFICER: Mm-hmm

SITLADEEN: …they already-, they just already assumed something before anything. I didn't do anything. You stopped me to say, okay, I look like I'm intoxicated.

OFFICER: Yeah

SITLADEEN: Why? How do I look like I'm intoxicated? Because I put on my signal and then took it off? That's d-…

OFFICER: No, you were, you were…

SITLADEEN: That's…

OFFICER: I think you were driving kinda…

SITLADEEN: No, my driving was straight, I didn't, I didn't do anything. They-, he literally told me…

OFFICER: What-, when did you, when did you see the officer?

SITLADEEN: When he was-, he ca-, he was beside me…

OFFICER: Yeah

SITLADEEN: … he came behind me …

OFFICER: Yeah

SITLADEEN: .. saw that I was still driving for a little bit …

OFFICER: Mm-hmm

SITLADEEN: …and then I thought it was my turn. I went from, uh-, I, I turned on my signal…

OFFICER: Yeah

SITLADEEN: …I realized it wasn't the turn, I turned it off. Then he pulled over, came beside me, flashed…

OFFICER: Mm-hmm

SITLADEEN: And then I stopped.[17]

[52] Mr. Sitladeen's account of the stop does not contradict PC Delmar's. It tends to confirm it. But his description of his driving conflicts with the police's. He said it was "straight," that he had not hit the curb and that he had done "nothing wrong." However, when asked whether he was nervous when he saw police, he added that he had not done anything wrong and had "nothing to hide."[18] This placed his credibility in question.

[53] I believe that PC Delmar saw the poor driving and learned that the Ford Focus was a rental before deciding to undertake the combination stop and seeing Mr. Sitladeen. The driving he described in that area at that time of night provided ample articulable cause for the stop.[19] I accepted PC Delmar's concern that, had Mr. Sitladeen been able to flee, the potential consequences would have been "on him." These circumstances do not correspond to racial profiling. Therefore, the Defence has not demonstrated that what took place was a racially-motivated pretext stop that violated Mr. Sitladeen's s. 9 Charter rights.

The Arrest of Mr. Sitladeen and Seizure of the Firearm

PC Delmar's evidence

[54] At approximately 2:48 a.m., PC Delmar arrived at Mr. Sitladeen's car and told him that he was concerned about his erratic driving and sobriety, and asked if he had been drinking. Mr. Sitladeen said he had not. PC Delmar was unable to smell an odour of alcohol coming from his breath. He did, however, smell the odour of unburnt marihuana. This raised a potential issue about impaired driving, but he saw no physical signs of impairment. So, he asked Mr. Sitladeen for his driver's license and documents. Mr. Sitladeen said he did not have a driver's license "on him." He identified himself verbally as Donovan Sitladeen. PC Delmar asked him to spell his last name, and he wrote it into his notebook. He then asked Mr. Sitladeen to turn off the engine and hand him the keys. He placed them on top of the car. This is his practice. He also obtained a pill bottle that he had seen in the car and put it on the roof prior to going to his police car to run checks. That he had done so was confirmed by PC King and PC Statham.

[55] PC Delmar had looked at the pill bottle and did not recognize the name of the drug. So he did not think much of it. Another pill bottle was later seized from the area in front of the centre console. The drugs were Penicillin and Metronidazole.

[56] PC Delmar inadvertently misspelled Sitladeen when he entered it into CPIC and did not realize it until well after the arrest.

[57] He received information that the subject was a suspended driver, subject to a weapons prohibition, known to be armed and dangerous and of interest to the Toronto Police. CPIC attaches a score out of 26 to the results it generates. A perfect score would satisfy PC Delmar that there was a match. In this case, the score was 13. This "partial score" told PC Delmar that something must have been "off", leaving him unsure about the identification he had received. He knew that the driver might not be the person described on CPIC. So, he felt he needed to confirm the driver's identity. On his way back to the Ford Focus, PC King told him that the pill bottle on top of the car was in the name of Damaine Sitladeen.

[58] This prompted PC Delmar to return to his car to check the new name on CPIC. Unaware of his earlier mistake, he left Sitladeen misspelled. Again, the results left him unsure of the driver's identity. As he put it, he was "more confused now." It is worth noting that the system would not provide a photograph unless there was information in the local database. In this case, no photo was generated in either instance.

[59] While PC Delmar was in his police car running checks, PC King was having a friendly chat with Mr. Sitladeen. The tenor of that conversation was confirmed with PC Statham who, for this reason, had decided to join PC Delmar. PC Delmar told him he was going to arrest Mr. Sitladeen for driving under suspension because he had been unable to ascertain his identity. PC Statham agreed with that decision.

[60] PC Delmar acknowledged that an arrest for drive suspended was not automatic; however, his inability to identify the driver factored into his decision.

[61] He went to the car and told Mr. Sitladeen that he was under arrest for driving while suspended. Mr. Sitladeen was reluctant to exit the car and said words suggesting that he thought the officer was making a big deal over nothing. As PC Delmar attempted to gain control of his arm to place him in handcuffs, Mr. Sitladeen pulled it away towards his body. This caused him concerns about safety and possible flight. A struggle then began and Mr. Sitladeen was quickly taken to the ground by the three officers. During the brief struggle, PC Delmar considered deploying a Tazer but decided against it for safety reasons. Finally, he was able to place handcuffs on Mr. Sitladeen and in the process of turning him on to his back, he heard PC Statham yell "gun!"

[62] By 2:58 a.m., Mr. Sitladeen was in custody. Later, an OHIP card in Mr. Sitladeen's real name was found. PC Delmar would have accepted it as proof of identification if it had been presented.

PC Statham's Evidence

[63] PC Statham heard about the traffic stop at approximately 2:48 a.m. He did not know what the traffic stop was about. Since he was in the area, he decided to go see if his help was required. This is a common practice known as a "slide-by." There had been no sense of urgency. He arrived a few minutes later to see PCs Delmar and King engaged with Mr. Sitladeen, who was still sitting in the Ford Focus. He would expect a "thumb's up" from his fellow officers if his help was not required. In this case, he did not receive any signal. He did not know if PCs Delmar and King had noticed him. So, he got out of his car and approached the Ford Focus. He heard Mr. Sitladeen identify himself verbally. A short time later, he went to speak with PC Delmar as he was running his checks in his police cruiser. PC Delmar told him "we thought this guy was smashed."[20] He understood him to be referring to impairment.

[64] PC Statham saw some of the results of the computer checks and agreed with PC Delmar's decision to arrest Mr. Sitladeen. He walked to the Ford Focus and had a conversation with Mr. Sitladeen about the status of his driver's license and whether he had any unpaid fines. Mr. Sitladeen responded that his driver's license was "good" and that there should not be any unpaid fines.

[65] It was at approximately this time that PC Tisdale did a slide-by. PC Statham gave him the "thumb's up" indicating that everything was fine. PC Delmar arrived to advise Mr. Sitladeen that he was going to be arrested. Mr. Sitladeen asked if he was really going to be arrested for this and PC Statham explained that it was a simple matter of confirming his identification and getting him a court date. His description of Mr. Sitladeen's actions in relation to the arrest was consistent with PC Delmar's. During the struggle, he saw Mr. Sitladeen trying to reach his hands towards his stomach. This gave PC Statham concerns about a possible weapon. He struck Mr. Sitladeen three times with his knee to gain his compliance. Once Mr. Sitladeen was in handcuffs and was being rolled over, PC Statham saw the handgun protruding from his waistband. He seized it by pulling it out. This was difficult as the belt was very tight.

Mr. Sitladeen's Statement

[66] In his statement, Mr. Sitladeen confirmed that he had resisted arrest.

Argument and Analysis

[67] Defence counsel's position is that PC Delmar should not be believed. What transpired after the traffic stop was not an impaired driving investigation. Rather, PC Delmar wanted to create an opportunity to arrest and search Mr. Sitladeen because he is a Black man.

[68] He referred to a point in cross-examination when PC Delmar said that Mr. Sitladeen's erratic driving was a "marked departure" from what he ordinarily sees on the roads and that, had he smelled alcohol, he would have arrested him for impaired driving. Defence counsel argued that this testimony was exaggerated and undermined PC Delmar's credibility.

[69] I did not see it that way. During argument, Defence counsel agreed that I should not interpret PC Delmar's use of the phrase "marked departure" as that phrase is used in the context of dangerous driving offences. That was a fair concession. I also note that PC Delmar used this term in response to the suggestion that Mr. Sitladeen's driving was a "routine" case of someone who looked like they were going to turn right and then decided not to. His answer is reasonable, given that the right turn lane was a "channel lane" and that Mr. Sitladeen suddenly veered out of it.

[70] Likewise, I cannot say that PC Delmar's belief that he would have had grounds to arrest Mr. Sitladeen for impaired driving had he smelled alcohol was unreasonable in all the circumstances. Countless cases in this jurisdiction begin with similar facts.

[71] It is true that what unfolded was not like a typical impaired driving investigation, but I do not agree with Defence counsel's characterization. I accept that PC Delmar felt that in the absence of an odour of alcohol, burnt marihuana or of obvious signs of impairment, his reasonable suspicion was not borne out. I also note that he did give some consideration to the pills. That he did not recognize them and then gave them no more thought is not unreasonable. Neither is notoriously or obviously a narcotic.

[72] The most probable explanation of what happened, based on all the evidence, is that PC Delmar became overly focused on the difficulty he was having in confirming Mr. Sitladeen's verbal identification on the police computer. His inadvertent spelling error, and his failure to pause and consider his own human frailty, only contributed to the problem. While not evidence of bad faith, it was careless and led to haste.

[73] His decision to arrest Mr. Sitladeen because he was "confused" about his identity and concerned that he might be a suspended driver was not based on reasonable and probable grounds. For these reasons, the arrest and search violated Mr. Sitladeen's s. 8 and 9 Charter rights.

[74] In coming to this conclusion, I do not find that the arrest and search were racially-motivated. Nor, to be clear, do these subsequent breaches lead me to find that the traffic stop was probably a ruse after all.

[75] Nonetheless, I am aware of the optics surrounding the arrest and believe it is important to address them. Within 10 minutes of being lawfully stopped by two officers who reasonably (but incorrectly) suspected that he was an impaired driver, a Black man was arrested and taken to the ground by four officers. From a bird's eye view, these factors gave me pause. However, when understood in context, they did not give me a basis upon which to infer that the officers were lying. PC Statham's testimony was of particular interest. It was thoughtful and credible. I accept that it is common for officers to slide-by a traffic stop and that PC Statham did so while knowing nothing about the details. I also believed him that he gave PC Tisdale a "thumb's-up" just prior to Mr. Sitladeen's arrest. This tells me that until that point, the situation was rather routine.

The Admissibility of the Evidence

[76] Where evidence has been obtained in a manner that infringes a Charter right, "the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." The admission of constitutionally tainted evidence can bring the administration of justice into disrepute. So, too, can its exclusion.[21]

[77] In determining whether to exclude or admit evidence, the court must have in mind the long-term impact of doing so on the administration of justice. In coming to this determination, the court should inquire into the following factors: the seriousness of the Charter-infringing state conduct, the impact on the Charter-protected interests of the accused and society's interest in adjudication on the merits.[22]

The Seriousness of the Charter-infringing police conduct

[78] Mr. Sitladeen was lawfully stopped while operating a motor vehicle in a way that gave rise to legitimate concerns about his sobriety. While those concerns were quickly allayed, Mr. Sitladeen failed to produce a driver's license – something he was required to do by law – and lied about his name. In plain view was medication bearing a different first name from the one he had given.

[79] PC Delmar's decision to arrest him without reasonable and probable grounds was not a trivial or minor breach. On the other hand, while careless and hasty, it was not reckless. It must be seen in context: the situation that confronted PC Delmar was murky. This was sparked by Mr. Sitladeen's failure to produce a driver's license, his lie about his identity and the presence of medications bearing a different first name. Although far from conclusive, the CPIC results suggesting raising flags about Mr. Sitladeen's danger to the community added to PC Delmar's concerns at a time when he was required to make quick decisions.

[80] I also note that, while not mitigating, PC Delmar's conduct did not demonstrate willful or reckless disregard for his rights. Nor did it clearly demonstrate ignorance of Charter rights or willful blindness. While I am concerned that PC Statham also agreed with the decision to arrest Mr. Sitladeen, I am unable to find that it is evidence of a systemic or institutional concern.

[81] For these reasons, I conclude that the seriousness of the police conduct does not pull strongly in favour of exclusion.

The impact on Mr. Sitladeen's Charter-protected interests

[82] Mr. Sitladeen's unlawful arrest had a very serious impact on his Charter-protected interests in his liberty and security of the person. He was taken to the ground by four officers, placed in handcuffs and subjected to continued detention, search and police questioning.

[83] While the search was unlawful, it was not conducted unreasonably. The handle of the gun was visible as it protruded from his waistband. At that point, PC Statham was required to seize it. His actions in doing so were not intrusive and did not infringe Mr. Sitladeen's bodily integrity, privacy or human dignity.

[84] Nonetheless, these factors pull strongly in favour of exclusion.

Society's interest in adjudication on the merits

[85] Mr. Sitladeen was driving in the community while carrying a loaded semi-automatic handgun equipped with a prohibited, large-capacity magazine. The handgun's sole purpose is to harm or kill others. All the while, Mr. Sitladeen was expressly prohibited from carrying such a firearm by a valid court order.

[86] These offences are very serious. The evidence is reliable and it is critical to the Crown's case. Its exclusion would undermine the truth-seeking function of the trial.

[87] The public has a strong interest in seeing that matters such as this one are prosecuted on the merits.

Balancing the competing rights and interests and the long-term impact on the administration of justice

[88] This is a close case. The first two Grant factors push in favour of exclusion. But only the second factor does so strongly. The third factor pulls strongly in favour of inclusion.[23]

[89] After careful reflection, I have decided that the administration of justice would be further harmed by the exclusion of the evidence in this case. In these particular circumstances, the court is not called upon to dissociate itself from the police conduct in order to preserve the public's long-term confidence in the administration of justice. It is a case in which the third Grant factor effectively tips the scales in favour of inclusion of reliable evidence. Its admission in the circumstances of this case would not send a message to the public that "when the charges are serious, individual rights count for little."[24]

Conclusion

[90] For these reasons, the evidence is admissible against Mr. Sitladeen.

[91] In closing, I would like to express my thanks to counsel who both argued this difficult case with the preparation, commitment and courage that it called for.

Released: November 24, 2017

Justice Patrice F. Band

Footnotes

[1] He spelled it Sitaldeen.

[2] This is discussed in more detail below.

[3] See Brown v. Durham (Regional Municipality) Police Force, [1998] O.J. No. 5274 (C.A.) ("Brown v. Durham").

[4] , [2003] O.J. No. 1251 at para. 7.

[5] Ibid, at paras. 44-45 ("Brown").

[6] 2014 ONCA 627, [2014] O.J. No. 4194 at para. 20.

[7] (2017) 64 C.L.Q. 359.

[8] , [2006] O.J. No. 4457 at paras. 95-96.

[9] At pp. 360 and 369-370.

[10] At pp. 377-379.

[11] At p. 360.

[12] See Brown, supra, at para. 45. [my emphasis]

[13] See R. v. Ohenhen, [2016] O.J. No. 4865 (S.C.J.), for a comprehensive discussion of the impact such concerns can have on officers' credibility in the context of their testimony.

[14] 2013 SCC 71, [2013] 3 S.C.R. 1053.

[15] I-B-609 (F) and I-B-607 (F), respectively.

[16] This testimony was not challenged. Also, while this is by no means conclusive, I have not heard of a stereotype attaching to young Black males driving inexpensive cars.

[17] Video Transcript of Damaine Sitladeen, pp. 12-13.

[18] Ibid, at p. 16.

[19] See Brown v. Durham, supra, at para. 52.

[20] PC Statham had not recorded this in his notes but it was essentially confirmed by Mr. Sitladeen.

[21] R. v. McGuffie, 2016 ONCA 365 at paras. 59-60.

[22] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.

[23] McGuffie, supra, at para. 62.

[24] Ibid, at para. 74.