Court File and Parties
COURT FILE NO.: CRIM J(F) 198/22 DATE: 2023 04 12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Chai Gala-Nyam
BEFORE: L. Shaw J.
COUNSEL: J. Collins, for the Applicant M. Miller, for the Crown
HEARD: February 6 and 8, 2023
Ruling on Racial Profiling
L. Shaw J.
Introduction
[1] The applicant, Chai Gala-Nyam, is charged with a number of offences with respect to drugs and identity documents found in his possession following a traffic stop on November 29, 2020, contrary to the Criminal Code, R.S.C., 1985, c. C-46 (“the Code”) and the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] The applicant seeks to stay the charges or, in the alternative, to exclude the evidence seized based on a violation of his ss. 7, 8 and 9 rights under the Canadian Charter of Rights and Freedoms (the “Charter”). These reasons will deal with the allegation that the arresting officer racially profiled the applicant, a young Black male. The applicant’s position is that If I find that racial profiling was involved at any time prior to his arrest, all evidence seized ought to be excluded pursuant to s. 24(2) of the Charter. The Crown disputes that there was any racial profiling but concedes that should I find racial profiling to have played any part in the stop or arrest of the applicant, the evidence must be excluded.
[3] The trial is scheduled to proceed before me on May 23, 2023, without a jury.
[4] For this application, I heard viva voce evidence from two Peel Regional Police (“PRP”) officers.
[5] For the reasons that follow, I find that there was racial profiling before the officer stopped the applicant’s vehicle. As a result, based on the position of both the Crown and the applicant, the evidence seized including the identity documents and drugs are excluded pursuant to s. 24(2) of the Charter.
Review of the Evidence
[6] Det. Cst. Statham has been with PRP since May 2013. On November 29, 2020, a Sunday, he was working as a uniformed patrol officer. He commenced work at 6 a.m. He was wearing his police uniform and driving a low-profile police vehicle. He was alone in his patrol car. The vehicle was black with grey-tinted police markings. There were no lights on the top but there were lights in the front grill and rear of the car. He agreed that another term used to describe the vehicle is a “sleeper car,” meaning it is one that civilians might not immediately recognize as a police vehicle. He agreed that one of the purposes of that kind of vehicle was so that persons under suspicion might not recognize it as a police car. His evidence was that you could make out the grey lettering on the car as you get closer to it.
[7] He was assigned to patrol an area of Brampton with which he was highly familiar at the time. He described it as a mostly residential area with some schools and businesses. The weather was cloudy; the roads, clear.
[8] At 7:40 a.m., he was travelling north on Thorndale Road, approaching the intersection with Castle Oaks Crossing which is controlled by four-way stop signs. Traffic conditions were light. As he approached the intersection, he saw an orange Hyundai traveling west on Castle Oaks Crossing. It had the right of way at the intersection as it arrived there first.
[9] Det. Cst. Statham observed that there was no front licence plate on the Hyundai. He also observed that the driver of the car, the applicant, was a Black male.
[10] Det. Cst. Statham’s evidence was that he planned to turn left to proceed west on Castle Oaks Crossing even before he saw the applicant’s car. When he testified at the preliminary hearing, his evidence was that he did not know why he made the left turn. He agreed that was his evidence at the preliminary hearing and explained that he could not recall why he was planning to make the left turn but had been planning on doing so before he saw the applicant’s car.
[11] After making the left turn, Det. Cst. Statham was driving behind the applicant’s vehicle and observed that the rear licence plate was from Québec. He testified that in Québec, front licence plates are not required, which explained why the Hyundai did not have a front licence plate. He nonetheless decided to “run the plate” meaning to gather information about the car and driver. To do so, while he drove, he typed the licence plate into a computer, mounted beside the driver’s seat, to obtain information from the Ministry of Transportation (“MTO”), Canadian Police Information Centre (“CPIC”), and the Police Query Tool (“PQT”). PQT is a database of interactions with Peel Regional Police. CPIC is a Canadian database that has information such as whether a car is stolen or whether a person is missing. The MTO inquiry provides information about the car, such as the make, model, and registered owner.
[12] Det. Cst. Statham testified that he did not select what type of search to do. Rather, the computer in his cruiser is set to automatically default to these three checks when a licence plate number is typed in. He testified that running plates is a common practice that he did while on patrol. He agreed that he did not run the plates of every car he encountered, but did so when, for example, he was stopped behind a car.
[13] He agreed that the MTO inquiry would provide administrative information about the car, unrelated to any criminal activities. He agreed that the CPIC and PQT searches were to determine if the car was stolen, if it had been involved in any offence, and if there were any outstanding arrest warrants or outstanding criminal charges for the driver.
[14] Shortly after he typed in the licence plate information, he got a response that the MTO system was down for maintenance. The CPIC and PQT searches came back negative, meaning there was nothing on file about that licence plate.
[15] As he drove behind the applicant’s vehicle, he observed nothing unusual about the operation of the car: it was driving the speed limit.
[16] Castle Oaks Crossing ends at its intersection with Gore Road; the intersection is controlled by a traffic light. Gore Road runs in a north/south direction. At Gore Road, the single lane for westbound traffic on Castle Oaks Crossing turns into two lanes – one to turn south on Gore Road and one to turn north. The applicant’s vehicle entered the lane to turn right to proceed north on Gore Road. According to Det. Cst. Statham, the traffic light was red. The Hyundai did not come to a complete stop but slowed to approximately 15 km/hr and then turned right onto Gore Road. This left turn did not interfere with other vehicles as there was no traffic on Gore Road.
[17] According to Det. Cst. Statham, the failure to come to a complete stop at the red light was an offence under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), as amended, and at that point, he decided to initiate a traffic stop. He did not, however, activate his emergency lights or attempt to stop the vehicle for approximately another five minutes.
[18] As he turned right onto Gore Road, Det. Cst. Statham observed the applicant’s vehicle make a left turn onto Fitzpatrick Drive, the first street off Gore Road. His observation was that the applicant’s vehicle was travelling at a normal speed.
[19] While he could not recall if the applicant activated his left turn signal, in his notes, Det. Cst. Statham recorded the left signal was activated before the applicant turned left onto Fitzpatrick Drive. He also agreed that the vehicle slowed before this left turn. While he testified several times that this was a quick turn, he agreed that he made no reference to a “quick” turn in his notes. He agreed that there was nothing remarkable about the left turn and that the applicant slowed, signalled, and made the turn safely and lawfully.
[20] Despite planning to initiate a traffic stop, Det. Cst. Statham did not activate his emergency lights, as his evidence was that the applicant’s vehicle was too far from his car when he turned onto Gore Road.
[21] In-chief, Det. Cst. Statham testified that the area of Fitzpatrick Drive was a small residential pocket. He agreed there were high-end homes in the neighbourhood. His evidence was that “it crossed my mind” that the applicant’s car made this left turn on the first available street off Gore Road as a countersurveillance measure to avoid police detection.
[22] On cross-examination, Det. Cst. Statham agreed that it crossed his mind that he was suspicious and intrigued when he saw the applicant’s vehicle turn left onto Fitzpatrick Drive into this residential neighbourhood. He explained that the reason he was suspicious is that Fitzpatrick Drive is the first street off of Gore Road, and based on his experience, to avoid police detection, drivers will make efforts to get out of police view by making this type of quick turn. He agreed that it crossed his mind that by making the left turn, the driver was either doing a “heat check”, meaning checking to see if he was being followed by the police, or “may have been up to something else”. On further questioning, he described it as a “low suspicion.”
[23] He did not agree with the suggestion that he did not know if the applicant was aware that he was being followed by a police car. His evidence was that the driver would have seen his car at the Thorndale and Castle Oak Crossing intersection, and if the applicant were to look in his rear-view mirror, he would have been able to see the word “police” written in grey on the car’s hood.
[24] He agreed with the suggestion that there was nothing about the manner in which the applicant executed the left turn onto Fitzpatrick Drive that led him to be suspicious. Rather, it was just the left turn itself that made him suspicious.
[25] When he turned left onto Fitzpatrick Drive, Det. Cst. Statham did not activate his police lights. When he made the turn, he saw the applicant’s vehicle pull over to the right side of the road, near a bridge, about 200 to 250 metres away. The vehicle stopped briefly, for about 5 to 10 seconds, and then drove off. Det. Cst. Statham did not see the driver do anything. He did not see any of the car windows or doors open. He saw nothing discarded from the car. He said the car accelerated aggressively from its stopped position and continued to drive west on Fitzpatrick Drive.
[26] He agreed that in his notes, he recorded that the car drove away at a higher speed. He did not describe the car accelerating “aggressively” as he testified.
[27] Det. Cst. Statham stopped his cruiser briefly, for three seconds, near the bridge as he thought something may have been thrown from the car, but he saw nothing. He did not get out of his cruiser. When asked on cross-examination why he would suspect that something was thrown from the car by the applicant, his evidence was it was based on what happened up to that point. He agreed that up to that point, the only unlawful conduct he observed was the rolling stop at a red light. He also testified that he was suspicious about the stop near a bridge, based on the immediate left turn made by the applicant from Gore Road to Fitzpatrick Drive.
[28] He agreed on cross-examination that the driver could have pulled over to do a number of things, such as looking at a map or checking GPS, or for any number of other innocent reasons. Det. Cst. Statham agreed with the suggestion that it was possible that the applicant threw drugs or a firearm out of the car.
[29] After stopping briefly on the bridge and glancing briefly to see if anything was thrown from the car, Det. Cst. Statham then followed the Hyundai west on Fitzpatrick Drive. He did not activate his police lights, as he saw that the vehicle had already turned right onto Julian Drive.
[30] Det. Cst. Statham testified that when he turned right onto Julian Drive, he could see the applicant’s car turn left onto Castlemore Road. Again, he decided not to activate his police lights. He turned left to drive west on Castlemore Road. There are three lanes for traffic travelling west. He again tried to access information from the MTO, but it was still not in service. At that point he activated his light and after a few seconds, the applicant pulled over in the curb lane and stopped.
[31] Det. Cst. Statham agreed on cross-examination that when he decided to pull the applicant over for a HTA offence there was nothing the applicant had done to raise concerns for officer safety. He agreed that in addition to activating his emergency lights, he also activated the emergency siren. He testified that it is his practice to activate the siren for HTA stops only when the driver does not comply right away. He agreed that in his notes, he said that he activated both his lights and siren and then the car pulled over. He could not recall what the applicant did that made him activate both the siren and emergency lights to initiate the stop.
[32] Det. Cst. Statham testified that he stopped his police cruiser about two car lengths behind the applicant’s car. He walked up to the driver’s door. He intended to issue a ticket under the HTA. He told the applicant he was being stopped for failing to stop at a red light. He also mentioned the “odd” behaviour at the bridge.
[33] He denied asking the applicant why he drove into a neighbourhood where there were high-end homes. He agreed that at the preliminary hearing, he testified that he did not recall asking that question but said that it was possible.
[34] Det. Cst. Statham asked the applicant for his driver’s licence, ownership, and insurance. The applicant pulled out a stack of cards from his right front jacket pocket. As he flipped through the cards, Det. Cst. Statham could see the photos on various Ontario and Québec drivers’ licences that were not of the applicant. When the applicant gave him his driver’s licence, Det. Cst. Statham returned to his cruiser. His evidence was that at that point the investigation changed, as he believed the applicant had unlawful identification documents in his possession, which was a Criminal Code offence. He then contacted dispatch to ask for another unit to attend. Cst. Wong attended at the scene in his cruiser at 7:51 a.m.
[35] The applicant got out of his car and approached the cruiser. Det. Cst. Statham exited and told him to place his hands on the trunk and told the applicant he was being arrested for the possession of identity documents. He then conducted a search of the applicant and found a plastic baggie with a small amount of white powder in the applicant’s pocket that he thought might have been cocaine. The applicant was then placed in the rear of Det. Cst. Statham’s cruiser and he read him his right to counsel and caution.
[36] After placing the applicant in his car, Det. Cst. Statham spoke to Cst. Wong who arrived on scene in his car. He told Cst. Wong that the applicant was in custody for possession of identity documents and drugs and asked Cst. Wong to search the applicant’s car.
[37] Det. Cst. Statham followed the applicant’s car for five minutes over a distance of two to three kilometres before he initiated the HTA stop. During that entire time, the only violation of any kind he observed was the failure of the applicant to bring his vehicle to a complete stop at a red light.
[38] He denied that the decision to follow the car, run the plate, stop the car, and arrest the applicant was because he was a Black male.
[39] Cst. Wong has been with the PRP since 2014. He was working uniformed patrol on November 29, 2020 in a marked cruiser. He received a call from dispatch at 7:51 a.m. He was very close to Det. Cst. Statham’s location. He heard that Det. Cst. Statham had initiated a stop near where he was driving, so he decided to assist him. He arrived at the scene within two minutes and parked behind Det. Cst. Statham’s cruiser. Det. Cst. Statham told him he was arresting the applicant for possessing identity documents. He stood by while Det. Cst. Statham placed the applicant under arrest. He then saw Det. Cst. Statham pull a small baggie from the applicant’s pant pocket. His evidence was that he placed the applicant in the back of Det. Cst. Statham’s car and then helped him search the applicant’s car. He agreed he was directed by Det. Cst. Statham to search the applicant’s car.
Analysis
a) Legal Framework
[40] The existence of racial profiling is no longer an issue. It is wrong and cannot be tolerated. It must be condemned.
[41] What do we mean by racial profiling? In R v. Brown, 64 O.R. (3d) 161, [2003] O.J. No. 1251 (QL) the court expressed the definition and the test for making a finding of racial profiling at paras. 7 and 44 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 contest, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
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.
[42] To be clear, racial profiling is not the same as racism. As it can be unconscious on the part of the officer, it can be difficult to prove, as there will rarely be an admission by an officer that s/he was engaged in racial profiling. In most circumstances, it must be proven by inferences drawn from circumstantial evidence. The onus is on the party alleging racial profiling to prove it on a balance of probabilities.
[43] Even if there is a legitimate purpose for the police conduct, such as stopping a vehicle for an HTA violation, that conduct or stop will be constitutionally tainted if there is any racial profiling involved in the police conduct: Peart v. Peel Regional Police Services, (2006), 217 O.A.C. 269 at paras. 91, 94 and R v. Dudhi, 2019 ONCA 665 at para. 59.
[44] In R v. Holloway, 2021 ONSC 6136, at paras. 41-61, my brother Justice D. E. Harris thoroughly discussed the general principles regarding racial profiling. At para. 41, he noted that there was both an attitudinal and behavioural component to racial profiling.
[45] In addressing the attitudinal component, he noted the following at para. 44:
Racial profiling is a direct product of the systemic racism afflicting our society. It has been almost thirty-years since the ground-breaking jury challenge decision in R. v. Parks (1993), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (Ont.C.A.). Doherty J. said in Parks at para. 54,
Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.
[46] Justice Harris also touched on, at para. 47, the social science with respect to the policing of black persons and referenced Le where the court concluded:
We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359).
[47] Justice Harris at para. 49 cited Peart, where Justice Doherty noted the following at para. 90 of that case:
A police officer who uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race is engaged in racial profiling: see Kent Roach, “Making Progress on Understanding and Remedying Racial Profiling” (2004) 41 Alta. L. Rev. 895 at 896.
[48] Justice Harris discussed the concepts of racial profiling and racial stereotypes and noted, at para. 51, that behind racial profiling lies a racial stereotype. In discussing stereotypes, Justice Harris commented as follows at para. 55:
Stereotypes divert scrutiny of individuals, replacing it with pat generalities. Stereotypes are by nature anti-evidentiary. They sacrifice looking at the individual for a ready-made general inference blind to the specifics. In dealing with the profiling of travellers who fit the modus operandi of drug couriers, on its face, a non-discriminatory mode of profiling, the Supreme Court said in Chehil at para. 40: “Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances.” The criminal law and the Charter have always emphasized the critical importance of sensitivity to the individual and to the evidence.
[49] Justice Harris then discussed the behavioural component of racial profiling and noted at paras. 60 and 61:
For a person with the racist attitude to avoid its pernicious effects, after recognizing its presence, self-corrective steps must be taken to ensure the behaviour underlying racial stereotyping is neutralized or at least minimized. In the jury selection process, the Supreme Court of Canada has recently recognized the importance of this self-reflective process: R. v. Chouhan, 2021 SCC 26 at paras. 49, 54, and 59. A capacity for introspection is indispensable. This varies a good deal from person to person.
The reflective, corrective mental process critical of one’s false racist intuitions is also to a significant degree situation dependant. Looking back on the acts of others, as lawyers and judges do in a trial context, is a perspective which benefits from the opportunity and the privilege of reflection. On the other hand, police officers engaged in law enforcement must think and act quickly. Their safety and that of others may hang in the balance. Little time is permitted for sustained reflection or for the recognition that racial stereotypes may be intruding on their judgment.
[50] It is unnecessary to find that an officer lied in order to make a finding of racial profiling: R v. Sitladeen, 2021 ONCA 303.
b) Was there Racial Profiling?
[51] The stopping of a motorist will be lawful and not arbitrary if it is made on reasonable grounds, or if it is made without grounds for a proper traffic purpose that is neither a ruse nor pretext. The stop will nonetheless be invalid and there will be a breach of s. 9 of the Charter if it is tainted by racial profiling to any degree: Sitladeen.
[52] I want to be clear that I do not find that Det. Cst. Statham was engaged in any conscious racial profiling. I accept his evidence that he believes that his decision to stop the applicant’s vehicle was not impacted by the applicant’s race. That does not end the analysis, however, as we now understand that people’s actions and beliefs can be influenced or motivated by unconscious bias. I must, therefore, determine whether an inference of racial profiling can be drawn from the totality of the circumstantial evidence surrounding the decision to follow and stop the applicant.
[53] I am mindful in reaching my decision that any allegation of racial profiling, even if it is unconscious, is a serious allegation.
[54] The attitudinal component of racial profiling suggested in this case is that Det. Cst. Statham relied on racial stereotypes that suggest a young Black man making a left turn must have been engaged in countersurveillance activities which suggests an involvement with criminal activity, particularly as he entered an isolated neighbourhood of high-end homes. The causational component requires that the raced-based thinking subconsciously played a role in Det. Cst. Statham’s decision to follow and then stop the applicant’s vehicle for an HTA stop. While that stop itself was justifiable, where race or racial stereotypes are used to any degree to select the suspect, it is racial profiling: Peart at para. 91.
[55] I start my analysis regarding my observations of Det. Cst. Statham. He testified in a forthright manner. He was not defensive when cross-examined, even when challenged with his prior testimony at the preliminary hearing or challenged with his notes. My only concern was an attempt to exaggerate his evidence in-chief with respect to the operation of the applicant’s vehicle at two key moments. My sense was that while he did not fabricate any evidence, Det. Cst. Statham exaggerated his evidence regarding the movement of the applicant’s vehicle at these two particular important moments to explain his concerns or suspicions regarding the manner in which the applicant was operating his vehicle prior to the HTA stop.
[56] There is no dispute that Det. Cst. Statham had an objective basis to stop the applicant’s vehicle. The uncontroverted evidence is that the applicant did not bring his vehicle to a complete stop at a red traffic light. Throughout the five minutes that Det. Cst. Statham followed the applicant, that is the only unlawful activity that was observed. When Det. Cst. Statham observed this rolling stop, he was aware that the operator of the vehicle was a Black male, having seen him at the four-way stop moments earlier.
[57] While I accept Det. Cst Statham’s evidence that his decision to run the applicant’s licence plate was done as part of his normal patrol activities, and not as a result of the applicant’s race, I am mindful that he made that decision having seen that the applicant was a young Black male. While that decision in and of itself would not rise to the level of a finding of racial profiling, it is part of the evidentiary matrix I have considered in concluding that the stop of the applicant’s car was tainted by racial profiling.
[58] I find that race unconsciously factored into the officer’s misperception that the applicant was undertaking a countersurveillance maneuver or “was up to something else” when he made a lawful left turn from Gore Road onto Fitzpatrick Drive. Up to that point, Det. Cst. Statham was following the applicant for a very short period of time and, again, the only concern he had with the applicant’s driving was the rolling stop through a red light, which I consider to be quite a ubiquitous driving maneuver many of us do from time to time. In my view, the officer was suspicious about a lawfully made left turn as he was subconsciously using the applicant’s race as an indicator of potential unlawful conduct. Up to that point, there was no other basis for his conclusion that this left turn was a “heat check” and that the applicant may have been “up to something else”.
[59] It is illogical that the failure to bring a car to a complete stop at a red light, in the absence of any other unlawful or concerning behaviour, could lay the foundation for the officer to become suspicious about a subsequent lawful left turn unless race, subconsciously, played a role in reaching that conclusion. Rather than consider that the applicant might have a reason for being in that neighbourhood, or making that left turn, Det. Cst. Statham immediately, in mere seconds, concluded that a regular left turn was “intriguing,” despite the applicant doing nothing suspicious up to that point other than failing to come to complete stop at a red light. It is also a stretch that the rolling stop was the basis for Det. Cst. Statham being suspicious that the applicant might be up to something else when he made the left turn. This accords with the idea that subconsciously, the officer was motivated by the applicant’s race and the negative stereotype that young Black males have a propensity for unlawful conduct.
[60] Several times, Det. Cst. Statham described this left turn as “quick”. I was initially left with the impression that this described the speed of the applicant’s car as he tried to avoid police detection. On cross-examination Det. Cst. Statham agreed that he did not use “quick” in his notes. He also agreed that the applicant activated his left turn indicator, slowed down, and made the turn safely and lawfully. My impression was that Det. Cst. Statham used the term “quick” rather than simply testify that the applicant made a left turn at the first street off of Gore Rd to support his view that the turn was suspicious.
[61] Det. Cst. Statham’s explanation for being suspicious about this left turn was based on his experience of seeing other drivers make immediate left turns as a “heat check” to detect if they are under surveillance by the police. While police officers are trained to detect countersurveillance measures undertaken by drivers, based on what the officer had observed of the applicant to that point, there was nothing to support his suspicion that the applicant was trying to do a “heat check” by making this left turn. I therefore reject his explanation for being suspicious about the left turn.
[62] When the officer saw the applicant stop his car briefly on Fitzpatrick Drive, he admitted that he made no other observation such as the car windows rolling down or anything being thrown from the car. Nonetheless, Det. Cst. Statham concluded that the applicant stopped his car to dispose of something from the car, which he agreed could have been drugs or a firearm. His concern that something might have been discarded led him to also briefly stop his police cruiser to look around the area.
[63] Again, up to that point, the only unlawful activity Det. Cst. Statham observed was the rolling stop.
[64] Just as I found the rolling stop was not a rational basis for Det. Cst. Statham to be suspicious of the left turn onto Fitzpatrick Drive, there was, similarly, no basis to be suspicious of the brief stop on Fitzpatrick Drive. I draw the same inference from this circumstantial evidence that Det. Cst. Statham’s suspicions that the applicant was attempting to discard something, resulted from unconscious racial profiling.
[65] Det. Cst. Statham also exaggerated the movement of the applicant’s vehicle after it stopped briefly on Fitzpatrick Drive. He testified that the applicant drove away “aggressively.” He agreed that he did not use that word in his notes but recorded that the applicant drove away at a higher speed.
[66] In my view, the use of the term “aggressive” when he testified was meant to convey the impression that the applicant was engaged in some kind of nefarious activity when he briefly stopped his car on Fitzpatrick Drive and was trying to evade police detection.
[67] It is also concerning that after observing a rolling stop, Det. Cst. Statham followed the applicant’s vehicle for five minutes, on a number of streets, making several turns, without attempting to stop the applicant’s car by activating his emergency lights. When Det. Cst. Statham eventually decided to stop the applicant’s car, not only did he activate his lights, but he also activated his emergency siren, which he testified he only does if a car does not respond to the lights. In this case, the evidence is that he activated both, without first attempting to stop the vehicle using only his emergency lights. Why did an HTA breach of failing to come to a complete stop at a stop light warrant such a response? The inference is that it resulted from racial profiling.
[68] Det. Cst. Statham could have activated his emergency lights immediately after he saw the applicant make a left turn on a red light without coming to a complete stop. His explanation that he wanted to get the MTO results first rings hollow because he ultimately made the stop without that information.
[69] Furthermore, I am not satisfied that the applicant was even aware that he was being followed by a police vehicle. The evidence is that the police car Det. Cst. Statham was driving was a “sleeper” car. While it had grey markings on it, it was purposely designed to be a vehicle that initially avoids the detection that a standard police cruiser would encounter. The only time the applicant would have seen the police vehicle was at the initial four-way stop. It is unclear to me if the applicant had time to make any observations of the officer’s patrol car at that intersection or if he saw the patrol car in his rear-view mirror and the word “police” in grey on the hood.
[70] Based on the totality of the evidence, I find that Det. Cst. Statham’s conduct, prior to the stop of the applicant’s vehicle, was subconsciously tainted by racial profiling.
Conclusion
[71] I have drawn the inference that racial profiling was involved in the stop of the applicant’s car from the totality of the following circumstantial evidence:
i) The decision to run the vehicle’s licence plate;
ii) The officer’s suspicion that the applicant was engaged in countersurveillance and may be up to something else based on a lawful left turn into a neighbourhood with high-end homes;
iii) The officer’s suspicion that the applicant was discarding something from his car, that he agreed could have been drugs or a firearm, when he saw the car stop briefly;
iv) The officer’s immediate activation of both his emergency lights and siren for a standard HTA stop in the absence of evidence that the applicant’s vehicle did not first respond to the emergency lights.
[72] Based on the totality of this circumstantial evidence, the inference I draw is that the officer’s conduct prior to the stop of the applicant’s vehicle, was subconsciously tainted by racial profiling. The applicant has met his onus on a balance of probabilities and the evidence is therefore excluded.
L. Shaw J. DATE: April 12, 2023
