Court File and Parties

Court File No.: CR-19-1427-0000 Date: 2024-04-29 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent/Crown And: Ian Edwards, Applicant/Accused

Before: Dennison J.

Counsel: S. Weinstock, for the Respondent S. Taraniuk, for the Applicant

Heard: February 5-9, 20, 21, 2024

Reasons for Judgment (Charter Ruling)

A. Overview

[1] The applicant is charged with importing approximately 23 kilograms cocaine.

[2] The applicant alleges that CBSA officers and RCMP officers violated his rights under sections 7, 8, 9, 10 and 15 of the Charter of Rights and Freedoms. The applicant seeks a stay of the proceedings pursuant to s. 24(1) of the Charter, or in the alternative that the statements and drugs be excluded pursuant to s. 24(2) of the Charter. I heard this application as a designated case management judge.

[3] The applicant’s application for a stay of proceedings is based on his submission that he was subject to racial profiling.

[4] The applicant deplaned from an Air Transat flight from Punta Cana the early morning hours of September 17, 2018. The applicant indicated that he was over his liquor exemption. Border Services Officer (“BSO”) Coughlin interviewed the applicant briefly and determined that he was not over the legal amounts to import. However, she had other concerns based on the short duration of the trip, the date he purchased his ticket, and his travel history. She sent him to secondary inspection for suspicion of narcotics.

[5] Another individual, Mr. Dobson, was also sent to secondary inspection for narcotics by another BSO officer. Both men were Black.

[6] Superintendent (“Supt.”) McNamara observed the applicant and Mr. Dobson leave the washroom and head to the baggage area. An inspection of the washroom by CBSA officers revealed a broken ceiling tile on the floor and a hole in the ceiling above. A subsequent search in the ceiling revealed several bags containing, what turned out to be, 23.8 kilograms of cocaine.

[7] BSO Cleave was working at the point between the baggage hall and secondary inspection. He was told to instruct the secondary officers to conduct more stringent exams at secondary to help identify the persons who hid the narcotics. At approximately 2:33 a.m., he approached BSO Ninyo, who was inspecting the applicant, and advised her to conduct a more thorough examination.

[8] Supt. Ryan received a call from Supt. McNamara at 2:50 a.m. advising that two narcotic referrals from primary had used the washroom where suspected narcotics were located. He attended the washroom and then went to secondary at approximately 3:00 a.m. At 3:28 a.m. Supt. Ryan attended at the counter where the applicant was being examined. He reviewed the applicant’s declaration card and passport. He participated in the examination of the applicant.

[9] Supt. Ryan testified that indicators of the applicant’s involvement in the importing included the purchase of the ticket days prior to the trip, the short duration of the trip, the similarity between the applicant’s and Mr. Dobson’s statements about their girlfriends and where the girlfriends worked and that he travelled to a known drug transit country. Supt. Ryan also stated that the fact the applicant was a Jamaican-born Canadian who travelled to another Caribbean country other than Jamaica was an indictor that added to his suspicion.

[10] At 4:15 a.m. Supt. Ryan instructed BSO Ninyo to arrest the applicant after he observed ceiling tile dust on the applicant’s shoulder.

[11] I find that BSO Coughlin did not racially profile the applicant. However, I do find that the applicant was subject to racial profiling by Supt. Ryan, and it is on this basis that the charges must be stayed. As a result, I need not to determine the other alleged Charter breaches or determine the voluntariness of the applicant’s statement.

B. Relevant Legal Principles

[12] In considering the issue of racial profiling, it is important to consider the context in which the racial profiling is alleged to have occurred.

[13] In this case, it is alleged that the racial profiling occurred when the applicant entered Canada. As explained by the Court of Appeal in R. v. Ceballo, 2021 ONCA 791, at para. 18, no one entering Canada reasonably expects to be left alone by the state. As such, routine inspection is not stigmatizing and allows a greater interference with the personal autonomy and privacy of a person than otherwise would be permitted. Questioning related to immigration issues is common, including questions about marital or employment status, income, the purpose of a trip or questions intended to probe the credibility of the answers a traveller has provided: R. v. Jones (2006), 2006 ONCA 740, at paras. 20-21; R. v. Sahota, 2009 ONSC 44280, at para. 6.

[14] Questioning a traveller at the border cannot be based on race. There is no dispute that anti-Black racism is prevalent in Canada and continues to be a reality in Canadian society. The courts have an obligation to take claims of racial profiling seriously: see R. v. Morris, 2021 ONCA 680, at para. 1; R. v. Musara, 2022 ONSC 3190, at para. 354.

[15] In R. v. Le, 2019 SCC 34, at para. 77, the Supreme Court reviewed the definition of racial profiling that it adopted in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39:

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.

Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis omitted; para. 33].

[16] There are two components of racial profiling. First is the attitudinal component. This relates to the acceptance by a person that race or racial stereotypes, are relevant in identifying the propensity to commit an offence: Peart v. Peel Regional Police Services Board (2006), 2006 ONCA 701, at para. 90, leave to appeal refused, [2007] S.C.C.A. No. 10.

[17] The second component is causation. The race-based thinking must consciously or unconsciously play a causal role. In other words, “the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment”: R. v. Dudhi, 2019 ONCA 665, at para. 55.

[18] The attitude that underlies racial profiling may be consciously or unconsciously held. Racial profiling is very rarely proven by direct evidence. Officers are rarely willing to admit that their decision to question an individual was based on race. Racial profiling will be proven by inferences drawn from the circumstantial evidence. There is no requirement that the court find that the state agent is lying to draw an inference of racial profiling: R. v. Sitladeen, 2021 ONCA 303, at paras. 43, 48-49, and 54.

[19] Where race or racial stereotypes are used to any degree to select the suspect, it is racial profiling. It does not matter if police had another justifiable basis to detain the individual as explained by Paciocco J.A. in Dudhi,

[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 SCC 838, 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. [Italics added; underlining in original].

[20] Ultimately, in considering if an officer engaged in racial profiling, the court must consider all the circumstances that led to an accused’s detention and/or arrest, and “determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law”: Sitladeen, at para. 54.

C. Did BSO Coughlin engage in racial profiling?

[21] The applicant submits that BSO Coughlin racially profiled the applicant when she sent him to the secondary inspection. The applicant truthfully believed that he had more alcohol to declare than he was permitted and rather than let him leave, BSO Coughlin conducted a more fulsome investigation. The applicant submits that this was done because he is Black.

[22] Counsel further submits that BSO Coughlin’s notetaking provides a further basis to find that she provided an after the fact justification for why she sent the applicant to secondary inspection. Supt. McNamara instructed BSO Coughlin to take notes and she only wrote five lines. It was not until much later that BSO Coughlin added in details to justify why she sent the applicant to secondary inspection. In addition, counsel submits that the reason she gave for not preparing more detailed notes earlier was that she was guarding the washroom, but the video contradicts her evidence as it shows her moving in and out of the area.

[23] The Crown submits that BSO Coughlin’s decision to send the applicant to secondary was based on a consideration of factors that the court expects customs officers to consider during an examination. Her role was not to resolve any questions about the applicant’s trip but to determine whether there was a basis for a more fulsome investigation.

BSO Coughlin’s evidence

[24] BSO Coughlin testified that she was at the triage desk in the primary inspection area at Pearson International Airport. Travellers would enter the customs area and insert their declaration form into the machine and get a receipt, which is called a PIK receipt. They then show it to an officer. If there were any issues, the officer would send the traveller to triage.

[25] At approximately 2:30 a.m. on September 17, 2018, the applicant was referred to BSO Coughlin who was managing the triage desk. She called him up to the counter and asked for his PIK receipt and passport, which he promptly provided.

[26] The PIK receipt indicated that the applicant had checked off that he exceeded his liquor exemption. BSO Coughlin was responsible for confirming whether the applicant exceeded his exemption limit. The applicant advised that he had two bottles. She asked him about the trip duration. She learned that he was traveling from Punta Cana, Dominican Republic on an Air Transat flight. She stated that she went through his passport to confirm his identity and when she quickly skimmed through, she noticed a lot of stamps within the last two years, and specifically that he had gone to Punta Cana three times within the last couple of months. Punta Cana, along with many Caribbean countries, is considered a drug source country. She determined that he was not over his exemption limit and acquitted him of having to pay any taxes or duty.

[27] BSO Coughlin stated that when she asked the applicant about where he was coming from, he was very quiet. She wanted to ask him further questions about his trip given his recent and frequent trips to drug source countries.

[28] BSO Coughlin testified that when she first meets a traveller, she tries to create a baseline of their behaviour. She noticed that when the applicant approached, he was sweating and a little out of breath. He was turning away from her but was able to answer the questions about the alcohol. When she started to ask more questions about his trip, his answers became vague and more unclear. She also noticed that he was sweating more, leaning against the counter, and she had to repeat the questions.

[29] BSO Coughlin asked the applicant the purpose of his trip. He said, “to hang out and eat.” She asked him if he travelled with anyone, and he said no. When she asked questions about where he stayed, the applicant mumbled, and she was not able to get a clear response. She asked him how long he was there. His voice was weak, but he stated he was there for four days. She also asked him when he purchased his ticket, and he stated it was two days before. When she asked him why it was such a short trip and booked only two days before, he said he had work. She did not think it was a clear response and found his response a bit odd. She explained that in her experience usually trips to the Caribbean are for 5 or 7 days. She asked him what he did for work, and he said he was a truck driver. She asked him when he was going back to work and he said Monday, which was the next day. She asked him where his next drive was, and he said that he works with an agency. Throughout these questions and answers he mumbled, and his responses were slow.

[30] BSO Coughlin also asked the applicant if he met anyone or had friends and family in Punta Cana. After a pause, he said he had a girlfriend there. When asked how long they had been together he stated, “a couple of months.” She referred to his passport and asked if he met her in June or if they were already together. He seemed unsettled and said yes. She asked which of her questions he was answering, and he said they weren’t together. “I didn’t meet her then”. He stated that they met online, and he told her quietly “it was Tag”. She was not sure if she heard him correctly. He kept turning away and it was difficult to get full responses. At that point, she stated that she believed a secondary examination was warranted as further clarifying questions were needed. This interaction was about five minutes.

[31] BSO Coughlin explained the factors that led to her decision to send the applicant to secondary. She stated that after having a baseline and introductory discussion his voice dropped off, he mumbled, and he was not responsive to all the questions. She stated that he did not know information about his trip, and it was hard to get information out of him. She found this odd and out of the norm that he did not answer her questions, as travellers are generally aware that they may have to answer some questions about their trip and where they stayed. He had taken several trips to a drug source country in recent months. Another factor was that he had travelled to a drug source country for only four days and bought the ticket only two days before the trip. She explained that she found this odd, as in her experience, people tend to plan ahead and do not generally book vacations so last minute. She also found it odd that he did not know where he stayed on vacation and that he did not know where he was working when he returned home. She stated that all these reasons led her to believe it warranted a more thorough examination which could occur in secondary, where there is more time and a suitable space for a more fulsome conversation.

[32] BSO Coughlin denied the suggestion that the applicant’s race influenced her decision to send him to secondary inspection. She agreed in cross-examination that his distinguishing features were that he was a tall, large Black male.

[33] BSO Coughlin testified that she did not know if the applicant had any medical conditions when she interviewed him. She agreed that his sweating and breathing heavy could be because of his weight. She did not know how far he walked in the airport. She also agreed that he was heavier than most people and that may be a possible explanation for why he was leaning on the podium. She also agreed that he did not have to declare that he had an overage of alcohol. She agreed that other than declaring an overage of alcohol he had been cleared to go when he approached her.

[34] BSO Coughlin also agreed that at the preliminary hearing she couldn’t recall details about the drug source countries he had been to. She stated that it was because she did not have access to his full passport at that time. She also agreed that most countries in the Caribbean are drug source countries. She stated that she kept asking questions so she could negate her concerns, but the indicators kept building.

[35] BSO Coughlin also stated that learning that his place of birth was Jamaica allowed her to understand why he may have travelled there frequently. She stated that he was the only person that she sent to secondary for narcotics on that shift.

Analysis

[36] I am not satisfied on the balance of probabilities that BSO Coughlin engaged in racial profiling when she decided to send the applicant to secondary.

[37] I found BSO Coughlin to be a very credible witness. She answered the questions put to her in a forthright and fair manner. There were no significant inconsistencies within her evidence or any prior inconsistent statements.

[38] BSO Coughlin clearly set out her reasons for why she sent the applicant to secondary. Those reasons included:

1. After a brief review of his passport, she noticed that he had gone to Punta Cana three times within the last couple of months. The Dominican Republic is a drug source country.
2. He was only in Punta Cana for a short time.
3. He purchased the ticket two days before departure.
4. After she asked him baseline and introductory questions, his voice dropped off, he mumbled, and his answers were not responsive to her questions.
5. He could not recall where he stayed.
6. She found it odd that he did not know where he was working on Monday.
7. He was sweating, leaning on the counter, and was turned away from her.
8. His answers were vague when asked if he was travelling with anyone or meeting anyone in Punta Cana.

[39] Given these factors, it was more than reasonable that BSO Coughlin decided to send the applicant to secondary because she felt that clarifying questions needed to be asked. There is no evidence to suggest that the reason she sent him to secondary was based on his race. The applicant was the only person she sent to secondary for narcotics on that shift. There is no evidence as to how many other Black travellers she dealt with that day or how she treated them.

[40] The applicant’s counsel suggested that BSO Coughlin should not have relied on the fact that the applicant was sweating or out of breath given that the applicant is a large man. While I agree he could have been sweating and out of breath because he was overweight, or for other medical reasons, BSO Coughlin was not required to eliminate other reasonable explanations for the applicant’s behavior. That was the purpose of sending the applicant to secondary - to have an officer flush out some of BSO Coughlin’s concerns. She was not required to seek out exculpatory factors at a primary inspection: R. v. Chehil, 2013 SCC 49, at para. 34.

[41] I also do not accept the applicant’s submissions that the way BSO Coughlin created her notes permits an inference that she sent the applicant to secondary based on racial profiling.

[42] The cross-examination of BSO Coughlin focused on what was and was not in her notes at the various times she made notes. Counsel for the applicant submits that BSO Coughlin exaggerated her observations of the applicant in her final narrative report. At that point she knew that the applicant had been arrested for importing cocaine and therefore, her evidence that refers to things contained in her narrative report should be given no weight.

[43] I begin by noting that a CBSA officer’s notes are not evidence. Officers create notes to assist in refreshing their memory. In this case, given that seven years had passed, all the officers had to rely heavily on their notes to refresh their memory.

[44] BSO Coughlin did not make contemporaneous notes when she interviewed the applicant at the triage counter. The first time she made any notes was at 3:15 a.m. At that time, the suspected narcotics had been discovered in the washroom. Her supervisor told her to make notes. She stated that she made tactical notes and at the same time was supervising the area to ensure the safety of the officers, as members of the public were still present. It appears from the video that BSO Coughlin was also speaking to various officers and entered the secondary area at different times. I do not view this inconsistency to be significant given the passage of time and that the video shows that she was in the area doing various things.

[45] At 5:09 a.m., BSO Coughlin added more notes including that the applicant was a Canadian citizen.

[46] BSO Coughlin did a further entry at 7:10 a.m., after CBSA officers arrested the applicant. In that entry, she noted,

“Canadian male from Jamacia. Frequent trips to drug source. Perspiring and avoiding eye contact when asked about trip. 4-day trip “Why so short?” “I have to work” PAX “what do u do? “Truck driver” “when do you go back.” “Monday” after hesitating, “what’s your next drive” “Uhh, well I work for an agency. When asked about June trip to Dominican Republic, asked PAX “were you with your girlfriend at that time” is this when you met her? “yes” “to which question” “well no I wasn’t with her then. I met her online.” When asked about frequent travel (recent) PAX stated it was for the same thing to “hang out, eat.”

[47] The final set of notes prepared by BSO Coughlin was her narrative. This was prepared sometime after 7:10 a.m. She explained that she used her notes to help jog her memory and to create a detailed narrative when everything was still fresh in her mind. In the narrative, she noted the facts mentioned previously and added that his body was angled away from the podium. She also stated that throughout the interview, the subject spoke reluctantly and at a low volume with minimal details showing lack of knowledge. The applicant points to the fact that in her notes, the only time she mentioned the applicant was hesitant was in response to one answer, and in her narrative, she stated that he spoke reluctantly. I do not view this as a significant inconsistency.

[48] The narrative provided some additional details that were not in the original notes. For example, the narrative states that the subject was unable to provide details as to where he stayed. She noted that she asked questions about work and “at this point, the subject’s responses were delayed and were spoken with hesitation.” She noted that during the interview the subject was sweating, and his body was angled away from her and facing towards the podium. When asked about his girlfriend she noted that he shifted his weight. When asked what site on which they met, “the subject hesitated and quietly replied ‘Tag’.”

[49] Counsel for the applicant also submits that the narrative is out of order in comparison to the notes she made earlier. I do not view these factors as significantly impacting the reliability or credibility of BSO Coughlin’s evidence as a basis to suggest that she engaged in racial profiling when she sent the applicant to secondary.

[50] The applicant has not met his onus in demonstrating that BSO Coughlin engaged in racial profiling.

D. Did Supt. Ryan engage in racial profiling?

[51] The applicant also submits that Supt. Ryan engaged in racial profiling. Supt. Ryan stated that in his experience, Jamaican-born Canadians do not travel to other Caribbean countries. He used his perception as an indicator, along with other indicators, in forming his suspicion that the applicant imported the cocaine.

[52] The Crown submits that Supt. Ryan did not engage in racial profiling when he approached the applicant. He approached the applicant based on the information he knew at the time, which was that two males who had been coded at primary for narcotics had been seen in the men’s washroom by two cleaners. Shortly thereafter, narcotics were found in the ceiling of that washroom.

[53] The Crown submits that Supt. Ryan did not use race either consciously or unconsciously as an indicator of potential criminal conduct. Rather, he noticed an aberration from a typical travel pattern. He did not link the applicant’s race to criminality and therefore there was no racial profiling.

[54] Finally, the Crown submits that Supt. Ryan asked the applicant similar questions to BSO Coughlin and BSO Ninyo. The Crown submits that this points to Supt. Ryan using a reasonable objective basis commonly used by all officers to examine the applicant, as opposed to the influence of racial profiling.

Evidence of Supt. Ryan

[55] At approximately 2:50 a.m., Supt. Ryan received a radio call from Supt. McNamara that something was taking place in the men’s washroom in the baggage hall and asked him to attend.

[56] When he got to the washroom, he saw that a ceiling tile had been removed. He was advised that there were two people coded for narcotics that were seen by the cleaners in the washroom. At some point, he learned that one of the males was in the stall and the other was moving stuff in his luggage. The officers requested a ladder and located four bags of suspected narcotics in the ceiling. He did not have any other knowledge about the males. He disagreed that Supt. McNamara provided him with a more fulsome description of the males, including their race.

[57] At 3:06 a.m., Supt. Ryan observed two males being examined at different counters in secondary. The applicant was at counter 1. Mr. Dobson was at counter 7. Supt. Ryan looked at both men’s declaration cards and passports and determined that they had been referred for narcotics. He agreed that he had a suspicion that the applicant and Mr. Dobson were involved with the narcotics once he confirmed that they were the individuals that been sent to secondary as narcotic referrals. He focused his investigation on the two males. He agreed he was not conducting his average secondary inspection and they were not permitted to leave.

[58] Supt. Ryan listened to BSO Ninyo examine the applicant and asked some clarifying questions. He did not believe that he had reasonable grounds to arrest either male at this time. He suspected they were involved but he could not fully link either male to the narcotics. He stated that he was looking for indicators that either party was involved and potentially linked to the narcotics found in the bathroom.

[59] Supt. Ryan explained that indicators are different things, generally common things, that if you see one on its own is not that important but when you put a whole combination of them together it raises the level of suspicion.

[60] He indicated that he gathered information from the PIK receipt and passport. He knew the applicant was a Canadian citizen and that he was born in Jamaica. He saw the stamps of his journeys. He confirmed that the applicant bought the ticket on September 12 and that it was purchased by his friend Bob Rae who paid for it as a favour. The applicant stated he was going to meet his girlfriend who he met through Plenty of Fish. He had known her for two months and she worked at a bar.

[61] The indicators that raised Supt. Ryan’s suspicion were that the ticket for the trip was purchased two days prior to the trip. He explained that trips are often planned in advance. That is not to say that they cannot be bought spontaneously. In this case, there were also two persons who said they did not know each other but had both purchased their tickets last minute and had the same story about going to see a girlfriend who worked at a Spanish bar. He found this unusual.

[62] He also considered that the duration of the trip was short given the distance and cost.

[63] The fact that the applicant had travelled to the Dominican Republic was also relevant as it is a drug source country.

[64] Supt. Ryan testified that the fact that the applicant was born in Jamaica was relevant. In his experience, someone of Jamaican background travels to Jamaica rather than other Caribbean countries. This was also an indicator for him.

[65] Supt. Ryan stated that the information that the applicant was a Jamaican-born Canadian and travelled to the Dominican was not indicative of any criminality. He stated it was just another piece of information that stood out as being unusual. Supt. Ryan stated that the fact that the applicant was Black had no bearing. It was simply the travel pattern that was relevant.

[66] In cross-examination, Supt. Ryan stated that there were people of certain nationalities that would go back to the country of origin more so than others. He gave the examples of Nigeria and Ghana. He stated that a person born in the United Kingdom who moves to Canada and decides to travel to a place other than the U.K. would not on its own be an indicator. Supt. Ryan testified that there is nothing suspicious on its own with the fact that a Jamaican born Canadian travels to another Caribbean country, but it could always be an indicator when considered with other indicators.

[67] At some point, Supt. Ryan asked both men if they used the washroom. The applicant said he was in the washroom for three minutes. Mr. Dobson also admitted that he was in the washroom.

[68] Supt. Ryan stated that at approximately 4:15 a.m., Supt. McNamara contacted him and told him they found a boarding pass stub for Mr. Dobson in the washroom and that there were specks of ceiling tile on the floor. He was instructed to look at the men’s shoulders to see if there was any ceiling tile dust on them. Supt. Ryan observed dust on the applicant and instructed BSO Ninyo to arrest the applicant.

Analysis

[69] As set out above, racial profiling occurs where action is taken by a person in authority that is based on actual or presumed membership in a group that is 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 different treatment or scrutiny: Le, at para. 77.

[70] I find that Supt. Ryan engaged in racial profiling, based on national origin and race as I will explain.

[71] The risk of relying on stereotypes or profiles was discussed by the Supreme Court of Canada in Chehil. The Court stated that speaking of “profiling” as generating reasonable suspicion suggests “an assessment based on stereotyping and discriminatory factors, which have no place in the reasonable suspicion standard.” Rather, the analysis must remain focused on whether “the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion”: at para. 39.

[72] The Court agreed that characteristics identified by a police profile can be considered when evaluating reasonable suspicion. In Chehil the profile characteristics included that the appellant was one of the last passengers to purchase his ticket, he paid cash and checked one bag. The Court held that none of these factors raised any issues of discriminatory profiling.

[73] Importantly, the Court stated that profile characteristics must be approached with caution because they risk undermining a careful individualized assessment of the totality of the circumstances: at para. 40. The court cautioned that “courts must be wary that factors arising out of police experience are not in fact stereotypical or discriminatory”: at para. 42. In paragraph 43 of Chehil, the Court stated,

the elements considered as part of the reasonable suspicion analysis must respect Charter principles. The factors considered under the reasonable suspicion analysis must relate to the actions of the subject of an investigation, and not his or her immutable characteristics. [emphasis added].

[74] In this case, Supt. Ryan relied on a stereotype based on the applicant’s immutable characteristics in forming his suspicion that the applicant imported cocaine. Supt. Ryan testified that in his experience he noticed that Jamaican-born Canadians travelled to Jamaica as opposed to other Caribbean countries. He further explained that because the applicant was a Jamaican born Canadian who travelled to another Caribbean country this was an indicator, that when taken with other indicators, added to his suspicion that the applicant was engaged in criminal activity. Supt. Ryan was asked and answered the following questions on this issue,

Q. And I can’t recall if you said this, but did you recall at any point, or pardon me, did you become aware at any point of where he was born?

A. Yes, on the passport it mentioned he was born in Jamaica.

Q. Okay. Was that information of any relevance to you?

A. It was. Um, typically what I have seen through my work is that some people of certain nationalities will go back to their – the country they were born, um, more so than others. It’s – not to say that somebody can’t necessarily travel to other countries, but it’s just, there’s typical things that you see through, through experience.

Q. And so, in this context, why was that relevant to you?

A. Through my experience, mostly somebody of Jamaican background, travels to Jamaica, as opposed to other countries in the Caribbean.

Q. So, was that an indicator to you?

A. It was.

Q. Was that, was that piece of information, and by that, I mean that Mr. Edwards was Jamaican and or is Jamaican and was travelling from the Dominican Republic, was that indicative of any kind of criminality to you?

A. No.

Q. Okay. So, standing on its own, what did that mean to you?

A. Ah, it was just another piece of information that stood out as being unusual.

Q. Um, once you had gathered all of the information that we’ve gone through up until this point from your examination and review the documents, where did that piece of information fit into the matrix of information that you knew?

A. The last piece of...?

Q. The same one I was asking before about his being born in Jamaica and then travelling to the Dominican Republic.

A. It was just another piece of information that added into the unusualness and, as indicators that necessarily on their own do not make somebody suspicious, but when you group them all together, it starts to add to the suspicion. And once again, the fact I have two different people who said they did not know each other, standing a couple of counters apart with the same story and the same indicators, increased the level of suspicion.

Q. This, just going back a moment, I think I’m not going to be able to repeat your exact wording, but I believe you had said something about noticing people of different nationalities, you know, tending to go to certain countries or to their place of origin.

A. Right.

Q. How is it that you kind of come to be aware of that type of information?

A. Mostly through experience of having, as an Officer working in primary and having spoken with well over 100,000 passengers. And just getting the experience of listening and talking to them and seeing where people are going to and coming from.

Q. Um, the fact that Mr. Edwards is a Black person, did that, was that an indicator to you?

A. Not at all.

Q. The fact that he was a person of Jamaican descent, leaving aside the travel pattern, did that mean anything to you in terms of an indicator?

A. Ah no, no outside of the travel pattern, no.

[75] Supt. Ryan relied on a stereotype based on national origin to expose Jamaican-born Canadians to different treatment and scrutiny. There are no independent studies to support his perception that Jamaican Canadians travel to Jamacia and not other Caribbean countries or that they are more likely to return to their country of origin than any other national.

[76] I also find that Supt. Ryan unconsciously used national origin as a proxy for race. As recognized in Peart, racial profiling is seldom proven by direct evidence, but must be inferred from the circumstances surrounding the state action. Jamaica has a predominantly Black population. [1] Supt. Ryan testified that he had made similar observations about Ghanaians and Nigerian-born persons, which also have predominately Black populations. He did not make any observations of any countries that did not have predominantly Black populations. From this, I infer that his perceptions were not only based on national origin but were also based on race. Supt. Ryan testified about his perceptions as follows:

Q. …And what you indicated that is that one of the indicators that you considered, with respect to your investigation was with Mr. Edwards, pertains to your experience as a customs officer, or and superintendent, that people of Jamaican birth, who are Canadian citizens, in your estimation, from your experience, don’t travel to, to countries for instance, like the Dominican Republic. They usually go home to the Island of Jamaica for the purpose of – the country of Jamaica for the purposes of travel.

A. Often that’s what I see, yes.

Q. Okay. And but it’s fair to say that you described that as an indicator. Right?

A. Yes.

Q. Okay. And when you say it’s an indicator, it’s one of those facets or one of those pieces of information that, that makes Mr. – a person like Mr. Edwards suspicious to you?

A. On its own, no.

Q. But that’s not the question that I asked. I said it’s one of the indicators that makes Mr. Edwards suspicious to you?

A. It is, yes. It’s one of the items.

Q. All right….And what you say, as a result of your experience, is that Jamaicans don’t normally go to other islands, and by that you mean islands in the Caribbean or Caribbean, where they travel is back home to Jamaica. Right?

A. Often, that’s what I see, yes.

Q. Okay. And as I understand it, your experience doesn’t just extend to Jamaicans; in fact, in your experience, a person that was born in Nigeria, that’s a Canadian citizen wouldn’t also travel to Central America or the Caribbean? They go back home. Is that right?

A. There’s nothing to prevent that from happening. But typically, from my interaction, with what I’ve seen was when somebody from certain - different countries go on vacation, they often go back to the country where they were originally born, but there’s nothing to prevent them to go to any country.

Q. I understand that, but what my concern is that you described these sorts of travel activity as indicators. Right?

A. Right.

Q. Okay. And so, it’s sure enough there’s nothing stopping them from going, but there is certainly something, at least in your mind, that raises a certain level of suspicion with these individuals born in Jamaica, Canadian citizens, born in Nigeria, Canadian citizens, that travel to places other than where they were born?

A. There is things that have caused that suspicion, yes.

Q. Okay. And if you recall, you also testified that at the preliminary inquiry, have you reviewed the preliminary inquiry transcript?

A. I have.

Q. Okay. You also said that you recall that my co-counsel at the time, Mr. Hayworth, was asking you questions about this area. Correct?

A. Yes, I do.

Q. All right. And you also - he asked you to - whether any other countries spring to mind that where people who are Canadian citizens of that extraction, travel back to the countries that they’re from and what you indicated was Ghana. Correct?

A. That’s right.

Q. Okay. And so once again, if somebody who is Ghanese and originally and came to Canada, became a Canadian citizenship, and was, was traveling to a destination other than Ghana, then that would be some - one aspect that would raise suspicion. Is that fair?

A. If there was other things along with it, yes.

Q. Well, but it’s still one aspect that stands out that raises suspicion. Correct?

A. It – it can be one aspect, yes.

Q. And um, but you recall that when he was asking you if it was a person who was born in Britain, who is now a Canadian citizen, you indicated to my friend at that point in time that British people travel all over the world. Right?

A. They do and they also travel back to the UK for - to visit family and....

Q. ….If there’s a person who is born in Britain, moves to Canada and then decides to travel to a place other than the UK, is that something that would raise suspicion in your mind?

A. On its own, no.

[77] The fact that Supt. Ryan had reasonable objective grounds to approach and suspect the applicant of importing cocaine is of no moment. Supt. Ryan relied on his perception of persons of certain national origin and race should travel as an “indicator” in suspecting that the applicant imported cocaine. Supt. Ryan explained that indicators,

…are different things that are generally common things that exist which maybe if you just see one of them on its own is not that important it could be negated as something but when you put a whole combination of things together it raises the level of suspicion.

[78] The Crown submits that indicators are different from grounds to suspect. The Crown submits that in this case, Supt. Ryan noticed something that was uncommon in his experience, and it caught his attention. While his experience may be based on groups of people’s national origin, the Crown submits that the use of this fact is too tenuous to make a finding of racial profiling.

[79] I disagree. Supt. Ryan relied on a personal perception base an immutable characteristic and used that to help form a reasonable suspicion. While Supt. Ryan testified that the applicant being a Jamaican-born Canadian who travelled to another Caribbean country was not indicative of any criminality, this cannot be reconciled with the definition of indicators he provided to the Court. He stated that the fact that a Jamaican-born Canadian travelled to another Caribbean country was an indicator or factor that he used in forming his suspicion that the applicant was engaged in criminal activity. That is racial profiling.

[80] Contrary to the Crown’s submission, relying on generalizations about how persons of certain national origin or race travel to form a suspicion is different from relying on answers a traveller provides to questions about marital or employment status, income, or the purpose of a trip. The answers given by a traveller may be used to form a reasonable suspicion because they are based on the actions of the particular traveller. In contrast, reliance on how a group of a certain national origin or race travels is not based on the actions of a particular traveller but are based on a stereotype of how that group travels: R. v. Ceballo, 2021 ONCA 791, at para. 21, referring to Jones, at paras. 20-21 and Sahota, at para. 6.

[81] I take no issue that travel patterns of a particular traveller could be used as an indicator that raises a suspicion. What I take issue with is investigating officers relying on a perceived travel pattern based on national origin or race and using that as an indicator of criminal activity. There would have been nothing improper had Supt. Ryan testified that he reviewed the applicant’s passport and noticed that the applicant routinely travelled to Jamaica and very recently and repeatedly travelled to a different country that was a recognized drug source country. Similarly, if a traveller repeatedly travelled to the U.K. and then started to take short trips to Amsterdam, which is a drug transit country, this could be used an indicator when considered alongside other factors to raise a suspicion of criminal activity. In the examples provided, the travel pattern is the actions of a particular traveller as opposed to an assumed travel pattern based on national origin or race.

[82] Relying on individual travel patterns as opposed to a national origin or race-based travel pattern is an important distinction. If a travel pattern based on national origin or race is permitted to be relied upon as an indicator of criminality, it means that any time any Jamaican-born Canadian travels to a Caribbean country other than Jamaica, this fact may be considered in grounding a suspicion of criminality. This in turn means that Jamaica-born Canadians who travel to other Caribbean countries are at greater risk of being sent to secondary inspection or having a suspicion formed by an officer based on national origin or race. That is discriminatory and is not acceptable.

Conclusion

[83] I am satisfied that the attitudinal component and causal component required for racial profiling have been proven on the balance of probabilities.

[84] Supt. Ryan used his perception that because the applicant was a Jamaican-born Canadian who did not travel to Jamaica, that it was an indicator that the applicant was up to something nefarious.

[85] The causal component is also satisfied because Supt. Ryan stated this was an indicator that he relied upon in forming his suspicion that the applicant imported cocaine.

[86] The applicant’s s. 7 and s. 15 Charter rights were therefore violated. The Crown readily concedes that if I were to find racial profiling then the proper remedy is to stay the charges pursuant to s. 24(1) of the Charter. I agree. This is a case where the conduct engaged in is an offence to society’s notions of equality, fairness, and human dignity. Proceeding with the trial given this conduct would harm the integrity of the criminal justice system regardless of whether the trial would be fair. The Court cannot condone this type of conduct and must send a clear message that such conduct is not acceptable and cannot continue in the future: R. v. Babos, 2014 SCC 16, at paras. 35-36, 41.

[87] Given my finding that the charges must be stayed, I need not determine if the applicant’s s. 10(b) Charter rights were also violated and need not determine if the statements and drugs should be excluded pursuant s. 24(1) of the Charter.

Dennison J. Released: April 29, 2024

[1] UNdata | record view | Population by national and/or ethnic group, sex and urban/rural residence