Garfield Peart & Earle Grant v. Peel Regional Police Services Board, Officer S. Ceballo, Officer Pedler, 2006 ONCA 37566

DATE: 20061108

DOCKET: C40334

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE and ROULEAU JJ.A.

B E T W E E N :

GARFIELD PEART & EARLE GRANT

Osborne G. Barnwell for the appellants

Appellants (Plaintiffs)

• and -

PEEL REGIONAL POLICE SERVICES BOARD, OFFICER S. CEBALLO (BADGE NO. 1491), OFFICER PEDLER (BADGE NO. 1702)

Kenneth R. Harris for the respondents

Sheena Scott and Royland Moriah for the intervenor, African Canadian Legal Clinic

Respondents (Defendants)

Heard: April 10, 2006

On appeal from a judgment of Justice George D. Lane of the Superior Court of Justice entered on June 23, 2003; reported at [2003] O.J. No. 2669, supplementary reasons at [2003] O.J. No. 5979.

DOHERTY J.A.:

I

Overview

[1] The appellants commenced two separate actions against the respondents. They claimed general, aggravated, and punitive damages for alleged police misconduct arising out of their apprehension and arrest on December 1, 1997. The actions were tried together over several weeks between November 2002 and January 2003. For reasons released in June 2003, the trial judge dismissed both actions.

[2] The appellants raise four issues on the liability component of their appeals. They contend that:

♦ the trial record supplemented by the affidavit of the appellant, Mr. Grant, reveals a reasonable apprehension of bias;

♦ the appellants were denied a fair opportunity to respond to certain issues raised by the trial judge in his reasons and decided against the appellants;

♦ the trial judge erred in fact and law in rejecting the appellants’ claim that they were the victims of racial profiling throughout their encounter with the police; and

♦ the trial judge made palpable and overriding errors in his fact finding.

[3] The appellants also submit that the trial judge’s assessment of general damages for each appellant ($5,000) was so low as to constitute reversible error. They ask this court to substitute the correct findings of fact, and to award appropriate general damages as well as substantial aggravated and punitive damages.

[4] The African Canadian Legal Clinic (“ACLC”) intervenes with leave of this court. It makes submissions on the issue of racial profiling, the application of the reasonable apprehension of bias test in the context of a case involving allegations of racial bias, and the principles governing the assessment of damages for Charter breaches.

[5] The respondents resist the appeals. They contend that the allegations of a reasonable apprehension of bias and procedural unfairness are baseless. They also submit that the trial judge properly understood the concept of racial profiling, considered the relevant evidence, and made findings of fact that negated the contention that the appellants were subjected to racial profiling. The respondents submit that the trial judge made no error in this aspect of his fact finding. With respect to the other alleged factual errors, the respondents contend that the case turned almost entirely on the trial judge’s assessment of the evidence and, in particular, the credibility of the appellants and respondents. The respondents maintain that the trial judge’s reasons demonstrate a strong grasp of the relevant evidence and a careful consideration of that evidence. They submit that none of the trial judge’s material findings of fact are tainted by palpable and overriding error.

[6] I would dismiss the appeals. The allegations of a reasonable apprehension of bias and unfairness by the trial judge are devoid of merit. The trial judge appreciated the existence and nature of racial profiling. Whether it occurred in this case was essentially a factual finding. I see no error in the trial judge’s treatment of the evidence relevant to the racial profiling issue. His ultimate conclusion that the appellants were not racially profiled was a reasonable one on the facts as found by the trial judge.

[7] The appellants’ attack on the trial judge’s other findings of fact goes no further than to demonstrate that on the evidence there was ample room for reasonable disagreement with some of the factual conclusions arrived at by the trial judge. This court does not and cannot retry cases, but must defer to the trial judge’s factual findings absent clear and overriding error. The appellants have failed to demonstrate any such error.

[8] As I would affirm the dismissal of the actions, I do not reach the issues concerning the assessment of the appellants’ alleged damages.

II

The Positions of the Parties

[9] The actions arise out of an encounter between the appellants and police officers, including the respondents Ceballo and Pedler (“Officer Ceballo” and “Officer Pedler”, respectively). The police officers are employed by the respondent, the Peel Regional Police Services Board (the “Board”). Race is central to the appellants’ allegations. Mr. Grant and Mr. Peart are black Canadian men of Jamaican descent. Officer Ceballo is black. He was born in Canada and his parents are from Trinidad. Officer Pedler is white.

[10] On December 1, 1997 at about 3:25 a.m., Mr. Grant and Mr. Peart were in a 1987 white Honda Prelude driving westbound on Dundas Street near Dixie Road in Mississauga. Dundas Street is a main east/west artery and Dixie Road is a main north/south street. The vehicle belonged to Mr. Peart, but was registered in the name of his cousin who lived in Downsview, several kilometres from Mississauga. Mr. Peart and Mr. Grant were driving to Mr. Peart’s residence, less than two kilometres away.

[11] On the appellants’ evidence, just after their vehicle passed Dixie Road, Mr. Peart told Mr. Grant to turn into the gas station to fill up the tank. Mr. Grant turned sharply into the station on the south side of Dundas. While they were filling the vehicle, a police car drove through the station.

[12] After the gas tank was filled, Mr. Peart decided that he would drive. He pulled out of the gas station and proceeded westbound on Dundas Street. Both appellants acknowledged that Mr. Peart was driving in excess of the speed limit. He habitually drove above the speed limit. Mr. Peart became aware that a police vehicle with its lights flashing and siren sounding was following them. Mr. Grant was concerned with the way Mr. Peart was driving and asked him why he was driving so fast. Mr. Peart said the police were behind him.

[13] Mr. Peart, testified that he feared the police because of prior dealings with them and that he was afraid he would be killed if he was pulled over by the police. Mr. Peart decided not to stop and to continue to his home a short distance away. He felt it would be safer for him to stop there. He drove his vehicle along various streets until he arrived at his driveway in front of his home seconds before the police vehicle driven by Officer Ceballo. Mr. Peart conceded that he had gone through at least one stop sign.

[14] Mr. Grant and Mr. Peart testified that they were ordered out of the vehicle at gunpoint and placed under arrest. They were never advised of their right to counsel. Mr. Grant and Mr. Peart were taken to the police station in different cars and separated while at the station. Both testified that they were assaulted by various officers, including Officer Ceballo.

[15] Mr. Grant testified that he was strip searched. Mr. Peart said he was not strip searched.

[16] Mr. Peart testified that in the course of his detention, Officer Pedler coerced him into serving as a police informant. Mr. Peart identified the only person he knew who might have some involvement in the drug trade. He was later threatened by this individual.

[17] Neither Mr. Grant nor Mr. Peart were charged with any offence when they were released at about 6:30 a.m., some three hours after their arrest.

[18] Both appellants visited their doctors within hours of their release by the police. They testified that the injuries they reported to their respective doctors and described in the doctors’ medical records were caused by various assaults by the police after their arrest.

[19] Mr. Grant and Mr. Peart claim that the police did not have reasonable grounds to run a computer check on their vehicle, follow their vehicle, arrest them, take them to the police station, hold them there for several hours, or search them. They contend that their mistreatment, including the coercion of Mr. Peart into acting as a police informant, was the product of racial profiling and overtly racist actions by various police officers, including Officer Ceballo and Officer Pedler. The appellants contend that the officers assumed because Mr. Grant and Mr. Peart were two young black men out in the early morning hours, that they must somehow be involved in “guns and drugs”. They contend that this assumption drove the officers’ treatment of the appellants throughout the incident.

[20] The police officers gave a very different version of the relevant events. Officer Ceballo testified that he was stopped southbound at a traffic light at Dixie and Dundas when he saw the appellants’ vehicle go past him travelling westbound on Dundas. Officer Ceballo was on routine traffic patrol. He decided to run a computer check on the appellants’ vehicle. According to Officer Ceballo, when he was on patrol and had time, he routinely ran computer checks on licence plates. This was especially true at night when there was little traffic. Officer Ceballo also testified that Honda Preludes, the model of vehicle driven by the appellants, are known to be easily stolen and that car theft was a prevalent problem in the area.

[21] Immediately after Officer Ceballo inputted the appellants’ licence plate number into his computer, the appellants’ vehicle turned across Dundas Street into the gas station. Officer Ceballo parked his vehicle across the street from the gas station so that he could watch the vehicle until he received the results of his computer check. While he was watching the vehicle, Officer Ceballo received information on the computer indicating that the vehicle was registered to a person in Downsview and that it had not been reported stolen.

[22] During his examination-in-chief, Officer Ceballo said that he was unsure whether he realized that the occupants of the vehicle were black before they got out of the vehicle at the gas station. In cross-examination, Officer Ceballo was confronted with his evidence on discovery. On discovery, he had testified that he knew the appellants were black before they got out of their vehicle. Officer Ceballo accepted the accuracy of his discovery evidence.

[23] Officer Ceballo testified that he saw the person who had been sitting in the passenger seat get into the driver’s seat and the former driver sit in the passenger seat. Much to Officer Ceballo’s surprise, the vehicle pulled out of the gas station at a high speed and accelerated to an even greater speed going westbound on Dundas Street. The vehicle proceeded westbound at a speed well in excess of the 60 kilometre speed limit. Officer Ceballo indicated that he pulled onto Dundas Street and followed the vehicle. He quickly reached a speed of 140 kilometres per hour and did not gain significantly on the appellants’ vehicle.

[24] Officer Ceballo testified that he followed the vehicle because it was travelling at a high rate of speed, it was registered in Downsview, the passenger and driver switched places, and the vehicle could be stolen. Shortly after Officer Ceballo turned westbound onto Dundas Street, he activated his police lights and siren. There was very little traffic and Officer Ceballo’s vehicle was directly behind the vehicle driven by Mr. Peart. Mr. Peart did not stop his vehicle, but instead continued to speed away at over 100 kilometres per hour. Mr. Peart was driving dangerously and appeared to be taking evasive action. When Mr. Peart turned northbound off of Dundas Street, he almost hit a southbound vehicle. According to Officer Ceballo, “[i]t looked to me like these guys were running”.

[25] As he was pursuing Mr. Peart’s vehicle, Officer Ceballo radioed the dispatcher to advise him that he was attempting to stop a vehicle and required assistance. Within about two minutes of commencing the pursuit, Officer Ceballo pulled into the driveway of Mr. Peart’s residence immediately behind Mr. Peart’s vehicle. Officer Ceballo did not know that Mr. Peart lived at this location.

[26] Mr. Peart got out of the car and started to walk towards the residence. Officer Ceballo did not want anyone leaving the vehicle until he had the scene under control. He stepped out of his vehicle, pointed a shotgun at the appellant and told him to get back in the vehicle. Mr. Peart got back in the vehicle.

[27] Officer Ceballo believed that the vehicle may well have been stolen. Based on the driver’s failure to stop the vehicle when Officer Ceballo activated his siren and lights, the apparent attempt to evade the police, and the dangerous driving during the pursuit, Officer Ceballo believed that he had a potentially dangerous situation on his hands. He became more concerned when Mr. Peart left the vehicle and headed towards the residence.

[28] Other officers, including Officer Pedler, arrived at the scene within about three to five minutes and on Officer Ceballo’s instructions, performed what the police call a high-risk takedown. This technique requires that each suspect exit the vehicle individually from the same door, walk backwards towards the police, and kneel on the ground. Once the suspect is kneeling on the ground, he is rushed from behind by one or more officers, forcefully pushed to the ground face first, and held in that position with the officer’s knees on the suspect’s back and shoulders until the suspect is handcuffed. Mr. Grant and Mr. Peart denied that they were forcefully taken to the ground during their arrest.

[29] The police officers testified that Mr. Peart and Mr. Grant were told of their right to counsel and taken to the police station where they were strip searched for weapons and contraband. Mr. Grant offered some resistance to this search. Mr. Peart denied that he was strip searched and Mr. Grant testified that his strip search occurred without force.

[30] Officer Pedler testified that Mr. Peart, who had been to jail before, was very concerned about being charged and sent back to jail. Mr. Peart offered to provide information concerning drug activities. After some preliminary conversation, Mr. Peart placed a phone call to an acquaintance whom he told Officer Pedler he knew to be involved in drug trafficking. Mr. Peart spoke with this person and they agreed to speak about a drug transaction later that day.

[31] When Mr. Peart and Mr. Grant were released at about 6:30 a.m., neither was charged with any offence. According to Officer Pedler and Officer Ceballo, no charges were laid against either Mr. Peart or Mr. Grant because Mr. Peart had agreed to assist the police in the apprehension of the drug trafficker with whom Mr. Peart had spoken to earlier that day. Officer Pedler testified that Mr. Peart’s assistance led to the apprehension of two drug dealers later that evening.

[32] The officers testified that they followed appropriate police procedures throughout their dealings with Mr. Peart and Mr. Grant. They denied that either Mr. Grant or Mr. Peart were assaulted or that any of the police actions were racially motivated. They acknowledged that Mr. Peart and Mr. Grant may have suffered some minor injuries during the encounter, although the officers could not say for certain when or how the injuries may have happened. It was the respondents’ position at trial that these injuries were the result of the use of reasonable force either during the high-risk takedown at the vehicle, or when Mr. Grant was restrained so that he could be strip searched at the station. The appellants’ medical witnesses agreed that the injuries suffered by the appellants were consistent with the kind of force used in a high-risk takedown.

III

The Trial Judge’s Factual Findings

[33] In his reasons, the trial judge provides a detailed review of the evidence and arguments. He rejected the appellants’ primary claim that the police officers were motivated by overt, subconscious, and institutional racial bias to act as they did.

[34] The trial judge’s material findings of fact can be summarized as follows:

♦ Officer Ceballo decided to conduct a computer check on the appellants’ vehicle for the reasons provided by Officer Ceballo (paras. 43-45);

♦ Common sense dictated that Officer Ceballo watch the appellants’ vehicle while waiting for the results of the computer check (paras. 43-44);

♦ Officer Ceballo followed the appellants’ vehicle when it exited the gas station because it left at a high speed and accelerated westbound on Dundas at speeds well above the speed limit (para. 46);

♦ Officer Ceballo activated his siren and lights and pursued the vehicle. Mr. Peart was aware that the police vehicle was pursuing his vehicle, but instead of pulling over as required by law, decided to drive to his residence. Mr. Peart drove in a reckless and dangerous manner arriving at his home a few minutes later with Officer Ceballo in close pursuit (paras. 70-72);

♦ Officer Ceballo had reasonable grounds to suspect that the vehicle was stolen and that the occupants of the vehicle were dangerous when he confronted them in the driveway of Mr. Peart’s residence. The situation justified resorting to a high-risk takedown (paras. 82-85, 111);

♦ Mr. Peart and Mr. Grant were taken to the police station and questioned. Their detention and questioning were reasonable in the circumstances. They were not assaulted (para. 154);

♦ Mr. Peart and Mr. Grant were strip searched. Mr. Grant resisted and some force was used to subdue him and execute the search (paras. 163-64);

♦ Although the officers were unaware of the Board’s written policy with respect to strip searching, under the circumstances, the strip search was justified (paras. 175-76);

♦ The strip searches were conducted in an appropriate manner (para. 178);

♦ Mr. Peart chose to provide information concerning drug trafficking in order to avoid being charged and potentially jailed on the charges of dangerous driving and failing to stop when required to do so by the police (para. 228); and

♦ Mr. Peart and Mr. Grant suffered minor injuries. These injuries occurred in the course of the high-risk takedown and in respect of Mr. Grant, perhaps in the course of his resistance to the strip search. The force used was not unreasonable (paras. 215, 220-21).

IV

The Bias Allegation

[35] Counsel for the appellants submits that the trial judge’s conduct during the trial, considered in combination with his reasons for judgment, reveal a reasonable apprehension of bias against the appellants. As I understand the submission, counsel argues that the trial judge showed a strong, albeit unconscious, predisposition against the validity of the appellants’ claim that the police engaged in racially motivated misconduct. This is the same apprehension of bias argument that on the facts of that case was successfully advanced in R. v. Brown (2003), 173 C.C.C. (3d) 23 (Ont. C.A.).

(a) The legal principles

[36] For the purposes of this reasonable apprehension of bias claim, judicial bias refers to a judge’s predisposition to decide an issue material to the proceedings such that his or her mind is closed or at least strongly resistant to persuasion to the contrary view based on the evidence adduced and submissions made in the specific case: R. v. S. (R.D.) (1997), 118 C.C.C. (3d) 353 (S.C.C.), per McLaughlin J. & L’Heureux-Dubé J. (concurring) at 369, per Cory J. for the majority at 389; Paul M. Perell, “The Disqualification of Judges and Judgments on the Grounds of Bias or the Reasonable Apprehension of Bias” (2004) 29 Advocates’ Q. 102 at 105-106.

[37] Reasonable apprehension of bias claims are measured against the well known standard articulated in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394:

… The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through –conclude? Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly? [Emphasis added.]

[38] The standard described in Committee for Justice and Liberty has been repeatedly applied by the Supreme Court of Canada, this court, and other appellate courts: see e.g. R. v. Valente (1985), 23 C.C.C. (3d) 193 (S.C.C.); Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 59-60; R. v. S. (R.D.), supra, per McLaughlin J. & L’Heureux-Dubé J. at 369, per Cory J. at 389-90; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 at para. 26; R. v. Brown, supra, at para. 37; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2001), 51 O.R. (3d) 97 (C.A.), leave to appeal to S.C.C. refused, [2002] 156 O.A.C. 358n; R. v. Werner (2005), 2005 NWTCA 5, 205 C.C.C. (3d) 556 at para. 11 (N.W.T. C.A.); R. v. Quinn (2006), 2006 BCCA 255, 209 C.C.C. (3d) 278 at para. 54 (B.C. C.A.).

[39] An allegation of a reasonable apprehension of bias must overcome the strong presumption of judicial impartiality. That presumption reflects the long and strong history of judicial independence and integrity in this country: see R. v. S. (R.D.), supra, per Cory J. at 392; Wewaykum Indian Band v. Canada, supra, at paras. 57-60, 76.

[40] Reasonable apprehension of bias claims are fact-driven. The party that makes the allegation must establish a reasonable apprehension of bias on the balance of probabilities. Where the issue is raised for the first time on appeal, the onus can be discharged by reference to the trial record alone or in combination with any fresh evidence that the appellate court sees fit to receive on the issue: see Wewaykum Indian Band v. Canada, supra, at paras. 77-78. On this appeal, the appellants rely on parts of the trial record, the reasons for judgment, and an affidavit from Mr. Grant.

[41] The hypothetical, fully informed, reasonable person is taken as being fully aware of any cultural or social context relevant to the bias inquiry: R. v. Brown, supra, at para. 38. In R. v. S. (R.D.), supra, a case involving an allegation of bias in favour of a black accused, Cory J., at 390, after referring with approval to the test enunciated in Committee for Justice and Liberty, supra, said:

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. … Further, the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties judges swear to uphold”. … To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community. [Emphasis added.]

[42] In assessing whether the appellants have demonstrated a reasonable apprehension of bias, the reasonable person must bear in mind that anti-black racism, both on an individual and institutional level, is a reality in the community. Further, the reasonable person must appreciate that both explicit and institutional racism can affect the way that the police see and treat black persons and the way black persons react to the police. The fully informed, reasonable person must understand that police misconduct can be racially motivated, even if the officer does not consciously appreciate that motivation. A full appreciation of the relevant social reality also extends to an understanding that not every claim of racism, even where honestly made, is valid.

[43] Counsel for the ACLC submit that it is not enough that the reasonable, fully informed person appreciate the relevant social reality. They argue, relying on jurisprudence interpreting the equality provisions of s. 15 of the Charter, that the hypothetical, reasonable person must share the race of the person alleging a reasonable apprehension of bias. They put it this way in their factum:

For historically disadvantaged groups, he or she is someone who occupies the shoes of the person affected by the decision. Thus, for African Canadian men, the reasonable person would be an African Canadian man. This approach acknowledges the social reality of disadvantaged groups. For African Canadians, this approach acknowledges that one of the effects of White privilege, which this approach can be conscious of, is the inability of those with privilege to have a meaningful understanding of what it means to be in a position of historic and ongoing disadvantage. Impartiality, and thus good judgement, come with attentiveness to equality and a willingness to shift perspective and thus move the effective response away from subconscious norms or biases. [Emphasis added.]

[44] I would reject this argument for several reasons. First and foremost, the argument that the assessment of whether there is a reasonable apprehension of bias should be partly subjective is contrary to authority from the Supreme Court of Canada. Those cases, some of which are cited above, uniformly employ a purely objective test. While none specifically advert to the subjective/objective approach put forward by the ACLC, they do apply the objective approach to claims advanced by historically disadvantaged groups such as aboriginals: see Wewaykum Indian Band v. Canada, supra. This court has also applied the objective test in R. v. Brown, supra, where it was alleged that the trial judge demonstrated a reasonable apprehension of bias against a black accused.

[45] Even if there is no controlling binding authority, I would reject the “reasonable African Canadian male” approach to a reasonable apprehension of bias claim. That approach traces its jurisprudential roots to the equality caselaw developed under s. 15 of the Charter. Section 15 provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[46] In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the Supreme Court provided a detailed framework for the analysis of s. 15 claims. Iacobucci J. summarized that framework at para. 39:

[A] court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). [Emphasis added.]

[47] Iacobucci J. went on to indicate at para. 61 that the determination of whether the differential treatment based on the enumerated or analogous grounds constituted discrimination had to be conducted from the perspective of the party claiming that the differential treatment constituted discrimination:

I am aware of the controversy that exists regarding the biases implicit in some applications of the “reasonable person” standard. It is essential to stress that the appropriate perspective is not solely that of a “reasonable person” – a perspective which could, through misapplication, serve as a vehicle for the imposition of community prejudices. The appropriate perspective is subjective-objective. Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purposes of s. 15(1). [Emphasis added.]

[48] Law and subsequent cases, such as Canadian Foundation for Children v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 at para. 53, make it clear that the perspective of a reasonable person possessing the claimant’s attributes and circumstances must be considered in determining whether state action that draws a distinction based on a ground such as race constitutes discrimination for the purposes of s. 15.

[49] The equality principle drives the requirement of judicial impartiality. Judges must be, and appear to be impartial to ensure that all persons before the court are treated equally. Although equality lies at the heart of both s. 15 of the Charter and the requirement of judicial impartiality, it does not follow that allegations of a reasonable apprehension of bias can be analyzed in the same way as allegations of discrimination contrary to s. 15 of the Charter.

[50] The inquiry mandated by s. 15 looks first at state conduct to determine whether it differentiates between individuals based on one of the enumerated grounds or a ground analogous to the enumerated grounds. It is only if the court determines that state action has drawn a distinction based on one of the named or analogous grounds that the court turns to the question of whether that distinction is properly stigmatized as discriminatory. Drawing the line between benign distinctions and discriminatory state action depends in part on whether the distinction is seen as re-enforcing historical disadvantages and stereotypes or otherwise diminishing the value or dignity of those affected by the distinction. This assessment requires that the distinction be viewed from the perspective of a reasonable person possessing the attributes upon which the distinction is based. The reasonable reaction of the target group of the distinction must be taken into account because it is the effect of the distinction on that group that largely determines whether that distinction amounts to discrimination and a violation of s. 15 of the Charter.

[51] The inquiry required where there is an allegation of a reasonable apprehension of bias based on racial prejudice is entirely different. In the context of this inquiry, the question is whether a reasonable informed observer would have a reasonable apprehension that the trial judge’s decision was affected by racial bias. This inquiry does not look to whether the trial judge has drawn distinctions based on race and does not differentiate between appropriate and inappropriate racial distinctions. On the bias inquiry there is, therefore, no need for an analytical technique designed to distinguish between state conduct that draws appropriate race-based distinctions and state conduct that draws discriminatory race-based distinctions.

[52] The essential difference between the s. 15 equality analysis and the reasonable apprehension of bias inquiry also explains why it is appropriate to introduce a subjective component into the equality inquiry, but not into the bias inquiry. The difference between an appropriate race-based distinction and a discriminatory one for the purposes of the equality analysis lies largely in the perception of those who bear the burden of the distinction. Consequently, where state action draws a distinction based on race, it misses the point of the s. 15 equality analysis to ask how the hypothetical, reasonable, but raceless person would perceive a distinction based on race. The impact of a race-based distinction can only be meaningfully measured in human terms through the eyes of someone who is subjected to that distinction.

[53] Judicial partiality is not a matter of personal perception. The personal characteristics of a litigant, such as race, may well affect the litigant’s personal view of judicial partiality, but they cannot create a reasonable apprehension of bias where one would otherwise not exist. The outcome of a bias inquiry cannot turn on the perspective of the party advancing that claim. There either is or there is not a reasonable apprehension of bias.

[54] It is not unusual that a losing litigant honestly and, from his or her perspective, reasonably perceives the proceedings as unfair and the judge as partial. To equate that personal perception of bias with a reasonable apprehension of bias is to use a subjective and inherently partial perspective to decide whether a proceeding was conducted impartially. The ACLC did not argue that the perspective of the reasonable black person should be equated with the perception of the black appellants. Although the ACLC did not equate the hypothetical, reasonable black person with the appellants, it did not indicate how the court should determine whether the hypothetical, reasonable black person would perceive the proceedings as biased. In my view, for the purposes of the reasonable apprehension of bias inquiry, there can be no meaningful distinction between the perspective of a reasonable black person, and the perspective of a reasonable person of undefined race who is fully informed and cognizant of the relevant social context.

[55] In refusing to racialize the hypothetical, reasonable person, I do not pretend that the hypothetical, reasonable person is purely objective. The reasonable person is an analytical device that will inevitably reflect the world view of the judge applying that device: see Richard F. Devlin, “We Can’t Go On Together With Suspicious Minds: Judicial Bias and Racialized Perspective in R. v. R.D.S.” (1995), 18 Dal. L.J. 408 at 419-21. The realization that the hypothetical, reasonable person is to some degree reflective of the judge’s own preconceptions is what makes an appreciation of social context so important. An understanding of how others legitimately view the circumstances serves to counteract the subjectivity of the judge’s own view of the world. A proper reasonable apprehension of bias inquiry demands that the judge be aware of his or her own world view and appreciate how others may see the relevant circumstances. As difficult as it may be to blend these perspectives, it is no answer to abandon that effort in favour of an inherently subjective and one-sided inquiry.

[56] It is also difficult to see how the subjective approach could work in cases where the competing parties both come from disadvantaged groups. The losing party will presumably insist that its world view be accepted for the purpose of ascertaining whether there was a reasonable apprehension of bias. To accept that view, however, could perpetuate, if not exacerbate, the historical disadvantage of the group to which the successful party belongs.

(b) The specific submissions

[57] Counsel for the appellants contends that the reasonable apprehension of the trial judge’s bias against the appellants is apparent from comments made by the trial judge during the trial, during counsel’s closing arguments, and in the trial judge’s reasons for judgment.

[58] I can find only one reference in the appellants’ submissions to a comment made by the trial judge during the course of this long and hard fought trial. Dr. Agard, an expert called by the appellants, testified that it was reasonable for Mr. Peart to be apprehensive when he was being followed by Officer Ceballo. He indicated that the late hour was one of the factors which might cause Mr. Peart to feel threatened when he was followed and then stopped by the police. The trial judge asked whether the vulnerability might have application to anyone stopped by the police. The witness agreed. The following exchange followed:

THE COURT: To some extent, the police are more vulnerable at night?

THE WITNESS: They are.

THE COURT: You know.

THE WITNESS: There’s no doubt about that.

THE COURT: I mean they may be less vulnerable than other people ---

THE WITNESS: Correct.

THE COURT: --- but relative to during the day ---

THE WITNESS: Correct.

THE COURT: --- when there are more people around and so forth?

THE WITNESS: Correct.

[59] Counsel for the appellants submits that the comment was “inappropriate and unwarranted and reflected a posture that favoured the police.” I reject this submission. The comment is nothing more than an innocuous statement of the obvious. The witness’s responses demonstrate just how innocuous the comments were. This exchange with the witness can offer evidence of an apprehension of bias only if one begins from the premise that anything said by the trial judge that does not reflect an outright acceptance of the appellants’ position demonstrates a reasonable apprehension of bias. Many of counsel for the appellants’ submissions came perilously close to this untenable position.

[60] Counsel for the appellants also submits that certain comments made during closing arguments support the bias claim. As is customary in civil proceedings, the submissions were not transcribed. The comments of the trial judge relied on in the bias argument are found in an affidavit filed on the appeal by Mr. Grant. Counsel for the respondents does not object to the court considering the affidavit and I will assume it is properly before the court. In his affidavit, Mr. Grant sets out the gist of various statements made by the trial judge during counsel’s submissions. He also describes the meaning and impressions that he and his counsel took from those comments.

[61] The appellants contend that one of the trial judge’s comments during closing submissions demonstrates his resistance to any suggestion that a black police officer could engage in the racial profiling of black persons. That comment is referred to in para. 5 of Mr. Grant’s affidavit. He asserts that the trial judge said to counsel for the appellants: “You want me to find that this Black officer [Officer Ceballo] practiced racial profiling on these two black men?”

[62] Mr. Grant further asserts that it was his impression that the trial judge’s comment indicated that he saw no merit to this claim. Mr. Grant also outlines counsel’s response to the comment in which he referred to the evidence supporting the contention that black police officers do engage in racial profiling of black persons.

[63] The trial judge’s question captures the essence of counsel’s submission on the racial profiling issue. His question cannot reasonably be interpreted as reflecting a fixed and unchangeable opinion. Indeed, I do not think the comment can reasonably be interpreted as reflecting any opinion on the racial profiling issue. At most, the trial judge’s question implies that he thought that the officer’s race was a relevant factor in assessing the racial profiling claim.

[64] The trial judge in his reasons, at para. 22, acknowledged and accepted the evidence that black police officers do sometimes engage in racial profiling. The trial judge gave detailed reasons firmly rooted in the evidence for his ultimate conclusion that Officer Ceballo did not practise racial profiling in his encounter with Mr. Peart and Mr. Grant. The trial judge’s question during submissions offers no support for the reasonable apprehension of bias claim.

[65] In his affidavit, Mr. Grant also refers to several comments made by the trial judge that he claims were favourable to submissions made by counsel for the appellants. As I understand this aspect of the bias argument, counsel contends that despite these apparently favourable comments, the trial judge ultimately expressed conclusions in his reasons that were contrary to the appellants’ position on these issues. Counsel argues that this “about face” demonstrates a reasonable apprehension of bias.

[66] Before I examine two of the comments attributed to the trial judge in detail, I must say that the logic of this submission escapes me. If the trial judge’s ultimate findings are at odds with comments he made during argument, these inconsistencies could cast doubt on the reliability of the findings, or if the judge’s statements curtailed argument they could give rise to fairness concerns. However, I can see no logical connection between a finding that the trial judge’s reasons were inconsistent with certain comments made by him during submissions and the further conclusion that those inconsistencies reveal a reasonable apprehension of bias. Bias could only explain the alleged inconsistencies if the trial judge actually changed his mind between argument and his reasons based on something that created racial bias; or if the trial judge’s comments during argument were a deliberate attempt to mislead counsel into thinking that the trial judge found favour with their position when in fact he always intended to find against them. It is unclear to me whether counsel made either or both of these arguments. There is not a scintilla of support for either.

[67] Even if the inconsistencies between the trial judge’s reasons and the comments he made during argument could somehow support a reasonable apprehension of bias claim, I am satisfied that the alleged inconsistencies have not been established by the appellants. Mr. Grant’s affidavit refers to several examples of comments made by the trial judge that he claims indicated an acceptance of the appellants’ position and that were later contradicted in his reasons for judgment. I will examine two of the alleged comments in some detail. My reasoning in respect of those two comments is applicable to the other examples put forward in Mr. Grant’s affidavit.

[68] In para. 7(c) of his affidavit, Mr. Grant says:

The most memorable part of the judge’s comments relate to the area of Officer Ceballo’s denial that he saw that we were black when he came into contact with us at Dixie and Dundas. Mr. Harris [counsel for the respondents] argued that Officer Ceballo did not realize that we were black when he first saw us and the Judge in a very impatient manner rebuked Mr. Harris saying that the evidence is that officer Ceballo made the notation in his notebook and admitted under cross examination that indeed he saw that we were black when he came into contact with us at Dixie and Dundas. This indicated to me and from conversation with Mr. Barnwell, I believe that he also accepted that the Trial Judge had taken the view that Ceballo had lied that he did not observe that we were Black. As a result, Mr. Barnwell did not revisit this area of evidence in Reply oral submissions. [Emphasis added.]

[69] Mr. Grant contends that the trial judge rebuked counsel for the respondents for inaccurately summarizing the evidence of Officer Ceballo. Mr. Grant and apparently his counsel inferred from that rebuke that the trial judge had concluded that Officer Ceballo had lied when he said he did not initially observe that the appellants were black. Based on this inference, Mr. Grant’s counsel elected not to make further oral submissions on this area of the evidence.

[70] Accepting that the trial judge admonished counsel for the respondents as asserted by Mr. Grant, I see no reason to infer that the trial judge had reached the conclusion that Officer Ceballo was lying. The responsibility for counsel’s decision not to make further submissions on this part of the evidence cannot be laid at the feet of the trial judge. As is apparent from the relevant part of Mr. Grant’s affidavit quoted above, the trial judge did nothing more than properly summarize the evidence. Nor is there any inconsistency between the trial judge’s comments as described in Mr. Grant’s affidavit and the parts of his reasons, at paras. 32-33, 37, where he deals with Officer Ceballo’s evidence as to when he realized the appellants were black.

[71] A second example is found in para. 7(d) of Mr. Grant’s affidavit:

In dealing with the scanty notes made by the officers and the officers evidence as a whole, at one point in the submissions of Mr. Harris, the Judge referred to the argument of Mr. Barnwell that the officers did not make proper notes and thus, they could not be relied upon in their testimony. Again, in conversation with Mr. Barnwell, he advised me and I believe that he was relieved that the Judge accepted his submissions concerning the unreliability of the officer’s testimony given the scare notes and which for the most part, were identical with each other’s note book. As a result, in his Oral Reply submissions, he did not push this issue further. [Emphasis added.]

[72] According to Mr. Grant, his counsel took from the trial judge’s reference to his argument – concerning the failure to make proper notes – that the trial judge accepted his contention that this failure rendered the officers testimony unreliable. Counsel, therefore, chose not to make further submissions on the point.

[73] I do not know why counsel would infer acceptance by the trial judge of an argument from a mere reference by the trial judge to that argument in the course of his dialogue with opposing counsel. Even if counsel was somehow misled by the trial judge’s observation, it is unclear to me what additional submissions counsel could have made. As the trial judge’s reasons reveal, counsel fully explored the alleged inadequacies in the officers’ note taking. Some of the note taking was inadequate. The trial judge was cognizant of these inadequacies and the arguments made in respect of them and gave those arguments due consideration in his reasons.

[74] Mr. Grant’s affidavit provides insight into the thought processes of Mr. Grant and his counsel during closing argument. It offers no support for the reasonable apprehension of bias claim.

[75] The submissions in support of the bias claim based on the reasons for judgment are essentially an argument that the trial judge’s findings are so one-sided, patently wrong, and contrary to the weight of the evidence that they can be explained only by a reasonable apprehension of bias.

[76] I begin my consideration of this submission with the observation that if the reasons suffer from the failings attributed to them by counsel in this submission, the reasons fail on their own merits and the judgment cannot stand regardless of the merit of the reasonable apprehension of bias claim.

[77] I will address the substance of the trial judge’s reasons in more detail below. It is sufficient at this juncture to say that while counsel’s submissions may reflect the appellants’ genuinely held beliefs as to the overwhelming nature of the case they put forward at trial, I do not agree that any of the material findings are unreasonable or otherwise demonstrate reversible error. The trial judge did not see the case the way the appellants and their counsel wanted him to see it. This is no doubt disappointing to the appellants and their counsel, but it offers no support for the contention that the reasonable observer would be left with a reasonable apprehension of bias.

[78] The bias argument based on the reasons for judgment also suffers from the failing identified in Waxman v. Waxman, [2004] O.J. No. 1765 at paras. 278-84 (C.A.). As explained in Waxman, reasons for judgment are written after the trial judge has analyzed the evidence, made the necessary credibility assessments and findings of fact, and reached his or her conclusions. If the result turns on credibility assessments, it is hardly surprising that the reasons for judgment will reflect negatively on the party who the trial judge has determined was not being truthful and forthright. A negative depiction of the losing party does not demonstrate any bias, but reflects the findings of fact and credibility made by the trial judge after he has heard and assessed the evidence.

[79] In summary, the reasonable apprehension of bias allegation is without merit. The trial judge conducted the trial in an evenhanded and exemplary way. His conduct of the trial and his reasons for judgment reveal a trial judge who was alive to and dealt sensitively with difficult issues that cut close to the bone for all involved.

V

The Alleged Unfairness in the Trial

[80] The allegations of unfairness fall into two groups. First, counsel submits that the appellants were denied a fair opportunity to address the issue by the trial judge’s indication in argument that he was disposed to decide certain matters in favour of the appellants but his eventual determination of those matters was against the appellants. I have already dealt with the merits of this submission in the context of the reasonable apprehension of bias argument. Nothing said by the trial judge could reasonably be taken as indicating to the appellants that they need not advance any and all arguments as they saw fit. Nor in my view is it accurate to characterize the reasons as inconsistent with the comments allegedly made by the trial judge during argument. Finally, counsel have not pointed to any cogent arguments that went unmade at trial because of the trial judge’s alleged “about face”.

[81] The second group of submissions underlying the unfairness claim rests on the contention that the trial judge advanced reasons for his finding against the appellants that were not relied on by the respondents and were not put to counsel for the appellants by the trial judge at any time in the course of submissions. Counsel for the appellants submit that the trial judge became an advocate and departed from the proper role of a trial judge, and also denied them an opportunity to respond to the arguments advanced for the first time by the trial judge in his reasons.

[82] In support of this position, counsel refers to the trial judge’s reference to the appellants’ failure to call certain witnesses and produce certain telephone records that might have supported their evidence on certain aspects of the case. Counsel also contends that the trial judge created rationalizations for the respondents’ failure to use the video recording equipment when questioning the appellants in the police station.

[83] In the course of reasons which extended over 273 paragraphs, the trial judge referred to the appellants’ failure to call certain witnesses and the failure to produce certain telephone records. He was entitled to take into account the failure to call evidence that could have assisted the appellants. He did not use the failure to call this evidence as proof of the contrary, but as one of many factors to be considered in assessing the weight of the appellants’ evidence. For example, when discussing the events surrounding the arrests of the appellants at Mr. Peart’s home, the trial judge said at para. 105:

There was a witness to these events, Mr. Peart’s landlady at 865 Riley Court, one Lisa Alleyne, who was awakened and looked out her window at the arrests. She was not called by the plaintiffs who would logically have called her if her evidence would support them.

[84] I see no error in this observation. It played a very minor role in the trial judge’s assessment of the events which occurred outside Mr. Peart’s home at 865 Riley Court.

[85] Counsel for the appellants take issue with the trial judge referring to the strip searching of the appellants as an explanation for the police failure to videotape their interaction with the appellants at the police station. Counsel contends that the respondents did not attempt to rely on the strip searching of the appellants as an explanation for not videotaping the interaction between the appellants and the officers. Counsel argues that it was wrong for the trial judge to create this explanation for not using the video equipment.

[86] I see little merit in this particular line of reasoning used by the trial judge. Clearly, had the videotape equipment been used, it could have been indicated on the videotape that it was being turned off for the purposes of conducting a strip search. I would not hold, however, that one suspect line of reasoning among many resulted in any unfairness to the appellants. The trial judge’s conclusions do not depend on this single observation.

[87] The trial judge refused to draw an adverse inference against the police officers from the failure to videotape the interaction with the appellants because the officers were following the established protocol of their employer, the Board. The trial judge was critical of this practice (which has since changed), but would not fault the officers for following it. This is a legitimate line of reasoning in response to the appellants’ argument that the failure to videotape was significant to the officers’ credibility. The appellants had every opportunity to address this issue at trial.

[88] Finally, I cannot agree with the premise of counsel’s submission. Clearly, trial judges are required to give counsel an adequate opportunity to make submissions. Trial judges are not, however, required to vet each and every step in their fact finding analysis with counsel. Nor are trial judges required to invite submissions targeting each and every step of the fact finding analysis. As triers of fact, trial judges must weigh the evidence. In doing so, they must have regard to the kinds of considerations which as a matter of common sense and human experience will affect the reliability of the evidence or the credibility of the witnesses. Counsel are expected to make whatever arguments they deem appropriate directed at issues which, as a matter of common sense, arise in the evidence and could affect the trial judge’s assessment of the evidence. I do not think that counsel can reasonably claim to be taken by surprise when a trial judge factors the failure to produce potentially supportive evidence into his or her consideration of the weight to be assigned to certain evidence offered at trial.

VI

The Racial Profiling Submissions

(a) What is racial profiling?

[89] In R. v. Richards (1999), 26 C.R. (5th) 286 at 295, Rosenberg J.A. quotes a definition of racial profiling offered by the ACLC:

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. [Emphasis added.]

[90] 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.

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

[92] I cannot, however, accept the submission made by the ACLC that if the initial action taken by the police towards an individual is tainted by improper racial considerations, further actions taken towards that individual by the police will always be equally tainted. Often, the initial improper racial consideration will flow through to the subsequent police conduct. There will be situations, however, where despite improper racial profiling in the initial contact, the subsequent acts of the police are based on and justified by non-racial considerations. To take an extreme example, an officer may follow a person of colour on a public highway in part because that person is black. In doing so, even though the officer is not necessarily interfering with the individual’s constitutional rights, the officer is acting improperly. However, if the officer were to observe that person firing a gun at someone and proceed to arrest that person, the arrest would not necessarily be tainted by the initial improper racial profiling. It would be for the trier of fact to decide whether race played any role in the officer’s decision to arrest the person who fired the gun.

[93] Racial profiling may be the product of overt, subconscious, or institutional racial bias. An individual police officer engaged in racial profiling may be subjectively unaware that he or she is doing so: see R. v. Brown, supra, at para. 8. Indeed, racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates: see R. v. Singh (2003), 15 C.R. (6th) 288 at para. 18 (Ont. S.C.J.). Regardless of the connection, if any, between racial profiling and racial bias, racial profiling cannot be tolerated. It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling. Racial profiling will also ultimately undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race: see David M. Tanovich, “E-Racing Racial Profiling” (2004) 41 Alta. L. Rev. 905 at 916; David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention” (2002) 40 Osgoode Hall L.J. 145 at 161-65.

[94] The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system: see e.g. R. v. S. (R.D.), supra; R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.). With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it. Indeed, as the evidence in this case indicates, police forces, including the Board, acknowledge the existence of racial profiling and accept that it has no place in law enforcement. The Board has designated racial profiling as a prohibited practice for which officers are subject to disciplinary action.

[95] Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling. The courts, assisted by various studies, academic writings, and expert evidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was racially motivated, despite the existence of an apparent justification for that conduct: R. v. Brown, supra, at paras. 44-46.

[96] The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding what inferences should or should not be drawn and what testimony should or should not be accepted in a particular case. Those indicators, sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings of adjudicative facts, that is the “who”, “what”, “why”, “when”, and “where” of any given case, grow out of the trier of fact’s assessment of the evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to provide the appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 at paras. 56-58 (S.C.C.).

[97] The reasons of the trial judge demonstrate that he was alive to the significance of the racial profiling allegation in the action. He understood the seriousness of the allegation, both from the perspective of the appellants and the police officers. He described Dr. Agard, the expert called by the appellants, at para. 9, as: “eminently qualified to give the court an insightful overview of the subject of race relations and the police.”

[98] The trial judge summarized Dr. Agard’s evidence at length. He accepted Dr. Agard’s evidence as it related to the existence and description of racial profiling. The trial judge also set out and accepted, at para. 21, the criteria that Dr. Agard testified could be indicative of racial profiling.

[99] The trial judge could not, however, cede his responsibility as a trier of fact to Dr. Agard. As the trial judge observed, at para. 23, it was not the function of a witness, even one as qualified as Dr. Agard, to make findings of fact. He also noted, at para. 21, that counsel for the appellants had not put a hypothetical question to Dr. Agard, much less a hypothetical question that mirrored the totality of the evidence. The trial judge further observed, again accurately, that Dr. Agard was unaware of the police version of the relevant events. The trial judge recognized that he had very different versions of the events before him. He appreciated that it was his and not Dr. Agard’s responsibility to assess credibility and make findings of fact. Depending on the findings he made, the trial judge acknowledged that Dr. Agard’s expertise could assist in determining what inference should be drawn by the trial judge from his findings of fact. He put it this way at para. 23:

If I find that the underlying “facts” upon which Dr. Agard’s opinion is based actually existed on December 1, 1997, then his evidence provides me with a basis for an inference that racial profiling was being practiced that day by one or both officers. That is the classic role of the expert: to provide the court with a ready-made inference based on scientific, medical, psychiatric, engineering or similar learning, which the court can draw if certain identified underlying facts are demonstrated to exist. … But the inference is one that the court draws. Dr. Agard’s opinion is not a substitute for the court’s own analysis of the evidence, taking account in so doing of the societal background and the description of the indicia of racial profiling which he has provided, to determine what the facts actually were on that day. Nor is the inference a mandatory one; it is available for the court to draw if the court is persuaded on the balance of probabilities that it is the more probable explanation for the events in question. [Emphasis added.]

[100] The trial judge did not, as the appellants submitted, reject the racial profiling claim on the basis that there was no evidence to support that claim. Rather, the trial judge rejected the claim because on the facts as found by him, he could not infer that the race of the appellants accounted for the police actions. Rather, on the facts as found by the trial judge, he concluded there were legitimate explanations for the police actions.

[101] The appellants joined by the ACLC advanced essentially a three-pronged attack on the trial judge’s findings that the appellants were not the victims of racial profiling. They submit first, that the factual findings underlying that conclusion were unreasonable; second, that the factual findings reflect a failure to properly appreciate and apply Dr. Agard’s evidence; and third, that the trial judge did not follow the approach dictated in R. v. Brown, supra, in assessing the racial profiling issue. The ACLC also argues that the trial judge erred in placing the burden of proof for the issue of racial profiling on the appellants.

(b) Were the findings unreasonable?

[102] Before I turn to the reasonableness of the trial judge’s findings, I will address a standard of review argument made by the ACLC. It argues that because fundamental Charter rights are involved when racial profiling is alleged, appellate courts must engage in “strict evidentiary scrutiny” to prevent Charter violations. The ACLC contends that the usual deference owed to fact-finding cannot be shown where the fact-finding relates to fundamental Charter rights. No authority is cited for this proposition. There is high authority to the contrary. In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 25, the majority said:

We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge – that of palpable and overriding error.

[103] The submission made by the ACLC assumes that findings of fact relating to Charter rights are intrinsically more important than other kinds of factual findings. The submission also assumes that the importance of factual findings renders a non-deferential approach to appellate review of those findings appropriate. Both assumptions are wrong. Findings of fact relating to Charter claims are not inherently more important than all other findings of fact. The significance of a finding of fact depends on the context in which it is made. Furthermore, even if one assumes that fact-finding is hierarchical and that Charter facts are at the top of that hierarchy, I cannot accept that a higher level of appellate scrutiny would inevitably improve the overall reliability of the fact-finding process as it relates to the Charter. To the contrary, appellate deference to trial judges’ findings of fact is predicated in part on the realization that close appellate scrutiny of the fact-finding process does not improve the reliability of that process, but may have the opposite effect.

[104] The trial judge’s finding that the police conduct was not the product of racial profiling is at its core a finding of fact. It must stand unless the appellants can demonstrate palpable and overriding error.

[105] The appellants argue that virtually everything the police did was infected with racial profiling and that the trial judge’s failure to so find demonstrates innumerable, palpable, and overriding errors. It is difficult to isolate specific submissions in this global assault on the reasons. I see five principal complaints.

[106] The appellants argue that the trial judge committed clear and palpable error in holding that Officer Ceballo’s initial decision to conduct a computer search on the appellants’ licence plate number was not the product of racial profiling. In making this submission, the appellants argue that Officer Ceballo could lawfully investigate the appellants only if he had reasonable grounds for doing so. They contend that even on his evidence, he had no more than a hunch.

[107] This submission misunderstands the law. The police do not need reasonable grounds to conduct investigations as long as the police conduct does not interfere with any individual rights. Officer Ceballo’s decision to run a computer check on the licence plate did not interfere with any of the appellants’ rights. If, as he testified, Officer Ceballo ran the computer check essentially because he had time to do so, there was nothing wrong with doing so even if he had no grounds to suspect the appellants of anything.

[108] The essential question was not whether Officer Ceballo had reasonable grounds to suspect the appellants of any misconduct when he conducted the computer check, but whether he was motivated to do so in part, at least, because of the colour of the appellants’ skin. The answer to that question turned in part on Officer Ceballo’s credibility. The trial judge ultimately concluded that he was credible and believed his evidence. I cannot accept the submission that it was unreasonable for the trial judge to believe Officer Ceballo. He explained that he routinely conducted computer checks on licence plates when he had time to do so, particularly at night. He added that Honda Preludes were of particular interest because they were a target for car thieves. This evidence was not contradicted. In fact, it was confirmed to some extent by evidence from other officers of their routine practice. There is also nothing inherently improbable in Officer Ceballo’s evidence. Even if I were to accept that other triers of fact may not have believed Officer Ceballo, that would offer no basis upon which to characterize the trial judge’s acceptance of Officer Ceballo’s evidence on this point as unreasonable.

[109] The appellants also submit that the trial judge’s finding that Officer Ceballo was not engaged in racial profiling is rendered unreasonable by the trial judge’s failure to conclude that the alleged speed of the appellants’ vehicle was a mere pretext used by Officer Ceballo to justify following and stopping the appellants’ vehicle.

[110] Speeding can be a pretext for a racially motivated stop: see R. v. Brown, supra, at para. 48. Whether it is a pretext will depend on the findings of fact in each case. For example, if as Mr. Peart testified he was travelling at ten to twenty kilometres over the speed limit at 3:30 in the morning when Officer Ceballo began to follow him, it would be open for a trial judge to find that Peart’s excessive speed was a pretext for the officer following his vehicle. Unfortunately for the appellants, the trial judge did not believe Mr. Peart. He accepted Officer Ceballo’s evidence that the Peart vehicle pulled out of the gas station at a high rate of speed and quickly achieved speeds which Officer Ceballo estimated at well over 100 kilometres per hour. On Officer Ceballo’s version of the events, it is hardly unreasonable to conclude that the speed of the appellants’ vehicle was what attracted Officer Ceballo’s attention and caused him to pursue the vehicle.

[111] It was open to the trial judge to accept Officer Ceballo’s testimony concerning the speed of the appellants’ vehicle. It was supported to some extent by Officer Ceballo’s notes and by other officers who testified about their communications with Officer Ceballo when he was chasing the appellants’ vehicle. Officer Ceballo’s evidence was also supported by Mr. Grant’s testimony. Mr. Grant testified that he was accustomed to Mr. Peart driving well above the speed limit. Mr. Grant also testified that Mr. Peart’s speed sufficiently concerned him that he asked Mr. Peart why he was driving the way he was. The trial judge found that Mr. Grant’s reaction to Mr. Peart’s driving supported the inference that Mr. Peart was driving at a speed well above the speed at which he normally drove his vehicle. Finally, Mr. Peart’s own evidence that he fled as soon as he realized he was being followed by Officer Ceballo offers some further support for Officer Ceballo’s evidence concerning the speed of Mr. Peart’s vehicle. Officer Ceballo’s evidence describing the way the vehicle pulled away from the gas station is consistent with a vehicle that is being driven by someone who had just seen Officer Ceballo’s car across the road and who had a paranoid fear of the police.

[112] It was open to the trial judge to accept Officer Ceballo’s evidence concerning the speed of the vehicle. On that evidence, no one could reasonably suggest that speed was a mere pretext for pursuing the appellants’ vehicle.

[113] A third factual challenge advanced by the appellants also relates to the trial judge’s acceptance of Officer Ceballo’s evidence. The appellants contend that the trial judge acted unreasonably in failing to reject Officer Ceballo’s evidence because Officer Ceballo had resisted the suggestion that he was aware the appellants were black before they exited the vehicle at the gas station.

[114] Where racial profiling is alleged, evidence that the police officer involved attempted to mislead the court as to when he realized that the individual stopped was black can support the racial profiling allegation. It may provide important insight into the truthfulness of the explanation for the stop offered by the police officer and can be construed as akin to an implied admission by the officer of the significance of race to his or her decision to stop the vehicle. However, evidence that a police officer has misled the court as to when he or she realized the individual stopped was black is not a precondition to a finding of racial profiling, and is not necessarily conclusive on the issue. Its significance in any particular case is for the trier of fact to determine.

[115] The appellants argued before the trial judge that Officer Ceballo had tried to mislead him as to when he first appreciated that the occupants of the vehicle were black. The trial judge considered this argument and accurately summarized the relevant evidence at paras. 37-40. He observed that the officer’s notes, made shortly after the incident, clearly suggested that Officer Ceballo was aware that the appellants were black before they exited the vehicle at the gas station. Officer Ceballo’s testimony at discovery was consistent with his notes. In his examination-in-chief, several years after the incident, Officer Ceballo testified that he was unsure whether he knew that the appellants were black before they exited the vehicle at the gas station. In cross-examination, after he was referred to his evidence on discovery, Officer Ceballo agreed that it was fair to conclude that he knew that the occupants of the car were black before they exited the vehicle.

[116] It was the trial judge’s responsibility to assess the significance of any variation in Officer Ceballo’s evidence given on his discovery, his examination-in-chief, and his cross-examination. Considering his testimony and the contents of his notes, it was not unreasonable for the trial judge to conclude that Officer Ceballo’s professed uncertainty during examination-in-chief as to when he realized the appellants were black was genuine and not an attempt to mislead the court on that issue. Both the contents of the notes and Officer Ceballo’s reaction when confronted with his discovery evidence could support the trial judge’s assessment of Officer Ceballo’s testimony.

[117] The fourth attack on the findings underlying the rejection of the racial profiling claim arises out of the evidence that, subsequent to the arrest of the appellants, the officers questioned the appellants about guns and drugs and caused a search for drugs or guns to be made of the area around the gas station. The appellants submit that there was no evidence that the appellants were armed or were involved in the drug trade. They contend that the officers’ assumptions reflect the stereotypical thinking that underlies racial profiling.

[118] This argument was made at trial and rejected by the trial judge at paras. 112-14. The trial judge concluded that the police had reasonable cause to believe that the appellants were engaged in criminal activity because they sped away when they apparently saw Officer Ceballo’s vehicle, did not stop when he activated his siren and lights, and drove in a reckless and dangerous manner in an attempt to get away from Officer Ceballo. The trial judge said at para. 114:

The police were not simply dealing with two black men out for a drive where asking such questions [i.e., questions about guns and drugs] could well show stereotyping. They were dealing with two men who, for no apparent reason, fled from them. People who flee from the police usually have some reason to do so; often a criminal reason. Inquiries, even very pointed inquiries, into the reason do not demonstrate racial prejudice or stereotyping.

[119] On the facts found by the trial judge, police concerns about the possible involvement of drugs and guns, and the decision to send someone back to the gas station to investigate, grew out of the specific circumstances confronting the police and not any preconceived notions based on race. In making the findings set out above, the trial judge did not misapprehend any of the relevant evidence. His conclusion that the circumstances warranted concerns by the officers that there may be evidence of criminal activity at the gas station was not unreasonable. Those concerns, whether they reach the level of reasonable suspicion or not, justified the police decision to return to the gas station and investigate.

[120] The fifth allegation of unreasonableness in the fact finding process that led the trial judge to reject the racial profiling claim concerns the trial judge’s treatment of the evidence of Mr. Peart’s flight from Officer Ceballo. The appellants submit that Mr. Peart fled because, like many young black men, his prior experiences with the police caused him to fear and mistrust them. The appellants argue that the trial judge’s finding that Mr. Peart’s flight justified the police pursuit and subsequent high-risk takedown and arrest is unreasonable because it failed to consider that flight from “the perspective of the racialized Black man in relation to the police.”

[121] One of the crucial questions for the trial judge was why Officer Ceballo followed the appellants’ vehicle when it left the gas station. If the vehicle drove as described by Officer Ceballo, there was ample reason for him to pursue. The trial judge accepted Dr. Agard’s evidence that Mr. Peart’s flight was caused by his fear of the police and his desire to get to his home where he felt he would be safe if stopped by the police. However, in the trial judge’s assessment, this evidence did not help the appellants, but tended to confirm Officer Ceballo’s description of the way Mr. Peart drove the vehicle. The trial judge found, and there was no evidence to the contrary, that Officer Ceballo had no reason to believe Mr. Peart was driving towards his home since the vehicle was registered to a place in Downsview. From Officer Ceballo’s perspective, the vehicle was in flight from the police, proceeding in a dangerous manner, and headed for some unknown destination. Whatever caused Mr. Peart to drive as he did was irrelevant to the danger it posed and to Officer Ceballo’s decision to pursue and stop the vehicle.

[122] The appellants’ submission that the trial judge failed to consider Mr. Peart’s subjective fear of the police as an explanation for his conduct does not withstand scrutiny. The trial judge considered the evidence of Mr. Peart’s fear of the police. He accepted this evidence and accepted that Mr. Peart’s fear played a significant role in his conduct. The trial judge further concluded, however, that far from supporting the appellants’ racial profiling claim, the evidence of Mr. Peart’s mental state was consistent with Officer Ceballo’s description of the manner in which Mr. Peart drove the vehicle. This line of reasoning was open to the trial judge.

(c) The assessment of Dr. Agard’s evidence

[123] As outlined above, the trial judge accepted Dr. Agard’s evidence as it related to the phenomenon of racial profiling, the nature of the interaction between police officers and young black men, and Mr. Peart’s attitude towards the police at paras. 98-100. The appellants submit that the trial judge acted unreasonably in rejecting Dr. Agard’s ultimate opinion that the appellants were the victims of racial profiling because Dr. Agard was not told that Mr. Peart was driving at an excessive speed when followed by Officer Ceballo and did not interview the police officers involved in the relevant events.

[124] I have already quoted from the trial judge’s reasons where he explains how Dr. Agard’s evidence could provide assistance to him in determining whether to draw the inference that the police were engaged in racial profiling, at para. 99, above. The extent to which Dr. Agard’s expert evidence could assist turned in large measure on the extent to which the assumptions relied on by Dr. Agard were consistent with the findings of fact made by the trial judge.

[125] Neither Dr. Agard’s report nor his testimony in-chief offer a clear statement of his understanding of the facts which culminated in the arrest of Mr. Peart and Mr. Grant. On cross-examination, Dr. Agard acknowledged that Mr. Peart was his only source of information as to the relevant events. He also testified that Mr. Peart told him that he sped up well after he left the gas station when he realized that he was being followed by a police car. Dr. Agard had no information as to the speed of Mr. Peart’s vehicle either when it left the gas station or after Officer Ceballo took up pursuit.

[126] On the trial judge’s analysis, the speed at which the appellants’ vehicle left the gas station and the manner in which it drove were crucial to his determination of why Officer Ceballo followed, pursued, stopped, and arrested Mr. Peart and Mr. Grant. The trial judge concluded, at para. 63, that since Dr. Agard’s opinions did not take into account the very high speed of the vehicle or the manner in which it was being driven, his opinion as to the reason for the police conduct lacked “a proper factual foundation.”

[127] The trial judge’s analysis is legally and logically sound. Dr. Agard’s evidence was ultimately aimed at assisting the judge in deciding why Officer Ceballo acted as he did towards the appellants from his initial contact until their eventual release at the police station some three hours later. The probative force of Dr. Agard’s evidence depended on the extent to which his understanding of the relevant facts corresponded to the trial judge’s findings of fact. The trial judge’s findings with respect to the speed of the vehicle and the manner in which it was driven were very different from Dr. Agard’s appreciation of those events. The significant difference between the facts as found by the trial judge and those assumed by Dr. Agard significantly diminished the probative force of his expert opinion evidence: see R. v. Warsing (1998), 130 C.C.C. (3d) 259 at paras. 53-54; R. v. Charlebois (2000), 2000 SCC 53, 148 C.C.C. (3d) 449 at paras. 22-23.

[128] I can find no misapprehension of the substance of Dr. Agard’s evidence by the trial judge. The trial judge correctly distinguished between his fact finding role and the role of Dr. Agard as an expert witness. He correctly appreciated that Dr. Agard’s evidence could assist him in his fact finding function if Dr. Agard’s factual assumptions were consistent with the facts as found by the trial judge.

(d) Did the trial judge fail to properly apply R. v. Brown?

[129] The appellants joined by the ACLC submit that the trial judge failed to take two important lessons from this court’s judgment in R. v. Brown, supra. They submit that the trial judge did not appreciate that racial profiling is often a subconscious act that cannot be proved by direct evidence. They also contend that R. v. Brown, supra, dictates that where the police purport to stop a black person ostensibly for speeding and certain indicators of racial profiling are established, the trial judge must find that the allegation of speeding was a mere pretext and that the stop was racially motivated.

[130] In R. v. Brown, supra, the Crown appellant argued that there was no evidence of racial profiling in the trial record. In rejecting that argument, Morden J.A. said at paras. 44-45:

A racial profiling claim could rarely be proved 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.

The respondent submits that 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. I accept that this is a way in which racial profiling could be proven. [Emphasis added.]

[131] R. v. Brown, supra, does not break any new ground in describing the fact finding process used in litigation. R. v. Brown acknowledges that some facts, of which racial profiling is an example, are not generally susceptible to proof by direct evidence, but are proved by inference from established primary facts. R. v. Brown also recognizes that where circumstantial evidence is directed at a fact in issue, the inferences to be drawn from that circumstantial evidence can assist in assessing the credibility and reliability of direct evidence offered as proof of the same factual issue. This is also nothing new. Factual determinations are made by a consideration of the totality of the relevant evidence be it direct or circumstantial.

[132] Contrary to the submission made in this court, the trial judge, at para. 20, expressly accepted the contention that racial profiling can rarely be proved by direct evidence, but is a matter of inference from the circumstances. The trial judge also accepted Dr. Agard’s evidence that certain facts could indicate that police conduct was racially motivated even if that motivation was subconscious at para. 21. The trial judge went on to hold that to the extent he found that facts were consistent with the factors described by Dr. Agard, those facts could support the inference that the police conduct was the product of racial profiling. He further held, at paras. 22-23, that whether the facts indeed supported the inference of racial profiling depended on whether he was persuaded on the balance of probabilities by the totality of the evidence.

[133] This court’s reasons in R. v. Brown, supra, were released while the trial judge had his decision under reserve. He referred to R. v. Brown in footnote 8 of his reasons.

[T]he court [in Brown] accepts that one way of proof of racial profiling is to compare the facts with the indicia of racial profiling to provide a basis for an inference that the officer is untruthful as to why the plaintiff was singled out. The record is then “capable of supporting” a finding of racial profiling.

[134] The trial judge accurately summarizes the essence of R. v. Brown, supra. The analytical route followed by the trial judge in assessing the racial profiling claim is consistent with R. v. Brown.

[135] The argument that a finding of racial profiling must be made if certain primary facts are found is an argument in support of an irrebuttable presumption of racial profiling in certain circumstances. I see no reason to distort the fact finding process by introducing the artificiality of an irrebuttable presumption. The passage from R. v. Brown, supra, quoted in para. 130, above, describes a permissive and not a mandatory inference. The inference described in R. v. Brown may be drawn if certain indicators of racial profiling are present. Those indicators do not demand a finding of racial profiling.

(e) Should the burden of proof be reversed?

[136] The ACLC submits that where racial profiling is alleged against the police in a civil proceeding, the police should bear the onus of demonstrating on a balance of probabilities that improper racial considerations were not a contributing factor to the state action that resulted in the interference with the liberty of a black plaintiff. In short, the ACLC would place the burden of persuasion on the defendant/police.

[137] I do not understand the appellants to have raised the allocation of the burden of proof on the issue of racial profiling as a separate ground of appeal. Presumably, they did not do so because, as in most civil cases, the outcome of this trial did not turn on which party bore the onus of proof. As observed in John Sopinka, Sidney N. Lederman & Allan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at 58:

In civil proceedings, the legal burden does not play a part in the decision-making process if the trier of fact can come to a determinate conclusion on the evidence. If, however, the evidence leaves the trier of fact in a state of uncertainty, the legal burden is applied to determine the outcome. [Emphasis added.]

[138] This trial judge was not left in any state of uncertainty by the evidence. He made factual findings on all of the contentious issues and from those findings concluded that the officers were not motivated by racial considerations.

[139] I will, however, address the merits of the submission made by the ACLC. In civil proceedings, the burden of persuasion in respect of a fact in issue is generally on the party alleging that fact. The appellants claim that they were the victims of racial profiling at the hands of the police and demand compensation. Applying the normal rule, the appellants must bear the burden of proving racial profiling on the balance of probabilities: Snell v. Farrell, [1990] 2 S.C.R. 311 at 320; Kenneth S. Broun et al., McCormick on Evidence, 6th ed. (St. Paul, Minn.: Thomson, 2006) vol. II at 473.

[140] In the criminal context, on motions brought by an accused pursuant to s. 24(1) of the Charter, this court has followed the general rule and placed the burden on the accused to establish racial profiling on the balance of probabilities: R. v. Brown, supra, at para. 45; R. v. Curry (2005), 206 C.C.C. (3d) 100 at para. 24 (Ont. C.A.). Placing the onus on the accused to establish racial profiling on a Charter motion is consistent with the well established pleading principle that the onus of establishing a Charter breach is on the accused where the accused seeks relief under s. 24(1) of the Charter: see R. v. Cobham (1994), 92 C.C.C. (3d) 333 at 340 (S.C.C.); R. v. Collins (1987), 33 C.C.C. (3d) 1 at 13-14 (S.C.C.).

[141] The allocation of the legal burden of proof to the party alleging the fact in issue is not an immutable rule. For example, in some situations, the burden of persuasion will move to the Crown on a motion brought under s. 24(1) of the Charter if an accused establishes certain facts. This shifting of the legal burden occurs in cases where the accused alleges an unreasonable search or seizure. If the accused demonstrates that the search was not conducted pursuant to a prior judicial authorization, the burden of establishing the reasonableness of the search on the balance of probabilities moves to the Crown: R. v. Collins, supra.

[142] The presumption that warrantless searches are unreasonable unless the Crown establishes that they are reasonable, is a reflection of the fundamental role that prior judicial authorizations have traditionally played in maintaining the delicate balance between state interests in the effective pursuit of criminal investigations and individual rights to personal privacy. At common law and by statute, state intrusion on personal privacy by way of searches or seizures has generally been acceptable only when sanctioned by a prior judicial authorization. Absence of that authorization renders a search or seizure presumptively unreasonable unless the Crown can demonstrate circumstances that overcome that presumption: Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at 109 (S.C.C.).

[143] State interference with individual liberty whether by way of detention or arrest has never been seen as requiring prior judicial authorization. The varied and exigent circumstances in which the police must routinely resort to the use of their powers of detention or arrest defy any presumption that would require prior judicial authorization.

[144] The ACLC does not submit that the onus should fall on the police to disprove racial profiling, because police detention without prior judicial authorization is presumptively unconstitutional. The ACLC makes a very different argument. It contends that the onus should fall on the police where the party who was subjected to detention or arrest is black. In effect, the ACLC submits that any arrest or detention of a black person by the police is as constitutionally suspect as a warrantless search and, therefore, merits the same rebuttable presumption of unconstitutionality.

[145] This contention is based on the argument that racial profiling is so common that where it is alleged, placing the burden on the police to disprove racial profiling is more likely to achieve an accurate result than is leaving the onus on the party alleging racial profiling. As McCormick, supra, indicates at 475-76:

Perhaps a more frequently significant consideration in the fixing of the burdens of proof is the judicial estimate of the probabilities of the situation. The risk of failure of proof may be placed upon the party who contends that the more unusual event has occurred. [Emphasis added.]

[146] The reality of racial profiling cannot be denied. There is no way of knowing how common the practice is in any given community. I am not prepared to accept that racial profiling is the rule rather than the exception where the police detain black men. I do not mean to suggest that I am satisfied that it is indeed the exception, but only that I do not know.

[147] In R. v. Brown, supra, at para. 45, this court rejected the argument, which was also advanced by the ACLC as intervenor, that the Crown should bear the onus of disproving racial profiling. The court held that a properly informed consideration of the relevant circumstantial evidence – indicators of racial profiling – combined with maintaining the traditional burden of proof on the party alleging racial profiling achieved a proper balancing of the respective interests of the parties. I see no reason to depart from the analysis in R. v. Brown. I would add that a sensitive appreciation of the relevant social context in which racial profiling claims must be assessed provides further protection against the failure of meritorious claims as a result of the allocation of the burden of proof.

[148] The ACLC further submits that fairness considerations warrant placing the burden of disproving racial profiling on the police. The ACLC argues that the circumstances relevant to a racial profiling claim are better known to the police who also have better access to the information relevant to those claims. The ACLC submits that as the police are in a much better position to disprove racial profiling than the plaintiffs are to prove racial profiling, fairness dictates that the defendants should bear the legal burden.

[149] Fairness may dictate a reversal of the usual legal burden of persuasion. It is not enough, however, for the party seeking to reverse the burden to demonstrate that the other party is in a better position to disprove the fact in issue. In many civil proceedings where the plaintiff’s claim turns on the conduct or state of mind of the defendant, the defendant will be in a better position to prove or disprove the relevant facts. Fairness can justify a reversal of the legal burden in those relatively rare cases where the party who would normally bear the burden of proof has no reasonable prospect of being able to discharge that burden, and the opposing party is in a position to prove or disprove the relevant facts: see Snell v. Farrell, supra, at 326-30; National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481 at 489-91.

[150] A review of the caselaw demonstrates that racial profiling claims can and do succeed where the courts adhere to the traditional rule and place the onus of proof on the party alleging racial profiling: see e.g. R. v. Peck, [2001] O.J. No. 4581 (S.C.J.); R. v. Kahn (2004), 189 C.C.C. (3d) 49 (Ont. S.C.J.); R. v. Campbell, [2005] Q.J. No. 394 (Q. C.Q.); R. v. Nguyen, [2006] O.J. No. 272 (S.C.J.).

[151] I would emphasize, however, that while the ultimate burden of persuasion remains on the appellants, in any given case there may well be a significant tactical burden on the defendant to introduce evidence negating the inference of racial profiling. In Snell v. Farrell, at 328-30, Sopinka J. described the tactical burden in the context of a causation issue in a medical malpractice case in these terms:

In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.

It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. … In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. [Emphasis added.]

[152] In support of its argument that the onus should fall on the respondents to disprove racial profiling, the ACLC also relies on the line of cases that recognize that a judge may take judicial notice that racism is widespread in the community and use that judicial notice to overcome the presumption that prospective jurors are impartial: see R. v. Williams (1998), 124 C.C.C. (3d) 481 (S.C.C.).

[153] The jury selection cases are not helpful. The challenge for cause process involves two distinct steps. At the first step, the trial judge must decide whether to permit any inquiry into the partiality of a prospective juror. A perspective juror is presumed impartial unless the parties seeking to challenge for cause can demonstrate a reasonable possibility of partiality. The Supreme Court in R. v. Williams, supra, at para. 32, held that in assessing whether a reasonable possibility of partiality is established, the trial judge should take a generous approach so as to avoid unduly restricting access to challenges for cause: R. v. Williams goes on to hold that this generous approach can include taking judicial notice of widespread racism within the community. It must be stressed, however, that at this first stage, a trial judge is not asked to make any findings of bias or partiality. The trial judge is deciding only whether the circumstances warrant an inquiry into partiality.

[154] At the second stage of the challenge for cause process, reached only if the judge decides there is a reasonable possibility of partiality, the triers of the challenge for cause must decide whether the juror is acceptable or not acceptable. They make this decision based on the evidence adduced before them. Usually that evidence consists of the prospective juror’s answers to certain agreed upon questions. At this second stage, where the prospective juror’s partiality is decided, there is no presumption of impartiality based on the existence of widespread racial bias in the community: see R. v. Hubbert (1975), 29 C.C.C. (2d) 279 at 294 (Ont. C.A.), aff’d (1977), 33 C.C.C. (2d) 207 (S.C.C.); R. v. Li (2004), 183 C.C.C. (3d) 48 at paras. 26-28 (Ont. C.A.).

[155] In a civil proceeding where an allegation of racial profiling is made, there is no inquiry analogous to the first stage of the challenge for cause inquiry. The party alleging racial profiling in a civil action does not have to demonstrate a reasonable possibility of bias before proceeding to the merits of a bias allegation. In my view, it is one thing to take judicial notice of racism in the community to justify an inquiry into whether a particular individual is biased on account of race, and quite another to use judicial notice to presume that an individual is racially biased unless he or she proves otherwise.

VII

The Alleged “Palpable and Overriding” Factual Errors

[156] This is largely a fact based appeal. The appellants challenge virtually every significant finding of fact made against them at trial. As counsel for the appellants frankly acknowledged, fact centred appeals are difficult to win. Most such appeals run aground on the shoals of appellate deference to findings of fact made at trial.

[157] The appellants’ attack on the findings of fact at trial is made all the more difficult because the appellants must overcome credibility findings made against them and the detailed reasons of the trial judge. Credibility findings are particularly resistant to reversal on appeal: Waxman v. Waxman, supra, at paras. 359-60, Housen v. Nikolaisen, supra, at paras. 23-24. Detailed reasons that display a strong grasp of the evidence and arguments and offer a full explanation for the findings of fact require appellants who seek to reverse those findings to point to clear and significant errors in the fact finding process articulated in those reasons: Waxman v. Waxman, supra, at paras. 307-309.

[158] Deference to fact finding at trial is a cornerstone of contemporary appellate judicial philosophy. The proper description of the level of deference to be afforded fact finding, particularly fact finding based on inferences drawn from primary facts, has been the subject of some controversy: see the majority and dissenting opinions in Housen v. Nikolaisen, supra. In Waxman v. Waxman, supra, at paras. 301-306, this court articulated its interpretation of the majority view in Housen v. Nikolaisen as it related to the review of inferences drawn from primary facts. The analysis in Waxman v. Waxman has been overtaken by the judgment in H.L. v. Canada (Attorney General), 2005 SCC 7, [2005] 1 S.C.R. 101. Fish J., for the majority at para. 56, described the standard of review applicable to findings of fact in these terms:

[I]t seems to me that unreasonable findings of fact – relating to credibility, to primary or inferred “evidential” facts, or to facts in issue – are reviewable on appeal because they are “palpably” or “clearly” wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence. [Emphasis in original.]

[159] It is probably impossible to provide an exhaustive list of the errors in the fact finding process that could potentially produce an unreasonable finding of fact. The list would, however, include:

▪ the failure to consider relevant evidence;

▪ the misapprehension of relevant evidence;

▪ the consideration of irrelevant evidence;

▪ a finding that had no basis in the evidence; and

▪ a finding based on an inference that is outside of even the generous ambit within which there may be reasonable disagreement as to the inference to be drawn; that is, an inference that is speculation rather than legitimate inference.

[160] I have examined the many factual errors alleged by the appellants. None amount to a palpable and overriding error. I will not address each and every one of the alleged errors referred to in the course of the appellants’ oral and written submissions. The submissions can be grouped into various categories which I will address by category. I will also consider some of the specific submissions.

[161] Several of the submissions made in support of the factual challenges advanced by the appellants misconceive the nature of appellate review of findings of fact. In his factum, counsel for the appellants refers to the existence of ample evidence to support inferences that were favourable to the appellants. I can accept that there was ample evidence to support at least some of the factual assertions made by the appellants at trial. The existence of sufficient evidence to support the position advanced by the appellants does not, however, render a finding of fact in favour of the respondents unreasonable. The issue is not whether there was evidence to support the appellants’ position at trial, but whether the finding in favour of the respondents was unreasonable. The two inquiries are very different.

[162] A second fundamental problem with many of the appellants’ factual arguments is that they proceed from the premise that the version of events provided by the appellants at trial is reliable and accurate. The appellants argue that the findings of fact made by the trial judge are unreasonable when viewed from the perspective of the appellants’ version of the relevant events. This approach ignores the trial judge’s credibility assessments. He found that the appellants were not credible on most material issues. His credibility assessments must stand unless they are shown to be the product of clear and palpable error. The reasonableness of the trial judge’s findings of fact must be assessed in light of his credibility assessments unless and until those determinations are set aside.

[163] Several of the appellants’ submissions alleging unreasonable findings of fact are framed in terms of the trial judge’s failure to consider relevant evidence. My review of the reasons satisfies me that the factors that the appellants contend the trial judge ignored were considered by him. For example, contrary to the appellants’ contention the trial judge did give express consideration to the officers’ failure to take detailed notes and their failure to comply with certain internal police directives. The trial judge recognized that these factors were relevant to the credibility of the officers. It was up to him to decide what weight to give to these factors. His failure to give them the weight that the appellants think he should have given them is not a clear and palpable error.

[164] Several of the appellants’ submissions allege that the trial judge misapprehended the evidence on important matters. Where an unreasonable finding of fact is said to be the product of a misapprehension of evidence, the appellant must demonstrate both that the trial judge misapprehended the evidence and that the misapprehension was material to a significant finding of fact. On my review of the record, the appellants have not shown any misapprehension of the evidence by the trial judge. I will refer to four of the alleged misapprehensions of the evidence.

[165] The appellants submit that the trial judge misapprehended the evidence of the respondents’ expert when he indicated, at para. 73, that a high-risk takedown was justified under police protocol where occupants of a vehicle were believed on reasonable grounds to possess weapons or were considered dangerous. I have reviewed the evidence of the expert and her report. The trial judge accurately summarized her evidence. She testified that a reasonable belief that the occupants of a vehicle possessed weapons or were considered dangerous justified a high-risk takedown. There was no misapprehension of this evidence.

[166] The appellants also submit that the trial judge misapprehended the evidence in refusing to draw an adverse inference from the police destruction of the tapes of the conversations between Officer Ceballo and the police dispatcher during his pursuit of the appellants’ vehicle. Counsel for the appellants rely on the legal principle that an inference may be drawn against a party who destroys potentially relevant evidence.

[167] The trial judge specifically considered this issue in his reasons at para. 64. He referred to the same legal authority relied on by the appellants on appeal. The trial judge concluded on the evidence that the police had no reason to believe that the tapes of the conversations between Officer Ceballo and the dispatcher would be relevant to the complaints initially made against them by the appellants. These initial complaints related to the police conduct after the arrest and not to the events leading to the arrest. The trial judge did not misapprehend the substance of this evidence, but rejected the appellants’ submission that the police ought to have known of the relevance of the tapes when they were destroyed. It was open to the trial judge to take that view of the evidence.

[168] The appellants also allege that the trial judge misapprehended the evidence as it related to Officer Pedler’s denial that he had Mr. Peart place a phone call to a drug dealer while Mr. Peart was in Officer Pedler’s custody on the morning of December 1. The appellants submit that the phone records show that a call was made while Mr. Peart was in police custody at the police station. They contend that the records prove that Officer Pedler lied when he denied that he caused Mr. Peart to place a phone call while Mr. Peart was in custody.

[169] As with virtually all of the factual arguments advanced by the appellants on appeal, this argument was made to the trial judge and dealt with by him in his reasons at para. 159. The trial judge was satisfied that Mr. Peart placed the call while in custody on the morning of December 1. He reviewed Mr. Peart’s evidence on the point and concluded that because of the inconsistencies in that evidence, he could not be satisfied whether it was Officer Pedler or Officer Ceballo that asked Mr. Peart to place the phone call. The trial judge’s summary of Mr. Peart’s evidence is accurate. It was open to him based on the inconsistencies in Mr. Peart’s evidence to be left uncertain as to which officer was involved in the making of the phone call. Consequently, the appellants are wrong when they argue that the trial judge misapprehended the evidence when he failed to find that Officer Pedler’s evidence on the point was proven to be false.

[170] A fourth example of an alleged misapprehension of the evidence concerns the evidence of a subsequent contact between Mr. Peart and Officer Pedler. It was common ground that some weeks after December 1, Officer Pedler stopped Mr. Peart when he was driving his motor vehicle. Mr. Peart described this stop as part of an ongoing course of harassment of him by the police after December 1. Officer Pedler described the stop as a coincidental and relatively friendly encounter.

[171] Officer Pedler testified that when he stopped Mr. Peart, he believed Mr. Peart’s driver’s licence was suspended and that he told Mr. Peart to leave his vehicle. Mr. Peart complied and did not tell Officer Pedler that his licence was not under suspension. In fact, Mr. Peart’s licence suspension had expired.

[172] The trial judge made reference to Officer Pedler’s evidence that Mr. Peart did not tell him that his licence was no longer under suspension in the course of finding that Mr. Peart’s description of his encounter with Officer Pedler was not credible, see paras. 231-32.

[173] On appeal, the appellants argue that Mr. Peart did tell Officer Pedler that his licence was no longer suspended and that the trial judge misapprehended the evidence. I have read Mr. Peart’s evidence and can find no mention by him of having told Officer Pedler that his licence was no longer under suspension. I see no misapprehension of the evidence.

[174] The appellants submit that the trial judge ignored relevant evidence and “mutilated” the evidence to find that relatively minor injuries suffered by the appellants were caused by the use of reasonable force either during the high-risk takedown of Mr. Peart and Mr. Grant or during the strip search of Mr. Grant at the police station.

[175] The trial judge reviewed the evidence concerning the injuries and their possible causes at length at paras. 195-221. He accepted that the police had the onus of demonstrating that any use of force was lawful and not excessive. The trial judge concluded that the medical evidence was consistent with the injuries having been inflicted during the high-risk takedown or when Mr. Grant was pushed against the wall during the search. He further held that parts of the descriptions of the injuries provided by Mr. Grant and Mr. Peart to various doctors tended to support the respondents’ version of events. The trial judge also found that Mr. Peart had significantly exaggerated the nature of his injuries during his discovery testimony.

[176] The trial judge’s review of the relevant evidence is accurate. Indeed, much of it comes by way of quotes from the transcript of the evidence that was available to the trial judge and from medical reports filed as exhibits. The inferences drawn by the trial judge were reasonably open to him. Appellate review goes no further.

[177] Counsel for the appellants also submits that the trial judge’s finding that Mr. Peart was strip searched despite his evidence that he was not strip searched is an unreasonable finding of fact. Counsel submits that there would be no reason for Mr. Peart to deny being strip searched by the police if he was strip searched. Counsel argues that Mr. Peart’s denial of an event which could have supported his case adds credence to his denial and his overall credibility. This is a legitimate argument to advance on behalf of Mr. Peart. It was, however, for the trial judge to decide whether that argument should carry the day.

[178] It is fair to say that the trial judge found both the evidence of Mr. Peart and the evidence of the police officers as it related to the strip search of Mr. Peart somewhat perplexing. While, as counsel for Mr. Peart argued it made little sense for Mr. Peart to deny he was strip searched if in fact he was, it equally made little sense for the police to allege they strip searched Mr. Peart if in fact they did not. Ultimately, the trial judge concluded at para. 164:

Mr. Peart’s motivation in denying that a strip search occurred is a mystery, unless, as defence counsel submitted, it was meant to relate his injuries to his complaints of being beaten. The officers noted strip searching him in their books, which gives some support to their version, whereas Mr. Peart must operate solely on memory. I find Mr. Peart was strip searched and that it was done peacefully.

[179] As happens from time to time, the trial judge was faced with making a finding of fact on evidence that was less than compelling. I can see nothing unreasonable in the choice this trial judge made.

VIII

Conclusion

[180] I would dismiss the appeals. Counsel for the respondents did not demand costs on the appeal and I would not make any order as to costs.

RELEASED: “DD” “NOV 08 2006”

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree Paul Rouleau J.A.”