Court File and Parties

Court File No.: North Bay 2560-2805756B Date: 2015-09-04 Ontario Court of Justice

Between: City of North Bay Prosecutor and Respondent

— And —

Rudolph Singh Defendant and Applicant

Decision on Sections 8 and 9 Charter Application

Before: Justice of the Peace L.M. Scully

Heard: July 8, 2015

Reasons for Decision Released: September 4, 2015

Counsel:

Christian Tremblay, for the prosecution/respondent
Andrew Perrin, for the defendant/applicant Rudolph Singh

Cases Cited

Statutes and Regulations Cited

Decision

Justice of the Peace L.M. Scully:

Background

[1] Dr. Rudolph Singh is before the court charged with Drive motor vehicle - no licence contrary to section 32(1) of the Highway Traffic Act. Dr. Singh was charged by way of Part I of the Provincial Offences Act, which in common terms means he was given a "ticket" at the roadside by Cst. Weber of the North Bay Police Service.

[2] This is my decision in relation to the Charter application brought by the defence pursuant to sections 8 and 9 of the Canadian Charter of Rights and Freedoms. The defence is seeking an order staying proceedings against Dr. Singh pursuant to section 24(1) of the Charter or in the alternative an order excluding all evidence seized in contravention of Dr. Singh's Charter rights pursuant to section 24(2) of the Charter.

[3] On this Charter application the defence called Constables Elia and Weber of the North Bay Police Service as witnesses and they were cross-examined by the prosecutor Mr. Tremblay. No other witnesses were called on this Charter application.

The Racial Profiling Allegation

[4] The defence argues that Cst. Weber detained Dr. Singh at the roadside in violation of section 9 of the Charter as they allege that Cst. Weber detained Dr. Singh as a result of racial profiling. Mr. Perrin, counsel for the defendant, conceded that when Cst. Weber pulled over Dr. Singh while he was driving his motor vehicle on July 18, 2013 that Constable Weber was in possession of information that he had obtained approximately two weeks prior that Dr. Singh was an unlicensed driver. Mr. Perrin however argues that at the time of the traffic stop on July 18, 2013, which is the subject of the charge before the court, that the information Cst. Weber had was "stale dated".

[5] Cst. Weber obtained the information two weeks prior about the status of Dr. Singh's driver's licence as a result of overhearing a conversation that Cst. Elia had with dispatch while they were conducting surveillance in relation to a different matter. The officers were watching a home to see if a suspect would come out as they had grounds to arrest him. While conducting the surveillance Cst. Elia noticed a burnt orange colored Land Rover drive by and he believed that car to be Dr. Singh's car. Based on prior information he also believed that Dr. Singh did not have a valid drivers' licence and he wished to confirm that information with dispatch. Dispatch advised Cst. Elia that Dr. Singh did not have a valid drivers' licence.

[6] Neither officer pursued the matter until approximately two weeks later when Cst. Weber observed an orange Land Rover or Range Rover being driven by Dr. Singh and decided to pull him over to confirm the status of his driver's licence.

[7] While the officers did not agree on whether the term "flashy" properly described Dr. Singh's motor vehicle they both testified that it was a very distinctive motor vehicle because as far as they were both aware it was the only Land Rover or Range Rover model of vehicle in the City of North Bay that was a burnt orange color and they both knew that particular vehicle to be owned by and driven by Dr. Singh. They also both knew Dr. Singh from previous dealings with him in relation to his driver's licence and Cst. Elia was the investigating officer in relation to a prior domestic violence complaint. Cst. Weber also indicated he had heard that Dr. Singh may be involved in drugs but he did not have any specific details. During questioning by defence counsel Cst. Elia testified that he was aware that Dr. Singh had recently been charged with drug offenses but had been on annual leave at the time and he was not aware back in 2013 when dealing with this driver's license issue of any drug allegations at that time. These facts were either not in dispute by the defence or the officers were not shaken with respect to these facts during questioning. The defense however argues that there was more than meets the eye to this particular traffic stop and that racial profiling was the underlying reason for the traffic stop.

Legal Framework for Racial Profiling

[8] The defence has provided the case of R. v. Brown, [2003] O.J. No. 1251, a decision of the Ontario Court of Appeal dealing with racial profiling. In this case Justice Morden quotes the definition of racial profiling as set forth by Justice Rosenberg in an earlier decision of the Ontario Court of Appeal, R. v. Richards, 26 C.R. (5th) 286. On page 4 of the Brown case he quotes Justice Rosenberg as follows:

"Racial profiling is criminal profiling based on race. Racial or color profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or color 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."

[9] The Brown case and other racial profiling cases make it clear that evidence of overt racism is not required to prove racial stereotyping or racial profiling. In fact it would be extremely rare to have such evidence as the social science evidence supports the fact that there is much subconscious racial stereotyping and profiling and most people would seek to hide overt racist views if they had them.

[10] On page 4 of the Brown decision Justice Morden articulates the test to be applied under section 9 of the Charter as follows:

"The question is whether the police officer who stopped the motorist had articulable cause for the stop. Articulable cause exists where the grounds for stopping the motorist are reasonable and can be clearly expressed: R. v. Wilson, 56 C.C.C. (3d) 142 at 144. If a police officer stops a person based on his or her colour (or on any other discriminatory ground) the purpose is improper (Brown v. Durham Regional Police Force, 131 C.C.C. (3d) 1 at 17) and clearly would not be an articulable cause. Accordingly, to succeed on the application before the trial judge, the respondent had to prove that it was more probable than not that there was no articulable cause for the stop, specifically, on the evidence in this case, that the real reason for the stop was the fact that he was black."

Distinguishing Brown and Khan

[11] The court made a number of findings in the Brown case relating to evidence which is not present in the case before me. First of all the court found a reasonable apprehension of bias by the trial judge as a result of the trial judge's interventions during cross examination; the trial judge's negative comments about the racial profiling argument made throughout the trial and the trial judge seeming to come to the aid of the officers being cross-examined. The court also found that there were discrepancies in the evidence of one of the officers between his evidence in chief and his evidence in cross examination. There also were discrepancies between the information that one of the officers provided to the breath technician and the information recorded in his notebook. It appeared that the officer had been referring to undisclosed notes made on separate pieces of paper that were not in his notebook when he was speaking with the breath technician. These undisclosed notes were never found or produced to the defence. Justice Morden points out that a racial profiling claim could rarely be proven by direct evidence and that if racial profiling is to be proven it would most likely be done by inference drawn from circumstantial evidence. In this particular case Justice Morden found that the evidence shows circumstances relating to a detention corresponding to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer was lying about why he singled out the accused for attention and the record is capable of supporting a finding that the stop was based on racial profiling.

[12] In the Brown case the court found that in addition to submitting that the facts of a young black person wearing a baseball hat and jogging clothes and driving an expensive new car fit the phenomenon of racial profiling, the respondent refers to several features of the evidence which support the argument that the officer is not being truthful about the real reasons for the stop. Justice Morden reviews that evidence which calls into question the officer's motives and indicates the following as concerning evidence:

"The respondent's evidence that the officer looked into his car before following or stopping him; evidence of the second set of notes prepared by the officer to firm up his reasons justifying the stop after he became aware the person under arrest was a well-known sports figure likely to undertake a defence of the charge against him; a licence check the officer made before he stopped the respondent; and discrepancies to the times recorded in his notebook and those which gave he gave to the breathalyzer technician."

There is also contradictory evidence from the defendant as to what occurred before and during the traffic stop. None of these features are present in the evidence before me in Dr. Singh's case.

[13] While Dr. Singh was described as being "brown skinned", he is with all due respect, not a young person. His year of birth as indicated on the Part one certificate of offence, if accurate, is 1966. From my observations of Dr. Singh in court that year of birth would appear to be reasonably accurate. Also at least one of the officers, which is Cst. Elia, was aware that Dr. Singh is a dentist and therefore the fact that he drove a distinctive, expensive or flashy car presumably would not be a surprise to Cst. Elia nor fit within any stereotypes or racial profiling assumptions about young black men and how they can afford to drive expensive flashy cars. Unfortunately the assumption is often incorrectly made that young, black men are able to afford to buy expensive flashy cars based on proceeds of crime such as drug dealing or that such cars are stolen. Such racist assumptions would likely not be made in the case of an educated, professional such as a dentist who presumably from a dentist's salary could afford a distinctive, flashy or expensive car. The case before me also does not involve generalized assumptions but involves specific knowledge of the lack of a driver's licence of a specific person, that being Dr. Singh, driving a specific car, namely a burnt orange colored Land Rover or Range Rover that was known to both officers.

[14] I have to agree with the submissions of the prosecutor that if the officers took some sort of extraordinary measures to deal with this case then perhaps that would afford more likely evidence of racial profiling, but the officers did not do that. The officers did not stop their surveillance to pursue Dr. Singh's motor vehicle two weeks prior to this traffic stop nor did Cst. Elia submit a bulletin to the North Bay Police Service although he says he probably should have. Cst. Elia did not follow up on the matter and nor did Cst. Weber until he actually observed Dr. Singh driving the same motor vehicle on the date of the alleged offence of July 18, 2013 approximately 2 weeks after he had the initial information about the status of Dr. Singh's licence.

Alternative Methods of Enforcement

[15] The defence suggests that the officers could have simply served Dr. Singh a summons. I find that there would be no basis for the officers to serve Dr. Singh a summons and serving him a summons would actually have been a more serious, more intrusive method of dealing with a traffic offence than simply issuing him a ticket at the roadside as was done in this case. Cst. Elia observed Dr. Singh's motor vehicle however he admitted that he did not observe Dr. Singh driving therefore he would have been unable to issue him a summons for the offence of Drive motor vehicle – no licence as he had no evidence that Dr. Singh was actually the one driving. Two weeks later when Cst. Weber stopped Dr. Singh's vehicle he conceded that it is possible Dr. Singh had his license back within that two-week timeframe and he needed to confirm that. Therefore he also would have been unable to serve Dr. Singh a summons until he pulled over his vehicle and confirmed the status of his licence. Also serving Dr. Singh a summons would necessitate a court appearance and would possibly necessitate the officer showing up at his home or office to serve him with that summons thereby possibly embarrassing him and causing more intrusion on his privacy than simply pulling him over at the side of the road and serving him with a Part I ticket (properly know as an offence notice) if the evidence obtained during the traffic stop gave the officer grounds to do so. Also a Part I ticket does not necessitate a court appearance, it allows the defendant to choose which option they wish to proceed and it does provide them with the option of paying the ticket out of court if that is their choice. The Part I procedure also contains certain limitations on the penalties that are available. If the officer had chosen the more serious route and charged the defendant by way of an Information and served him with a Part III summons then the defence may well have been arguing that the officer was singling out the defendant for harsher treatment than most others… but that's not what happened in this case.

The Khan Case

[16] The defence has also provided me with the case of R v. Khan, [2004] O.J. No. 3819, a decision of Justice Molloy of the Superior Court of Justice. In that particular case Justice Molloy found that Mr. Khan was stopped for driving his motor vehicle because he was a young black male driving an expensive Mercedes and that it was a reasonable inference based on all the circumstances and the evidence in that particular case. There was again conflicting evidence between the defendant and that of the two officers and the judge accepted the evidence of the defendant as being more credible than that of either officer. In the Khan case there were cell phone record times and police computer times which disputed the officers' version of events and the records matched each other and were internally consistent and were consistent with Mr. Khan's testimony. The court found that much of the police officers evidence simply made no sense and was clearly fabricated as an ex post facto justification of their traffic stop. Again like with the Brown case we do not have such evidence or such characteristics of the evidence in the case before me.

Charter Analysis

[17] Section 9 of the Charter states that everyone has the right not to be arbitrarily detained or imprisoned. The Prosecution has provided me with the case of R. v. Ladouceur, [1990] 1 S.C.R. 1257 in which the Supreme Court of Canada determined that routine checks and random stopping of motorists as authorized by provincial legislation does violate section 9 of the Charter however it is saved under section 1 as being a reasonable limit to meet the pressing and substantial concern for safety on the highways. The court makes clear however that the stop must be for legal reasons such as to check the drivers' licence and insurance; sobriety of the driver or the mechanical fitness of the vehicle or other highway traffic related concerns. Also in the Wilson decision the Supreme Court of Canada said that the stopping of a motorist as authorized by provincial legislation on grounds which are reasonable and can be clearly expressed is not random and thus not a violation of section 9.

[18] Section 8 of the Charter states that everyone has a right to be secure against unreasonable search or seizure. In the case of R v. Hufsky, [1988] 1 S.C.R. 621 the Supreme Court of Canada found that a demand by a police officer that a motorist who he has stopped surrender his driver's license and insurance card for inspection as required by provincial legislation does not offend section 8 because such procedures are not a search there being no intrusion on a reasonable expectation of privacy. There is no intrusion on a reasonable expectation of privacy where persons are required to produce his licence, or permit, or other documentary evidence of a status, or compliance with some legal requirement that is a lawful condition of the exercise of a right or privilege.

Staleness of Information

[19] The defence argues that the information that Cst. Weber had about the status of Dr. Singh's licence; being approximately two weeks old; was "stale dated" at the time that Cst. Weber stopped Dr. Singh and that Cst. Weber had no reasonable grounds to arrest Dr. Singh. There is no evidence before me that Cst. Weber had any intentions of arresting Dr. Singh nor did he actually arrest Dr. Singh. He detained Dr. Singh at the roadside by pulling him over while driving based on information he had that Dr. Singh was an unlicensed driver and he wished to confirm if that was still the case. Since random stops of motor vehicles are allowed by the Highway Traffic Act and the case law says such stops are a reasonable limit under section 1 of the Charter, then surely an officer can stop motorists to check a person's driver's license based on specific information that is only two weeks old. Such a stop is not "random" but is based on articulable cause.

Language and Demeanor

[20] The defence has argued that the language used by the officers to describe Dr. Singh while they were testifying such as "African-American", "non-white", "they", etc. shows subconscious racist attitudes and a "us and them" type mentality. I do not believe that is a fair characterization based on all of the evidence before me and based on the nature of the questions asked by the defence to elict such answers which were asking the officers to physically describe themselves, Dr. Singh and others they saw in the courtroom and to contrast and compare the various persons described.

[21] Cst. Elia took offence to many of the suggestions regarding racism that he felt were implied by Mr. Perrin's questions and Mr. Perrin argued that Cst. Elias' demeanour in this regard showed he was not credible. While I did have to instruct Cst. Elia to answer defence counsels' questions whether he liked them or saw their relevance or not I do not find that his demeanour in this regard affected his credibility on the relevant evidence which was clear, straightforward, not over reaching, unshaken and co-oroborated by the evidence of Cst. Weber. I also note that the officer who ultimately pulled over the defendant and charged him was Cst. Weber not Cst. Elia.

Conclusion

[22] I therefore find that the defence has not proven a breach of sections 8 or 9 of the Charter on a balance of probabilities. I find that the evidence before me does not support an inference of racial profiling. I find that Cst. Weber had articulable cause to stop Dr. Singh's motor vehicle while Dr. Singh was driving on a highway to check the status of his drivers' licence and that such a detention and the resulting evidence obtained does not violate sections 8 or 9 of the Charter.

Released: September 4, 2015

Signed: Justice of the Peace L.M. Scully

R. v. Singh, 2015 ONCJ 500

Case Summary