Court File and Parties

Ontario Court of Justice

Date: April 4, 2018

Court File No.: BRAMPTON 15-17035

Between:

Her Majesty the Queen

— and —

Gebre Byrnes

Before: Justice D.F. McLeod

Heard on: December 1, 2016, May 5, 2017, and June 9, 2017

Reasons for Judgment released on: April 4, 2018

Counsel:

• S. Scully, counsel for the Crown
• M. Forte, Counsel for the Defendant, Mr. Byrnes

Judgment

McLEOD J.:

Brief Overview

[1] Mr. Byrnes is a black man who alleges that he was stopped and investigated under false pretenses on November 14, 2015 by Constable Fraser. Further, Mr. Byrnes through his counsel suggests that there was an element of racial profiling which precipitated the stop and gives rise to the various alleged Charter breaches currently before the Court.

[2] The Crown, although acutely aware of the phenomenon of racial profiling, submits that this matter does not fall within such parameters and argues that the stop and subsequent arrest was warranted in the circumstances.

Racial Profiling

[3] Racial profiling is defined in R. v. Brown as 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. (R. v. Brown para. 7).

[4] 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.).

[5] 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.

[6] R. v. Richards (1999), 26 C.R. (5th) 286, 42 M.V.R. (3d) 70 (Ont. C.A.), as set forth in the reasons of Rosenberg J.A. at p. 295 C.R.:

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.

[7] The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. See R. v. Brown.

Charter Application – Section 9

[8] At the outset of the trial Mr. Byrnes' counsel applied under ss. 9 and 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding the evidence of the breath analysis. The defence contended that the officer's stopping of him was an arbitrary detention under s. 9 because it was based, not on the fact that he was speeding, but rather on racial profiling.

[9] The Crown contends that PC Fraser was in the normal course of her duties as she came upon Mr. Byrnes who was in contravention of the law. The eventual stopping of Mr. Byrnes was not only within the scope of her duties but also ensured the safety of the general public. The idea of race was not a contributor to the need to detain Mr. Byrnes, the sole purpose for the stop was to maintain order and safety for those using the roadways.

[10] There is no dispute respecting the test to be applied under s. 9 of the Charter. 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, [1990] 1 S.C.R. 1291, 56 C.C.C. (3d) 142, at p. 1293 S.C.R., p. 144 C.C.C.

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 (1998), 43 O.R. (3d) 223, 131 C.C.C. (3d) 1 (C.A.) at p. 238 O.R., p. 17 C.C.C.) and clearly would not be an articulable cause. Para 10 and 11 – R. v. Brown

[11] 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.

The Relevant Witness Testimony

PC Erin Fraser

[12] PC Erin Fraser was working in a uniformed capacity and operating a stealth cruiser on the night in question. As a ride along of sorts, PC Fraser was accompanied by Auxiliary Constable Hadaway. Ms. Hadaway, as a result of her volunteer function, was mainly an observer; however, she was entitled to sit with PC Fraser in the front of the cruiser and would from time to time be given rudimentary duties to perform.

[13] On this particular evening PC Fraser testified that while she was travelling eastbound on highway 403, she looked outside her passenger side window, at approximately 8:40 p.m., and observed a male driver talking on his cell phone. PC Fraser recalls the man using his left hand to hold the receiver to his left ear.

[14] PC Fraser has no notation of the weather conditions, the traffic or her speed however her recollection was that her view was not impeded by Hadaway who would have been sitting in the passenger seat closest to the car in question.

[15] The vehicle was a 2008 Mazda and was registered to Muriel Willis.

[16] PC Fraser could not recall the length of time she was beside the vehicle however she noted and further testified that there was nothing unusual about the manner in which Mr. Byrnes was driving.

[17] PC Fraser eventually activated her lighting equipment in order to indicate to the subject vehicle her intention to have them pull over. PC Fraser recalls the vehicle veering to the right and then moved back to the right before eventually stopping.

[18] The vehicle eventually came to a rest on the right side of the highway on the shoulder at which point PC Fraser approached the passenger side (done for safety purposes) while the volunteer auxiliary stayed in the cruiser.

[19] Once at the vehicle PC Fraser did advise Mr. Byrnes that he was stopped because he was driving while he was on the phone. During her interaction with Mr. Byrnes PC Fraser did detect an odour of alcohol.

[20] PC Fraser did make note that upon her arrival at the vehicle she noticed that Mr. Byrnes was searching in a bag and when she asked him what he was searching for she did hear a response.

[21] Eventually the officer went around to the driver's side of the vehicle and continued to ask questions with respect to Mr. Byrnes sobriety, while he continued to look through his bag. PC Fraser asked Mr. Byrnes when he had his last drink, to which he responded he did not have anything to drink.

[22] He was eventually asked for his driver's licence, ownership and insurance. Mr. Byrnes did provide his licence but was unable to provide the other documentation requested of him. He asked the officer if he would be permitted to contact his girlfriend however the officer did not grant his request.

[23] In an attempt to determine the source of the alcohol the officer repeatedly asked Mr. Byrnes to face her when he was responding to her inquiries. Mr. Byrnes, according to PC Fraser, refused to accommodate this request.

[24] At 8:52 p.m., PC Fraser felt she had needed to embark upon a further investigation, and made a formal demand. At 8:55 p.m., Mr. Byrnes registered a fail on the ASD and was placed under arrest for driving over 80 and read his rights to counsel. A male officer was tasked with conducting a pat down search and at 9:04 p.m. Mr. Byrnes was read his rights and supplementary caution prior to being placed in the rear of the cruiser.

[25] At 9:12 p.m., Mr. Byrnes was driven back to the detachment. While being transported to the division, Mr. Byrnes was asked if he had counsel or wished to speak to duty counsel. At 9:26 p.m., Mr. Byrnes arrived at the division and by 9:30 p.m. information was left with duty counsel in order to have them call back to provide legal advice.

[26] Mr. Byrnes received his call at 9:42 p.m. and concluded his call at 9:49 p.m. At 9:54 p.m., Mr. Byrnes was in the breath room with the technician.

[27] PC Freitas was the breath technician on duty. PC Fraser testified that she provided PC Freitas with the grounds for arrest which were the following:

• a) The ASD test registered a fail
• b) The driver did not initially pull over to the shoulder when the officer activated the lighting assembly
• c) The driver was slow to provide the requested documentation

[28] During PC Fraser's testimony it was conceded that she did not advise PC Freitas with the initial reason for the stop was because Mr. Byrnes was talking on a cell phone. Rather, PC Fraser simply advised PC Freitas that a traffic stop was instituted.

[29] In cross-examination PC Fraser admitted that her notes were not in chronological order. It was further conceded that she does not recall conducting any motor vehicle check with respect to the licence plate prior to initiating the stop. Nor is there any notation in her notebook suggesting that any investigating was done with the cell phone to determine the last call made, the time of the last call, or even to determine if the phone was operational.

Auxiliary Constable Hadaway

[30] Auxiliary Constable Hadaway had been an officer with the OPP for the previous 18 months. Auxiliary constables volunteer as support to front line officers and help them to carry out their duties. On the night in question, Ms. Hadaway indicated that both PC Fraser and she were on general patrol, tasked with running licence plates.

[31] When they came across the licence plate of the vehicle being driven by Mr. Byrnes it was not run because the vehicle had Nova Scotia plates and it was determined that in light of the fact it was an out of Province plate it would yield no information on their system. As they drove closer to the vehicle PC Fraser indicated to Ms. Hadaway that she believed the occupant in the vehicle was on the phone. At that time, the police cruiser was in the centre lane and the target vehicle was to the right of them.

[32] At the moment that PC Fraser indicated the person was on the phone, Ms. Hadaway looked over at the vehicle for what she claims amounted to approximately 7 seconds, she observed a black male driver, wearing a hooded sweat shirt, with his left hand on the steering wheel. However, Ms. Hadaway did not see the individual on the phone nor did she see a phone in his hand.

[33] Once the cruiser activated its lights, according to Ms. Hadaway, the subject vehicle "just pulled over" at which point PC Fraser exited the vehicle and eventually approached the passenger's side of the vehicle.

[34] Eventually, PC Fraser returned to the police cruiser with Mr. Byrnes' licence and registration. Subsequent to the initial checks Mr. Byrnes was removed from his vehicle brought back to the police cruiser and a roadside test was administered. Mr. Byrnes registered a fail and was placed under arrest.

Evidence of Gebre Byrnes

[35] Mr. Byrnes is 37 years old and a machine operator who has a criminal record which ends in 2008. He has no convictions for crimes of dishonesty. However, he does have a driving related offence as well as a possession of marijuana from 1997.

[36] Mr. Byrnes testified on the blended voir dire and indicated that on the day in question he recalls seeing a black car coming up behind him at a high rate of speed. He then proceeded to make his way out of the lane he was in and went into the centre lane. He knew as the car approached that it was a police car. Eventually the cruiser put on its lights and Mr. Byrnes made his way over to the shoulder.

[37] Mr. Byrnes, after approximately a minute, was aware he was being followed by a police cruiser and governed himself accordingly. He was able to distinguish this car as a police cruiser based on the fact that the vehicle had a push bar on the front grill. Further to this, he was able to determine the make and model of the car.

[38] After being followed for approximately a minute, Mr. Byrnes observed the lighting system was activated by the police cruiser and immediately pulled over.

[39] When Mr. Byrnes had eventually stopped he began to search his bag. As he stated he is accustomed to being pulled over and as a result wanted to arm himself with the appropriate documentation prior to the officer coming to his vehicle.

[40] He testified that he was repeatedly asked by the officer to tell her what was in the bag as well as to look at her when he is answering her questions. Mr. Byrnes advised her that he was attempting to get his licence. Mr. Byrnes also testified that he did have a phone on the night in question, however he was vehement that he was not on the phone at any point prior to being stopped by the OPP.

[41] Further, while giving his testimony Mr. Byrnes indicated that as a result of being frustrated with the entire situation, fueled by being pulled over for no apparent reason he refused to look at the officer while he was being questioned. Mr. Byrnes indicated that he had bad experiences prior to this and just wanted to deal with the situation and move on.

The Issues and Positions of the Parties

[42] The argument raised by the Defence can be summarized as follows:

Section 9 -- "Driving while Black" -- Pretext Stop

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

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

Analysis

[43] The genesis for Mr. Byrnes to be stopped during his interaction with PC Fraser and unbeknownst to him was due to her contention that he was on the phone whilst driving. This is the catalyst that informs the decision to stop and investigate according to PC Fraser.

[44] As this is the sole reason for stopping the vehicle according to PC Fraser it serves as the launching pad for the analysis. PC Fraser points to no other reason for this vehicle to catch her attention and quite readily admits that the manner in which the car was driven was not an initial factor for her decision to detain.

[45] There is however a significant discrepancy between the evidence of PC Fraser and Ms. Hadaway with respect to their observations of Mr. Byrnes. According to Ms. Hadaway, who is sitting in the passenger seat, PC Fraser stated that the driver, Mr. Byrnes, was on the phone. At that point Hadaway looks to her right, looks into the vehicle and does not see anything that confirms the observations witnessed by PC Fraser.

[46] Ms. Hadaway looks over at the subject vehicle and is able to observe Mr. Byrnes unhindered for 7 seconds. She is able to observe that the driver is a black male, wearing a hooded sweat shirt, with his left hand on the steering wheel. However, Ms. Hadaway who is positioned closer to the vehicle than PC Fraser does not observe a cell phone in the left hand of Mr. Byrnes, nor any glare from a cell phone. PC Fraser was specific in her testimony that the cell phone was in the left hand of the driver. Again, Ms. Hadaway who was not driving and able to observe for a protracted period of time saw nothing of the sort.

[47] This discrepancy proves to be more material once the vehicle has been stopped and the investigative process begins. The purpose for the stop was premised on the fact that the occupant was talking on the cell phone. However, the cell phone is never seized for investigative purposes, further the observation (of the use of the cell phone) does not appear in the notebook of PC Fraser as a precursor to the stop providing articulable cause, nor was there an attempt to confirm that at the material time Mr. Byrnes was on the phone by checking the phone's call history.

[48] PC Freitas, the breath technician does make mention during his testimony that he recalls there may have been some conversation around a cell phone however he does agree that such information never made its way to his notebook as what precipitated the eventual stop.

[49] It was also the evidence of PC Fraser that when her lights were activated as an indication for Mr. Byrnes to pull over he appeared to waiver some prior to eventually stopping. This sluggish reaction to pulling over was noted by the officer and also formed part of her grounds for the demand which was articulated to PC Freitas.

[50] These observations however are not corroborated by Ms. Hadaway who indicated that as soon as the lights were activated as an indication that the officer wished the vehicle to stop, Mr. Byrnes pulled over to the shoulder without any delay which is counter to the information suggested to PC Freitas in order to form the grounds for ASD.

Application and Analysis – Charter s. 9

[51] There is no dispute with respect to the test to be applied under s. 9 of the Charter. 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, [1990] 1 S.C.R. 1291, 56 C.C.C. (3d) 142, at p. 1293 S.C.R., p. 144 C.C.C. 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 (1998), 43 O.R. (3d) 223, 131 C.C.C. (3d) 1 (C.A.) at p. 238 O.R., p. 17 C.C.C.), and clearly would not be an articulable cause.

Is this a case of Racial Profiling?

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

[53] L'Heureux-Dubé J. and McLachlin J. in R. v. S. (R.D.), supra, at para. 38 of their reasons indicated that:

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes.

[54] In R. v. Safarzadeh-Markhali, 2014 ONCA 627, [2014] O.J. No. 4194 at para. 20, the Court indicated, by way of illustration, that "absence of objective grounds for detention, or the fabrication of grounds, can lead to an inference that the detention was racially-motivated." (note – unconscious views can form an honest but mistaken belief)

[55] The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer for Ontario, 1995) (Co-Chairs: M. Gittens and D. Cole) at p. 358 suggests that:

Radicalized characteristics, especially those of black people, in combination with other factors, provoke police suspicion, at least in Metro Toronto. Other factors that may attract police attention include sex (male), youth, make and condition of car (if any), location, dress, and perceived lifestyle. Black persons perceived to have many of these attributes are at high risk of being stopped on foot or in cars. This explanation is consistent with our findings that, overall, black people are more likely than others to experience the unwelcome intrusion of being stopped by the police, but black people are not equally vulnerable to such stops. [page 166]

[56] 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. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under s. 9 of the Charter).

[57] 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.).

[58] There is a large body of case law which has confirmed the phenomenon we know to be "racial profiling". This body of work not only confirms its existence, it provides a basis for the analysis which takes into account overt, institutional and non-conscious racism. Police officers are not immune to racial bias and to purport any differently would not be intellectually honest.

[59] The evidence before me, when looked at objectively, causes this Court to determine that there is an absence of objective grounds which could legitimately substantiate the detention of Mr. Byrnes. Further, this Court draws the inference that the subsequent detention was racially motivated, however this Court is of the view that this motivation was "non-conscious" akin to an honest, but mistaken belief.

[60] This Court found PC Fraser to be honest in her deportment and testimony. Non-conscious racism however should be viewed for what it is, a symptom that finds its way into the fabric of Canadian society. As was concluded in R. v. Brown, an individual police officer engaged in racial profiling may be subjectively unaware that he or she is engaged in non-conscious racism. The fact scenario of this matter (male black, driving early in the morning, with a hoody on, and out of province licence plates) may unwittingly cause one to tap into their non-conscious bias and in so doing act on inference rather than fact.

[61] The perspective of both Ms. Hadaway and PC Fraser when making observations of the same event at the same instance yet having differing accounts allowed this Court a critical perspective. Although varying accounts is nothing new to the adjudication of cases in a criminal context, it proved integral when analysing the subsequent interactions had between PC Fraser and PC Freitas as well as PC Fraser's interaction with Mr. Byrnes.

[62] Where there is no admission of racial profiling (as is the case before me) the courts concede that collateral information may be used to confirm or refute the allegation of racial profiling. The following in this Court's mind is collateral information which further confirms the allegation:

• a) The fact that the phone was not investigated in any greater detail yet it formed the sole reason for the stop in the first place;
• b) The manner of driving post the lights on the cruiser being activated and the differing accounts from not only PC Fraser and Ms. Hadaway but also the independent testimony of Mr. Byrnes addressing the manner in which he stopped, which confirmed the evidence of Ms. Hadaway;
• c) The fact that PC Freitas did not have a notation of being told about a phone in his notes (although less significant does provide greater context to the overall narrative).

[63] It is this Court's contention that PC Fraser was unaware of her bias, however that bias impacted on the Charter rights of Mr. Byrnes. As was stated in the Crown's submissions, should this Court find that there was an element of racial profiling subsumed within the reasons for detention they would concede that it was a serious breach which would not have survived section 24(2) scrutiny. As such any evidence as a result of the arbitrary detention will be excluded.

[64] Lastly, counsel for the defence also alleged a breach of Mr. Byrnes' 10(b) Charter rights with respect to the implementational requirements associated with his stop at the roadside. Although, counsel for the defence did not consider this the mainstay of his Charter argument, I believe it still necessary to address it summarily.

[65] Based on the fact that the officers were diligent and acted with dispatch in order to ensure that Mr. Byrnes was able to speak with counsel once at the division. This Court was of the opinion that any breach that would have been occasioned at the roadside would not have survived a section 24(2) analysis.

Released: April 4, 2018

Signed: Justice D. F. McLeod