ONTARIO COURT OF JUSTICE DATE: 2024 09 06 COURT FILE No.: Newmarket 4911 998 21 91101336-02
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANUSHAN UTHAYAKUMAR
Before: Justice E. Prutschi Heard on: August 26-27, 2024 Reasons for Judgment released on: September 6, 2024
Counsel: Brian McCallion, counsel for the Crown Mitch Engel, counsel for the defendant Anushan Uthayakumar
PRUTSCHI J.:
[1] On August 16, 2021, PC Paul Kimmerly was conducting sobriety enforcement outside the Monte Carlo Inn in Markham. After observing Mr. Anushan Uthayakumar drive away from the hotel, and with the assistance of PC Ralston Wallace, PC Kimmerly initiated a traffic stop. Though Mr. Uthayakumar passed the roadside alcohol screening device (“ASD”) test, the discovery of three suspected marijuana roaches in the centre console cupholder led to a further search of the vehicle pursuant to the Cannabis Control Act (“CCA”).
[2] Just as this search was beginning, Mr. Uthayakumar abandoned his female passenger, grabbed a gym bag from the rear passenger side of his vehicle, and darted into a live lane of traffic. He struck the side of a moving vehicle and was quickly tackled by the officers. A loaded firearm was located inside the gym bag.
[3] The discovery of the firearm resulted in Mr. Uthayakumar being charged with careless storage of a firearm, possession of a weapon dangerous to the public, unlicensed possession of a firearm, occupying a motor vehicle knowing there was a firearm present, possession of a loaded restricted firearm, and obstruction of a peace officer.
ISSUES
[4] Mr. Uthayakumar seeks exclusion of the firearm from this trial on the basis of alleged breaches of sections 8 and 9 of the Canadian Charter of Rights and Freedoms. The specific narrow issues to be determined are as follows:
(1) Was PC Kimmerly’s selection of the Monte Carlo Inn for his sobriety surveillance predicated on prohibited racial profiling of Muslims or Brown-skinned persons?
(2) Was PC Kimmerly’s traffic stop of Mr. Uthayakumar genuinely a random sobriety check pursuant to his authority under the Highway Traffic Act (“HTA”), or was it instead a pretext stop where the real goal was to investigate suspicions related to the possible possession of weapons by the registered owner of the vehicle?
(3) Did PC Wallace unlawfully search the vehicle for the marijuana roaches, or direct the female passenger to open the centre console to reveal the cannabis, prior to engaging in his subsequent CCA search?
FACTUAL SUMMARY
[5] On August 16, 2021, PC Kimmerly began his shift at 6:00am. He was tasked with conducting proactive patrols as part of the Road Safety Bureau (“RSB”) of York Regional Police (“YRP”) in an unmarked police cruiser. Random sobriety checks were a focus of the RSB in their efforts to combat and deter impaired driving.
[6] During his examination in-chief, PC Kimmerly explained how and why he selected the Monte Carlo Inn in Markham as the specific location where he would set up for random sobriety checks. He knew the Markham area well from his three years of policing in that city and, “when I decided I would do sobriety checks, I picked the area I was familiar with.”
[7] He went on to explain that August 2021 was “right in the middle of the pandemic” with bars, restaurants and liquor stores largely closed. “That’s why, when I decided on sobriety checks, the hotel seemed like a reasonable spot as it was one of the only places to consume alcohol.”
[8] A late entry in PC Kimmerly’s notes authored the next day further explained his selection of the Monte Carlo stating, “reason doing sobriety checks at hotel is because during COVID seeing increased parties at hotels; road safety bureau priority to investigate impaired”.
[9] He went on to make a comment during his examination in-chief that proved very contentious in this trial saying, “Some people’s religious or family situations lead them to not drink at home, but they will go to a hotel”. In cross-examination he was questioned about what he meant when he spoke of “religious affiliation”. PC Kimmerly responded, “Some religions, the family doesn’t want people to drink, so if they’re gonna hide that they do it at a bar or hotel”.
[10] When pressed as to what religions he was referring to, PC Kimmerly said, “I believe the Muslim faith, they’re not supposed to drink or it is frowned upon”. Counsel for Mr. Uthayakumar found it “very peculiar that you used religion to describe ethnic minorities that go to a hotel”. To this PC Kimmerly answered, “It was to prove that people drink at hotels”.
[11] Counsel then made his accusation explicit saying, “You go to the Monte Carlo to look for Muslim Brown people”. PC Kimmerly rejected this stating, “No. I was there to do sobriety checks.”
[12] When asked how he knows that Muslims can’t drink he responded, “Because I’ve been involved in occurrences where younger members of the household tell me that they aren’t allowed to drink at home, so they drink in other places.” Finally on this point PC Kimmerly was asked, “You have prior experience with Muslim people drinking in that hotel?” He denied this saying, “I can’t say that I have.”
[13] For these reasons, PC Kimmerly positioned himself at the Monte Carlo Inn. He ran the plates of approximately ten to twenty vehicles he observed in the parking lot noting one in particular where his computer returned a remark that the registered owner of the vehicle had been denied a firearms license. The vehicle was unoccupied at the time.
[14] PC Kimmerly had never come across such a return before and he found it odd. He marked this finding as a “suspicious vehicle” within YRP’s internal police system. The language ‘suspicious vehicle’ was not something he typed in but rather something selected from a pre-populated drop-down menu. He made this notation in furtherance of officer safety so that others would know where he was and what he had observed.
[15] About a half hour later PC Kimmerly noted someone leaving the hotel and entering a vehicle. PC Kimmerly radioed PC Meli who was another officer that was in the vicinity in a fully marked police cruiser. The two of them conducted a traffic stop on this vehicle followed by an ASD. The driver was a Brown male. Though the driver passed the ASD, he was alleged to be breaching release conditions and was arrested for that.
[16] PC Meli proceeded to transport that driver to the division for booking while PC Kimmerly returned to his position at the Monte Carlo Inn. Almost an hour had passed but when PC Kimmerly arrived back at the hotel, the vehicle he had tagged as suspicious was still in the parking lot.
[17] Up to this point, the driver who ended up being charged for breaching release conditions was the only person PC Kimmerly observed leaving the Monte Carlo.
[18] Within minutes a male and female were the next individuals to be observed by PC Kimmerly exiting the hotel. These parties proceeded to enter the suspicious vehicle with the male behind the wheel. PC Kimmerly followed them out of the hotel parking lot and conducted a tandem traffic stop with the assistance of PC Wallace who was in a marked police cruiser.
[19] A tandem stop involves two police vehicles boxing the target vehicle in from in front and behind forcing it to stop. Both PC Kimmerly and PC Wallace testified that YRP policy calls for a tandem stop in sobriety check situations where possible as this procedure maximizes public and officer safety by making it much more difficult for the target vehicle to flee when a stop is initiated.
[20] Both officers exited their vehicles. PC Kimmerly dealt with Mr. Uthayakumar who was the driver while PC Wallace communicated with the female passenger. From the moment he was stopped and throughout the ASD procedure Mr. Uthayakumar appeared very nervous. He made several efforts to approach or enter the rear passenger side of his car but was directed back to the front of PC Kimmerly’s cruiser where the ASD was to be administered.
[21] Meanwhile PC Wallace engaged in a verbal conversation with the female passenger. Unfortunately, the precise content of these interactions is not available as PC Kimmerly had either not activated his mic pack or it was malfunctioning. He noted that he could see he was wearing the pack in the in-car camera (“ICC”) video but could not explain why it did not record. Only the occasional muffled word can be heard when the parties are close enough to the cruiser to be picked up by the cruiser’s internal microphone. While PC Wallace had a separate police cruiser with its own ICC and mic pack, this audio/video was never introduced at trial.
[22] As a result, the only evidence available to me as to the contents of the conversation with the female passenger comes from PC Wallace. He advised he detected a faint odour of burnt marijuana as he stuck his head in the window – a fact not recorded in his notes.
[23] He observed a removeable ashtray placed within the cupholder of the car’s centre console. The cupholder had a hinged lid and was closed, but ash could be seen around the outer rim. PC Wallace advised the female of the reason for the stop. She told him that the couple had been at the hotel for the night where they consumed some alcohol and smoked some cannabis. PC Wallace again noted that they were conducting a sobriety check and asked if there was any cannabis in the vehicle. The female then voluntarily opened the lid of the ashtray to reveal three partially consumed cannabis roaches.
[24] PC Wallace advised PC Kimmerly and Mr. Uthayakumar of the cannabis discovery and that he would now be conducting a CCA search even though by this point Mr. Uthayakumar had just completed and passed the ASD test. Mr. Uthayakumar can be seen on the ICC to become visibly agitated upon learning of the impending CCA search. He advised the officers that he would not permit them to search his vehicle to which PC Wallace responded that there were only two options: either the car would be searched with Mr. Uthayakumar cooperating, or Mr. Uthayakumar would first be arrested for obstructing police and then the car would be searched anyway.
[25] As PC Wallace turned slightly to remove his search gloves from his back pocket, Mr. Uthayakumar bolted to the rear passenger side of his car, grabbed a gym bag through the open window and ran into a live lane of traffic. He hit the side of another moving vehicle but was remarkably unharmed. This gave the officers a moment to catch up and tackle him.
[26] After Mr. Uthayakumar was subdued, a loaded firearm was found within a satchel inside the gym bag.
THE LAW
Racial Profiling
[27] An assertion of racial profiling is advanced in the context of a section 9 Charter challenge. The burden rests on the defence to establish the existence of racial profiling on a balance of probabilities.
[28] The ONCA defined racial profiling as the phenomenon whereby "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." R. v. Richards at para. 24.
[29] More recently the Supreme Court of Canada has provided this definition: “…racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”. R. v. Le, 2019 SCC 34 at para. 76.
[30] Racial profiling can be overtly intentional, but it can also be the result of subconscious or institutional bias. [R. v. Brown, 2004 O.J. 1251 at para. 8]. It can rarely be proven by using direct evidence and must instead by inferred by analysing the particular circumstances of the police action. Peart v. Peel Regional Police Services Board at para. 95 and [R. v. Brown, supra at para 44].
[31] Racial profiling improperly infects an arrest even if it was only one of several factors used in the decision to detain or arrest an individual. Where race or racial stereotypes are used to any degree to select a suspect or treat individuals differently, it is racial profiling. Brown v. Durham Regional Police Force; Peart v. Peel Regional Police Services Board, supra at para. 91; R. v. Gala-Nyam, 2023 ONSC 2241 at para. 54.
[32] Racial profiling is so pernicious that, where it is found to exist, there can be no reasonable suspicion or grounds to uphold police conduct in such a circumstance nor any balancing of other state interests. R. v. Dudhi, 2019 ONCA 665 at para. 62-63; R. v. Le, 2019 SCC 32 at para. 76 and R. v. Sitladeen, 2021 ONCA 303 at para. 50.
[33] For nearly twenty years, appellate courts in this Province have recognized that racial profiling is a genuine phenomenon that is part of the day-to-day reality for those minorities affected by it. Peart v. Peel Regional Police Services Board, supra, at para. 94. This reality does not however lead to the creation of an irrebuttable presumption of racial profiling in the face of certain factual indicators. The inferences to be drawn from the facts are to be determined by the factual findings of the trial judge. The presence of racial profiling indicators does not necessarily demand a finding of racial profiling. Peart v. Peel Regional Police Services Board, supra, at para. 135. The facts as a whole must be assessed against the appropriate standard of proof that rests with the defence.
[34] Thus, if PC Kimmerly’s purpose in setting up at the Monte Carlo hotel was to consciously or subconsciously target Muslims or persons of colour for sobriety enforcement, such actions must be condemned and cannot authorize any of the police conduct that followed.
Pretext Stops vs. Random Sobriety Checks
[35] Sections 48 and 216 of the HTA operate cooperatively to authorize police to engage in groundless traffic stops for the purposes of investigating the sobriety of drivers. This extraordinary power is justified by the pressing need to police the potentially dangerous behavior of drivers bearing in mind that driving is a heavily regulated privilege and not a right.
[36] However, the broad powers to randomly stop and screen drivers must be carefully scrutinized to ensure that police do not abuse this power to engage in an unfounded general inquisition. Similarly, for a random stop to be authorized it must truly be random and not predicated on stereotypical selection criteria such as a person’s gender, colour, religion or other inappropriate characteristics.
[37] The HTA sobriety check cannot serve as a false-front or pretext by which to authorize a traffic stop whose true intention is to serve a different investigative function.
[38] Thus, if PC Kimmerly’s true intention in initiating the stop of Mr. Uthayakumar’s vehicle was to further an investigation into the suspicious firearm refusal, the sobriety check powers of the HTA were unlawfully used in the furtherance of a different police objective.
The CCA Search
[39] Section 12 of the CCA prohibits the presence of readily available cannabis in a vehicle. An officer who has reasonable grounds to believe that cannabis is readily available is authorized to conduct a warrantless search of the vehicle and its occupants.
[40] If PC Wallace, through some combination of smell or voluntary admission by the female passenger, came to lawfully observe the presence of the cannabis roaches in the cupholder ashtray, he would be authorized to engage in the subsequent CCA search which ultimately led to Mr. Uthayakumar’s attempted flight and the discovery of the firearm.
[41] However, if PC Wallace either opened the ashtray himself or ordered the female passenger to do so at his direction, this would constitute a warrantless search without the CCA’s authorization and result in a violation of section 8 of the Charter.
APPLICATION TO THE FACTS
[42] PC Kimmerly’s reasons for selecting the Monte Carlo Inn as his sobriety check point bears close scrutiny. His belief that some people’s “religious or family situations” cause them to seek out hotels to drink has the potential to engage concerns over racial profiling. However, his comment must be analyzed and interpreted in light of the whole of the evidence in order to determine whether prejudice against Muslims or persons of colour were a contributing factor in suspect selection or treatment that evening.
[43] First, while counsel for Mr. Uthayakumar understandably focussed entirely on the “religious” portion of PC Kimmerly’s evidence, one cannot ignore the “family situation” which PC Kimmerly referenced in the very same breath.
[44] This comment must be situated within the historical context of the moment. In August of 2021 COVID restrictions were in full force shutting down all of the traditional public spaces in which persons might drink. It is clear from the totality of PC Kimmerly’s statement that his goal was to identify and target any alternative place, outside of a private residence, that drinkers might congregate in, an effort to fulfill his road safety responsibilities.
[45] This led him to consider persons who would be made to feel uncomfortable drinking at home but could secure the necessary privacy at a hotel. In that context “family situations” clearly addresses individuals whose family members might disapprove of their drinking for whatever reason. This could be domestic instability between spouses, young persons chaffing under parental supervision, or persons whose religion as practiced in the home discourages or prohibits alcohol consumption.
[46] Indeed, PC Kimmerly’s thought process was not entirely hypothetical. In his late note entry he explained that COVID lockdowns had seen an increase in parties at hotels. His experience with Muslims choosing to consume alcohol away from their homes was also not theoretical as he had prior interactions with persons of that faith who had told him they were not permitted to drink in the family home, so they sought other places to drink.
[47] Most importantly, at the core of his decision to monitor the Monte Carlo was the simple fact that there was no other open public space in which alcohol could be consumed. Thus, the selection of the Monte Carlo was not designed to target any particular faith or colour, but rather to go to the only place drinkers could go in the midst of a pandemic.
[48] This benign rationale for the selection of a hotel was borne out by PC Kimmerly’s actions that evening. He testified that every vehicle leaving the hotel was to be subjected to a sobriety check and he did exactly that. Only one vehicle exited before Mr. Uthayakumar and it was indeed stopped. Nothing in PC Kimmerly’s conduct during the traffic stop, administration of the ASD, and subsequent arrest suggest any racial or religious motivation.
[49] PC Kimmerly never asked nor ever became aware of Mr. Uthayakumar’s religious affiliation. Indeed, that evidence was never adduced at trial in any form. While it is visually apparent that Mr. Uthayakumar is Brown and his surname suggests his family hails from Sri Lanka, these facts alone, without further evidence, fail to meet the defence burden to establish racial prejudice on a balance of probabilities. As I noted earlier, the presence of certain indicators does not inevitably lead to an irrebuttable conclusion that racial prejudice was at play.
[50] The selection of a hotel during COVID is no more pernicious than the choice of other venues with an articulable probability of alcohol consumption. An officer who sets up sobriety checks outside of a Kosher restaurant cannot, on that evidence alone, be said to be singling out Jews for differential enforcement. The decision to establish sobriety enforcement outside of a cultural festival such as Caribana or the PRIDE parade does not mean police are inappropriately targeting Black or LGBTQ persons. Sobriety enforcement outside of a banquet hall hosting a Catholic wedding does not constitute anti-Catholic prejudice.
[51] Police charged with enforcing road sobriety simply go where the drinkers go. In the era of COVID lockdowns, that meant scrutinizing hotels.
[52] For these reasons I find that Mr. Uthayakumar has failed to meet his burden to establish racial prejudice and that application is dismissed.
[53] I turn now to the claim that PC Kimmerly abused the random stop power, using it instead as a pretext to advance an investigation into suspicions surrounding the failed firearms licence application of the vehicle’s registered owner.
[54] The facts simply do not support this argument. PC Kimmerly testified that he ran the plates of every car in the parking lot of the Monte Carlo when he set up for his initial observations. This totalled some ten to twenty vehicles. The return his computer provided on Mr. Uthayakumar’s car was unusual – PC Kimmerly had never come across that before. For this reason he filed it as a “suspicious vehicle” and continued his observations.
[55] PC Kimmerly made no effort to approach the vehicle, nor did he exit his car to look into the vehicle. Most importantly, he abandoned sight of the vehicle when he voluntarily left the Monte Carlo to assist PC Meli in the first traffic stop. During that time PC Kimmerly left the suspicious vehicle for nearly an hour. Clearly, he had no overarching investigative concerns in that car, or he would not have given it this lengthy opportunity to disappear.
[56] Later, during the traffic stop, PC Kimmerly made no effort to advance a firearms or weapons investigation. He immediately advised Mr. Uthayakumar that the reason for the stop was to check for sobriety and issued the ASD demand. PC Kimmerly proceeded with the usual protocol for an ASD test even as Mr. Uthayakumar paced about nervously, making several attempts to access the rear passenger seat of his car. There is no basis to conclude that the traffic stop was in any way motivated by anything other than a basic sobriety check.
[57] While PC Kimmerly was dealing with Mr. Uthayakumar and the ASD, PC Wallace was speaking with the female passenger. It is very unfortunate that no audio was tendered by the Crown which would have conclusively determined the precise nature of their conversation. However, the ICC video from PC Kimmerly’s vehicle provides a good vantage point from which to observe PC Wallace’s interaction.
[58] It is clear from the ICC that PC Wallace bent down low to look through the open driver’s side window as he spoke to the passenger. He did not approach the passenger side as the traffic stop took place in the left-most lane. While there was a median lane separating the driver’s side from oncoming traffic, the passenger side would have placed PC Wallace in a precarious position alongside a live lane of traffic.
[59] The conversation lasted for roughly one minute. Several times PC Wallace can be seen to have his face partially inside the open window though the top and back of his head always remained visible and he did not lean far enough into the vehicle to physically access the centre console himself.
[60] After that short conversation PC Wallace left the front of Mr. Uthayakumar’s car and walked towards the back where Mr. Uthayakumar has just completed the ASD test. PC Wallace can be seen holding up first one finger and then two, which meshes with his own evidence and that of PC Kimmerly, that PC Wallace was giving Mr. Uthayakumar his only two options: comply with the impending CCA search or be arrested for obstruct.
[61] Mr. Uthayakumar became visibly agitated and appeared to be arguing over the basis for the CCA search. It is in response to this agitation that PC Wallace walked swiftly back to the front of Mr. Uthayakumar’s car and, without the slightest hesitation, reached in to emerge with the ashtray containing the cannabis roaches.
[62] The only logical inference from PC Wallace’s immediate retrieval of the ashtray is that he had already seen what was inside and knew exactly where to go to retrieve it. I reject any suggestion that PC Wallace took it upon himself to search the centre console before discovering the roaches. The ICC makes it clear that he did not reach in to accomplish that until after he had already advised Mr. Uthayakumar about the cannabis found in the ashtray.
[63] The only evidence I have as to the nature of the conversation between PC Wallace and the female passenger comes from PC Wallace himself. Neither party called the passenger as a witness. PC Wallace testified that he advised her of the reason for the traffic stop and she told him about their night at the hotel during which both alcohol and cannabis were consumed.
[64] PC Wallace reiterated that the purpose of the stop was a sobriety check and inquired if there was any cannabis still accessible in the vehicle. The female then opened the ashtray lid of her own accord and showed PC Wallace the roaches. All of this is consistent with the physical observations visible on the ICC video. There is no evidence to suggest anything contrary to PC Wallace’s recollection. For these reasons, I accept PC Wallace’s evidence on this point and find that there was no unlawful search or seizure prior to the initiation of the CCA search. The section 8 application is therefore dismissed.
[65] Having addressed and dismissed both the racial prejudice and search arguments, the balance of the Crown’s case is conceded. Mr. Uthayakumar will therefore be found guilty on each of the counts he has been arraigned on.
Released: September 6, 2024 Signed: Justice Edward Prutschi