ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000002-00AP

DATE: 20140818

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

KYLE THOMPSON

Respondent

Brian G. Puddington, for the Crown

Andrew Porter, for the Respondent

HEARD: June 19, 2014

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

r. f. goldstein j.

[1] Mr. Thompson was acquitted of possession of marijuana, assaulting a police officer, and two counts of failing to comply with a recognizance of bail. He was a passenger in a car when the car was stopped for traffic violations. He scuffled with a police officer and escaped. His jacket was seized at the scene. The jacket contained marijuana.

[2] The main issue at trial was whether the police violated Mr. Thompson’s Charter rights. The trial judge wrote a 45-page judgment dismissing the charges. The trial judge appears to have determined that there was an arbitrary detention as a result of racial profiling by the police. The trial judge also found that the police used excessive force.

[3] Regrettably, the lengthy judgment does not disclose the path the trial judge took to the finding of a Charter violation or the acquittal on the assault police charge. Furthermore, if the trial judge did find that the police officer had engaged in racial profiling – and that is not clear – there was scant evidence in support. The reasons are insufficient to provide meaningful appellate review. The reasons also disclose errors of law. For the reasons that follow, the appeal is allowed and a new trial is ordered.

FACTS

[4] On September 25, 2011 Constable Crawford of the Toronto Police was on general patrol in the area of Lawrence Avenue East. He was in a marked police car with a dashboard-mounted video camera. He was investigating another matter when he saw a purple Plymouth. A Plymouth is a late-model car. Constable Crawford observed the Plymouth make an unsafe lane change. He also observed that the rear passenger was not wearing a seatbelt. He made that observation by pulling up next to the rear passenger.

[5] In cross-examination Constable Crawford agreed that he was aware that Mr. Thompson was black. He said that he did not know the race of the driver and front passenger, although he knew that they were male. Constable Crawford ran the Plymouth’s licence plate while still in traffic. He discovered that a female owned the car.

[6] Mr. Thompson was the rear passenger. He was sitting behind the front passenger. Constable Crawford stopped the Plymouth and went to the rear passenger door. Mr. Thompson was seated there. Mr. Thompson opened the door and seemed to try to get out. Constable Crawford pushed him back into his seat in what appeared to be a relatively gentle manner. The officer testified that as he did so, he could smell the odour of unburned marijuana. He also observed that Mr. Thompson had his hand in his pocket and something bulky in a plastic bag.

[7] Constable Crawford formed reasonable grounds to believe that Mr. Thompson was in possession of marijuana. He attempted to place him under arrest but Mr. Thompson fought back. There was a struggle. Mr. Thompson was able to get away from the officer but was arrested later that evening. He lost his jacket during the course of the struggle. Constable Crawford seized it and found that there was a plastic bag containing 24.23 grams of marijuana in it.

[8] Moments after Constable Crawford and Mr. Thompson moved out of the view of the camera, the other occupants abandoned the purple Plymouth and ran away from the scene.

[9] As noted, Constable Crawford’s police car was equipped with a video camera. The video camera was positioned on the dashboard. It captured most of the incident, including the timing. The time from Constable Crawford getting out of his police car to the moment that he and Mr. Thompson moved out of view was about 15 seconds. The video shows the Constable Crawford’s police car moving through traffic to get behind the purple Plymouth. The video also shows the stop. The audio captures some of Constable Crawford’s communications with the police despatcher. It captures the encounter between Constable Crawford and Mr. Thompson, including the commencement of the scuffle. The removal of the jacket occurred off camera. The video then shows the other occupants abandoning the purple Plymouth and running away, as well as a civilian coming over to investigate. Finally, the video captures images of an obviously winded Constable Crawford returning after the fruitless chase for Mr. Thompson.

TRIAL AND REASONS FOR JUDGMENT

[10] The trial proceeded as a blended voir dire. Defence counsel stated his position at the outset:

“… the position taken by the Applicant is that there was an arbitrary detention in this case followed by an unreasonable search and seizure and excessive force used in the course of an arrest resulting in alleged violations of sections 7, 8, and 9 of the Charter…”

[11] He also took the position that because the search was warrantless the onus shifted to the Crown to justify it.

[12] The Crown’s position was that the jacket with the marijuana was abandoned in the course of the scuffle. There was, therefore, no search and the onus to prove a Charter violation remained with the defence.

[13] There were two witnesses: Constable Crawford and Constable Seaban, the officer who ultimately arrested Mr. Thompson. Constable Crawford’s evidence was obviously critical. Defence counsel cross-examined him thoroughly. As part of his cross-examination, he took Constable Crawford through a frame-by-frame analysis of the scuffle. Defence counsel did not cross-examine Constable Seaban.

[14] At the end of the evidence both counsel made concessions. Defence counsel conceded that Mr. Thompson was on bail at the time of the alleged offences. Crown counsel conceded that no evidence had been called in relation to possession for the purpose and proceeds of crime. He invited the Court to dismiss those charges.

[15] The trial judge released his reasons for judgment in court but did not read them. He handed copies to counsel and made a copy an exhibit. The reasons are lengthy. The first 17 pages are a recitation of the facts, although much of that is taken up with verbatim passages from the testimony of Constable Crawford. The rest of the judgment is taken up with reference to the case law, particularly Charter cases, and the trial judge’s findings.

[16] The trial judge stated:

In conclusion, I find and agree that Mr. Thompson was illegally detained and that his subsequent arrest and search were accordingly unlawful. Officer Crawford did not have sufficient grounds to arrest him and his arrest was accordingly unlawful. He failed to tell Mr. Thompson that he was under arrest and Officer Crawford used excessive and unreasonable force in the arrest and the arrest was therefore unlawful. I do not find Mr. Thompson resisted arrest beyond a reasonable doubt.

ISSUES

[17] Although Crown counsel argued that the trial judge erred in several respects, the central issue is the question of how the trial judge reached his conclusions. If the path to decision taken by the trial judge were clear, the other errors might not have been made, or at least might have been understood. The failure to give adequate reasons cannot be divorced from the alleged errors of law. For ease of analysis, however, I approach this appeal by asking the following questions:

1. Did the trial judge provide adequate reasons?

2. Did the trial judge err in finding that there had been racial profiling?

3. Did the trial err in finding that there was an unlawful arrest and search?

4. Did the trial judge err in finding that the officer had used excessive force?

5. Should there be a new trial?

ANALYSIS

1. Did the trial judge provide adequate reasons?

[18] A trial judge has a duty to give reasons. The extent of the duty and the nature of the reasons will vary with the circumstances and complexity of the case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, 210 D.L.R. (4th) 608, 162 C.C.C. (3d) 298 at para. 24.

[19] In Sheppard Binnie J. for the Court identified a functional approach to reasons since an appellate court is required to determine whether the trial court reached a correct decision. The trial judge’s reasons must be sufficient for that purpose: para. 28. Insufficient reasons are not in and of themselves a freestanding ground of appeal. Rather, an appellant must show that the deficient reasons have prejudiced the right of appeal.

[20] Where the record as a whole plainly supports the trial judge’s decision, an appellate court cannot intervene. Conversely, the trial judge commits an error of law if the reasons are inadequate and the record does not support his or her decision: Sheppard, R. v. Kendall, 2005 21349 (ON CA), [2005] O.J. No. 2457, 75 O.R. (3d) 565, 198 C.C.C. (3d) 205, 2005 CarswellOnt 2436 (C.A.) at paras. 39-44.

[21] The duty to provide reasons applies no less to appeals from acquittals as it does to convictions: Kendall, paras. 36-39. The broad right of appeal afforded the Crown, however, must be evaluated in the particular circumstances of criminal law. The Crown is not a litigant like other litigants. The Crown brings prosecutions in the public interest and not to vindicate private rights. Furthermore, the presumption of innocence still applies after an acquittal. Thus, in indictable matters the Crown will have a narrower basis upon which to base an appeal. That basis is restricted to errors of law and does not include an appeal from an “unreasonable acquittal”: Kendall, paras. 50-53. Kendall was an appeal to the Court of Appeal from a decision of a summary conviction appeal judge.

[22] The Crown does not suggest that the trial judge’s reasons resulted in an “unreasonable acquittal” or a miscarriage of justice. Rather, the Crown seeks a new trial based on insufficiency of reasons amounting to an error of law.

[23] I agree with the Crown. With respect, the reasons are simply not sufficient to provide meaningful appellate review. The case was not complicated. Unfortunately, it is not clear what the trial judge did and why he did it. There are large chunks of testimony set out verbatim without analysis. At some points the trial judge appears to be reciting the evidence in the first person from the point of view of Constable Crawford. There are lengthy freestanding discussions of legal principles unconnected to analysis.

[24] The reasons are unstructured and difficult to follow – at one point the trial judge asked the following questions:

In the present case, in the time of the actual vehicle stop and the “arrest” was the officer dealing with a traffic stop violation only and the investigation then converted into a drug investigation? Were there objective grounds to arrest? Was there ample evidence to conclude that the officer had a subjectively reasonable ground for the belief that the accused was in possession of drugs?

[25] Those were all reasonable questions for the trial judge to ask, although one might quibble over whether “ample” evidence of a subjective belief is the standard. The trial judge followed it up with a short analysis entitled “Subjective Belief is a Question of Fact” and determined that “if the arrest was lawful, the search was lawfully incident to arrest.” Unfortunately the trial judge then launched into a lengthy and confusing analysis of s. 24(2) of the Charter in which he conflated many other legal concepts without answering the questions.

[26] Counsel for Mr. Thompson argued that because the central finding in this case was that Constable Crawford lacked credibility, the trial judge is entitled to great deference: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 26. I would agree with that argument except that the trial judge in this case fell into the same error that was committed in Dinardo: he failed to explain why he rejected Constable Crawford’s credibility. Although I recognize that Constable Crawford, who was a mere witness, was not in the same position as the accused in Dinardo, the principle is the same, since Constable Crawford’s credibility was the critical evidentiary issue. With respect, the adverse credibility finding against Constable Crawford needs to be teased out of the reasons – that is, if the trial judge made an adverse finding of credibility. That is not entirely clear. Given the paucity of analysis the finding – if there was a finding – is not entitled to the usual deference.

[27] At the risk of falling into error myself by subjecting the reasons to undeserved microscopic analysis, the trial judge simply left the parties with several competing theories about the reasons for his conclusions. I approach these in sequence.

2. Did the trial judge err in finding that there had been racial profiling?

[28] The defence position was that the Highway Traffic Act stop was a pretext. The real reason for the stop was the race of the occupants. The Crown’s position was that Constable Crawford observed Highway Traffic Act violations. These violations justified stopping the purple Plymouth. Race played no role. The trial judge was required to resolve these issues in order to determine whether Mr. Thompson’s Charter rights were violated.

[29] The factual findings that could support the legal conclusion that officer had engaged in racial profiling are reviewable on a standard of palpable and over-riding error. The application of the legal test is reviewable on a standard of correctness. Regrettably, the trial judge simply failed to resolve the key evidentiary issue. I cannot determine if the trial judge made a palpable and over-riding error because it is unclear what he actually decided. Unfortunately, this failure appears to have led to legal error.

[30] With regard to pretext, the trial judge stated:

In the unique context of traffic regulations is probable cause enough. Since, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist if not passenger in a technical violation. This may create the temptation to use traffic stops as a means of investigating other legal violations, as to which no probable cause or even articulable suspicion exists. Mr. Thompson who is black may contend that police officers might decide who to stop vehicles based on decidedly impermissible factors, such as the race of the car’s occupants.

[31] Saying that “Mr. Thompson, who is black, may contend…” is not the same thing as making a finding of fact or drawing a legal conclusion. It is not clear if the trial judge made a finding that Constable Crawford arbitrarily detained Mr. Thompson based on Mr. Thompson’s race. The trial judge further said:

The officer stated that he had articulable cause to stop the vehicle in question. He had observed an HTA infraction. His explanations for ‘running the plate’ I must find were not reasonable. I find that his pulling up beside the vehicle before stopping it and his possible observation of the race of the occupants could be racial profiling.

[32] “Could be racial profiling” is also is not the same thing as making a finding of fact or drawing a legal conclusion.

[33] It might have been that the trial judge was setting out the framework for analysis. If so, he did not take the next logical step and actually conduct an analysis. The trial judge certainly made extensive reference to racial profiling. He stated:

The court does I do not have to find that race is the only or a major factor leading to the discriminatory conduct. It also did not need to find that there was an intention to discriminate, as racial stereotyping will often stem from unconscious biases or beliefs. In determining whether the inference of racial discrimination is more probable than the explanations offered by the officer, I must be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level.

[34] The trial judge then discussed, in general terms, the cases dealing with racial profiling. In particular, he briefly discussed two important cases from the Ontario Court of Appeal dealing with the issue, R. v. Brown, 2003 52142 (ON CA), [2003] O.J. No. 1251, 64 O.R. (3d) 161, 173 C.C.C. (3d) 23 (C.A.) and Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 43 C.R. (6th) 175, 217 O.A.C. 269 (C.A.). The trial judge quoted from Doherty J.A.’s judgment in Peart that racial profiling can seldom be proven by direct evidence. Doherty J.A. drew on the observation of Morden J.A. in Brown that racial profiling can seldom be proven by direct evidence because it is unlikely that a police officer would admit that he or she was influenced by racial stereotypes.

[35] The trial judge noted that:

Suspicion about a person’s motivation is an insufficient basis to reach such a conclusion. There must be an evidentiary foundation for such a finding and the evidence that forms that foundation must be set out with clarity.

[36] The trial judge did not unfortunately analyze the evidence that could support a finding of racial profiling. Instead, the trial judge quoted Doherty J.A.’s comments explaining the nature of a pretext stop in Brown v. Durham Regional Police Force, 1998 7198 (ON CA), [1998] O.J. No. 5274, 43 O.R. (3d) 223, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1 (C.A.). He then stated:

The officer observed an HTA infraction. He stopped the car and did not speak first to the person he had observed committing the infraction, the logical and proper procedure to follow.

[37] With respect, if the officer observed an HTA infraction then the trial judge was required to explain how, in the face of that fact, the detention was arbitrary. Was it because the stop was a pretext? Again, the trial judge implied that it might have been a pretext based on racial profiling, but he did not say that directly. The trial judge did not set out the analysis of the evidence that would have allowed him to conclude that the officer had engaged in racial profiling.

[38] In fact, the officer testified that he observed an unsafe lane change (which was obviously committed by the driver) but also that he observed Mr. Thompson committing the infraction of not wearing his seatbelt. The officer also testified that he went to the rear passenger seat first because of safety issues – he could keep an eye on all three occupants of the vehicle. This was critical because he was working alone. It is not clear why the trial judge concluded that it was more logical for the officer to approach the front seat rather than the back seat. There was also was no evidence that it was not proper police procedure. The trial judge was obviously entitled to reject the officer’s explanation – if that is what he did. The circumstances of this case required that he explain why he rejected the officer’s evidence because the record does not clearly support that finding.

[39] The only other place where the trial judge appeared to make a finding was in his s. 24(2) Charter analysis:

The applicant argues that the police engaged in racial discrimination that breached the Charter of Rights and Freedoms. Such an argument is based on "racial profiling", similar to the conduct found in Brown, or on a wider formulation of racial discrimination based on the differential treatment of the applicant during the course of the police investigation. In either case, an essential component of such an argument is that the applicant apply under s. 24(2) of the Charter to exclude the evidence implicating the accused.

When making an application under s. 24(2), an accused does not dispute the factual circumstances that make out the elements of the offence, but argues that the evidence tendered to prove the offence should be excluded because it was obtained in breach of the Charter.

There were unusual circumstances that prompted the police officer's conduct in this case and I find that he did not act in good faith. He did not respect Mr. Thompson's rights. The search was not for reasons of officer safety.

[40] These were the key portions of cross-examination dealing with the race of the occupants of the vehicle:

October 1 2012, p. 79:

Q. All right, it’s an older model car and there are three black youths in it, correct?

A: I don’t know that.

Q: You didn’t know that before you stopped the vehicle?

A: I never got a chance to look at the driver. As I pulled up beside the car, I saw that the rear passenger did not have his seatbelt and I didn’t feel it sufficient to go all the way up and have a good look at the driver. I still don’t know who the driver is of that car.

Q: Well, so, if I understand you correctly, at that point of which you leave your car, correct?

A: Correct.

Q: the only person – I mean can you tell that even – can you tell the race of the fella in the backseat, even?

A: As he leaned forward, yes, I could tell the race of the person in the backseat.

Q: All right. So you could tell there’s one young black man in the backseat of the car? Correct?

A: That’s that’s who was in the backseat, yes.

Q: And you couldn’t tell who was in the front seat, whether, ah, black, white, or otherwise?

A: No, I did not have a good look at who was in the front seat.

October 1 2012, p. 82-83:

Q: All right. In any event, um, just to conclude, at the time of which you get out of your vehicle, you know that you have one black male and you think you have two other males in the front but, um, race – their race is unknown? Would that be fair?

A: Sure, that’s correct.

Q: So, clearly this vehicle was not pulled over because there were three – it was an older model vehicle with three young black people in it? Correct?

A: This vehicle was pulled over for the reasons given.

Q: Right. And so, the reason given was, um, to investigate the rear passenger for violations of the Highway Traffic Act, to wit, not wearing a seatbelt, correct?

A: That’s correct.

Q: Right. And then, it follows from that, of course, not because there were three young blacks in an older model car, correct?

A: That’s correct.

Q: And I take it then, that, um, what – the way in which you treated the rear passenger and, indeed the people in the car generally was just the same as you would have treated the occupants of the vehicle if it had been myself and my friend, the Crown, and the officer in charge, correct?

A: The vehicle stop would have been done exactly the same up until the point where the backdoor opened. If everything being equal in terms of you three being there and if you yourself got out of the back and all things being the same in that you had your hand in your pocket, given those circumstances, it would have been exactly the same.

Q: All right.

A: Regardless of who was in that vehicle.

[41] There was no other evidence regarding racial profiling. In order to make a finding that a police officer was engaged in racial profiling, a court must find that it was more probable than not that there was no articulable cause for the stop, and that the real reason for the stop was that the person of interest was black: R. v. Brown at para. 11.

[42] Constable Crawford squarely denied that there had been racial profiling. There was no question that the officer had articulable cause for the traffic stop based on observed traffic violations if the trial judge accepted that evidence. The trial judge did not say whether he accepted or rejected the officer’s evidence on this critical point. If the trial judge accepted that there was a basis to pull over the Plymouth based on the traffic violation, then it undermined the claim of racial profiling. If the trial judge rejected the officer’s evidence that there was a basis to pull over the Plymouth then a finding of racial profiling may well have flowed. The question of racial profiling could likely only have been resolved by addressing the officer’s credibility: Peart, Brown.

[43] There were legitimate questions about Constable Crawford’s credibility. The issue of precisely why Constable Crawford pulled over the purple Plymouth, the sequence of events during the arrest, and who punched whom first were all issues upon which defence counsel cross-examined the officer. Defence counsel put his theory to the officer in the usual manner. The officer provided explanations in the usual manner. The trial judge, however, failed to resolve those credibility issues.

[44] Mr. Thompson’s counsel argued in this Court that a reader would infer that the trial judge made an adverse finding of credibility by implication. That may be so, but if the trial judge was going to say that there was racial profiling and that he did not believe Constable Crawford, he needed to explain why not. In fairness, the judge did ultimately conclude that the officer did not act in good faith. The problem is that the path to that conclusion is unclear, thus rendering meaningful appellate review difficult.

[45] The issue of racial profiling is controversial and sensitive. A trial judge should not shrink from making such a finding if the evidence demands it; nor should a trial judge shrink from rejecting an allegation of racial profiling if the evidence demands it. If a judge finds that a police officer has engaged in racial profiling, that is a matter of great concern for the community. Trial judges do not do their work in a vacuum, in splendid isolation from the rest of society. It is true that it is Mr. Thompson who was on trial and his rights that were at issue but a trial judge’s work engages issues of concern to the wider public. The community, the police, and the officer himself had a right to know why the trial judge did what he did. As Binnie J. observed in Sheppard, proper reasons foster confidence in the administration of justice.

[46] Thus, the trial judge had a duty to come to a conclusion and to explain how he got there. His tentative, conditional comment was not enough to draw the conclusion that there had been racial profiling. He had to apply the legal test set out by Morden J.A. in R. v. Brown. The record was not such that it was plain and obvious what the result should have been.

3. Did the trial err in finding that there was an unlawful arrest and search?

[47] As noted, the Crown’s position was simple: Constable Crawford was justified