COURT FILE NO.: CR-17-0529-00AP DATE: 2019 02 25

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN C. Nadler, for the Crown Appellant Appellant

• and -

GEBRE BYRNES M. Forte, for the Defendant Respondent Respondent

HEARD: November 27, 2018

REASONS FOR JUDGMENT

[On appeal from the oral judgment of Mr. Justice D. McLeod of the Ontario Court of Justice, dated June 9, 2017, and the written judgment reported at 2018 ONCJ 278, dated April 4, 2018.]

D.E. HARRIS J.

[1] This is a racial profiling appeal. The respondent was stopped by the police for talking on his cell phone while driving on Highway 403. It was then observed that he had been drinking alcohol. Eventually, through a process not challenged by the defence, he blew over the legal limit and was charged with “over 80.”

[2] The trial judge found that this was an instance of racial profiling. Section 9 of the Canadian Charter of Rights and Freedoms – the right not to be arbitrarily detained – was violated when the police stopped the respondent. The breathalyzer readings were excluded under Section 24(2) . The respondent was acquitted.

[3] The Crown now appeals from the acquittal.

1. THE EVIDENCE

[4] At the heart of his racial profiling conclusion was the trial judge’s finding that the arresting officer Constable Fraser was wrong when she said that the respondent was talking on his cell phone while driving. He was not on his phone; Constable Fraser was mistaken. However, in the same breath, the trial judge found that Constable Fraser was honest and credible. The racial profiling by the honest but mistaken police officer was “subconscious” or “unconscious.”

[5] The trial evidence was relatively simple. Officer Fraser testified that on November 14, 2015 she was on Highway 403 driving a “stealth” police cruiser—a cruiser with its markings painted over so they could just barely be seen. Just before 9 p.m., she noticed the respondent’s vehicle on the highway. Constable Fraser was driving to its left and slightly behind. She observed the driver was on a cell phone. Constable Fraser then drove side by side next to the vehicle and confirmed her observation. She mentioned this to Auxiliary Officer Hadaway who was travelling with her. Soon afterwards, the respondent’s vehicle changed lanes into Constable Fraser’s lane where it continued driving in front of her. She activated her siren lights and pulled the vehicle over to the shoulder. When she came around to the car window, she saw a cell phone in the respondent’s lap.

[6] In cross-examination, defence counsel accused Officer Fraser of fabricating the cell phone observation, which she denied. It was suggested that she only pulled the car over because the respondent is a black male. She denied this as well.

[7] Auxiliary Officer Hadaway was in the passenger seat of the police vehicle. She was a student volunteer and had never been out on patrol with a police officer before. She testified that as part of their traffic patrol, she was conducting licence plate checks using the police computer in the cruiser. Hadaway said that she had been looking forward when Constable Fraser said that she saw a cell phone. Hadaway looked over. She testified that she did not see the cell phone as it was “too quick in the moment.” She testified in cross- examination that the police vehicle and the respondent’s vehicle may have been side by side for about seven seconds.

[8] The respondent testified and denied that he had been on his cell phone. It was his evidence that the police cruiser never drove parallel to his vehicle. He acknowledged that he was told that the reason he was stopped was that he was on his cell phone.

2. THE TRIAL JUDGE’S REASONS

[9] The trial judge gave brief oral reasons for acquitting the respondent on June 7, 2017 and then expanded on them in written reasons released April 4, 2018: R. v. Byrnes 2018 ONCJ 278, [2018] O.J. No. 2303.

[10] In the written reasons, while citing and quoting from the leading racial profiling cases, the trial judge focussed on the one officer seeing the cell phone and the other not seeing it. He appeared to prefer the evidence of Auxiliary Officer Hadaway that there was no cell phone.

[11] The evidentiary discrepancy with respect to the cell phone led the trial judge to find that the stop was motivated by racial profiling. He held,

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).

3. THE ARGUMENTS UPON APPEAL

[12] The Crown’s arguments interweave the common appellate error themes of misapprehension of evidence and insufficiency of reasons. Their position is predominately focused on misapprehension of evidence. Specifically, the Crown argues,

a) The finding that Constable Fraser was honest could not be reconciled with the finding that she was motivated by “non-conscious” racism.

b) The trial judge did not consider that there was an equally reasonable alternative conclusion to the racial profiling conclusion: the stop had nothing to do with race and was a simple mistake, nothing more.

c) The trial judge was wrong to draw an inference to support racial profiling from the police failure to investigate the respondent’s cell phone.

d) In finding that Auxiliary Officer Hadaway had a good opportunity to observe the cell phone, the trial judge said that Hadaway testified that she was looking at the respondent for seven seconds . In fact, she said that the two vehicles were side by side for seven seconds . The difference was important.

4. RACIAL PROFILING

[13] Racial profiling is one manifestation of the racism in our society. In criminal justice, the presence of racism has been explicitly recognized at least since Justice Doherty’s ground breaking challenge for cause decision in R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), at p. 342, 84 C.C.C. (3d) 353, at p. 369 .

[14] The leading cases in Ontario on racial profiling are: R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (Ont. C.A.) , at paras. 37-40 , R. v. Brown (2003), 64 O.R. (3d) 161 [2003] O.J. No. 1251 , (2003), 173 C.C.C. (3d) 23 (Ont. C.A.), Peart v. Peel (Regional Municipality) Police Services Board, [2006] O.J. No. 4457 , 39 M.V.R. (5th) 123 , 43 C.R. (6th) 175 (Ont. C.A.) , at para. 42 .

[15] The most commonly cited definition of racial profiling is that of the Court of Appeal in R. v. Brown:

7 There is no dispute about what racial profiling means. In its factum, the appellant defined it compendiously: “Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group” and then quoted a longer definition offered by the African Canadian Legal Clinic in an earlier case, R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.) , as set forth in the reasons of Rosenberg J.A. at p. 295:

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.

[16] Also see “Report of the Independent Street Checks Review”, Mr. Justice M. Tulloch, (Queens Printer, 2017) p. 87, para. 25 and Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. 2015 SCC 39, [2015] 2 S.C.R. 789 , at para. 33 .

[17] Racial profiling, like the wider problem of racism itself, is profoundly corrosive of our fundamental values of equality and respect. Courts have taken a leading role in calling out racism and condemning racial profiling where it is found to exist.

[18] Racial profiling is particularly insidious because, by its very nature, it is hidden and difficult to target. It is deeply interwoven into the fabric of our society. It involves two steps: 1. The first step is a pejorative characterization of individuals from a particular racial group. In this instance, the group was black males. The pejorative conclusion is that black males have a higher propensity to commit crime; and 2. From this pejorative conclusion, an all-encompassing generalization is made to cover each individual of the racial group. The individual is attributed the group characteristics.

[19] The generalization in the second step assumes different guises. In a challenge for cause of a jury panel requested many years ago, a question was proposed to exclude all Jewish people and Freemasons. The Court of Appeal had no difficulty in concluding that this was improper, saying, “The assumption that Jewish people or Freemasons form part of a homogeneous group with an identity of interest capable of subverting their impartiality in a criminal case is unwarranted”: R. v. Zundel (1987), 58 O.R. (2d) 129, 31 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal refused, [1987] 1 S.C.R. xii.

[20] Another articulation of this in a context closer to the type of racial profiling at issue here is found in the bias case of R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 133 .

[21] In R. v. Williams, [1998] 1 S.C.R. 1128, at para. 21 , the Supreme Court relied on Professor Vidmar ’s article, “Pretrial prejudice in Canada: A comparative perspective on the criminal jury” (1996), 79 Jud. 249 in concluding that racial bias held by jurors involves making distinctions on the basis of class or category without regard to individual merit.

[22] In this way, racial profiling deprives a person of individuality, seeing him or her first and foremost as a member of an homogenous group and as having the groups’ supposed characteristics. This is the dehumanizing consequence of racism.

[23] It is easy to be seduced into thinking that racial profiling should be approached in a different way and with a higher degree of rigor than other Charter issues the conduct of the police: see counsel’s position in R. v. Richards, at para. 25 . This would be wrong. It is true that a racial profiling conclusion may have more profound and wide-ranging social implications than the run-of-the-mill Charter issue. But the judicial tools and methods used to ascertain whether racial profiling is present are no different than those used in other Charter cases. Moreover, the level of scrutiny remains the same: Peart, at paras. 102-103 .

I. WAS IT A MISAPPREHENSION FOR THE TRIAL JUDGE TO CONCLUDE THAT CONSTABLE FRASER WAS AN HONEST WITNESS BUT, AT THE SAME TIME, ENGAGED IN UNCONSCIOUS RACIAL PROFILING?

[24] The Crown argues that the trial judge’s finding s – that Constable Fraser was an honest witness but, nonetheless, engaged in racial profiling – are irreconcilable. I cannot agree.

[25] Before discussing this issue, the evidence and arguments at trial must first be put into context. While the trial judge found that Constable Fraser was an honest witness but nonetheless engaged in subconscious or unconscious racial profiling, the parties had not argued the case on this basis. The debate at trial centered around whether Constable Fraser had deliberately fabricated her evidence of the cell phone. Neither counsel advocated for the conclusion arrived at by the trial judge.

[26] This is evident from the trial transcript. The defence cross-examined the officer and argued in submissions that the sighting of the cell phone had been deliberately fabricated. The Crown, on the other hand, argued that the officer was honest and that she had seen a cell phone. In the alternative, the Crown’s position was that if the cell phone did not exist, an honest mistake had been made by the officer, unblemished by racial profiling.

[27] The trial judge’s reasons circumnavigated counsels’ submissions and came to a third position. The trial judge found that, contrary to the defence position, Constable Fraser was not lying. She was an honest witness. However, the trial judge nonetheless found that there was no cell phone. The trial judge concluded that Constable Fraser was telling the truth and was honest, but there was unconscious racial profiling which led to the stop:

59 …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.

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…

[28] The trial judge’s conclusion was that Constable Fraser had seen a cell phone when one did not exist. This finding bears little resemblance to other racial profiling cases. The oft-quoted statement from R. v. Brown describes situations where police officers are lying, one of the methods by which racial profiling can be proven,

45 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.

(Emphasis Added)

[29] Judges have capitalized on the lies of police officers as opening the door to a racial profiling conclusion: see e.g. Elmardy v. Toronto (City) Police Services Board, 2017 ONSC 2074, 136 O.R. (3d) 483 (Div. Ct.) , at paras. 19-23 and R. v. Ahmed (2009), 72 C.R. (6th) 187 (Ont. S.C.), at para. 62 .

[30] On occasion, evidence shows that the police assume that an individual of a particular ethnicity is more likely to commit a criminal offence. This is direct evidence of racial bias: R. v. Neyazi, 2014 ONSC 6838, 16 C.R. (7th) 223, at paras. 200-202 , R. v. Nguyen, 2006 ONCJ 95, at paras. 22-24 . In R. v. Ferguson-Cadore 2016 ONSC 4872, 132 W.C.B. (2d) 219 at para. 30 , astonishing as it is, the police concern was prompted by seeing a white woman with a black man. This harkens back to a fear of miscegenation which one would have hoped was out of a William Faulkner novel, not present day Ontario.

[31] In the case at hand, the police officer was not found to be lying nor was there any evidence of her going through the mental process of lumping all black males together and concluding they had a higher propensity for crime. Neither of these means of demonstrating racial profiling occurred in this case. However, there are multifarious means by which racial profiling may become apparent. The catalogue in this highly fact- dependant context must remain open.

[32] There was a different factual foundation for racial profiling in this instance. The trial judge held,

54 In R. v. Safarzadeh-Markhali, 2014 ONCA 627, 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.", [2014] O.J. No. 4194 , at para. 20 . (note -- unconscious views can form an honest but mistaken belief)

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.

(Emphasis Added)

[33] The crux of the problem with this reasoning was that although the trial judge found a lack of objective grounds (i.e. the cell phone did not exist), because he also found the officer honest and credible there was a proper subjective basis for the stop. Constable Fraser truly and honestly believed she had seen a cell phone.

[34] In this way, the dilemma posed by the trial judge’s potentially contradictory findings is evident. While lack of objective grounds could be one step towards a racial profiling conclusion, racial profiling must ultimately germinate in the subjective psychology of the police officer. But the trial judge’s finding came very close to exonerating the officer of a subjective bias against the respondent.

[35] As convoluted and unusual as the basis for racial profiling was, it cannot be said that the judge was foreclosed from coming to the conclusion he did. It must be remembered that racial profiling can generally only be proven by circumstantial evidence. The shameful nature of racial profiling does not lend itself to heartfelt admissions. The trial judge was entitled to draw inferences, in fact, he was obligated to do so, provided they were reasonable.

[36] Secondly, the jurisprudence on racial profiling and the closely related apprehension of bias authorities emphasize time and time again that they may be unconsciously or subconsciously held: Peart, at para. 42 , Brown v. Durham Regional Police Force, at paras. 37-40 , R. v. S. (R.D.), at 367-368, Williams, at paras. 21-22 , Committee for Justice & Liberty v. Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369, at p. 394.

[37] Morden J. A. in Brown said at para. 8,

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.

[38] I am inclined to think that unconscious racial profiling is primarily concerned with law enforcement personnel who are unaware of their own biases. The detention is motivated by racist generalizations like that in Neyazi in which law enforcement officials believed that the accused looked Middle Eastern and was therefore more likely to be a terrorist. The reasoning went like this: Middle Eastern men are more likely than most to be terrorists; this individual is Middle Eastern; therefore this individual is more likely to be a terrorist (see para. 185). It was not this type of bias which the person is unaware is racist which was at issue in the case at hand.

[39] I come to this conclusion. The trial judge’s finding that an honest police officer engaged in racial profiling was a stretch. The Crown, in her factum, called it “virtually impossible.” I would not go that far. There was a very narrow, deeply unconscious mind set which theoretically could lead to a racial profiling conclusion. An honest witness, who displays no overt signs of racism in any of its forms, can nonetheless be guilty of racial profiling.

[40] The type of racial profiling found by the trial judge could potentially exist in some circumstances. It should not be ruled out. However, as the discussion below demonstrates, it is somewhat obscure how racial profiling based on a deep seated bias of which the police officer is herself unaware could be substantiated in evidence. Proof of an honest witness’ invidious bias is highly resistant to demonstration.

[41] For these reasons, I would not give effect to the Crown’s first complaint.

II. DID THE TRIAL JUDGE FAIL TO CONSIDER WHETHER THE MISTAKE WAS UNRELATED TO RACIAL PROFILING?

[42] Having taken a route not argued by either party, it was incumbent on the trial judge in this case to be careful and thorough in detailing his reasons. The constituent elements of the racial profiling argument in this case included, at minimum, three elements:

1. Constable Fraser had to be shown to know that the respondent was black before deciding to pull him over;

2. The way the case was framed by counsel, it had to be demonstrated that the cell phone did not exist. For this purpose, the evidence of Auxiliary Officer Hadaway was crucial as a counterweight to the evidence of Constable Fraser; and,

3. The ultimate question was whether the mistake about the presence of the cell phone and any other pertinent factors reasonably led to a conclusion of racial profiling as the reason behind the stop.

[43] In context, mistakenly stopping a black man for talking on a cell phone, although a good start towards building a racial profiling case, was not enough. The finding that Constable Fraser was an honest witness rendered the crucial third step towards racial profiling significantly more critical and more difficult than other in other allegations.

[44] In this case, there was persuasive evidence to suggest that if there was a mistake, it was untainted by racial profiling. The mistake seeing the cell phone, because it was found to be an honest mistake, on its own inclined strongly towards an error unrelated to racial profiling. Furthermore, the observations were made at night. A cell phone is small. The two cars were some distance from each other and were travelling at highway speed. Constable Fraser was at the wheel and had to keep her eyes on the road. The respondent could have had his hand to his left ear and it may have looked like he had a cell phone. Believing the respondent was talking on a cell phone would have been an understandable mistake to make.

[45] The Crown placed a good deal of emphasis on the possibility of an innocuous mistake in her closing submissions. In arguing that there was no racial profiling, she said,

MS. SCULLY [the Crown]: … The other possibility, of course I’d submit, is that maybe Constable Fraser is wrong about the cell phone. Maybe his hand was up to his ear, scratching his ear. There’s any number of reasons why one might, when approaching from behind, believe that they observed a silhouette of someone’s hand to their ear. She may have been mistaken and I’d submit that even if she was mistaking …

THE COURT: You’re saying this to an [sic] honest, but mistake in belief?

MS. SCULLY: Exactly. That if—if she’s mistaken, that that still provides the subjective grounds—so even if we say objectively, maybe she’s wrong. Maybe there was no phone, but the test if both objective and subjective and that it is—if Your Honour finds that it’s good faith, not that she made it up, but that she truly believed there was a cell phone, that could still—or would still provide grounds to pull over the vehicle. So I’d submit, Your Honour could as well, that finding is open to you to find that and perhaps Constable Fraser is wrong when—but honest and sincere in her belief that there was a cell phone.

[46] Further buttressing a conclusion of an innocent mistake unrelated to racial profiling, there was undisputed evidence that Constable Fraser told both Auxiliary Officer Hadaway and the respondent once he pulled over that the reason for the stop was use of the cell phone.

[47] In his reasons, the trial judge never explicitly set up the two alternatives of an innocuous mistake versus racial profiling. In the context of his finding of an honest mistake about the cell phone, the trial judge was duty bound to inquire into whether the mistake was just that, or whether it had racial profiling connotations. Wending his own way between the positions of the parties, this question was at the very centre of the controversy and ought to have been uppermost in the trial judge’s analysis.

[48] With respect, it was a misapprehension of evidence not to consider this very real possibility. Particularly given the Crown’s reliance on it, ignoring it was not an option.

[49] Not only was the mistake about the phone insufficient to conclude there was racial profiling, the other matters the trial judge took into account did not add much. After his conclusion about the cell phone, the trial judge went on in paragraph 62 to cite three circumstances which “in this Court’s mind [are] collateral information which further confirms the allegation,”

1. The cell phone was not investigated after the stop;

2. The manner of the driving after the police lights were activated was subject to differing accounts from the two officers and the respondent; and,

3. The absence of notes by PC Freitas with respect to Constable Fraser telling her that the stop was for using the cell phone.

[50] With respect to the trial judge, these three circumstances cannot withstand scrutiny. The cell phone issue is a separate head of appeal and will be dealt with below. To foreshadow the conclusion there, the failure to investigate the cell phone was incapable of corroborating the racial profiling conclusion. The other two comments, not of great moment in any case, were primarily relevant to Constable Fraser’s credibility, an issue not impugned by the trial judge in his reasons.

[51] On the second point, it was true that Constable Fraser testified, although her evidence was imprecise on the point, that she activated her lights and then the respondent’s vehicle went to the left in front of her before it went to the right shoulder and stopped. The Auxiliary Officer said that the stop was normal as did the respondent. Officer Fraser told PC Freitas, the breath tech, that one of the grounds for the demand was the respondent was slow to move over. This was a minor discrepancy and in the context of a finding of unconscious and honest racial profiling, was of little weight.

[52] With reference to the third point, the breathalyzer officer, PC Freitas, said that he had an independent recollection that Constable Fraser told him that she pulled the respondent over for using his cell phone but it was admittedly not in his notes. Constable Fraser testified for her part that she only told PC Freitas that it was a traffic stop and nothing about the cell phone.

[53] The trial judge said in his reasons at paragraph 62 that this discrepancy was “less significant.” Given that there was no doubt that Constable Fraser told the Auxiliary Officer that she was pulling over the respondent because of the cell phone and that she told the respondent the same thing, the lack of a note by PC Freitas about the reasons for the stop had no significance. Furthermore, this could perhaps have reflected on Constable Freitas ’ state of mind but had nothing to do with Constable Fraser, the subject of the racial profiling allegation.

[54] In conclusion, the trial judge erred in not inquiring whether the honest but mistaken sighting of the cell phone was a simple mistake, unrelated to racial profiling. He also misapprehended the evidence in putting any weight on the “collateral information” used to confirm the racial profiling.

III. DID THE TRIAL JUDGE ERR WHEN HE DREW EVIDENCE OF RACIAL PROFILING FROM THE FAILURE TO CHECK THE HISTORY ON THE RESPONDENT’S CELL PHONE?

[55] The trial judge placed major reliance on the lack of investigation of the cell phone to bolster his conclusion of racial profiling. He said initially,

47 This discrepancy [between whether the respondent was using his cell phone while driving or not] 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. Brynes was on the phone by checking the phone’s call history.

(Emphasis Added)

[56] The trial judge came back to the cell phone in his conclusion, holding,

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;

(Emphasis Added)

[57] I agree with the Crown appellant that the trial judge erred in using the failure to investigate the cell phone as evidence supporting racial profiling. There are four reasons.

I. THE TRIAL JUDGE DID NOT ADDRESS THE REASON WHY THE RESPONDENT FAILED TO PRODUCE HIS PHONE OR PHONE RECORDS AT TRIAL AND INSTEAD DREW AN INFERENCE SUPPORTING RACIAL PROFILING FROM THE POLICE FAILURE TO INVESTIGATE THE PHONE

[58] With respect, there were three reasons why the trial judge in his reasons for judgment should have first turned to the defendant with respect to the issue of the cell phone. First, it was the respondent who had the burden of proof to show a Charter violation.

[59] Second, the respondent had access to the phone; the Crown did not. The words of Justice Binnie in R. v. Jolivet, 2000 SCC 29 are apt,

25 The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp. 63 , 98 E.R. 969 , where, at p. 65, Lord Mansfield stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[60] Third, virtually all the evidence at trial was concerned with the respondent’s failure to produce the phone or its records.

[61] In examination in-chief of the respondent, his counsel asked why he was not able to provide cell phone records. He replied that the cell phone was not in his name because he has poor credit. When asked whether he had the phone or at least the phone number he replied that the phone was broken. Asked again about the phone number, he said he now had a phone under contract. He did try to get the phone records to prove he was not on the phone.

[62] The Crown followed up in cross-examination, asking whether the respondent could ask the person whose name the phone was in for the phone records. He said he could ask his lawyer to see if he thought it was a good idea. The Crown then asked whether the respondent had asked a company for phone records and he said he had not. He did not think it was important at trial as the phone was not in his name.

[63] It was an error not to address this evidence and to fixate instead on the conclusion that the police should have searched the phone.

II. THE TRIAL JUDGE MISAPPREHENDED THE EVIDENCE WITH RESPECT TO WHETHER IT WOULD BE REASONABLE TO EXPECT THE POLICE TO SEIZE AND SEARCH THE CELL PHONE.

[64] The trial judge, with respect, fell into a logical fallacy and applied a retrospective examination of the stop and the cell phone issue. What is now known was erroneously attributed to the officers at the scene.

[65] This was a routine police stop of a type which occurs in Ontario many times a day. No controversy with respect to the cell phone was apparent at the scene or the police station. The discrepancy between the two officers did not arise until the trial. It could not reasonably be expected that the police would have investigated the cell phone at the scene of the stop, there being no issue apparent at the time.

III. THE POLICE HAD NO AUTHORITY TO EXAMINE OR SEIZE THE PHONE

[66] Furthermore, the Supreme Court in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 made it clear that the police in this case could not examine the phone incidental to arrest or for any other reason. Searches of cell phones must be strictly incidental to arrest. Police must have a valid law enforcement purpose and it must be objectively reasonable. As Justice Cromwell said in Fearon at para. 21 ,

… the police must be attempting to achieve some valid purpose connected to the arrest. That turns on what they were looking for and why.

[67] The search incident to arrest must be to protect the public, to preserve evidence or to gather further evidence of the alleged crime. At least on the evidence here, a search to confirm that the respondent was talking on his cell phone to rebut a yet embryonic Charter violation was not a valid purpose.

[68] Furthermore, privacy protections prohibit investigating cell phones after a routine traffic stop absent extraordinary circumstances. Justice Cromwell said in Fearon,

… the third purpose for which searches incident to arrest are permitted — the discovery of evidence — must be treated restrictively in this context . The discovery of evidence, in the context of a cell phone search incident to arrest, will only be a valid law enforcement objective when the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. … This will mean, in practice, that cell phone searches are not routinely permitted simply for the purpose of discovering additional evidence. The search power must be used with great circumspection. …

(Emphasis Added)

[69] This standard cannot possibly be met in this case. The investigation would not have been “stymied or significantly hampered absent the ability to promptly search” the cell phone. Search incident to arrest of cell phones is premised on the need for quick, prompt action for the safety of the public and to prevent the loss of evidence. These law enforcement interests did not exist in this case. The respondent’s privacy in the cell phone clearly superseded the interests of law enforcement.

IV. CONTRARY TO THE TRIAL JUDGE’S CONCLUSION, THERE WAS NO LOGICAL RELATIONSHIP BETWEEN THE FAILURE TO SEARCH THE CELL PHONE AND THE CONCLUSION THAT CONSTABLE FRASER ENGAGED IN HONEST, UNCONSCIOUS RACIAL PROFILING

[70] In addition, logically speaking, for the failure to investigate the cell phone to have been properly considered, it had to be material to and consistent with the trial judge’s ultimate conclusion of “unconscious” racial profiling by an honest police officer. Not investigating the cell phone is incongruous with this finding. The trial judge found that the cell phone was conjured up by unconscious racial profiling, but it could not be said, in the same breath, that the cell phone was not investigated because of unconscious racial profiling. This would be a nonsensical conclusion.

[71] This further illustrates the tenuousness of the conclusion of racial profiling in this case. Because of the honest but mistaken belief holding, evidence to bolster the racial profiling conclusion could not be grounded in conduct which was “pretextual” or false. This would have been contrary to and quite inconsistent with the trial judge’s bottom line credibility conclusion.

IV. DID THE TRIAL JUDGE MISAPPREHEND THE EVIDENCE OF AUXILLARY OFFICER HADAWAY?

[72] The Crown argues that the trial judge misapprehended the evidence of Officer Hadaway. Her evidence was critical because the trial judge relied on it to conclude that Constable Fraser’s observation of the respondent on his cell phone was erroneous.

[73] I agree. At first blush, the difference between Officer Hadaway’s evidence and the trial judge’s understanding may seem negligible. But a more careful assessment demonstrates that the difference was significant.

[74] The trial judge said in his oral ruling:

For this court, I felt when looking at the evidence of the police officers, that being Fraser, as well as the auxiliary officer that was present, and again these— this will be information that is within the judgment so I’m prepared to even say it on the record here, the seven seconds that the auxiliary officer has when looking into the motor vehicle that’s being driven by Mr. Byrnes becomes very salient .

The officer—then the auxiliary officer then looks over for somewhere in the neighbourhood of seven seconds and knowing that is what she is supposed to confirm, does not see that.

( Emphasis Added )

[75] In his written ruling, the crux of his factual findings included this paragraph:

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.

( Emphasis Added )

[76] In the legal analysis part of his ruling, the trial judge reiterated this:

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.

( Emphasis Added )

[77] The evidence from Officer Hadaway was that when Constable Fraser said that the driver was on the cell phone, she looked over but did not see the cell phone. She said, “I think it was just too quick in moment.” When asked how long her vehicle was driving side-by-side or next to the other vehicle, she said seven seconds. There was no evidence about how long she was looking at the defendant specifically either before or after Constable Fraser mentioned the cell phone.

[78] In deciding whether to accept Constable Fraser’s or Auxiliary Officer Hadaway’s evidence, their respective opportunities to observe were critical. With respect, erroneously believing that Hadaway was looking at the respondent for seven seconds could have had major implications. The trial judge reasoned that not only was she closer to the respondent but she had a longer opportunity to observe. But with respect to this last point, the trial judge was in error.

5. CONCLUSION

[79] The trial judge erred in not examining the Crown’s argument that the cell phone sighting was a simple mistake. He relied on several items to support racial profiling which, upon objective analysis, held virtually no weight. The most significant error was an adverse inference from the failure of the police to check the respondent’s cell phone. This circumstance could not be used to support racial profiling. Lastly, the trial judge misconstrued the evidence which was used to demonstrate that Constable Fraser made a mistake when she saw the cell phone.

[80] These were misapprehensions in failing to consider evidence relevant to a material issue, mistakes as to the substance of the evidence, and the failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at paras. 83 , 93, adopted by the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 and in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, R. v. Al-Rawi, 2018 NSCA 10, [2018] N.S.J. No. 18, at para. 102. These misapprehensions were each vital, with the possible exception of the seven second sighting misapprehension, to the trial judge’s conclusion of racial profiling.

[81] The Crown enjoys broad rights of appeal from summary conviction acquittals: R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, at paras. 50-51 . It is therefore unnecessary to characterize the misapprehensions as errors of law, errors of mixed fact and law or matters resulting in a miscarriage of justice.

[82] The trial judge’s finding that the stop was based on a mistake is unaffected by th e misapprehensions. Although it could be argued this lays the groundwork in itself for a Section 9 violation, the Section 24(2) analysis would be drastically altered from the racial profiling which was the trial judge’s conclusion. Even if there was a breach, without the racial profiling, there is a probability that the evidence would not have been excluded.

[83] The Crown has met its burden to show that the verdict of acquittal would not necessarily have been the same without the misapprehensions. The appeal is allowed, the acquittal is vacated and a new trial is ordered at the discretion of the Crown.

D.E. Harris J.

Released: February 25, 2019