Court File and Parties

COURT FILE NO.: CR-19-1784-00 DATE: 2020 06 26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN M. Morris, for the Crown

- and -

SHAWN ODLE K. Schofield, for Mr. Odle

HEARD: February 6, 2020

REASONS FOR DECISION

BARNES J.

INTRODUCTION

[1] On January 11, 2019, Shawn Odle was arrested and charged with the following offences:

a. Possession of a Schedule I substance for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act;

b. Possession of a Schedule I substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act;

c. Possession of property obtained by crime not exceeding $5,000, contrary to s. 354(1)(a) of the Criminal Code;

d. Failure to comply with recognizance, contrary to s. 145(3) of the Criminal Code (four counts); and

e. Flight from Peace Officer, contrary to s. 320.17 of the Criminal Code.

[2] On consent, this case proceeded as a blended Charter proceeding and trial. Mr. Odle alleges that the police had no basis to stop his vehicle. He must prove this on a balance of probabilities.

[3] This was a short trial. For the most part, I accepted the evidence of the police officers. Absent the Charter breach, I would have been satisfied that the Crown had discharged its burden of proving the case against Mr. Odle beyond a reasonable doubt. However, for the reasons outlined below, I conclude that Mr. Odle’s s. 9 Charter right has been breached and that all evidence obtained shall be excluded pursuant to s. 24(2) of the Charter. This leaves the Crown with no evidence to prove the charges against Mr. Odle beyond a reasonable doubt. Therefore, Mr. Odle is found not guilty of these charges.

BACKGROUND FACTS

[4] Mr. Odle was arrested on January 11, 2019, after a traffic stop by Ontario Provincial Police (“OPP”) Cst. Dunfield. Cst. Dunfield requested the assistance of Sgt. Briggs. As a result of the police interaction with Mr. Odle, the police determined that Mr. Odle was subject to a judicial interim release. The police also determined that Mr. Odle was in breach of the conditions of that release requiring him to travel with his surety and not be in possession of a cellphone. Police therefore arrested Mr. Odle and searched his vehicle incident to that arrest. The search yielded three bags of cocaine weighing 251.1 grams, 44 grams and 55.9 grams. The search also yielded two cellphones, a black digital scale and some Canadian currency. Mr. Odle was charged with the offences previously described.

ISSUES

[5] Mr. Odle argues that Cst. Dunfield relied on s. 216(1) of the Highway Traffic Act as a ruse to conduct a criminal investigation, that the traffic stop was based on racial profiling, and that Cst. Dunfield had no reasonable and probable grounds to search his vehicle. Mr. Odle also argues that Cst. Dunfield used incorrect wording to advise him of his right to counsel and unreasonably delayed advising him of this right. As a result, Mr. Odle argues that his detention was arbitrary in violation of s. 9, that the search of his person and vehicle were unreasonable in violation of s. 8, and that the police breached his s. 10(b) right.

[6] The issues in this case are as follows:

1. Did the police use the HTA as a ruse to stop Mr. Odle and conduct a criminal investigation, thus breaching his s. 9 Charter right?;
2. Did the police use racial profiling as the basis for the traffic stop of Mr. Odle, thus breaching his s. 9 Charter right?;
3. Was Mr. Odle’s s. 8 Charter right breached when his vehicle was searched?;
4. Did the police breach Mr. Odle’s s. 10(b) Charter right by providing him with incorrect information when advising him of his right to counsel?;
5. Did the police fail to provide Mr. Odle with his right to counsel without delay, thus breaching his s. 10(b) Charter right?;
6. If any of Mr. Odle’s Charter rights were breached, should evidence be excluded pursuant to s. 24(2) of the Charter?

[7] For the reasons outlined below, I conclude that the police used the HTA as a ruse to stop Mr. Odle for the purpose of conducting a criminal investigation. I am also satisfied that the s. 9 breach alone warrants exclusion under s. 24(2). Therefore, it is unnecessary to address the alleged breaches under ss. 8 and 10(b) of the Charter.

DISCUSSION

Issue #1: Did the Police Use the HTA as a Ruse to Stop Mr. Odle and Conduct a Criminal Investigation?

The Applicable Law

[8] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned”.

[9] The purpose of s. 9 is to protect individual liberty from unlawful state interference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20. The police or state actors may detain or imprison an individual only to the extent the law permits them to do so: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15. An unlawful imprisonment or detention is arbitrary and in breach of s. 9 of the Charter. Therefore, the analysis requires a determination of: 1) whether the individual was detained; and 2) if the individual was detained, whether the detention was arbitrary: R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, at para. 29.

[10] Detention occurs where an individual’s liberty is curtailed by physical or psychological restraint. Psychological restraint will arise where the individual is legally compelled to comply with a demand, or in circumstances where it is reasonable to conclude that the individual was not at liberty to leave: Grant, at para. 30.

[11] Random traffic stops constitute an arbitrary detention under s. 9 of the Charter because they are not based on reasonable grounds or suspicion, are random, and are at the police officer’s absolute discretion. However, s. 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stop is random: R. v. Gonzales, 2017 ONCA 543, at para. 55. This has been upheld as constitutional by the Supreme Court of Canada in R. v. Ladouceur, [1990] 1 S.C.R. 1257. However, the authority to conduct random stops is not unfettered. Random stops must be limited to the statutorily-sanctioned purpose: Gonzales, at para. 60. Unless other grounds arise which permit further detention, the stop must also be brief and limited to the roadside: Gonzales, at para. 55.

[12] At a traffic stop, s. 216(1) of the HTA also authorizes a police officer to conduct a visual inspection of the interior of the vehicle in order to address police safety concerns: Gonzales, at para. 56. More intrusive searches of the vehicle and non-HTA inquires of the occupants are not permitted: Gonzales, at para. 56; Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223 (C.A.), at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, [1992] 3 S.C.R. 615, at pp. 623-24.

[13] In addition to a s. 216(1) purpose, a police officer may have additional non-traffic related purposes. To rely on s. 216(1), the additional purpose must co-exist with a legitimate s. 216(1) purpose. The additional purpose must not be improper, or proper but pursued through improper means, and must not constrain the individual’s liberty beyond what was contemplated by s. 216(1): Durham Police Force, at paras. 31, 34, 37-39, 45; Gonzales, at para. 58. In other words, an officer may simultaneously have an HTA purpose and a criminal law purpose in mind: R. v. Mayor, 2019 ONCA 578, at para. 8. However, the HTA may not be used as a ruse or pretext to stop a vehicle for the purpose of conducting a criminal investigation: Mayor, at para. 9; Durham Police Force, at p. 234; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36.

[14] The reason for a traffic stop is a factual determination. A roadside stop is not a static event, and therefore the factual determination must be made by carefully examining each phase of the officer’s actions. This exercise requires consideration of all the circumstances including the evidence of the police officers and the person detained, the circumstances of the stop, and the conduct of the police: Mayor, at para. 10; Durham Police Force, at p. 238; Gonzales, at para. 67.

Evidence and Findings of Fact

[15] Cst. Dunfield and Sgt. Briggs testified. Mr. Odle did not. I find both officers to be credible, and unless stated otherwise, I make findings of fact in accordance with their testimony.

[16] On January 11, 2019, both officers were part of the OPP’s Highway Enforcement Team (“HET”). There is a difference in how Cst. Dunfield and Sgt. Briggs described the mandate of HET. Cst. Dunfield testified that the mandate of this team was to search for evidence of guns, drugs and human trafficking on OPP-patrolled highways. A reasonable inference at this stage is that road safety enforcement was HET’s secondary purpose. Sgt. Briggs was the supervisor of HET. He testified that the mandate was to be proactive in enforcing road safety by conducting a high volume of traffic stops. While engaging in this proactive action, HET would also be on the lookout for guns, drugs and human trafficking. Sgt. Briggs said he would not describe the mandate of HET as the discovery of guns, drugs and human trafficking. Thus, Sgt. Brigg’s intent was to enforce road safety as per s. 216(1) of the HTA. The discovery of guns, drugs and human trafficking was an additional purpose.

[17] On January 11, 2019, they were joined by a third officer, Cst. Scime. The trio met at a nearby Tim Hortons to discuss the plan for the day to set up at different locations on Highway 410.

[18] Cst. Dunfield explained that in his experience, persons who operate rented vehicles are more likely be involved in criminal activity. He explained that in such circumstances, it was possible that the person who rented the vehicle may allow another person to drive it. The driver may not have a valid driver’s licence or may have a valid driver’s licence but not have his name linked to the rental vehicle because he was involved in criminal activity.

[19] Cst. Dunfield explained his modus operandi in relation to rented vehicles. He would randomly run the licence plates of vehicles travelling on the highway. Once he determined that a vehicle was a rental, he would conduct a traffic stop pursuant to the statutory authority conferred on him by s. 216(1) of the HTA to investigate compliance with the Act. If the driver was in compliance with the Act, he would take a general look around the vehicle. If nothing nefarious caught his eye, the driver was free to leave. This description accords with the “additional purpose” principle articulated in Durham Police Force and Gonzales.

[20] At 8:48 p.m., Cst. Dunfield put this investigative technique into action. He observed a vehicle driven by Mr. Odle travelling northbound on the highway. He conducted a licence plate check which revealed that it was a rented vehicle. By this time, PC Dunfield had passed Mr. Odle’s vehicle and was approaching the Clarke Boulevard exit in the City of Brampton. He decided to conduct a traffic stop.

[21] Cst. Dunfield was in full police uniform, but was driving an unmarked police vehicle. He made three attempts to stop Mr. Odle and was only successful on the third attempt. The circumstances of the stop lead me to conclude that Mr. Odle pretended to be oblivious to the officer’s instructions to stop.

[22] On the first attempt, Cst. Dunfield was in front of Mr. Odle’s vehicle. Cst. Dunfield began to brake in order to let Mr. Odle’s vehicle pass. It was Cst. Dunfield’s intent to get behind Mr. Odle’s vehicle so that he could affect a traffic stop. Mr. Odle also began to slow down. Cst. Dunfield had not activated his lights or sirens. At this point, there was no way Mr. Odle could be certain that it was Cst. Dunfield’s intent to stop his vehicle.

[23] The culminative effect of this next sequence of events leads me to conclude that Mr. Odle deliberately took action in an effort to evade the police officer. Cst. Dunfield was eventually able to place his vehicle behind Mr. Odle’s vehicle in lane three on the highway. Mr. Odle then moved his vehicle to lane four. Cst. Dunfield also moved to lane four while remaining behind Mr. Odle. Mr. Odle began to accelerate his vehicle.

[24] Cst. Dunfield activated his emergency lights in an effort to get Mr. Odle to pull over on a small shoulder just before the Clarke Boulevard exit up ahead. Mr. Odle did not pull over. Cst. Dunfield deactivated his lights after 15 to 20 seconds because once they had past that location, it was unsafe to stop. Cst. Dunfield said that there have been numerous occasions where people have not seen him activate his emergency lights at that location.

[25] I find that Mr. Odle was acutely aware of Cst. Dunfield’s presence during the very recent lane changing saga. I am also satisfied that Mr. Odle still had his eye on Cst. Dunfield’s vehicle. I therefore find that Mr. Odle was aware of Cst. Dunfield’s presence, had seen the activated lights, and decided not to comply.

[26] As Mr. Odle and Cst. Dunfield approached the S-bend of the Queen Street exit, Cst. Dunfield re-activated his emergency lights signaling for Mr. Odle to pull over. At this time, Cst. Dunfield was directly behind and three car lengths behind Mr. Odle’s vehicle. Mr. Odle accelerated his vehicle. In cross-examination, Cst. Dunfield speculated that Mr. Odle may not have seen him. This is an unreasonable conclusion. Given the short intervals between the incidents and the short distance between the vehicles, the only reasonable inference is that Mr. Odle was well aware of what was occurring and had chosen not to comply.

[27] Mr. Odle then made a right turn onto Queen Street. Cst. Dunfield followed, travelling directly behind him. Cst. Dunfield activated his emergency lights for the third time. Mr. Odle signalled that he was stopping for the police and turned into a parking lot. At a three-way stop in the parking lot, Mr. Odle rolled down his window and asked, “why are you stopping me?”. Cst. Dunfield told Mr. Odle that he just wanted to make sure Mr. Odle had a valid driver’s licence. Mr. Odle repeated his question. Constable Dunfield responded "you're driving a rental vehicle, and I just wanted to make sure that you have a valid driver's licence”. On this basis alone, it would appear that a s. 216(1) HTA investigation was the purpose of Cst. Dunfield’s decision to conduct the traffic stop.

[28] Cst. Dunfield testified that this was the first time he was able to see the driver of the vehicle. I do not accept this. I accept the police evidence that Mr. Odle’s back windshield was tainted. I accept that Cst. Dunfield was initially preoccupied with entering Mr. Odle’s licence plate into the cruiser’s computer while also watching the road to make sure he did not get into a collusion. However, at one point, Cst. Dunfield’s vehicle was in front of Mr. Odle’s vehicle. Cst. Dunfield was able to determine that Mr. Odle slowed down his vehicle when Cst. Dunfield slowed down his vehicle. This was the beginning of the lane changing saga when Cst. Dunfield was trying to get behind Mr. Odle to affect a traffic stop.

[29] It is reasonable to conclude that as Cst. Dunfield was observing Mr. Odle slowing down, he could see into Mr. Odle’s vehicle. The front windshield of Mr. Odle’s vehicle was not tinted. Therefore, it is also reasonable to conclude that Cst. Dunfield saw that Mr. Odle was a Black man before the three-way stop in the parking lot. However, I find that Cst. Dunfield made the decision to stop Mr. Odle’s vehicle on the basis that it was a rental vehicle before he saw that Mr. Odle was a Black man.

[30] Cst. Dunfield then instructed Mr. Odle to pull into a particular parking spot. Mr. Odle complied. Cst. Dunfield placed his vehicle directly behind Mr. Odle’s. Shortly thereafter, at 8:52 p.m., Cst. Dunfield went to the driver side and asked Mr. Odle for his driver’s licence. Mr. Odle produced it. Cst. Dunfield was satisfied that it was Mr. Odle’s driver’s licence.

[31] Cst. Dunfield also asked Mr. Odle for the rental agreement. After a search, Mr. Odle could not find the rental agreement. He told Cst. Dunfield that he could use his cellphone to call his girlfriend to get the rental agreement. Cst. Dunfield told him that was not necessary. While Mr. Odle searched for the rental agreement, Cst. Dunfield conducted a visual search of the interior of the vehicle. He observed a black Nike bag on the front passenger seat. Cst. Dunfield testified that he also detected the smell of cocaine. He described this smell as acidic in nature.

[32] During this first interaction, Cst. Dunfield asked Mr. Odle where he was heading and why he took the Queen Street exit. Initially, Mr. Odle said he was going to see his girlfriend. Cst. Dunfield pointed out that his answer was incongruent with his stated destination. Mr. Odle then changed his answer and said that he was going to the mall. This made Cst. Dunfield suspicious. It also supports a finding that Mr. Odle intended to evade the police.

[33] At 8:52 p.m., Cst. Dunfield returned to his police vehicle, called Sgt. Briggs via cellphone, and told him that he had conducted a traffic stop and smelled cocaine in the vehicle. He requested assistance to investigate a possible drug offence. Sgt. Briggs confirmed this communication with Cst. Dunfield. When Sgt. Briggs arrived on scene, he did not smell cocaine.

[34] Cst. Dunfield then conducted a check on Mr. Odle with police communications. The check revealed that Mr. Odle was subject to a judicial interim release order on outstanding drug trafficking charges. The check also revealed that at the time of the traffic stop, Mr. Odle was in breach of the conditions not to possess a cellphone and not to be out of his residence unless in the presence of his surety. Sgt. Briggs also heard this information broadcasted over the police radio. Upon receiving this information, Cst. Dunfield formed the requisite grounds to arrest Mr. Odle for breaching the terms of his recognizance.

[35] At 8:55 p.m., Cst. Dunfield observed the brake lights on Mr. Odle’s vehicle go on and off. In addition, he observed Mr. Odle’s vehicle move forward about five feet and stop when Sgt. Briggs’ fully-marked police vehicle arrived on scene. Sgt. Briggs testified that he saw Mr. Odle’s vehicle move forward one to two metres. This is another indicia of Mr. Odle’s attempt to leave the scene. Cst. Dunfield asked Sgt. Briggs to park his vehicle directly in front of Mr. Odle’s vehicle to prevent him from leaving the scene. Sgt. Briggs was able to park his vehicle in front of Mr. Odle’s vehicle, thus preventing Mr. Odle from leaving the scene.

[36] Both officers then approached Mr. Odle who was still seated in the driver’s seat of his vehicle. Cst. Dunfield told Mr. Odle that he was under arrest for breaching his recognizance and that he should exit his vehicle. Mr. Odle did not immediately comply. He would not listen to police commands to remove his hands out of his pockets. Mr. Odle was sitting with his head leaned over the steering wheel. Only his shoulders were visible to Sgt. Briggs.

[37] In response to police commands to show his hands, Mr. Odle would remove his left hand and put it back in his pocket, then remove his right hand and put it back in his pocket. During this time, Mr. Odle would look to his left and then look to his right. At some point, Mr. Odle said, “I do not want to get my ass beat up by the cops”. Sgt. Briggs was concerned that he was going to flee and felt that force may be necessary to arrest and place him into police custody. Mr. Odle kept asking why he was stopped and Cst. Dunfield kept responding that it was to check that he had a valid driver’s licence. This is another indicia suggesting that Cst. Dunfield’s decision to conduct the traffic stop was to enforce road safety. However, for reasons articulated below, I have arrived at a different determination.

[38] Sgt. Briggs interjected and told Mr. Odle that he was stopped pursuant to s. 216 of the HTA. Sgt. Briggs told Mr. Odle that if he did not comply, force would be used to get him into handcuffs. Mr. Odle eventually complied and was arrested by Cst. Dunfield at 9:00 p.m. Despite the tense circumstances of the arrest, both officers showed the appropriate amount of restraint and recognized that despite Mr. Odle’s resistive stance, in the circumstances, use of force was unnecessary.

[39] Upon arrest, Cst. Dunfield conducted a cursory search of Mr. Odle’s person. He found $1,490 in his pocket in denominations of $20, $50 and $100 bills.

[40] It is conceded that at this time, Mr. Odle was detained by the police. This detention triggered an obligation on the police to advise Mr. Odle of his right to counsel as mandated by s. 10(b) of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. The inclusion of the phrase “do you wish to say anything” in answer to your charges is a violation of section 10(b): R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 2.

[41] At 9:01 p.m., Cst. Dunfield read Mr. Odle his right to counsel. Cst. Dunfield could not recall whether he included the prohibited phrase “do you wish to say anything”, but testified that he probably did. On balance, I find that Cst. Dunfield included the prohibited phrase when he read Mr. Odle his right to counsel.

[42] At 9:03 p.m., Cst. Dunfield read Mr. Odle the cautions and placed him in the police cruiser. By 9:04 p.m., Cst. Scime had arrived on scene. The three officers searched Mr. Odle’s vehicle incident to his arrest. The search yielded the cocaine and other items previously described. Mr. Odle was advised of the discovery and arrested for drug offences.

[43] Despite defence counsel’s creative arguments, on these facts, one would have to engage in fanciful speculation to conclude that Mr. Odle was not in possession of a controlled substance. The only reasonable inference is that he was in possession of the items seized. Cumulatively, the items seized prove beyond a reasonable doubt that Mr. Odle was in possession of the items for the purpose of trafficking.

[44] At 9:40 p.m., Mr Odle was transported to the OPP detachment in Port Credit. At 9:55 p.m., he was strip searched with negative results. Cst. Dunfield spoke to Mr. Odle’s lawyer at 10:17 p.m. Mr. Odle spoke to his lawyer in private at 10:22 p.m.

Analysis

[45] All parties agree that Mr. Odle was detained by the police when Cst. Dunfield conducted the traffic stop. In this case, there was a random traffic stop pursuant to s. 216 of the HTA. That section authorizes a police officer to stop a motor vehicle for the purpose of highway regulation and safety. Thus, the police may conduct traffic stops to check whether a driver is legally authorized to drive. This can include activities such as examining and verifying drivers’ licences, vehicle permits, car insurance and more.

[46] The Crown asks the court to consider the cumulative effect of Sgt. Briggs’ and Cst. Dunfield’s evidence to conclude that enforcement of road safety was the purpose for the stop, and that discovery of guns, drugs and human trafficking was an additional purpose co-existing with the legitimate road safety purpose. The difficulty with the Crown’s submission is that it was Cst. Dunfield alone who made the decision to conduct the traffic stop. It was his intent that is the controlling factor in determining the reason for the traffic stop. However, for the reasons outlined below, I conclude that the purpose for the roadside stop was not a legitimate road safety purpose but was rather a ruse to conduct a criminal investigation.

[47] Cst. Dunfield initially testified that the HET mandate was to search for guns, drugs and human trafficking. He later clarified this statement and said that a road safety purpose would be the reason for a traffic stop. He testified that at a traffic stop, he would look around, and if he did not notice anything nefarious, the driver would be free to go.

[48] Cst. Dunfield also testified that drivers of rental vehicles typically did not have the appropriate driving documentation and were also more likely to be involved in criminal activities. He testified that on that day, he was targeting rental vehicles. He told Mr. Odle that the reason for the traffic stop was because Mr. Odle was driving a rental vehicle and he wanted to confirm whether he had a valid driver’s licence. In cross-examination, Cst. Dunfield conceded that if his licence check had not revealed that Mr. Odle was driving a rental vehicle, he would have had no reason to stop him. This belies Cst. Dunfield’s testimony that his purpose was to randomly enforce the road safety mandate of s. 216(1) of the HTA. On the contrary, the statement demonstrates that the primary purpose was to conduct a criminal investigation as he believed that driving a rental vehicle increased the probability that the driver was involved in a criminal offence. I therefore find that the HTA stop was only a ruse to conduct a criminal investigation.

[49] In addition, though Mr. Odle appeared nervous and Cst. Dunfield smelled what he thought was cocaine, prior to conducting the check of Mr. Odle’s identification with communications, he did not have a reasonable suspicion that Mr. Odle had committed a criminal offence. What he had was an educated hunch, and yet he radioed Sgt. Briggs asking that he come to the scene because he wished to conduct a drug investigation. This was before conducting the check or receiving information from communications about the judicial interim release conditions. This is another indication that Cst. Dunfield’s intent was always to conduct a criminal investigation, not to enforce road safety.

[50] For these reasons, I conclude that Cst. Dunfield relied on the HTA as a ruse to stop Mr. Odle’s vehicle in order to conduct a criminal investigation. This constitutes a breach of Mr. Odle’s s. 9 Charter right as his detention was unlawful and thus was arbitrary.

Issue #2: Did the Police Use Racial Profiling as the Basis for Mr. Odle’s Traffic Stop?

[51] Given my finding that the police used the HTA as a ruse to conduct a criminal investigation, it is unnecessary for me to address the remaining issues. However, I will address Mr. Odle’s argument that the police used racial profiling as the basis for his traffic stop.

[52] For the reasons outlined below, I conclude that Cst. Dunfield stopped Mr. Odle’s vehicle because he was driving a rental vehicle, not because of racial profiling.

The Applicable Law

[53] I take judicial notice that racial stereotypes and racial bias exist in Canadian society. It is acknowledged in Canadian jurisprudence that anti-Black bias is entrenched in some individuals, societies and institutions. Such attitudes manifest as either overt or subconscious racism, or both. Contemporary understandings of racism recognize that an approach that limits the effects of racial stereotypes to one minority to the exclusion of others is out of touch with the attributes and effects of racial discrimination: R. v. Koh, [1998] O.J. No. 5425 (C.A.), at para. 30; R. v. Johnson, 2020 ONSC 3673, at para. 8. This does not detract from the reality that other non-Caucasian Canadians have been impacted by different historical and generational systems of discrimination. Thus, blind analogies are not particularly helpful: R. v. Kandhai, 2020 ONSC 3580, at para. 41.

[54] Canadian courts have recognized that racial bias has led to some systemic failures. On several occasions, the Supreme Court of Canada has acknowledged that there is systemic racism against Indigenous people within the Canadian criminal justice system: R. v. Williams, 2018 ONSC 5409, at paras. 54, 58; R. v. Gladue, [1991] 1 S.C.R. 688, at para. 65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 39-60, 67; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57; R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, at para. 199. These systemic issues have led to the overrepresentation of Indigenous people in Canadian jails: Ipeelee, at paras. 56-63.

[55] The prevalence of anti-Black racism in the criminal justice system and the overrepresentation of African Canadians in our jails has also long been acknowledged by Canadian courts: R. v. Elvira, 2018 ONSC 7008, at para. 22; R. v. Reid, 2016 ONSC 8210, at paras. 23-26; R. v. Godlen, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; Williams, at paras. 45-47; R. v. Parks (1993), 15 O.R. (3d) 324 (C.A.), at para. 54; R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 47; Le, at paras. 89-97; R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.), at para. 9; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 5; Grant, at para. 154, R. v. Kandhai, 2020 ONSC 3580, at paras. 36, 40.

[56] An example of the systemic issues that give rise to this circumstance is described by Harris J. in Kandhai, at paras. 38-39:

A recent, poignant illustration in our jurisdiction is the findings of the Review of the Peel District School Board (February 28, 2020) commissioned by the Minister of Education. Systemic anti-black racism permeates the Peel District School Board--its student disciplinary process (in which black students are grossly overrepresented), its programming in which teachers perpetuate racial stereotypes, its lack of a racially diverse curriculum representative of community multiculturalism, and the sad fact that discriminatory comments and conduct from students, teachers and staff are commonplace.

The idea that school children being taught the skills and knowledge which will carry them through their lives are poisoned with the venom of racism is unpardonable. It throws into stark relief the problem of anti-black racism in our society.

[57] This quotation from Nakatsuru J. in R. v. Jackson, 2018 ONSC 2527, at para. 27 is also poignant:

[…] Mr. Stephen Lewis who was appointed as an Adviser on Race Relations to the Premier of Ontario in June of 1992. Mr. Lewis states (at p. 2 of his letter to Premier Rae):

First, what we are dealing with, at root, and fundamentally, is anti-Black racism. While it is obviously true that every visible minority community experiences the indignities and wounds of systemic discrimination throughout Southern Ontario, it is the Black community which is the focus. It is Blacks who are being shot, it is Black youth that is unemployed in excessive numbers, it is Black students who are being inappropriately streamed in schools, it is Black kids who are disproportionately dropping-out, it is housing communities with large concentrations of Black residents where the sense of vulnerability and disadvantage is most acute, it is Black employees, professional and non- professional, on whom the doors of upward equity slam shut. Just as the soothing balm of "multiculturism" cannot mask racism, so racism cannot mask its primary target.

[58] The importance of adopting strategies to help inoculate against systemic racism was acknowledged in Canadian jurisprudence when Canadian courts permitted the impartiality of prospective jurors to be challenged for cause on the basis of race in Parks.

[59] From the foregoing, it is reasonable to conclude that there is systemic racism in the Canadian justice system. As stated by the Supreme Court of Canada in Barton, “[t]rial judges, as gate keepers, play an important role in keeping biases, prejudices, and stereotypes out of the courtroom”: para. 197. We have not yet reached the promised land. However, Canadian jurisprudence continues to evolve in its efforts to identify and acknowledge instances of systemic racism and to develop well-informed jurisprudence aimed at ensuring an effective, equal, fair and just application of the law for all. An example of an emerging area of Canadian jurisprudence is how the impacts of the systemic racism against Black people should be considered in sentencing: see, for example, R. v. Morris, 2018 ONSC 5186; Jackson; Kandhai.

[60] One expression of systemic racism is racial profiling. Canadian courts have acknowledged the existence of racial profiling in law enforcement and have developed an analytical framework to assist judges in determining whether there is any merit to such an allegation in a particular case: Brown, at paras. 7-8, 44-45; Le, at paras. 71-78; R. v. Dudhi, 2019 ONCA 665, at paras. 55, 59.

[61] The Supreme Court of Canada in Le, at para. 76, defined racial profiling as follows:

[…] the concept of 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 [citations omitted].

[62] The analytical framework for racial profiling has two components: (1) an attitudinal component; and (2) a causation component. The two components are aptly described in Dudhi, at para. 66 as follows:

In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.

[63] As a general principle, where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling: Dudhi, at para. 59, 63; Le, at para. 76.

Analysis

[64] For reasons previously articulated, I have concluded that Cst. Dunfield did not know that Mr. Odle was a Black man before he made the decision to stop his vehicle. He stopped the vehicle primarily because it was a rental car. I therefore find that race played no role in the decision to conduct the traffic stop. Applying the Dudhi test, I conclude that there is no evidentiary basis to support the claim of racial profiling in this case.

Issue #3: If Any of Mr. Odle’s Charter Rights Were Breached, Should Evidence Obtained as a Result of the Breach Be Excluded Pursuant to [s. 24(2) of the Charter](https://laws-lois.justice.gc.ca/eng/const/page-15.html#docCont)?

[65] For the reasons articulated below, I find that the admission of the evidence will bring the administration of justice into disrepute and thus should be excluded under s. 24(2) of the Charter.

The Applicable Law

[66] Section 24(2) of the Charter states that where “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. As the words of s. 24(2) indicate, an accused must show, on a balance of probabilities, that the evidence sought to be excluded was “obtained in a manner” that infringed a Charter right: R. v. Pino, 2016 ONCA 389, at para. 35. The court must also consider the entire chain of events, whether the evidence and the Charter breach were part of the same transaction or course of event, and whether the connection between the evidence and the breach was causal, temporal or contextual: Pino, at para. 72.

[67] The framework for a s. 24(2) analysis is articulated in Grant, at para. 71. First, the court must consider the seriousness of the Charter-infringing state conduct. Second, the court must consider the impact of the breach on the Charter-protected interests of the accused. Third, the court must consider society’s interest in the adjudication of the case on its merits.

Analysis

[68] Applying the Pino analysis to this case, I find that the evidence was discovered as a result of Mr. Odle’s arbitrary detention. I therefore conclude that the evidence was “obtained in a manner” that infringed Mr. Odle’s Charter right, bringing the admission of evidence within the purview of s. 24(2). I also find that the discovery of the evidence is sufficiently proximate to the Charter breach to warrant further analysis. Simply put, without the traffic stop that constituted an unlawful and arbitrary detention, there would be no incriminating evidence against Mr. Odle.

[69] Regarding the seriousness of the Charter-infringing state conduct, I find that all police officers in this case conducted themselves in good faith. The interaction with Mr. Odle was professional and measured, even in the face of his resistive conduct and the dangerous possibility that he would attempt to flee the scene. However, Cst. Dunfield conducted the traffic stop and used the HTA as a ruse to act on a strong hunch and conduct a criminal investigation. His hunch was right. However, the ends do not justify the means. The violation of Mr. Odle’s Charter right was serious. I also find that Cst. Dunfield’s conduct was deliberate. It involved the unlawful and thus arbitrary detention of an individual. To condone such conduct would shake the public’s confidence in the justice system. This consideration favours exclusion of the evidence.

[70] The impact of the breach on Mr. Odle’s Charter-protected right also favours exclusion. The s. 9 breach had a significant impact on Mr. Odle’s right not to be arbitrarily detained or imprisoned. In effect, he was detained and investigated without cause (i.e. without reasonable suspicion or reasonable grounds). To admit the evidence obtained would signal to the public that the right to be secure against arbitrary detention or imprisonment rings hollow. Admission will breed public cynicism and bring the administration of justice into disrepute.

[71] A consideration of society’s interest in adjudicating this case on its merits favours inclusion of the evidence. The evidence is reliable, the Crown’s case is very strong, and without the evidence, the Crown has no case against Mr. Odle. On balance, I conclude that the admission of the evidence obtained by Mr. Odle’s arbitrary detention would bring the administration of justice into disrepute. The court must dissociate itself from such conduct.

[72] For these reasons, all of the evidence obtained is excluded pursuant to s. 24(2) of the Charter.

CONCLUSION

[73] For the reasons outlined above, I find that Mr. Odle’s s. 9 Charter right has been violated. This violation justifies exclusion of the evidence under s. 24(2) of the Charter. This leaves the Crown with no evidence to prove the charges against Mr. Odle beyond a reasonable doubt. Therefore, Mr. Odle is found not guilty of the charges articulated above.

The Honourable Justice Kofi Barnes

Released June 26, 2020