COURT FILE NO.: CR-20-00000377-00

DATE: 2021 09 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

Cindy Nadler, for the Crown

• and –

SCHUYLER HOLLOWAY

Applicant

Carlos Rippell, for the accused

HEARD: March 22-29, April 30, May 10, and June 2, 2021

RULING ON CHARTER SECTIONS 8 and 9 and EXCLUSION UNDER SECTION 24(2)

D.E HARRIS J.

[1] The accused makes application pursuant to Sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”) to exclude evidence under Section 24(2). The police placed the Applicant and others under investigative detention in an apartment. When they searched the Applicant incidental to this detention, they found a loaded handgun in a satchel he was carrying.

[2] The crux of the issue to be decided is whether the police had sufficient grounds to search the Applicant. Justice Iacobucci said in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) in reference to search incidental to an investigative detention,

40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk… The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[3] The Section 9 aspect of this application was secondary, the main argument being based on Section 8 and the lack of grounds to search the Applicant. The defence position is that, the search being unlawful and unreasonable, the firearm should be excluded from evidence under Section 24(2) of the Charter.

I. THE POLICE ENTRY INTO THE APARTMENT

Evidence

[4] Officers Khan and Corona of the Peel Regional Police entered the apartment at 7170 Darcel Avenue, Suite 339, Malton, on the evening of April 20, 2018. It was there that they encountered the Applicant and, ultimately, seized a handgun in his possession.

[5] The man who rented the apartment, Vuthy Oung, had called the police a few minutes before. The transcript of his call shows that he said that he had seen through his video cameras installed in the apartment (he was at work at the time but had electronic access to the cameras) that there was a youth gathering in his apartment and that they were smoking marijuana. Mr. Oung said that his 16-year-old daughter Jasmine had let the people in but was now scared to ask them to leave. He said that there were four males in the apartment; they possibly lived in the building. The operator said that Mr. Oung should ask his daughter to move in with the males if she liked them so much. Mr. Oung asked that the males be removed. The operator said that they would have police there as soon as they could, although it could take the police about five hours.

[6] The attending officers were made aware of this information by their dispatcher. The call was classified as a priority 4, which is the lowest priority for a call, a non-emergency call. Officer Khan who attended along with Officer Corona, viewed it as an “unwanted person call.” Besides relaying the information about smoking marijuana, it also stated that there was cocaine use. This was inaccurate. Mr. Oung never said this. It is unclear why or how it crept into the dispatch. This is troubling. False information being conveyed to police officers could lead to Charter violations or worse. However, both police officers disclaimed that it played a significant part in their conduct on the scene although they mentioned it several times throughout their evidence.

[7] Officers Khan and Corona were in full uniform with the word POLICE emblazoned on their chests. The two went up to Suite 339 and knocked on the door. The door was opened by a young woman both assumed, correctly, was Jasmine, Mr. Oung’s daughter. As best they could recollect, they did not speak to her. Both officers testified that they interpreted her body language and the expression on her face as an invitation to enter which they did. Jasmine did not testify at this trial and her version of the interaction was not introduced into evidence.

[8] The entire duration of the police action from entering the apartment to finding the gun was about four to five minutes.

SECTION 8 OF THE CHARTER: Was the Police Entry into the Apartment Lawful?

[9] I do not intend to resolve this issue. If it were only a question of whether Mr. Oung gave his consent to the police entering his apartment, it would be reasonably clear that the police had authorization to enter if necessary. He told the police the males were not wanted in the apartment, giving them the power to remove them. However, Jasmine’s presence and her own reasonable expectation of privacy is a complicating factor. She lived in the apartment with her father. Presumably, the males were present at her initial invitation.

[10] Both police officers testified that although Jasmine did not explicitly give them permission to come into the apartment, they divined from her moving aside when she opened the door that it was implicit. P.C. Khan testified that he saw from her face that she looked “relieved.” P.C. Corona testified that Jasmine agreed to their entry based on her body language. He added,

…the female willingly opened the door. The door was open and at no point did she put up any resistance for us to come in, nor did she say, or that I can recall, any um – anything that would lead us to believe that she didn’t want us there.

[11] Viewed from an objective, reasonableness standpoint, in this situation, “body language” with nothing more could not constitute an operative consent to enter the home. In addition, the presumptive element of psychological compulsion when faced with police requests and directions weighs against an invitation to enter or an effective consent. In R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30 at para. 53, the court accepted that when a police officer makes a demand or a direction, it is not reasonable to expect that an individual appreciates that there is a choice whether to comply or not. Psychological compulsion is analyzed on an objective standard: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 30-32; R. v. Le, 2019 SCC 34 at paras. 25-27, 113-117. That applies here.

[12] On the objective facts, a consent from Jasmine for the police to enter cannot be inferred. While Mr. Oung consented and invited the police interaction with the persons in the apartment, Jasmine did not. In R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531 (S.C.C.) at paras. 19 to 27, the Supreme Court contemplated a similar question. They noted both the complexity and the importance of the issue and then, referring to the lack of full submissions on the question, left it to be decided another day. That seems appropriate in this instance as well.

[13] Mr. Rippell also argued that the police should have made an announcement upon entry, citing R. v. Delong (1989) 1989 CanLII 7164 (ON CA), 47 C.C.C. (3d) 402, 69 C.R. (3d) 147 (Ont. C.A.) and Eccles v. Bourque et al. (1974), 1974 CanLII 191 (SCC), 19 C.C.C. 2d) 129 (S.C.C.). He argued that the police entered aggressively, like they would be expected to enter while executing a Feeney warrant for the arrest of someone inside the premises.

[14] However, when police are in uniform, as they were here, Delong holds that announcement is not necessary because their status as police officers is obvious: Delong at para. 34. The bigger issue in this case is the third requirement that Justice Dickson, as he then was, articulated in Eccles at p. 134,

In the ordinary case police officers, before forcing entry, should give (i) notice of presence by knocking or ringing the doorbell, (ii) notice of authority, by identifying themselves as law enforcement officers and (iii) notice of purpose, by stating a lawful reason for entry.

(Emphasis Added)

[15] Although this refers to forcing entry, there is no reason the same ought not to apply in this situation even with the implied licence granted by Mr. Oung. Again, the Charter ramifications are best left to another day. However, the circumstances under which the police entered the unit are important and will be returned to later.

II. SECTION 8 OF THE CHARTER: DID THE POLICE HAVE REASONABLE SUSPICION TO GROUND AN INVESTIGATIVE SEARCH OF THE APPLICANT?

[16] The main battleground upon which this application was fought involved whether the police in fact entertained a reasonable suspicion that the Applicant was in possession of the handgun, permitting the safety search which followed. The defence position was that the police provided an “untruthful version of events” and “fabricated” their evidence. Their conduct was influenced by racial profiling.

[17] To analyze the defence position, it is first important to examine the main evidence the Crown relies upon to support the reasonable suspicion that the Applicant was in possession of a handgun.

i. THE EVIDENCE OF POLICE OFFICERS KHAN AND CORONA REGARDING REASONABLE SUSPICION THAT THE APPLICANT WAS ARMED

[18] Once they entered the apartment, P.C. Corona observed the Applicant conceal something; the other officer, P.C. Khan, did not. Based on what he saw, P.C. Corona carried out a search incidental to investigative detention. If true, based on P.C. Corona’s observation, in my view, there was sufficient evidence to meet the reasonable suspicion threshold and to search incidental to the detention: R. v. Mann, at paras. 17-20, 34; R. v. Kang-Brown 2008 SCC 18, [2008] 1 S.C.R. 456 (S.C.C.) at para 62; R. v. Chehil. 2013 SCC 49, [2013] 3 S.C.R. 220 (S.C.C.) at paras. 28-29; R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721 (Ont.C.A.) at para. 37.

[19] Based on P.C. Khan’s observations, as he acknowledged in his evidence, there was not enough evidence to establish reasonable suspicion. Because of the stark juxtaposition, sifting through the evidence of the two police officers is the first step in tackling the ultimate issue of whether there was a Charter breach committed.

P.C. Khan’s Evidence

[20] P.C. Khan testified that he was patrolling in his police cruiser close to the Darcel area when he received the dispatch. He agreed that it was in the nature of a trespass or a provincial offence, not a criminal complaint. He regularly patrolled this zone--the north end of Malton--and had developed a strong relationship with the management of 7170 Darcel. The management would notify him about illegal behaviour such as drugs and unwanted parties. Officer Khan testified that there was a significant gang presence in the building. He would go through the hallways and would see heroin residue in bags and needles. Also, six months before, there was a shooting in an adjacent building, 7230 Darcel Avenue. He once found a gun either in that building or in 7170 Darcel.

[21] P.C. Khan testified that 7170 Darcel was not a building he would enter alone. When P.C. Khan arrived at the apartment building, P.C. Corona was already there. The two went up together to the third floor at 7:54 p.m. They knocked on the door; Jasmine let them in. There was the odour of marijuana in the air. The room they entered was small, approximately 18 feet in length and 11 feet wide. There were six or seven people in the living room area. There were two women (or girls), all of whom were definitely younger than 15 years old. Jasmine was definitely older and was known to be 16 years old. One of the women was white and the other two (including Jasmine) were Asian. There were four or five men, all of them Black. At the back of the room, farthest from the police, was a window with a couch against it. There was another couch perpendicular to it, connected in an L shape. Some of the people in the room were on the couches; some were on the floor. The Applicant, Holloway, was on the couch against the wall sitting with several other people.

[22] P.C. Khan testified that Holloway got up, “shifted his whole body away” and began to walk towards the kitchen, which was out of the officers’ view. Holloway took about six steps. P.C. Corona told him to sit down and he went back and sat on the couch. P.C. Khan testified that it would take about three seconds to walk the width of the room and Holloway only walked half of it, at most. It was alarming to P.C. Khan that Holloway had moved away from the police. It was obvious that they were police; it was written in large letters on the front of their vests. Their presence was acknowledged by everyone except Holloway. He was the only person in the room who moved away. His movement was something P.C. Khan was trained to regard as a safety concern.

[23] When Holloway got up and started moving across the room, P.C. Khan did not see him carrying anything and only noticed that he had a satchel when he sat back down on the couch. When asked in cross-examination for more detail, P.C. Khan testified that the satchel was worn between the waist and hip level. Initially he said that he thought the strap was on his left shoulder and the bag part was hanging on his right side, the strap going diagonally across his body. When pressed he said he could not remember for certain. The possession of the satchel heightened his suspicions.

[24] There was loud music playing in the apartment. One of the officers asked the people inside to turn it off. After a relatively short time, it was Officer Khan’s impression that the music on the ground floor was turned off by one of the men by use of a cell phone. At this point, the officers could better communicate with the people in the room. P.C. Khan went upstairs and turned off the music that was playing there. When he came down, P.C. Corona instructed Holloway to approach. P.C. Khan’s evidence was that immediately afterwards, as Holloway was approaching, P.C. Corona told Holloway that he was detained for weapons dangerous. This was not in his notes nor did P.C. Corona testify to it in his evidence. P.C. Corona then searched Holloway and found a loaded handgun in the satchel. He was arrested. Afterwards, one of the other men--Clark--came forward and volunteered that he also had a gun. It too was seized and he was arrested.

P.C. Corona’s Evidence

[25] P.C. Corona testified that when Jasmine opened the door when he knocked, she looked relieved the police were there. In his mind, this was non-verbal communication that she was happy to have them come in. When they entered, P.C. Khan stood right next to him. The occupants were shocked to see the police and had wide eyes and surprised facial expressions. Everyone froze with the exception of Holloway. As P.C. Khan testified, there were five males and three females. The females, except for Jasmine, looked 12-14 years old at the oldest. The males were quite a bit older and ranged from 18 to 25 years old. Since a lot of the males had their hands in their hoodies, he told them at the outset to keep their hands where they could be seen. He also told them to shut the music off.

[26] Immediately afterwards, Holloway got up from the couch. In P.C. Corona’s words, he was the only person who did not comply and did the opposite of what he was told to do. But it should be noted, there was no evidence that the occupants were told at this point to remain seated. In any case, P.C. Corona was the only person moving amongst the many people in the small space. He was walking briskly to the rear of the unit. Holloway did not make eye contact with the police.

[27] As Holloway was walking, P.C. Corona noticed that he “shifted” a satchel he was carrying hanging on the right side of his body. It was a “quick motion of a concealment of a bag.” It was moved out of view. P.C. Corona referred to this as an “obvious motion of an attempt to conceal an item from me.” In cross-examination, P.C. Corona said that Holloway moved the satchel to the left side of his body. P.C. Corona told him to sit down which he did. Holloway had only taken several steps before he was ordered to sit down. Officer Corona said that in his opinion, Holloway was not “blading.” Blading is when one side of your body is kept away from other people to conceal an object or thing. This appeared to contradict P.C. Khan’s evidence that the Applicant was shifting his body away from the officers as he was walking.

[28] P.C. Corona testified that the movement of the satchel was from the right towards the left side of his body. His attention was drawn to Holloway because he was moving when everyone else was still. From his training, P.C. Corona learned that people are very aware of carrying a weapon. They make obvious actions of concealment, which Holloway did. He was also concerned with the possession of the satchel itself. P.C. Corona has found firearms in satchels on numerous occasions. He conceded, however, that the possession of the satchel by itself did not add to his grounds.

[29] After P.C. Khan went upstairs and returned, P.C. Corona confirmed P.C. Khan’s evidence that he asked Holloway to step forward, searched him, and found the weapon in the satchel. He denied telling Holloway at any time that he was detained for weapons dangerous. This would have been unwise as the officer did not yet have control of him. He did not want to reveal his suspicions.

ii. CONCLUSION

[30] Both officers cannot be right. The Applicant either attempted to conceal the satchel from view or he did not. There is no room for an honest mistake on this record. The two officers were standing right next to each other. The attention of both was trained solely on Holloway. He was the only person moving according to their evidence. Both said he did not make eye contact. Those two circumstances caught their attention. Both officers, based on their training and experience, said they were on high alert because they were concerned for their safety based on Holloway’s movement. Both had a laser focus on him.

[31] Holloway could not have been much more than ten feet away from them, fifteen at the outside. It was a small room. There was no evidence of lighting issues in the apartment. Nor was there any visual obstruction. The observations, from beginning to end, given that Holloway travelled only about six steps or a little more, were brief, not more than three seconds. It was indisputable on the evidence that both officers were watching Holloway throughout this time frame. Their attention was fixed on him from the beginning to the end of his walk across the room. The short duration meant that there was little room for distraction or the possibility of missing the movement of the satchel.

[32] P.C. Corona said the moving of the satchel was “obvious.” I infer that moving it from the right side of his body to the left side was a rotation of at least 90 degrees and could have been as much as 180 degrees. Although there was no specific examination on the point, it seems clear that based on P.C. Corona’s observations, Holloway must have used one or more likely both of his hands to move the satchel out of view counter-clockwise around his body.

[33] The officers’ opportunity to observe was for all intents and purposes identical. The movement of the satchel was conspicuous according to P.C. Corona’s evidence. P.C. Khan testified that he did not see the satchel while Holloway was walking away from him but only saw it when he was seated. In conclusion, the state of the record is that one officer saw the satchel and the rapid, obvious movement of concealment; the other did not. In my opinion, if this concealment actually occurred, both officers should have seen it.

[34] Curiously, at this trial, when asked whether he knew to this day what P.C. Corona’s grounds were for the search, P.C. Khan testified that he did not know. He said he had a good idea but when asked to expand on this, he did not mention the movement to conceal the satchel. This is strange. Three years have elapsed. A several day voir dire was held into the propriety of the search. There was a key discrepancy between the testimony of the two officers. P.C. Khan conceded that he himself did not have grounds to search. It seems unlikely that P.C. Khan would be completely unaware of what grounds P.C. Corona relied upon for his search.

[35] Ms. Nadler, with her usual candor, agreed that the moving of the satchel to conceal it from the officers’ sight was pivotal to the formation of grounds for the ensuing search. Holloway’s walking away from the officers was insufficient. The possession of the satchel may have added some value but only minimally. It failed to add up to the reasonable suspicion threshold.

[36] I agree with these concessions. The police arrived in the crowded apartment with no warning. The sudden appearance of two fully uniformed police officers in the small apartment would have been intimidating. In Le, the majority said,

51 … The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public. People rightly expect to be left alone by the state in their private spaces.

56 The mode of entry would be seen as coercive and intimidating by a reasonable person.

[37] There is no playbook to adjudge how someone would react to the police in these circumstances. For that reason, the walking away had low value in rising to the sufficient grounds for a safety search. The fact that the Applicant is a young Black man accentuates the difficulty. The Court of Appeal recently said in R. v. Theriault, 2021 ONCA 517:

144 The existence of anti-Black racism in Canadian society is beyond reasonable dispute and is properly the subject matter of judicial notice. It is well recognized that criminal justice institutions do not treat racialized groups equally: Robin T. Fitzgerald and Peter J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011) 53 Can. J. Crimin. & Crim. Just. 449, at p. 450; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431. This reality may inform the conduct of any racialized person when interacting with the police, regardless of whether they are the accused or the complainant.

145 The social context of anti-Black racism was relevant in the case at hand. I agree with the trial judge that it would have been understandable for Mr. Miller to distrust law enforcement.

(Emphasis Added)

[38] The possession of the satchel, while of some minimal cumulative weight, did not move the needle significantly towards the constitutional threshold: see R. v. Tutu, 2021 ONSC 5375 (Ont.S.C.) at para. 55. Both officers had found guns in satchels before; P.C. Corona quite a few times. But accepted that a satchel is a normal accoutrement that does not, on its own, imply criminality. Of course, any receptacle carried by a person could potentially conceal a weapon. But that is a general observation of little significance on the evidence in this case. If the police could perform an investigative detention on P.C. Khan’s observations alone, that would drastically water down fundamental constitutional rights.

[39] In conclusion, the officers’ evidence diverged on the one piece of evidence pivotal to whether the police could encroach on Holloway’s liberty by undertaking a search incidental to the investigative detention. The discrepancy cannot be explained away by differences in the two police officers’ opportunity to observe or any other material factors. In the circumstances, the reliability and credibility of the evidence that underlies reasonable suspicion—the evidence of P.C. Corona—requires further scrutiny. If it is found that the officer was not being truthful, this is one well-established route articulated in the leading authorities to conclude that the police conduct was contaminated by racial profiling: R. v. Brown, (2003) 2003 CanLII 52142 (ON CA), 173 C.C.C. (3d) 23, 64 O.R. (3d) 161 (Ont. C.A.) at para. 45; Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 133, leave to appeal dismissed, [2007] S.C.C.A. No. 10 (S.C.C.); R. v. Sitladeen, 2021 ONCA 303 (Ont. C.A.) at paras. 48, 54; Elmardy v. Toronto Police Services Board, 2017 ONSC 2074, 136 O.R. (3d) 471 (Ont. Div. Ct.) at para. 22.

[40] There is other evidence that should be considered to fill out the context and to fairly evaluate the defence attack on the police truthfulness and to elaborate on the allegation of racial profiling. First, a summary of the law with respect to racial profiling should be undertaken.

III. RACIAL PROFILING

[41] A conclusion of racial profiling has both an attitudinal component and, in addition, a behavioral component: Le at paras. 74-78; R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546 (Ont. C.A.) at paras. 54-55. It can be conscious or unconscious. It is rarely if ever provable by direct evidence: Peart at para. 131. Those who racially profile, if they are even aware of it, are unlikely to admit it openly. Racial profiling is proved by marshalling circumstantial evidence that “corresponds” to the phenomenon: Brown at para. 45.

[42] In my view, this two-step methodology is analogous to the jury selection challenge for cause process for the purpose of uprooting bias and in particular anti-Black bias: see Don Stuart, Comment on R. v. Dudhi, 2019 CarswellOnt 13562 (Ont. C.A.). The mind set is the same. Of course, the context of a potential jury member being asked impartiality questions in court and a police officer engaged in law enforcement is vastly different. But for present purposes, it is the psychology which is important, not the behaviour which follows it.

[43] In the context of jury selection, Chief Justice McLachlin said in R. v. Find 2001 SCC 32:

32 As a practical matter, establishing a realistic potential for juror partiality generally requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. These two components of the challenge for cause test reflect, respectively, the attitudinal and behavioural components of partiality: Parks, supra, at pp. 364-65; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at pp. 435-36.

i. THE ATTIDUNAL COMPONENT

[44] Racial profiling is a direct product of the systemic racism afflicting our society. It has been almost thirty-years since the ground-breaking jury challenge decision in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324, 84 C.C.C. (3d) 353 (Ont.C.A.). Doherty J. said in Parks at para. 54,

Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

[45] There was overwhelming agreement in the challenge for cause jurisprudence in the following years: see R. v. Williams, (1998), 1998 CanLII 782 (SCC), 124 C.C.C. (3d) 481, [1998] 1 S.C.R. 1128 (S.C.C.); R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 (S.C.C.) at paras. 5, 25; R. v. Wilson (1996), 1996 CanLII 376 (ON CA), 107 C.C.C. (3d) 86, 29 O.R. (3d) 97 (Ont. C.A) at para. 21; R. v. Koh (1998), 1998 CanLII 6117 (ON CA), 21 C.R. (5th) 188, 42 O.R. (3d) 668 (Ont. C.A.); R. v. Campbell (1999), 1999 CanLII 2688 (ON CA), 139 C.C.C. (3d) 258 (Ont. C.A.).

[46] Anti-Black racism is a sad, unacceptable fact of our society. The Supreme Court said in Spence at para. 1, “racial prejudice and discrimination are intractable features of our society”. Racism is widespread: aside from the jury selection cases above see R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 (S.C.C.), at para. 47; R. v. Theriault, at para. 143. As racism is endemic in our society, so too is racial profiling: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 (S.C.C.), at para. 83; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) at para. 154 per Binnie J. concurring; Le at paras. 89-97. All members of society, including police officers, have absorbed deep in their fibre the insidiousness of racial prejudice. No one is immune.

[47] The courts have embraced the indisputable social science with respect to policing of black persons, particularly in Le where the conclusion was stated at para. 97,

We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359).

[48] Racial profiling, as defined in Brown at para. 7 “… involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group.” Racial profiling posits that Black people, and Black men in particular, have a disposition or propensity for criminality.

[49] Justice Doherty in Peart defined how racial profiling can seep into law enforcement:

90 A police officer who uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race is engaged in racial profiling: see Kent Roach, “Making Progress on Understanding and Remedying Racial Profiling” (2004) 41 Alta. L. Rev. 895 at 896.

[50] Racial profiling involves two steps: 1. The first step is a pejorative characterization of individuals from a particular racial group. In this instance, the group is Black males. The pejorative conclusion is that Black males have a higher propensity to commit crime; and 2. From this conclusion, an all-encompassing generalization is made to cover everyone of the racial group. An individual is attributed the presumed group characteristics.

[51] The case law has almost universally concentrated on the second problem rather than the first. No one is free from the societal message that Black males are more prone to commit crimes than others. Behind racial profiling lies a racial stereotype: Pieters v. Peel Law Assn., 2013 ONCA 396, 116 O.R. (3d) 81 (Ont. C.A.) at paras. 111-114.

[52] In the report Under Suspicion by the Ontario Human Rights Commission, approved of at para. 95 in Le, the authors write at p. 89,

Racial stereotypes often represent gross generalizations about marginalized people by the dominant group in society that have been formed over many years. For example, stereotypes that exist today about African Canadians reflect anti-Black racism, which is historically rooted in slavery and racial segregation.

Stereotypes largely take shape and are reinforced at the societal level (for example, through media portrayals). They are integrated into laws, policies and practices at the institutional level. They can then influence the actions of individuals, who follow institutional norms. Because stereotypes that influence racial profiling are deeply embedded at the societal level, it makes them particularly difficult to change. They may be perceived as “normal” to the dominant group. They may influence the behaviour of people or institutions in an unconscious way that is invisible to people who don’t experience their effects.

(Footnotes omitted)

Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017)

[53] Stereotypes are “prejudicial generalizations”: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. Justice McLachlin (as she then was) in a speech quoted in Parks at para. 60 said:

…racial or sexual stereotypes are there, in our minds, bred by social conditioning and encouraged by popular culture and the media. Sometimes they are embedded in our institutions. We tend to accept them as truths. When faced by a problem, we automatically apply them because it is natural and easy — much easier than really examining the problem and coming to a rational conclusion by the process of thought and listening and evaluation.

[54] Walter Lippmann, an influential American journalist, wrote extensively in his book “Public Opinion” about the nature and effect of stereotypes. He said,

There is economy in [stereotyping]. For the attempt to see all things freshly and in detail, rather than as types and generalities, is exhausting, and among busy affairs practically out of the question. In a circle of friends, and in relation to close associates or competitors, there is no shortcut through, and no substitute for, an individualized understanding. Those whom we love and admire most are the men and women whose consciousness is peopled thickly with persons rather than with types, who know us rather than the classification into which we might fit.

There is neither time nor opportunity for intimate acquaintance. Instead we notice a trait which marks a well known type, and fill in the rest of the picture by means of the stereotypes we carry about in our heads.

The subtlest and most pervasive of all influences are those which create and maintain the repertory of stereotypes. We are told about the world before we see it. We imagine most things before we experience them. And those preconceptions, unless education has made us acutely aware, govern deeply the whole process of perception. They mark out certain objects as familiar or strange, emphasizing the difference, so that the slightly familiar is seen as very familiar, and the somewhat strange as sharply alien.

Lippmann, Walter. Public Opinion (pp. 37, 51), Start Publishing LLC. Kindle Edition

[55] Stereotypes divert scrutiny of individuals, replacing it with pat generalities. Stereotypes are by nature anti-evidentiary. They sacrifice looking at the individual for a ready-made general inference blind to the specifics. In dealing with the profiling of travellers who fit the modus operandi of drug couriers, on its face, a non-discriminatory mode of profiling, the Supreme Court said in Chehil at para. 40: “Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances.” The criminal law and the Charter have always emphasized the critical importance of sensitivity to the individual and to the evidence.

[56] Being that the power of the anti-Black stereotype is interwoven in our culture, most of us have racist views of one type or another. What separates one from another is the entrenchment of the stereotype and the flexibility to see the specifics and the facts despite the strong temptation to fall back on the stereotype.

ii. THE ACT COMPONENT

[57] There can be no racial profiling without racist attitudes. Without intervention of a reasoning facility to protect against it, the attitudinal component will generally lead to acts of racial profiling by law enforcement.

[58] This second requirement, like the first requirement, correlates to the process described in the cases with respect to the jury challenge for cause selection. The question in this second stage is whether the individual can “set aside the racial bias:” Find, para. 32; Parks, paras. 23, 36. Before that is possible, of course, the attitude itself must be recognized and acknowledged. When the racial profiling is unconscious or subconscious, which the caselaw emphasizes it frequently is, it eludes recognition.

[59] To avoid the impact of the behavioural component, what is demanded is more than anything, self-awareness, and introspection. Chief Justice McLachlin said in Find with reference to jury selection,

79 The challenge for cause process rests to a considerable extent on self-assessment of impartiality by the challenged juror, and the response to questions on challenge often will be little more than an affirmation or denial of one's own ability to act impartially in the circumstances of the case.

[60] For a person with the racist attitude to avoid its pernicious effects, after recognizing its presence, self-corrective steps must be taken to ensure the behaviour underlying racial stereotyping is neutralized or at least minimized. In the jury selection process, the Supreme Court of Canada has recently recognized the importance of this self-reflective process: R. v. Chouhan, 2021 SCC 26 (S.C.C.) at paras. 49, 54, and 59. A capacity for introspection is indispensable. This varies a good deal from person to person.

[61] The reflective, corrective mental process critical of one’s false racist intuitions is also to a significant degree situation dependant. Looking back on the acts of others, as lawyers and judges do in a trial context, is a perspective which benefits from the opportunity and the privilege of reflection. On the other hand, police officers engaged in law enforcement must think and act quickly. Their safety and that of others may hang in the balance. Little time is permitted for sustained reflection or for the recognition that racial stereotypes may be intruding on their judgment.

IV. WAS THERE RACIAL PROFILING IN THIS CASE?

[62] With this discussion in mind, the question is whether there are other signs of racial profiling to be found in the evidence in this case besides the potential untruthfulness involving the concealment of the satchel. There is one factor which could be considered as important environmental context bearing on the issue of racial profiling. That is the nature of the apartment building and the officers’ prior investigations within in it.

[63] Furthermore, there are four police actions which were argued to support a finding of racial profiling: 1. The scene the officers’ observed in the apartment with five Black males believed by the police to be well-past their teen years being together with “underage” non-Black females and the conclusion of P.C. Corona that this circumstance contributed to the grounds to search the Applicant; 2. The officers’ entry into the apartment without first questioning Jasmine; 3. Their failure to announce their purpose and the immediate imposition of an investigative detention on everyone in the apartment; and 4. P.C. Corona’s history of criticism by three other trial judges.

[64] It has been argued that an irrebuttable presumption of racial profiling ought to be imposed: Peart, para. 135 and R. v. Richards, (1999) 1999 CanLII 1602 (ON CA), 26 C.R. (5th) 286 (Ont.C.A.). This has been rejected as there is no legitimate basis for tying a judge’s fact-finding hands in this way. Despite this, it must be acknowledged that certain contexts and situations may inherently trigger racial prejudice and attitudes more than others. In Le, the Supreme Court of Canada appeared to come close to formulating a rebuttable presumption of racial profiling when the majority said at para. 80,

Even though as early as 2006, Doherty J.A. noted that there is now “an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it” (Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 94), it is still open to a trial judge to determine that something that often occurs did not actually happen in the particular case before them.

(Emphasis Added)

[65] Justice Doherty in Peart, while rejecting a call for a presumption of racial profiling to ameliorate the difficulty in it, said at para. 147,

I would add that a sensitive appreciation of the relevant social context in which racial profiling claims must be assessed provides further protection against the failure of meritorious claims as a result of the allocation of the burden of proof.

i. THE NATURE OF THE BUILDING

[66] Both officers testified that they had investigated the apartment building many times before but never Mr. Oung’s unit itself. Although it was somewhat odd, P.C. Khan had been given a key by the buildings’ management to allow him regular access anytime he wished to patrol and investigate. It was unclear from his evidence whether it was this key which was used to access the building on this occasion. Both officers mentioned extensive gang and criminal activity in the building, including drug use. Also, the shooting at the adjacent building was mentioned by both. That should be given only limited weight, however. As I pointed out during the hearing, Ms. Nadler and I had previous involvement with this shooting on two bail reviews for one of the two accused charged with the shooting: R. v. Ahmad, 2021 ONSC 1031 (Ont.S.C.J.); R v. Ahmad, 2020 ONSC 5525 (Ont. S.C.J.). The allegations were that 7 men came to the adjacent building in several cars, got out, and started shooting at people who had gathered there to film a video. There were multiple injuries and, tragically, one young man was killed.

[67] However, no one in the 7230 Darcel Avenue building was an instigator. People in and around the building were the victims, not the assailants. That puts a different cast on the incident than the impression left by the officers. By itself, because people inside and outside the building were victimized does not tend to increase in any significant way the concern about crime in the two buildings.

[68] P.C. Khan also testified that 7170 Darcel was at least 80% visible minorities. P.C. Corona agreed. P.C. Khan resisted the suggestion that most of the people living there were low-income earners but on the evidence, I draw the inference that a good number of the people renting there did not have significant financial resources. Mr. Oung, who drives a bus for a living, is one example.

[69] The well-dressed executive on Bay Street may not activate the pejorative racial profiling stereotype while the young adult wearing baggy clothing walking down the street at night in a low-income part of Malton may well. When the situation confronting a police officer conforms at least to some extent with a stereotype which forms part of the racial profiling lexicon, the risk of racial profiling is heightened. In this case, the officers were vulnerable to racial profiling based on their prior experience and knowledge of the building. There would be a natural tendency to paint with a broad brushstroke. That itself of course does not mean they engaged in racial profiling but only that the situation posed a challenge to avoid it.

[70] In summary, an anti-Black racial stereotype was potentially triggered by three circumstances on the evidence. There was a high level of crime in the building, most of the inhabitants were racial minorities and many were in a low-income bracket. If racism associates Black men with crime, a heavy crime locale with a significant Black population tends to conform with the racial stereotype. These factors made it more likely that the officers would leap to the conclusion of criminality even in the absence of a viable foundation in the evidence.

ii. THE CIRCUMSTANCES DEMONSTRATE THAT THE POLICE WENT WELL BEYOND THE ORIGINAL “UNWANTED PERSON” CALL IN ORDER TO INVESTIGATE THE OCCUPANTS.

[71] With this context in mind, the conduct of the police officers does raise concerns. First, the officers upon entry into the apartment observed five Black men and three young women. P.C. Corona thought the men were between 18 and 25 years old, with the Applicant being the oldest at between 22-24. In fact, the Applicant was the oldest of the men, but he had just recently turned 18 years old. The rest were under 18. Both officers in their evidence also repeatedly emphasized the “underage” nature of the young women and how young they were, with the exception of Jasmine.

[72] Based on the officers’ evidence and observations, five much older Black males together with three non-Black very young women naturally fed into virulent racial stereotypes long part of our culture: R. v. Bhogal, 2021 ONSC 4925 (Ont.S.C.) at para. 13. Both officers testified that the age discrepancy was a circumstance they believed relevant to how they approached the situation in the apartment. P.C. Corona included as part of his grounds for the search of the Applicant that the females were very young. That is, on an objective level, a very dubious conclusion.

[73] Second, the circumstances of the entry to the apartment are important. The officers were on a low priority, non-criminal “unwanted person” call. They knew that the owner’s daughter did not feel comfortable in the unit. Officer Corona’s evidence with respect to the interaction with Jasmine was troubling. He said that he did not recall whether there was any conversation with Jasmine after he knocked and she opened the door. He would not agree that there was no conversation nor would he agree that there was conversation. He could not recall either way. His was a studied, calculated lack of recollection, in my view. I have some difficulty accepting that the officer would not have a note or a memory of this. The entry to the apartment was a critical step in this case. The threshold of a dwelling is a notorious constitutional demarcation and I have no doubt that P.C. Corona and P.C. Khan were well aware of this. P.C. Khan had a similar absence of memory on the subject.

[74] Based on the absence of a note or recollection and the vagueness of memory on this point, I have no hesitation in finding that there was no conversation with Jasmine. In my view, this is of considerable significance. I share Mr. Rippell’s concern that in light of what they knew, it was suspicious that the officers said nothing about why they were there and did not seek out information from Jasmine. When she opened the door in response to their knock, this would have been an ideal time to question her. The officers both testified they discerned from the door that the music in the apartment was very loud. Later, the music made communication in the apartment difficult. But at the doorway, the music would have shielded their conversation. Jasmine was the one who felt uncomfortable and whom they were present to assist. It was unlikely that the people in the apartment could have heard their conversation with her. One would have thought that they would take advantage of this to gain as much knowledge about what they were dealing with as possible.

[75] Mr. Rippell referred to Le in arguing that the police entry was “aggressive”: see Le, paras. 51-61. Although the circumstances are quite different from that case, I agree. The police were authorized to remove unwanted persons. While they were not required to use kid gloves to achieve that object, nor were they allowed to use the situation as a pretext for a detailed criminal investigation of the occupants of the apartment.

[76] This is only heightened by the fact that neither officer explained at any time to the people in the apartment the purpose of their attendance in accordance with Eccles quoted above. P.C. Khan accepted that he had the legal obligation to advise the people in the apartment why the police were there. Exigent circumstances were not present. While I understand that the officers, as they testified, did not want to “throw Jasmine under the bus”, there were obvious ways to ensure this did not happen. The officers could have told the truth and said that they were responding to the father’s complainant. They could have referred to the father viewing the proceedings on the cameras set up in the apartment. Although the issue with Holloway moving away from the officers came up relatively quickly, there was plenty of time at the outset for the officers to announce that they were there to remove unwanted people.

[77] The impression of the police going well beyond the scope of the purpose of the original call was strengthened by the fact that P.C. Corona accepted in his evidence that the people in the apartment were under investigative detention at the very outset. He said that he observed the males in the apartment with their hands in their hoodies and in their pockets. This caused him safety concerns. For this reason, he ordered them to keep their hands where they could be seen. He also told them to turn down the loud music. I do not intend to analyze whether this investigative detention, essentially conceded by both officers, was arbitrary under Section 9 of the Charter. Delving into it is unnecessary. However, this conduct does suggest that the police from the beginning of their involvement, harboured safety grounds that lacked any valid underpinnings. That they later were vindicated, does not mean that their grounds were valid: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, [1990] S.C.J. No. 118 (S.C.C.) at para. 19.

[78] I conclude that on the basis of the context and the behaviour of the officers once they entered the apartment, including the evasiveness of P.C. Corona on the issue of the interaction with Jasmine, that the officers from the point of their entry were opportunistic and using the “low visibility” interaction to investigate crime. There is of course nothing untoward in and of itself about police officers exploiting opportunities to investigate. But they must stay within the bounds of their authority particularly in a dwelling house. The situation brings to mind the Supreme Court of Canada’s words in Le,

127 More fundamentally, in entering the backyard, the police also had what Sopinka J. in Evans referred to as a “subsidiary purpose”, which exceeds the authorizing limits of the implied licence doctrine (para. 16). In Evans, the subsidiary purpose that vitiated any “implied licence” was the hope of securing evidence against the home’s occupants (by sniffing for marijuana). Here, the subsidiary purpose was, in our view, correctly identified by Lauwers J.A. (at para. 107): “the police entry was no better than a speculative criminal investigation, or a ‘fishing expedition’”. It has to be recalled here that the police had no information linking any of the backyard’s occupants whose identities were unknown to them to any criminal conduct or suspected criminal conduct. The doctrine of implied licence was never intended to protect this sort of intrusive police conduct.

iii. P.C. CORONA AS A WITNESS

a. THE GHORVEI DECISION

[79] The last issue to be considered in assessing the racial profiling allegation is the history of P.C. Corona as a witness. In his cross-examination of P.C. Corona, Mr. Rippell referred to three cases in which other Brampton trial judges have criticized his conduct and his credibility: R. v. Mascoe 2017 ONSC 4208 (Ont. S.C.J.) per Hill J.; R. v. Jama, 2018 ONCJ 730 (Ont. C.J.) per Renwick J.; and R. v. Mitchell 2019 ONSC 2613 (Ont. S.C.) per Stribopoulos J.

[80] On the first day of his cross-examination, Mr. Rippell referred to Mascoe in passing and then delved into the judicial findings against P.C. Corona in Michell. He also expressed the intention to cross-examine with respect to the Jama case but did not begin this part of his cross-examination. The Mitchell and Jama cases, as will be explored in depth below, question both P.C. Corona’s investigatory techniques and his testimonial veracity. Ms. Nadler objected to the cross-examination on Mitchell, saying that it was only the opinion of another judge.

[81] When the trial was adjourned to complete the cross-examination of P.C. Corona, in view of this objection and concerned about the direction of the cross-examination, I had counsel sent the judgments in R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 138 C.C.C. (3d) 340, 29 C.R. (5th) 102 (Ont.C.A.) and in R. v. Harflett, 2016 ONCA 248, [2016] O.J. No. 1812 (Ont. C.A.). It was noted that they could refer to these cases in their closing submissions on the voir dire.

[82] It is not uncommon for objections to be made to defence counsel’s cross-examination of police officers on their testimony in previous criminal cases. Most often, it is the Ghorvei judgment that Crown counsel point to as prohibiting this line of attack. The key passage is from the judgment of Justice Charron (as she then was) at paragraph 31:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion. This case, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view, once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded and hence can provide no assistance in determining Constable Nielsen’s credibility.

(Emphasis Added)

See also R. v. Barnes, (1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.), at paras. 14-17.

[83] The conclusion that previous adverse judicial opinion cannot by itself and with nothing more be used to impugn the veracity of a police officer is often accepted with little discussion. This type of cross-examination can bring to mind concerns similar to oath-helping (or oath destroying) voiced in the jurisprudence. It was written in R. v. Kyselka, 1962 CanLII 596 (ON CA), [1962] O.W.N. 160, 37 C.R. 391, 133 C.C.C. 103 (C.A.), approved of by the Supreme Court in R. v. Beland and Phillips, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, [1987] S.C.J. No. 60, 36 C.C.C. (3d) 48 at para. 65, that,

…there is no warrant or authority for such oath-helping as occurred in the circumstances of this case, reminiscent as it is of the method before the Norman Conquest by which a defendant in a civil suit or an accused person proved his case by calling witnesses to swear that the oath of the party was true. If this sort of evidence were admissible in the case of either party no limit could be placed on the number of witnesses who could be called to testify about the credibility of witnesses as to facts. It would tend to produce, regardless of the number of such character witnesses who were called, undue confusion in the minds of the jury by directing their attention away from the real issues and the controversy would become so intricate that truth would be more likely to remain hidden than be discovered.

[84] While perhaps judicial opinions might be of greater weight than the opinion of lay people having only vague familiarity with the witness, the same logic applies. Bald judicial opinions on veracity, a question of pure fact, remain as only one person’s opinion.

[85] However, at the same time, it is important not to take Ghorvei for more than was intended. In Ghorvei, the Appellant had been convicted of a street sale of heroin observed by an officer by the name of Neilsen. Upon his appeal against conviction, the Appellant tendered as fresh evidence transcripts of three trials in which Neilsen had testified but the accused had each been acquitted. On the appeal hearing, counsel conceded that only one of the three trials had any real impeachment value as against Neilsen, a case called Pappageorge. Counsel argued that negative findings of fact by the trial judge in that instance should be received on appeal and could have affected the verdict. The trial judge had labelled Neilsen a “compulsive liar.” Counsel for the accused argued that if the transcript had been available at Ghorvei’s trial, the trial judge’s finding in Pappageorge could have been used in cross-examination of the officer and could have affected the result.

[86] Justice Charron framed the issue to be decided as “whether a witness can be cross-examined on a prior judicial finding that he has lied under oath.” She stated,

29 If the prior judicial finding that Constable Nielsen lied under oath had formed the basis of a conviction of perjury or of giving contradictory evidence, it is clear that he could have been subjected to cross-examination on that conviction and on its underlying facts. See s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.). Constable Nielsen, as an ordinary witness and unlike an accused person, would also be subject to cross-examination on relevant discreditable conduct even if the conduct has not resulted in a charge being laid or in a conviction. See R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.).

[87] Justice Charron then wrote that she had read the entire transcript of Pappageorge and found that the trial judge’s conclusion against Officer Nielsen was “either the unfortunate result of judicial intemperance or that the trial judge’s conclusion [was] based on extraneous considerations”: see para. 32. The finding that the officer’s evidence was false was unreasonable: para. 33.

[88] Lastly, Justice Charron considered defence counsel’s argument that the recent ruling in R. v. Malabre (March 21, 1997), Doc. C22967 (Ont. C.A.) supported his position. As it was, Justice Charron had co-authored Malabre. It had been argued in that case that the trial judge had erred in not allowing cross-examination of a witness on a prior adverse credibility conclusion. Justice Charron seemed to hold that the principle advanced by counsel was sound but that the facts in Malabre did not support its application,

The appellant also contended that the trial judge in the earlier case had made findings of credibility with respect to Pearson that were tantamount to a determination that he had lied under oath. We would find merit in the appellant’s argument if there had been a clear and express finding to that effect. However, the findings of the trial judge in the earlier proceeding on Pearson’s credibility are subject to interpretation. In the circumstances, we are not persuaded that the trial judge in this case erred by refusing to allow cross-examination on those findings. [Emphasis added by the Ghorvei court]

[89] Justice Charron went on to comment in Ghorvei,

35 It is clear that it was not necessary to decide the issue in Malabre, and, in my view, the obiter comments of the court should not be taken to mean any more than the court would have considered counsel’s argument to be tenable had the facts supported the contention that there had been a finding that the witness had lied under oath. However, given the record in Malabre, the court did not see any merit in the argument.

[90] The core holding in Ghorvei from the first two sentences of paragraph 31 that a bare previous judicial opinion cannot be put to a witness is binding and has been applied in other cases: R. v. H. (A.G.), 2013 ONSC 4060, [2013] O.J. No. 3427 (Ont.S.C.J.) at para. 31; Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 (Ont.S.C.J.) at paras. 269-274; R. v. Almosawi, [2001] O.J. No. 3505 (Ont.S.C.J.) at paras. 12-15; R. v. W. (J.), 2001 SKCA 44 (Sask.C.A.) at para. 10; R. v. Schmidt, 2001 BCCA 3, [2001] B.C.W.L.D. 352 (B.C.C.A.) at para. 30; R. v. Hawkes, 2017 NSPC 4 (N.S.P.Ct.) at para. 109; R. v. Hussein, 2017 ONSC 1159 (Ont.S.C.J.) at paras. 42, 61.

[91] But Ghorvei is not and was not intended to be the blanket prohibition it is sometimes believed to be. First, Justice Charron found that the underlying findings of fact by the trial judge in the Pappageorge case did not support a finding that the witness had lied under oath as the judge in that case had found. The consideration of counsel’s ultimate argument was therefore unnecessary. While still binding, the Ghorvei holding is somewhat attenuated as a result: see R. v. Henry 2005 SCC 76 (S.C.C.) at para. 57; R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401 (Ont.C.A.) at paras. 18-40, aff’d with no reference to this issue, 2012 SCC 49 (S.C.C.).

[92] Second, the Malabre case accepted in principle that a witness could be cross-examined if there was a solid finding that the witness had lied under oath. In Ghorvei, Justice Charron did not disavow this earlier statement of principle from Malabre, simply saying that the factual findings in Malabre, as in Ghorvei itself, did not support the presence of a negative credibility finding made by the previous trial judge. Again, the judgment did not close the door on this mode of cross-examination. To the contrary, it placed conditions on it and sounded a cautionary note but implicitly acknowledged its availability in appropriate circumstances.

[93] Neither Ghorvei nor Malabre impose a strict inflexible rule. In fact, in the much cited paragraph 31 quoted above, Justice Charron holds that a witness cannot be cross-examined on a previous adverse credibility finding because this “in and of itself” does not constitute discreditable conduct. That is a significant qualification. Later in the same paragraph she added,

The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.

[94] This leads to another important distinction. A bare opinion of credibility without supporting reasons is of no assistance to a finder of fact. But if a factual foundation is laid for the opinion in the previous judgment, might it not in some circumstances, be relevant and admissible? There are statements in the case law which lend some support for this proposition. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584 (Ont.C.A.) at paras. 29-32, the Court, in following Ghorvei, agreed that the trial judge was correct to prohibit the cross-examination of an expert witness with respect to negative comments made by judges in three previous cases. However, Justice Hourigan added,

32 In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings.

(Emphasis Added)

[95] The second sentence raises a pertinent and important issue involving confusing and distracting evidence but that is a separate issue to be discussed later. Another case which qualifies the Ghorvei statement is that of Justice Speigel in Desbiens. He said,

274 I do not wish to be understood to say that this line of questioning is impermissible under any circumstances. If a satisfactory evidentiary basis is laid it may become relevant.

[96] Also see Hussein at para. 51.

[97] In R. v. Karaibrahimovic, 2002 ABCA 102, [2002] 7 W.W.R. 452 (Alta. C.A.), after quoting the seminal passage from Ghorvei, the court said,

9 The difficulty is that there is no effective way of determining with certainty the factual foundation for credibility findings in other trials. Nor could one necessarily determine if the evidence, including expert evidence, had been rejected and if so, for what reasons. Reviewing all the evidence in a prior case would not assist since this would not reveal the reasons why a trier of fact might have accepted or rejected a witness’s evidence. Nor would a review of the decision in the earlier case necessarily prove determinative.

[98] One of the major objections against cross-examination on a previous judicial finding is the inability for the finder of fact to evaluate the finding without a proper foundation. In some circumstances, however, where counsel elicit the foundation as well as the ultimate opinion, this concern is substantially alleviated particularly in a judge alone situation like the current one.

[99] Finally, there is a line of authority which should be read together with the Ghorvei case law. It is well-established that a police officer’s prior conduct in violation of the Charter can be admissible on a subsequent trial if circumstances warrant. Justice Hill in R. v. Thompson, 2013 ONSC 1527, 1 C.R. (7th) 125 (Ont.S.C.J.) wrote:

204 Cross-examination of a witness about whether or not his or her testimony was rejected or disbelieved in another proceeding is irrelevant (R. v. Ghorvei(1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (Ont. C.A.), at paras. 22-35; R. v. Barnes(1999), 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.), at paras. 14-7). Equally, the credibility conclusions of another court, or findings respecting a police witness’ compliance with Charter rights, are generally irrelevant to determinations to be made by a court in a subsequent and different trial dealing with similar issues. However, and while it is not strictly necessary to decide the point in this case, I am of the view that a trial court would not be foreclosed, in considering as a factor relating to the seriousness of a Charter breach, relevant history of a particular police officer, squad or force as unambiguously characterized by judicial officers in other cases.

(Emphasis Added)

[100] In Harflett, Lauwers J.A. incorporated in his Charter analysis evidence that the officer in question had been previously criticized by two other trial judges for searching cars. The officer had a policy of performing an “inventory” of all cars which he had stopped. In doing so he had shown a “pattern of abuse.” Justice Lauwers held that this was an important factor tending towards exclusion on the first Grant inquiry: paras. 40-45.

[101] Distinguishing Ghorvei from Harflett is not an easy task. The line between the two is a fine one. Reduced to its essence, Ghorvei prohibits cross-examining a witness based on their evidence not being accepted or being found untruthful by a previous judge. Harflett permits a judge to use prior Charter breaches by an officer to be used on the seriousness of the breach in deciding whether evidence should be excluded. If past police conduct is relevant as found in Harflett, cross-examination of a police officer on past conduct may well be proper because of its pertinence to credibility and propensity.

[102] Negative findings of credibility or reliability of a witness do not exist in a vacuum. They are necessarily associated with an aspect of the witness’ evidence, often as in this case, with evidence critical to the issue of whether the Charter of Rights and Freedoms has been breached. Here, for example, it is argued that P.C. Corona did not have grounds for the search of the Applicant and that his conduct was infected with racial profiling. It is further argued that in testifying that he did have grounds, he was untruthful. In this way, the issues of Charter compliance and credibility may often be inextricable the one from the other. If a witness’ non-compliant Charter conduct is fair game for cross-examination, so too in some circumstances are credibility and reliability findings based on alleged Charter infringing conduct.

b. DID THE CROSS-EXAMINATION IN THIS CASE CONTRAVENE GHORVEI?

[103] In my opinion, Mr. Rippell in his cross-examination of P.C. Corona, successfully avoided the pitfalls described in the Ghorvei decision. Three prior cases were the subject of cross-examination: Mascoe, Mitchell and Jama. Beginning with the Mascoe decision, based on the comments of Justice Hill concerning P.C. Corona in that case, the gist of the cross-examination was that P.C. Corona had been criticized for his note taking in the past and therefore in this case he would have been particularly careful to take good notes.

[104] In Mascoe, Justice Hill stated in his reasons that P.C. Corona had made late note entries and failed to record times and important conversations and observations: see para. 5-6. In his conclusions, Justice Hill found that P.C. Corona had misled the Court with respect to his notes and that this impacted on his credibility and reliability: paras. 110-116. Specifically, he concluded,

110 … the altogether unsatisfactory content and presentation of the police witnesses' evidence in this trial cannot be assigned simply to inexperience as police officers or to being witnesses in a courtroom.

114 While the court plays no part in marking or grading the quality of police note-taking in a particular case, or meting out disciplinary remand for real deficiencies, the quality of a police witness' notes can, and did in this case, impact upon the credibility and reliability of the witnesses' evidence.

(Emphasis Added)

[105] Mr. Rippell did not delve into this aspect of Justice Hill’s reasons. There was nothing objectionable about Mr. Rippell’s cross-examination with reference to Mascoe. I did not understand Ms. Nadler to argue otherwise.

[106] With respect to the other two cases, Mr. Rippell began by asking about disciplinary proceedings against P.C. Corona. The officer said that there was one pending, but it did not involve the Mitchell or Jama cases. He was investigated with respect to the Mitchell case but was not charged. In Jama, the case in which Justice Renwick found three separate categories of untruths in P.C. Corona’s evidence, there were Police Service Act charges, but they were withdrawn with the stipulation that he undergo mediation with the accused. The accused, perhaps not surprisingly, ultimately chose not to participate. In cross-examination, it was acknowledged that there was another police disciplinary matter against P.C. Corona in which the charges were withdrawn also in favour of mediation with the complainant. Again, the complainant declined to participate in that instance.

[107] Mr. Rippell’s cross-examination of P.C. Corona on Mitchell was mainly based on paragraph 77 of the reasons which Mr. Rippell read to the witness. Justice Stribopoulos found there that the failure to call in the stop to dispatch was deliberate and was to avoid scrutiny of his conduct,

77 A police officer engaged in a low-visibility abuse of his authority has good reason not to radio their police dispatcher. For example, if a police officer is detaining someone whom they consider suspicious without any objective justification, the officer has no way of knowing whether anything will come of the encounter. If nothing does, why memorialize the unconstitutional interaction by informing dispatch? Quite obviously, this is not the mindset of a conscientious police officer who is trying to discharge their duties lawfully and transparently.

[108] When confronted with this finding, P.C. Corona said he did not agree that he had acted deliberately to ensure it would not be known that he had made the traffic stop but said that he recognized that not calling it in to dispatch was a “huge error on my part.” When he was asked whether he had learned anything from what was written in paragraph 77, Ms. Nadler objected on the basis that this was a finding of another judge and ought not be permitted in cross-examination. Without mentioning Ghorvei by name, she was relying on the dicta from that case. Mr. Rippell clarified in the absence of the witness that he was interested in what P.C. Corona had learned from the finding against him and did not intend to go any further.

[109] The cross-examination continued and attempted to draw a comparison between Justice Stribopoulos’ criticism and the case at hand. It was suggested to P.C. Corona that he had not called for back up in the apartment in this case for the same reason as he did not call in the stop of Mitchell to the dispatcher. If nothing was found, then subsequent scrutiny of his actions could be averted. P.C. Corona disagreed and gave several reasons why he did not call for back up in this instance.

[110] I agree that counsel’s comparison was inapt. Some police officers might have called for back-up, but most would not have. The evidence was that the officers were in Malton and that back-up officers would not arrive for a considerable period of time. The events unfolded over only about four or five minutes. There were two armed police officers present. To interrupt their focus even momentarily and request back-up before the firearm was found could not reasonably have been expected. The matter was urgent and immediate. Also, unlike Mitchell, police dispatch had initiated the investigation and had directed P.C. Corona to attend. His involvement was known and could not be hidden.

[111] But on a more general plane, it is arguable that the cross-examination brought out an important similarity between that case and this one: both featured a search without sufficient grounds and a subsequent effort to manufacture grounds after the fact to justify the search. This will be discussed below.

[112] The cross-examination with respect to the Jama case occurred during the second stint of P.C. Corona’s cross-examination and was the most extensive of the three previous cases. Mr. Rippell’s opening salvo was that P.C. Corona had a pattern of searching first and developing grounds later. P.C. Corona denied the allegation. He disagreed that his evidence in the Jama case had been untruthful although he agreed that there were inaccuracies in his evidence.

[113] In the Jama judgment, Justice Renwick had found that P.C. Corona’s evidence explaining why he stopped the accused’s vehicle was unreliable and inaccurate for three reasons. He said,

12 On all of the evidence, I am unable to accept that there was a legitimate HTA detention when Constable Corona parked his police car in front of the applicant's SUV. I have come to this conclusion for one reason, the officer's evidence is not reliable. There are three examples of the inaccuracy of Constable Corona's testimony.

[114] Justice Renwick went on to elaborate. He found, first, that the officer’s evidence was that as he was attempting to observe the accused who was driving a Dodge Durango, the vehicle suddenly sped up and made an illegal lane change in an intersection. P.C. Corona said his cruiser was very close to the Durango at the time. Video shown at trial by defence counsel convinced Justice Renwick that not only was there no lane change in the intersection, but that Officer Corona was not anywhere near 2-3 car lengths from the vehicle as it went through the intersection as he testified.

[115] Second, Justice Renwick did not believe that the officer as he had testified had done a licence check on the vehicle before the alleged illegal lane change in the intersection. The GPS data on the positioning of P.C. Corona’s vehicle made it impossible that he could have performed the licence check before the lane change he testified to seeing. Third, when P.C. Corona called in to dispatch that he had stopped Jama’s vehicle and everything was fine, he had already arrested Jama for breach of his recognizance. He did not inform dispatch of the arrest until several minutes later: Jama, paras. 10-20. Justice Renwick concluded at para. 60,

… Constable Corona masked his intentions and his behaviour behind legitimate police endeavours (traffic enforcement) and in so doing, he has harmed his credibility before the court.

[116] Armed with one additional video that had not been shown in the Jama case, Mr. Rippell reviewed P.C. Corona’s evidence from Jama with him in cross-examination. Mr. Rippell focussed exclusively on the first issue identified by Justice Renwick, the issue of whether there was an illegal lane change. Ms. Nadler objected. She was concerned that this would involve a side, collateral issue. Having earlier objected to the cross-examination on Mitchell as being an irrelevant opinion of another judge, and having read the Ghorvei decision, Ms. Nadler argued that Ghorvei prohibited this line of cross-examination. She was also concerned that there was another video the defence had obtained which they intended to use to cross-examine P.C. Corona that she had not seen. Ms. Nadler said there might be some reply evidence on the point. In the end, it was agreed that the cross-examination would proceed and when it was better known where it was going, Ms. Nadler could renew her objection.

[117] Two videos were played to the officer, the one shown originally in Jama and another one which had not been shown in that trial. The officer was compelled to agree based on the first video that the Durango had not made an illegal lane change at Duke of York and City Centre Drive as he had testified. Nor was his cruiser two to three vehicles away from the Durango. In fact, the cruiser is shown to be one and a half minutes behind the Durango. The officer agreed that it was a “gross inaccuracy.” The officer’s explanation was that the intersection in which he had said the lane change took place was inaccurate. He was mistaken. But he adhered to his earlier evidence that there was an unsafe lane change in an intersection. He was adamant and repeated over and over again that there had been no intention to mislead.

[118] P.C. Corona also testified in this proceeding that he had seen another video, which he claimed was held back by the defence in the Jama trial, which showed the unsafe lane change and his cruisers’ proximity to the accused’s Durango. Mr. Rippell showed the witness a second video, not adduced in the Jama prosecution, which was also filmed by a traffic camera but further along on Duke of York, this time at the intersection with Prince of Wales Street. In this video too, the officer’s cruiser was more than a minute behind the Durango and was never remotely in the position to see an illegal lane change. The Durango was stopped by P.C. Corona not long afterwards.

[119] In summary, neither of the videos showed an unsafe lane change in fact. Nor did they show that P.C. Corona was in a position to see a lane change if there had been one. He was a lengthy distance from the Durango in both instances.

[120] Portions of P.C. Corona’s in-chief and cross-examination on the issue from Jama were put to P.C. Corona and filed on the hearing. The transcript shows that in his in-chief testimony, P.C. Corona conveyed the unmistakable impression that he was driving in close proximity to the Durango for a considerable period of time and that he had seen an illegal lane change in the intersection. When confronted with the video in cross-examination, P.C. Corona had little choice but to admit he had been mistaken. Now, in this hearing, P.C. Corona alleged that the defence had held back a video which backed up his version. He had seen the video himself and it showed the lane change. This was not true. Although counsel agreed that there was a third video, they agreed that it had no relevance and did not shed light on the lane change or the proximity issues. The only two videos in existence bearing on the issue demonstrated beyond any question that P.C. Corona was more than a minute behind the suspect vehicle. Despite his protestations, there can be no doubt that P.C. Corona’s testimony in Jama was false.

c. CONCLUSIONS WITH RESPECT TO RELEVANCE AND ADMISSIBILITY OF PREVIOUS FINDINGS AGAINST P.C. CORONA

[121] In summary, the cross-examination of P.C. Corona on the three previous judgments in which there were criticisms of his evidence was, in my view, proper and relevant to the live issues in this application:

a) Unlike Ghorvei, it was not the bare opinion of the three trial judges that carried the defence burden of relevance and admissibility. In each case, Mr. Rippell dug into the factual foundations of the previous judicial conclusions. The testimonial factors arising from the previous cases were connected to the live issues in this voir dire. This enabled the prior judges’ ultimate opinions to be evaluated and weighed. In this case, the foundation of the judicial opinions was laid bare.

b) In my view, based on the evidence explained in their judgments, to quote Malabre, the prior judicial criticisms were “clear and express.” Also see Law Society of Upper Canada v. Evans 2008 CanLII 34276 (ON SCDC), [2008] O.J. No. 2729, 295 D.L.R. (4th) 281 (Ont.Div. Ct.) at para. 50 in which it was said that the key to permitting cross-examination was that there be “a clear finding of fabricated evidence.” In addition, in my view, unlike in Ghorvei, the judicial conclusions were eminently reasonable. Having read the three judgments, the basis for each set of findings is fully explained and, in my view, well justified. I agree with them. Furthermore, with respect to Jama, I had the advantage of viewing the same documentary evidence as did Justice Renwick as well as additional documentary evidence, the second video.

c) The cases of Harflett and Thompson hold that previous misconduct by law enforcement officers can be admissible on a Charter application. The judicial conclusions in Jama and Mitchell relied upon by the defence, when broken down, consist of two components. The first was a conclusion of Charter violation. Both cases involved vehicle stops by P.C. Corona which were found by the trial judges to lack a reasonable basis and therefore constitute breaches of Sections 8 and 9 of the Charter. That directly correlates with the theme advanced in this case: as defence counsel put it, search first, develop grounds later. The second component found by the trial judges was untrustworthy testimony from P.C. Corona in an attempt to obscure the Charter violations he committed. It is manifest that the two components of Charter violation and negative credibility assessments are intertwined. It makes little sense for the first to be admissible and fair territory for cross-examination while the second is held to be inadmissible.

d) The evidence is highly probative to shed light both on P.C. Corona’s conduct and his credibility. In R. v. Gassyt, 1998 CanLII 5976 (ON CA), [1998] O.J. No. 3232, 127 C.C.C. (3d) 546 (Ont.C.A) at paras. 34-40; leave refused [1999] 2 S.C.R. v, it was argued that cross-examination of a police officer on outstanding criminal charges he was facing and the facts underlying them constituted fresh evidence and should be admitted on appeal. It was held by Justice Charron, as she then was, that cross-examination in these circumstances went only to credibility and was therefore insufficient to reasonably expect it to affect the result. The case at hand is different because the credibility of P.C. Corona was the pivotal issue on the application. Further, Justice Simmons in R. v. McNeil, 2006 CanLII 40087 (ON CA), [2006] O.J. No. 4746, 215 C.C.C. (3d) 22 (Ont.C.A.); reversed on other grounds R. v. McNeil, 2009 SCC 3 (S.C.C.), made this important distinction elaborating on Gassyt. Her conclusion holds equally true in the case at hand,

64 Unlike Gassyt, in my view, this is not a case where it is clear that evidence of the underlying misconduct relates solely to the arresting officer’s credibility. In Gassyt, there was no link between the criminal charges against the undercover officer and the charges against the appellants. In this case, the pending charges against the arresting officer include allegations that he had a cocaine habit and engaged in criminal (or dishonest) conduct directly linked to that habit. Because the charges against the appellant include allegations that the appellant was trafficking in cocaine, in my view, there is a reasonable possibility that evidence of the underlying misconduct would be admissible to support an inference that the arresting officer had an ulterior motive for approaching the appellant.

Also see R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236 (Ont.C.A.) at paras. 109-110

e) The other judges’ conclusions that P.C. Corona was not truthful on the witness stand amount to findings of discreditable conduct. Discreditable conduct of a witness is a proper area for cross-examination. As referred to in Ghorvei at paragraph 29 quoted above, Justice G.A. Martin held in R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.) at pp. 510-511,

… an ordinary witness, unlike an accused, may be cross-examined with respect to misconduct on unrelated matters which has not resulted in a conviction: see R. v. Davison (1974), 1974 CanLII 787 (ON CA), 6 O.R. (2d) 103, 20 C.C.C. (2d) 424 at 443-44, leave to appeal to S.C.C. refused 6 O.R. (2d) 103n, 20 C.C.C. (2d) 424n

Also see R. v. Jama, 2012 ONSC 7095 (Ont.S.C.) at para. 14.

f) Cross-examination of a police officer on discreditable conduct outside the scope of the indictment may be relevant and was highly relevant here. In R. v. McNeil, 2009 SCC 3 (S.C.C.), while analyzing the Crown’s obligation to disclose disciplinary records of the police, Justice Charron said at para. 54:

Where the misconduct of a police witness is not directly related to the investigation against the accused, it may nonetheless be relevant to the accused’s case, in which case it should also be disclosed. For example, no one would question that the criminal record for perjury of a civilian material witness would be of relevance to the accused and should form part of the first party disclosure package. In the same way, findings of police misconduct by a police officer involved in the case against the accused that may have a bearing on the case against an accused should be disclosed.

g) P.C. Corona’s conduct in the past correlates with his conduct in this case and generates substantial probative value. Furthermore, P.C. Corona’s attempt to justify his conduct in his testimony in court is similar to the other three cases which, in broadly similar circumstances, found his evidence not credible. That is not determinative in itself but is one factor to take into consideration. People are not robotic and judging actions through character and propensity requires caution: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (SC.C.) at paras. 35, 39-41. But the evidence here was cogent in contributing to the conclusion that the search was without proper grounds.

h) It would not be fair to restrict cross-examination to convictions or outstanding charges, whether criminal or disciplinary in nature. While the procedural integrity of the criminal justice system is a given, there was no evidence with respect to the police disciplinary process on this voir dire. Its workings are collateral and were not explained. But it was frankly disturbing that P.C. Corona, as he testified, was charged with misconduct arising out of Justice Renwick’s explicit Jama findings based on the three categories of untruthfulness but the police charges were withdrawn in return for his agreement to go into mediation with Mr. Jama. It is not possible to go any further on this record. The point is that questioning by defence counsel as held in Gonzague should be permitted to go beyond formal findings of guilt in criminal or non-criminal proceedings.

i) Addressing a concern raised in the authorities (see e.g. Bruff-Murphy v. Gunawardena), in my view, the cross-examination was not collateral nor was it an unnecessary or unjustified distraction. I must confess that during the cross-examination of P.C. Corona on the Jama videos, there was a sense that the hearing was going sideways and veering off course. But this entire cross-examination on the videos was only about an hour. It was clearly not caught by the collateral fact rule. The rule regulates the admission of extrinsic evidence, not the cross-examination of a witness on documentary evidence like the videos in this case: R. v. Khanna, 2016 ONCA 39 (Ont.C.A.) at para. 9; R. v. MacIsaac, 2017 ONCA 172 (Ont.C.A.) at para. 58; Landmark Vehicle Leasing Corp. v. Mister Twister Inc., 2015 ONCA 545 (Ont. C.A.) at para. 20. Furthermore, the rule applies principally to attacks on credibility alone. In this case, the cross-examination bled into character and propensity to act contrary to the Charter and was therefore of substantive use going to a material issue on the application: Dahl v. South Coast British Columbia Transportation Authority, 2018 BCCA 184 (B.C.C.A.) at paras. 14-16. Lastly, the collateral fact rule is one of trial efficiency which balances the importance of the evidence against the time consumed. It is discretionary: R. v. Ryan, 2011 NLCA 53 (N.S.C.A.) at para. 35; Law of Witnesses and Evidence in Canada, Peter Sankoff (online) § 12:26. In my view, the importance of Mr. Rippell’s cross-examination of P.C. Corona clearly outweighed any cost in trial efficiency. It was of considerable assistance in deciding this application.

j) In the end, the approach of the English Criminal Court of Appeal recommends itself and, in my view, is not prohibited by Ghorvei:

There is ... a balance to be struck between the need to make sure that points fairly to be made about a police officer's previous misconduct are before the jury when his credibility falls to be judged in a later case and the need to avoid a smoke screen of unsubstantiated suspicion, innuendo and attempts to smear unfairly...

If there is clear evidence that a police officer, whose credit and credibility are significant in the case before the jury, has been guilty of serious malpractice on an earlier occasion, that necessarily damages his credibility when it falls to be judged on the second occasion, even though the malpractice alleged on the second occasion is of a different kind ... We do however think it necessary to consider how significant in the case the police officer's evidence is and what past misconduct he is shown to have committed.

R. v. Malik, [2000] 2 Cr. App. R. 6 (C.A.) at pp. 11-12; also see R. v. Edwards [1991] 2 All E.R. 266 (C.A.) at p. 275

[122] To conclude, in law, a police officer is an ordinary witness in a criminal case, albeit often of central importance on a Charter voir dire. A police witness will almost always be diametrically opposed in interest to an accused person. That was the case here. There are inherent credibility advantages a police officer has over an accused, many of whom, like the Applicant here, are factually guilty. In these circumstances, care must be taken to ensure the defence is permitted to use the legitimate forensic tools at its disposal to effectively challenge an officer’s reliability and credibility. It is a simple matter of procedural fairness.

[123] The importance of this is highlighted by the case at hand. P.C. Corona’s credibility and reliability were central. Chief Justice McLachlin said in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para. 26,

…[misleading evidence from the police] is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160).

(Emphasis Added)

[124] In order to maintain confidence in the administration of justice, scrupulous fairness is necessary in the treatment of Crown and defence witnesses. In light of the high stakes, there is an obvious potential for abuse. But trial judges have the experience and expertise to manage police prior conduct evidence. In this case, the procedure with respect to the proposed cross-examination of P.C. Corona was simplified by the nature of this proceeding as a pre-trial Charter motion to be decided by a judge sitting alone. If a jury was deciding the issue, it would significantly complicate the approach. Distraction of the jury would be a much more significant issue. Moreover, needless to say, it is not in every case that evidence of this nature will be admissible. But in this instance, there was a powerful argument to permit the cross-examination and to use the past judicial comments and findings of fact to help arrive at a just final conclusion.

[125] The cases stress the difficulty of proving racial profiling whether conscious or unconscious. The importance of the type of evidence used by Mr. Rippell in this case is that it can be one element to force racial profiling into the open. Just because a police officer may have been found to have used racial profiling in the past does not of course mean that he or she used it subsequently. But it is a relevant consideration and defence counsel should, if the law allows it, be properly armed with the necessary evidence in order to facilitate a racial profiling argument.

V. FINAL CONCLUSION: WAS THERE A BREACH OF SECTION 8 OR 9 OF THE CHARTER?

[126] Returning to the issues previously identified, the discrepancy between P.C. Khan and P.C. Corona about whether the Applicant attempted to conceal the satchel as he walked away from the officers is fundamental. Between the officer who claimed to have seen the concealment and the officer who did not, I have no hesitation in preferring the evidence of the officer who did not, P.C. Khan. I have found that both had identical opportunity to observe the act of concealment. There could be no honest mistake about what was termed an obvious act of concealment. In logic, having arrived at this conclusion, the inference that the concealment did not occur must prevail over the alternative that it did. P.C. Corona, in addition, having searched the Applicant and found the gun, possessed a motive to back-fill his observations in order to justify his actions. P.C. Khan did not have any such motive. In the end, I find that the concealment of the satchel did not occur. The evidence of acts of concealment were grafted on to the true events. This conclusion stands at the centre of the Charter issues to be decided.

[127] Several observations of P.C. Corona require comment. Directly accused of racial profiling in cross-examination, P.C. Corona disputed that it was an element of his policing in the events leading up to the seizure of the firearm. While recognizing a general bias which he implied we all have, he denied any bias in his actions in this matter. Several aspects of his testimony, together with the evidence I have reviewed, has led me to find otherwise.

[128] During his evidence, P.C. Corona regularly looked to the side at me as if for approval or acceptance. He seemed to be making a personal appeal. When he confessed to making a “huge error” with respect to the Mitchell case, this was the beginning of a speech he directed at me, not at the questioner, Mr. Rippell. Furthermore, in the second part of his cross-examination which lasted a total of about three and a half hours, P.C. Corona made lengthy speeches vehemently protesting his innocence with reference to the improper stop allegations from the Jama case. This behaviour did nothing to enhance his credibility. Also, during this second part of his cross-examination, P.C. Corona used a variation on the phrase “I did my best” over 80 times. He essentially clammed up. As an answer, this was largely unresponsive to the questions posed. The consequence was that his credibility was damaged, in my opinion.

[129] Overall, P.C. Corona was an exceedingly defensive witness. Ms. Nadler did not disagree with this proposition but argued that it was understandable given the attack on him in this trial and the past judicial criticisms of his work and testimony. In other words, he had good reason to be defensive and it was not indicative of his frailty as a witness. I cannot agree. In the full context of his evidence, this defensiveness was more likely to be a conscious result of the weakness and the flaws in his testimony and for the purpose of shielding himself from justified criticism than it was a result of being unfairly attacked by defence counsel.

[130] The erroneous observation of the satchel must be analyzed within the context of the other factors and the police conduct explored above. This includes a building with a high crime rate and alleged gang activity and with 80% visible minorities as tenants. The conduct which suggests police overreaching encompasses believing that the presence of the “underage” females contributed to the grounds for the search, Jasmine not being questioned when she opened the apartment door, the failure of the officers to announce their purpose at any time, the entry into the apartment and the direction at the very outset to the males to keep their hands in sight, leading to an investigative detention. I also find that P.C. Corona “fudged” when he testified that he could not remember whether he spoke to Jasmine or not. Together, these circumstances lead to the conclusion that the police exploited their limited authority to remove unwanted persons in the apartment, instead investigating the occupants for criminality at large.

[131] With respect to the three instances of prior negative judicial findings, these were of considerable assistance in this application. There was substantial probative value derived from these other cases taken cumulatively, far outweighing any arguable prejudicial effect. This evidence was important substantively and going to credibility.

[132] All three of the other accused were Black, although none of the three judges made an explicit finding of racial profiling. However, it was certainly very much part of the rulings in both Jama and Mitchell, with Justice Renwick concluding in Jama at the end of his judgment,

64 As a resident of this community for over 22 years, I am also aware of the chasm of public trust caused by police officers acting beyond the limits of their authority. This too, is no small problem for our community. Peel Region is a diverse cultural mosaic like few others. The Charter rights of all of our residents are at risk when the rights of young men of colour, like the applicant, are trampled upon by the excesses of heavy police boots.

(Emphasis Added)

[133] The ultimate issue in this voir dire is whether P.C. Corona had reasonable grounds that the Applicant, Holloway, a young Black man, had a weapon secreted in the satchel. Relevant to that issue, in my view, is the evidence elicited by the defence that on two prior occasions P.C. Corona pulled over vehicles driven by Black men on grounds found to have been unjustified and, indeed, manufactured. In both, there were grounds to conclude that P.C. Corona knew that both men were Black before he pulled them over but yet he prevaricated on the witness stand. In this case, similarly, I have found that the search of Holloway was without sufficient grounds despite the evidence of P.C. Corona attesting to concealment of the satchel.

[134] In the end, the past conduct and past judicial findings add to the conclusion that the untruths and the police overreach were at least partially a consequence of racial profiling. In law, it is unnecessary to quantify the precise influence of racial profiling on the search: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 21 C.R. (5th) 1, 167 D.L.R. (4th) 672, 131 C.C.C. (3d) 1 (Ont.C.A.) at para. 34; Dudhi at para. 62. Racial profiling of any degree leads to a violation of Section 8 of the Charter. I would go further here, however, and find that the evidence demonstrates that racial profiling played a substantial role in the conduct of the police leading to the discovery of the firearm on Holloway’s person. The false concealment of the satchel evidence cannot be ascribed to unconscious factors. It was deliberate and calculated.

[135] A breach of Section 8 of the Charter has been demonstrated. The grounds for the search were insufficient in law and were infected by racial profiling. It is unnecessary, in the circumstances, to give a final opinion with respect to Section 9 of the Charter.

VI. SHOULD THE FIREARM BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER?

[136] Ms. Nadler fairly concedes that if racial profiling is found to be an element behind the search of the Applicant, the evidence obtained must be excluded. I agree. It is hard to imagine that evidence obtained at least in part based on racial profiling could ever survive and be admitted at trial. Racial profiling, universally condemned in our jurisprudence and in our society, calls for unflinching judicial distancing in order to preserve the integrity of the administration of justice and to affirm fundamental Canadian values.

[137] Racism permeates our society, not only the justice system. It is a societal evil. Racial profiling is a particularly insidious form of racism. It creates bitter divisiveness on racial grounds. Zero tolerance and unequivocal denunciation is the only possible position to confront it.

[138] The Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32 (S.C.C.) emphasized the need to instill public confidence in the justice system by the exclusion of evidence in serious cases of Charter infringement:

72… The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

73…The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

75 …Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

[139] In this instance, the unfounded satchel evidence was unlikely to have been unconscious or accidental. Other aspects of the racial profiling identified in this case could have been unconscious, but the concealment evidence was not. That increases the seriousness of the breach significantly.

[140] It must be remembered that both Justice Renwick in Jama and Justice Stribopoulos in Mitchell found that P.C. Corona failed to call in to dispatch in order to shroud his conduct from later scrutiny. The evidence was different in this case but the stopping and consequent search of the vehicles in those cases without proper grounds has its correlation in the search conducted here. It too was low visibility. If nothing had been found, the unconstitutional search of the Applicant would never have come to light. The further comments by the majority in Grant are for this reason apropos:

75…It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[141] Furthermore, the misleading evidence of P.C. Corona is an additional factor to take into account on the seriousness of the Charter breach per Harrison at para. 26 as quoted above.

[142] Moving to the second Grant category, the impact on the Charter protected interests of the accused, an unreasonable search without sufficient grounds, infringes on the Applicant’s privacy and, critically in this case of racial profiling, “human dignity”: see Grant at para. 78. The taint of racial profiling magnifies the detriment that might otherwise be felt by a person whose Section 8 rights have been violated. Racial profiling “results in the person or group being exposed to differential treatment or scrutiny”: Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (2015), 2015 SCC 39, [2015] 2 S.C.R. 789 (S.C.C.) at para. 33. It perpetuates and accentuates fundamental racial fault lines in society and depreciates the statehood of Blacks in the Canadian community. Discrimination against individuals distinguished only by the colour of their skin is repugnant. It depreciates every facet of their lives.

[143] The long-term consequences of racial profiling on the first and second Grant inquiries leave no room for doubt. The evidence must be excluded. The third line of inquiry, societies’ interest in adjudication on the facts, does not alter this assessment, although it inevitably inclines towards inclusion. This is particularly the case here where a loaded firearm was seized. Illegal guns and gun violence are a societal problem of staggering dimensions: R v. Chizanga and Meredith, 2020 ONSC 4647 (Ont.S.C.) at paras. 6-14.

[144] Yet the law is clear that the first two affirmative branches of the Grant inquiry must prevail, even when exclusion will lead inevitably to acquittal: R. v. Le, at para. 142; R. v. McGuffie, 2016 ONCA 365, (2016) 131 O.R. (3d) 643 (Ont. C.A.) at para. 63; R. v. McSweeney, 2020 ONCA 2, 384 C.C.C. (3d) 265 (Ont.CA.) at para. 81; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 107; R. v. West, 2020 ONCA 473, [2020] O.J. No. 3151 (Ont.CA.) at para. 41; R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114 (Ont. C.A.) at para. 46.

[145] It is for these reasons that the application is allowed, and the handgun is excluded from the trial.

D.E HARRIS J.

Released: September 16, 2021

COURT FILE NO.: CR-20-00000377-00

DATE: 2021 09 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

SCHUYLER HOLLOWAY

Applicant

REASONS FOR JUDGMENT

D.E HARRIS J.

Released: September 16, 2021