R. v. Morgan 2023 ONSC 6855

COURT FILE NO.: CR-22-310

DATE: 20231204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ERIC MORGAN

Haejun Rim, for the Crown/respondent

Tobias Okada-Phillips, for the accused/applicant

HEARD: September 18-20, 2023[^1]

REASONS FOR JUDGMENT

Rahman, J.

1. Introduction

[1] The accused/applicant, Eric Morgan, applies to exclude evidence obtained against him during a traffic stop. On October 23, 2021, the applicant was a passenger in a car that was pulled over by two Peel Regional Police officers, Constables Alexander Coutinho and Tahmina Said Dawod. Cst. Said Dawod had only been working for one month and was still in the “coaching” phase of her job. Cst. Coutinho was her coach officer that day. As they were driving in a residential area in Brampton, shortly after booking off for a lunch break, Cst. Coutinho saw a blue Mitsubishi Lancer driving towards them in the opposite direction. Cst. Coutinho told Cst. Said Dawod that he noticed the driver to be on his cell phone. Cst. Said Dawod made a u-turn to follow the Lancer and make a traffic stop.

[2] The applicant was the passenger in the Lancer. The driver was Robin Wu. The applicant is Black, and Mr. Wu is East Asian. As will soon become apparent, their backgrounds are relevant to this application.

[3] Once the officers had stopped the Lancer, the applicant started to get out of the passenger’s side of the car. Cst. Coutinho motioned for him to get back inside, which the applicant did. Cst. Coutinho got out of the police cruiser while his colleague remained inside the car to run the Lancer’s license plate. Cst. Coutinho approached the passenger’s side of the car where the applicant was sitting. During his conversation with the applicant and the driver, Mr. Wu, Cst. Coutinho asked to see Mr. Wu’s hand, which appeared to be reaching behind the passenger’s seat of the car. When Mr. Wu revealed his hand, Cst. Coutinho said that he noticed cannabis “shake” stuck to the driver’s hand. This led the officer to start a Cannabis Control Act (CCA) investigation. Cst. Coutinho planned to exercise his power to search the car and both of its occupants under the CCA.

[4] Cst. Coutinho first explained to the driver that he was not under arrest, but that he would be handcuffed. As he conducted a pat-down search of the driver, and handcuffed him, Cst. Coutinho asked Mr. Wu if he knew the applicant and whether he knew him well. He then twice asked Mr. Wu, “He’s not going to get you in trouble?” referring to the applicant. Cst. Coutinho then approached the applicant who was still seated in the car. The officer had the applicant get out of the car. After handcuffing the applicant, he opened the applicant’s jacket and discovered a handgun. Cst. Coutinho then arrested the applicant for unauthorized possession of the firearm. The applicant was charged with several offences relating to this firearm and possession of cannabis found in the car.

[5] The applicant argues that the police breached several of his Charter rights during the encounter. First, the applicant argues that he was not promptly told of the reasons for his detention, nor was he promptly advised of his right to counsel. Second, the applicant argues that his detention and search under the Cannabis Control Act (CCA) were unlawful because the police lacked sufficient grounds to rely on the CCA’s search power. Finally, the applicant argues that his right not to be arbitrarily detained and not to be unreasonably searched was violated because the traffic stop was motivated, at least in part, by the fact that he is Black. The applicant argues that the police pulled over the car he was in for a relatively minor offence, one that police do not generally enforce strictly. The applicant also alleges that Cst. Coutinho’s testimony that he did not notice the backgrounds of the Lancer’s occupants is contradicted by his own conversation with them as recorded on his body-worn camera. Moreover, the applicant alleges that the comment Cst. Coutinho made to the driver, asking whether the applicant would get him (Mr. Wu) in trouble, demonstrates an unconscious bias against the applicant as a Black man. Finally, the applicant contends that the officer’s treatment of him after finding the handgun also demonstrates a troubling attitude because the officer began writing his notes on the applicant’s back.

[6] The Crown opposes the application and argues that the applicant’s Charter rights were not breached. The Crown argues that the applicant and the driver were informed of the reason for the traffic stop and that the stop transitioned quickly to a CCA investigation. The Crown argues that there was no breach of the applicant’s right to be advised promptly of the reason for his detention and his right to counsel. Any delay in fulfilling either of these informational duties was constitutionally compliant in the circumstances. Finally, the Crown contends that there is no basis to find racial profiling. The Crown argues that the Cst. Coutinho’s behaviour towards the applicant during the traffic stop belies any suggestion that he had any kind of racial bias implicit or otherwise. The Crown argues that the traffic stop was a valid Highway Traffic Act stop. The Crown says that the body-worn camera footage confirms Cst. Coutinho’s testimony that he saw cannabis “shake” on Mr. Wu’s hand. Seeing the cannabis gave Cst. Coutinho a valid basis to search the car and its occupants under the CCA.

[7] For the reasons that follow, the application is granted. The applicant has established that his ss. 8, 9 and 10(a) and (b) rights were violated. The applicant was detained from almost the outset of the traffic stop. He was not promptly advised of his ss. 10(a) and (b) Charter rights. I also find that the applicant’s rights under ss. 8 and 9 of the Charter were breached because the police lacked sufficient grounds to conduct a detention and search under the CCA. Finally, I find that the traffic stop and ensuing search was motivated, in part, by the applicant’s skin colour. I am satisfied that unconscious racial bias formed part of the reason for the traffic stop and ensuing search. There is a combination of indicators that support a finding that the applicant’s skin colour was part of the reason that he and Mr. Wu were stopped and searched. The evidence seized during the stop must be excluded under s. 24(2) of the Charter.

2. Summary of the evidence

[8] I will set out the facts of the traffic stop in more detail than I usually would. That is, in part, because almost all of the interaction between the two officers and the applicant and Mr. Wu is captured on both officers’ body-worn cameras. As I will explain, Cst. Coutinho’s camera did not capture some relevant video during the traffic stop because of the direction it was angled. However, almost all of the audio of his interactions with Mr. Wu and the applicant was recorded. All of the times referred to come from the 24-hour-clock timestamp on the officers’ body-worn camera footage. It is also important to set out the details of the traffic stop because many of the details, especially the words Cst. Coutinho used during the interaction, are important.

2.1. The traffic stop and initial detention

[9] As mentioned above, Cst. Coutinho testified that he asked his colleague to pull over the Lancer in which the applicant was a passenger because he believed he saw the driver using a cell phone when driving. Cst. Coutinho said the driver appeared to be holding something that looked like a cell phone in front of him, as if he was speaking on the device on speakerphone. I will return to how much Cst. Coutinho could see of the driver and passenger later when I discuss the racial profiling issue. Cst. Said Dawod did not see either person in the Lancer because she was focussed on driving. She relied on Cst. Coutinho’s observations to conduct the traffic stop.

[10] Once the Lancer was stopped, the applicant immediately started to get out of the car. Although the audio on Cst. Coutinho’s camera had not yet been activated, there is no dispute that the applicant got out of the car and asked if he could eat his food outside the car. Cst. Coutinho motioned to the applicant and instructed him to get back in the car. This happened at 16:02:39.

[11] There is no dispute between the parties that the applicant was detained at this point because the officer directed him to get back in the car. Cst. Coutinho testified that this was the first time he noticed that the car’s passenger (the applicant) was Black.

[12] Cst. Coutinho then approached the Lancer from the passenger’s side. He explained that he went to this side of the car because that was the side he was on and it was safer to be on the passenger’s side. Cst. Said Dawood approached the car briefly at one point from the driver’s side.

[13] The camera footage shows Mr. Morgan open the door. Cst. Coutinho asks him to close it and open the window. Cst. Coutinho starts speaking to the driver, Mr. Wu, and the applicant. The applicant is speaking non-stop about his food. He has an open container of poutine in his hands that he appears to have been eating with a fork. Cst. Coutinho tells the applicant he saw the applicant with something up to his mouth, and that he saw Mr. Wu on his phone. The exchange is set out below:

Applicant: I was eating

Coutinho: Yeah so I guess that’s probably what you were doing because I saw…

Applicant: Smoke right?

Coutinho:…you guys pass by. It looked like, I think you were holding something to your mouth, and you were on your phone.

Applicant: No it was the food sir. It was the food smoking. I seen it to, I’m like…

Coutinho: You know why I turned around because impaired driving is big, right?

Applicant: I looked you in your eye I’m like, I looked you in my eye I’m like, yeah probably because the food’s smokin’ he thought it was smoke right

Coutinho: Also, you guys are being recorded just so you know.

[14] Cst. Coutinho then asked Mr. Wu to show his “other hand.” For a few moments before this request, the camera footage shows the applicant and Mr. Wu in the car. It seems from the angle of Mr. Wu’s body and his shoulder that Mr. Wu’s right hand was behind the front passenger’s seat. Unfortunately, because Cst. Coutinho’s camera is pointed at the ground – he was leaning forward for much of the interaction – the next observations he said he made, which are critical to this application, were not captured on video.[^2] Cst. Coutinho testified that when Mr. Wu pulled his hand out from behind the driver’s seat, the officer noticed “a bunch of crumbs and shake, like broken-up cannabis.” Cst. Coutinho said when he referred to “shake” he was referring to cannabis in a form when it has just been ground and ready to smoke.[^3] The audio from the camera footage reveals the point at which the officer said he saw the cannabis.

Coutinho: Where’s your other hand buddy, I don’t want you hide anything. Oh, you got a bunch of weed in your hand didn’t you.

Applicant: It’s dirt, it’s dirt.

Wu: There was a tray in the back, with like….

[15] Immediately after Cst. Coutinho said he saw the cannabis on Mr. Wu’s hand, he asked him to turn off the car. He then asked both Mr. Wu and the applicant for identification. Only Mr. Wu had identification with him. Cst. Coutinho testified that he asked for identification from the applicant because he was being detained under the CCA. Although he was detaining both men, Cst. Coutinho did not immediately tell them the reason for their detention. Instead, the conversation, instigated by the applicant, continued. The applicant again referred to “smoke” coming from his food, and the officer again told the applicant he saw him holding something up to his mouth and Mr. Wu holding his phone:

Applicant: Yeah, I knew something was wrong, yeah like, the food was smoking and I look you in my eye. You had your eyes like locked on me, like, you know.

Coutinho: Well I saw like, I saw you holding something to your mouth, and I saw him…

Applicant: It was this right.

Coutinho:…were you on your phone, what were you holding then?

Applicant: No he wasn’t holding nothing, sir.

[16] The footage then shows Cst. Coutinho walk away from the Lancer back to his police cruiser. While still outside the cruiser, he tells Cst. Said Dawod to tell their dispatcher they were on a traffic stop (since they were originally supposed to be on lunch). He then approaches the driver’s side of the car, and asks Mr. Wu to step out so he can speak to him “in private.” He also asks Mr. Wu as he is getting out of the car, “is this your buddy?” referring to the applicant. Mr. Wu says yes.

2.2. Mr. Wu is questioned

[17] Once Cst. Coutinho takes Mr. Wu to the back of the car, he explains to Mr. Wu that he is being detained under the CCA. He explains to Mr. Wu that, “there’s weed in the car, you pulled your hand out right at the last second and I saw a bunch of weed.” He tells Mr. Wu, “if it’s just weed, all good.” He again asks Mr. Wu if the applicant is his buddy and Mr. Wu says that he is. Cst. Coutinho tells Mr. Wu that he cannot smoke and drive, and Mr. Wu explains that he was not smoking while driving, but had smoked earlier. Cst. Coutinho asks Mr. Wu to turn around so he can handcuff him. Cst. Coutinho then asks Mr. Wu if he knows the applicant and whether the applicant will get him in trouble.

Coutinho: You know this guy well?

Wu: Uh, yeah

Coutinho: He’s not going to get you in trouble?

Wu: [no response]

Coutinho: He’s not going to get you in trouble?

Wu: No

[18] After this exchange, the officer conducts a search of Mr. Wu and explains to him again the concern about smoking cannabis and driving. Cst. Said Dawod gets out of her car and Cst. Coutinho instructs her to read Mr. Wu his rights because he is being detained under the CCA.

[19] In cross-examination, Cst. Coutinho was asked why he asked Mr. Wu whether the applicant was going to get him in trouble. The officer explained that he wanted to make sure that the applicant was not going to fight him and so he wanted to know if Mr. Wu knew him well. Cst. Coutinho also testified that the applicant had been verbally confrontational, so he was trying to get as much information about the applicant as possible. I set out the question and answer in full below:

Q. And you think you’re more concerned about the other person is getting him in trouble, the Asian guy?

A. I was concerned that if I go to detain the passenger, if I’m going to get the same response, and I just wanted to make sure like he’s not going to try to fight me or anything, and how well do you know him? Do you know if he’s got - if he’s had that behaviour. He was confrontational like verbally. So I was just trying to feel out as much as I know. I tried to get as much information as I know before I deal with anything, right?

[20] When Mr. Okada-Phillips asked Cst. Coutinho if he had found his client to have been verbally confrontational, the officer answered that the applicant “became a little more verbally resistive [sic] when I went to go make the detention with him, but nothing that escalated.” To be clear, the point at which the officer “went to go make the detention” was after he asked Mr. Wu whether the applicant would get him in trouble. I will review that part of the interaction when Cst. Coutinho explained the reasons for detention to the applicant next.

2.3. The officer deals with the applicant

[21] Cst. Coutinho then returns to the passenger’s side of the car to speak with Mr. Morgan. At 16:07:04, Cst. Coutinho begins explaining to the applicant the reason he is being detained. The applicant tells the officer that they had not been smoking, and again repeats that he had just bought food at the nearby plaza. The officer replies that the applicant would have been arrested “for impairment” if he had been smoking. He then told the applicant that he was being detained “because there’s weed readily accessible to the driver.” As the applicant tries to interject, Cst. Coutinho calmly tells the applicant that he does not want to argue with him, and that the applicant is not being arrested and just being detained so that the police can ensure there is “no other weed that can impair this guy” (meaning Mr. Wu). The applicant explains that, “I’m just kinda scared right now.” Cst. Coutinho, in an attempt to calm the applicant says, “look I’m not scary.” The officer suggests a place that the applicant can set down his food. The applicant repeats that he is scared and the officer again, very calmly, says that he is being fair with the applicant and is explaining everything that is going on. In cross-examination, most of this portion of the video[^4] was played for Cst. Coutinho to confirm that this was the point where he found that the applicant was “verbally resisting.”

[22] Once the applicant steps out of the car, he tells Cst. Coutinho again that he is scared. Cst. Coutinho them explains again that “we’re detaining both of you right now for the Cannabis Act.” The officer then explains that, “because of that, we put everybody in handcuffs because we’re going to be outnumbered when we have to search the car.” Cst. Coutinho had the applicant turn around and told him he would put handcuffs on him. The officer said “everything is going to be fine, we’re going to let you go if that’s all you guys have, but you can’t be having that.” As the applicant is being handcuffed, at 16:09, a police cruiser (driven by Cst. Zamani) pulls in front of the Lancer.

[23] When asked why he had both the applicant and Mr. Wu placed in handcuffs, Cst. Coutinho explained that he did not want to leave two detained, unhandcuffed people with Cst. Said Dawod both because of her small stature (she is 5’ 2”) and because she was a very new officer, with only a few weeks on the job. Cst. Coutinho explained that he would be searching the car as the more experienced officer and for safety reasons he did not want to leave the applicant and Mr. Wu unrestrained with his partner. Cst. Coutinho testified that, although Cst. Said Dawod had called for other units, he believed, based on the time of day, that it was not likely there would be other officers readily available to show up. In cross-examination, when asked why he continued to put handcuffs on the applicant even though Cst. Zamani had arrived on scene, Cst. Coutinho said he believed that the applicant was already in handcuffs when this third officer arrived on scene and that he had his attention focussed on the applicant, so he was not keeping track of who was coming and going (the officer was not shown the video footage again at this point). Mr. Okada-Phillips pointed out to Cst. Coutinho that he knew Cst. Zamani was on scene because he asked him for a glove while searching the applicant. He asked the officer why he did not remove the applicant’s handcuffs at that point and Cst. Coutinho replied, “I don’t know. I had him in handcuffs already. I didn’t think about taking them off. I was going to finish my search and then delegate, you know, the next task accordingly.”

[24] Cst. Coutinho walks the applicant to the front of his police cruiser. He explains that he has to read the applicant his rights and repeats that the applicant is not being arrested but only being detained. He tells the applicant, “because you’re being detained, we have to put handcuffs on everyone that’s being detained.” Once the applicant is at the back of the cruiser, Cst. Coutinho begins to search his pockets. He asks Cst. Zamani to bring him a glove because the applicant had a sticky form of tobacco in his pocket. While waiting for Cst. Zamani to bring him a glove, Cst. Coutinho stops searching the applicant and explains the rationale for the CCA search. Cst. Coutinho puts on the glove and then opens the applicant’s jacket. As soon as he opens the applicant’s jacket, the large, over-sized magazine of a handgun is visible. Cst. Coutinho takes hold of the gun and informs the applicant that he is under arrest for unauthorized possession of a firearm.

[25] Cst. Coutinho puts the gun on the hood of the cruiser, and puts the applicant over the cruiser while he unloads the gun. The officer pulls back the slide of the gun and a cartridge pops out, just as the applicant is warning the officer that “one’s in the chamber.” After removing the magazine from the firearm, Cst. Coutinho removes his notebook and asks the applicant his name. He then rests his notebook on the applicant’s back as the applicant is leaned over the police cruiser on his stomach and begins writing his notes.

[26] The applicant was then transported to 21 Division where he was booked, contacted counsel, and then was held for a bail hearing.

3. Analysis

3.1. Factual findings

[27] Even though much of the interaction is captured on either video, or audio, or both, there are some factual disputes between the parties. It is necessary to resolve these disputes before turning to the issues on this application.

3.1.1. Could Cst. Coutinho see the applicant’s skin colour when he decided to pull over the Lancer?

[28] The applicant maintains that Cst. Coutinho must have been able to see that the applicant was Black when he told his colleague to initiate the traffic stop. The applicant argues that Cst. Coutinho’s statement to the applicant in his first interaction with him, that he could see him with something up to his mouth, demonstrates that he would have seen the applicant’s face and therefore would have known that he was Black. The Crown urges the court to accept the officer’s ultimate explanation that he did not see the applicant’s skin colour until the Lancer had pulled over and the applicant began to get out of the car. The Crown says that the officer was simply making conversation with the applicant and Mr. Wu when he said he saw the applicant hold something up to his mouth.

[29] I cannot accept Cst. Coutinho’s testimony that he did not see the applicant’s face. I find that he probably did see the applicant’s face and that he probably did see that he was Black.

[30] At the beginning of his conversation with the applicant and Mr. Wu, Cst. Coutinho told the applicant that he saw him with something up to his mouth. When first confronted with this statement in cross-examination, the officer said that he was lying to the applicant. It was just part of making conversation. He had not actually seen the applicant put anything up to his face. Later in cross-examination, Cst. Coutinho said that he did not recall seeing the applicant put something to his mouth but that, since he said it on video, he may have seen it. After having this portion of the video played for him, the officer acknowledged that he may have seen the applicant put something to his mouth. However, he maintained that he did not notice the applicant’s race:

Q. Has it refreshed your memory at all about the fact that you did in fact see this male holding something to his mouth?

A. It doesn’t - no, it doesn’t. No, it doesn’t. I don’t remember if that’s the case or not. I know I said that to him, and it could have been true, but I don’t remember what he was doing. Like I said, I was focused on the driver with the phone and trying to obtain the licence plate and that was primarily it. I didn’t even realize that the race - like before I told you, I didn’t realize his race or anything. I did see a person there and you can see he comes out of the car with his hoodie on, so that’s probably another reason why I didn’t see his race, obviously. But the fact that I told him that he had something in his mouth maybe I did see that and I didn’t write that down, and now I don’t remember exactly.

[31] This answer is the more plausible than the first answer the officer gave about not seeing the applicant’s face and then lying to make conversation. It is consistent with his spontaneous statement during conversation with Mr. Wu and the applicant about what he had seen each of them holding. It is unclear to me why he initially said that he was lying to the applicant in an attempt to keep things civil.

[32] I cannot accept the officer’s insistence that he could not see that the applicant was Black. To be clear, the officer testified that he noticed Mr. Wu’s complexion to be white or light-skinned. I find it implausible that he saw the applicant holding something up to his mouth and did not see that he was Black. That is especially so because the officer changed his explanation about why he told the applicant he saw him holding something up to his mouth. The fact that the applicant was initially wearing a hood is of no moment. The applicant’s hood is up and visible at the beginning of the camera footage. It did not even go as far as his forehead, and was fitted against his head. Moreover, the applicant had his hood up when he first got out of the car and was directed to get back in by Cst. Coutinho. This is the point at which Cst. Coutinho said that he discovered that the passenger was Black. It stands to reason that the hood would not have obstructed his ability to see the applicant’s skin colour as he passed by him in the car.

3.1.2. Could Cst. Countinho smell fresh cannabis?

[33] During examination in-chief by Crown counsel about Mr. Wu’s statement that he had smoked cannabis in his car, Cst. Coutinho said that he did not notice the smell of burnt cannabis. Crown counsel then asked the officer if he smelled “any weed…weed that’s not freshly burnt for example?” The officer answered that he did notice the smell of unburnt cannabis right after he saw the cannabis pieces on Mr. Wu’s hand. I set out his answer in its entirety below:

Q. What – when did you notice the smell?

A. I made a note. I’m trying to recall when. It was when he – I can recall it now because when he pulled the tray – when he hid his – when he’s hiding the tray and pulled his hand back out, and that’s when like I made the inference and I made the connection that oh, there is some smell of weed. Now I smell it. I see it in his hand, and I guess that’s what I recall is when I smelled it first. ‘Cause I didn’t - I didn’t go into the vehicle afterwards.

[34] When asked if he had a note of smelling cannabis, Cst. Coutinho said that he had a note of it in his will-say statement, dated August 29, 2023. He did not make a note of it in his notebook when he wrote his notes after the incident. When asked why, he explained that he simply missed this detail.

Q. Why is it not in – why didn’t you make that note of that?

A. I must have missed that detail. Like I said I, I do recall smelling it. There was – there was later to be found a bunch more fresh cannabis. So, I just don’t remember why I didn’t write it down.

[35] The applicant argues that Cst. Coutinho did not smell fresh, unburnt cannabis when he was speaking to the applicant and Mr. Wu. The applicant points out that the officer made no notebook entry about the smell of cannabis, did not mention the smell when he was speaking to the Lancer’s occupants, and did not mention it when first asked by Crown counsel about his grounds for the CCA search. The applicant argues that this is one example of Cst. Coutinho being influenced by information he learned after the fact. The Crown contends that the officer was telling the truth about smelling cannabis. The Crown points to the fact that Cst. Martin (the fourth officer who arrived on scene and assisted with the search) noticed the smell of cannabis when she arrived on scene and was helping to search the car. The Crown also points to Mr. Wu’s statement that he had been smoking cannabis before getting into the car.

[36] I find that Cst. Coutinho did not smell cannabis when he was at the roadside speaking to the applicant and Mr. Wu. The first mention that Cst. Coutinho smelled cannabis was in a will-say statement that he prepared three weeks before this hearing, and nearly two years after the traffic stop. The smell of cannabis would have been sufficiently important to the CCA investigation, and his grounds for conducting it, that this sign of cannabis would have been recorded in his notes. More importantly, when asked by Crown counsel what his grounds were to conduct the CCA investigation, Cst. Coutinho only referred to the cannabis that he said he saw on Mr. Wu’s hand. He made no mention of the smell of cannabis. Finally, although less important, it would have made sense for Cst. Coutinho to mention the smell of cannabis to the applicant and Mr. Wu when he was speaking to them at the roadside. Nevertheless, on every occasion when he explained to them the reasons for their detention, he referred to cannabis on Mr. Wu’s hand. He did not once mention that he could smell cannabis.

[37] I agree with the applicant that Cst. Coutinho’s recollection of smelling cannabis is an example of him being influenced by information he learned later. Because he knew cannabis had been seized when the car was ultimately searched, he believed that he must have smelled it. Indeed, his last answer about why he “missed that detail” in his notes, and knowing cannabis was later seized from the car, is very consistent with his present memory being influenced by learning later that cannabis had been seized from the car.

3.1.3. Did Cst. Coutinho see the RAW tray that was under the passenger’s seat?

[38] Cst. Coutinho testified that he saw a beige RAW brand[^5] tray that Mr. Wu appeared to be discarding in the back seat area, right after he saw the cannabis crumbs on Mr. Wu’s hand. This observation is significant because the officer used it to explain why he considered seeing cannabis crumbs to be sufficient grounds to conduct a search under the CCA.

Q. And so in your view if you have cannabis crumbs on your hand driving down the street, that would give you grounds to search a vehicle and the individuals under the Cannabis Control Act?

A. Well, it was more than just the crumbs on his hand. It’s what - also he - what looked he was discarding which was the tray of more cannabis. So I don’t know if he was about to roll one, roll a cigarette of cannabis or not, but that was enough for me to say that you’re detained due to the circumstances.

[39] When the car was searched after the occupants’ arrest, Cst. Martin found a RAW brand tray underneath the front passenger’s seat. She testified that about half of the tray was visible. When she saw the half-visible tray, she was looking through the open, back passenger-side door. The tray had small flakes of cannabis on it that were green. It also had a cannabis grinder and some tobacco flakes on it. She said it had a strong smell of cannabis. Cst. Martin testified that she seized it. Cst. Zamani also testified that he located the tray. He confirmed that, if one was in the rear passenger’s seat, half the tray would be visible from underneath the front passenger’s seat.

[40] Cst. Coutinho testified that he could see this tray over the applicant’s right shoulder when he was speaking to him and Mr. Wu through the passenger’s side window. Crown counsel asked the officer about seeing the tray after the point where Mr. Wu had said that there was a tray in the back. When he first mentioned the tray in his testimony, he described his observations as follows:

A. I do – I do remember seeing the tray. It was like a broad - it was a rectangle tray with more shake and, and ground up cannabis.

Q. And where in the...

A. It was in the – behind the driver – behind the passenger seat on the floor.

[41] In cross-examination, Cst. Coutinho was asked about how much of the tray he could see, what was on it, and whether he was sure that he was not simply remembering seeing it because he knew it had been seized. He said he believed he noticed it after Mr. Wu mentioned the tray. He said that he could see a portion of it, enough to tell what it was. When asked what was on the tray, he said he could not remember. I set out this exchange in its entirety below:

A. I could see a portion of it, yeah, I could see the majority to tell that it was what he was probably discarding, and you could see like the beige - like the raw emblem on the beige tray.

Q. You could see the raw emblem too?

A. You could see the outline of it. Like I can’t remember exactly, but I know it’s the beige tray with the raw writing. I’ve seen it before and I saw it there after. So when I looked in you could see - I could see the edge of the tray. Exactly the corner of whatever it was positioned I don’t remember. But I did notice the tray, yes.

Q. You noticed the tray. Could you see the raw writing?

A. I can’t remember if I could see the raw writing specifically, but I could see the beige tray.

Q. Okay. What was on the tray?

A. I can’t remember.

Q. And this has nothing to do with the fact that you know that there was a tray afterwards seized from that vicinity?

A. No, no. I saw it.

[42] Cst. Coutinho’s camera footage shows him approach Cst. Martin at the back of the Lancer shortly after 16:25. Cst. Martin has the tray along with a grinder and cannabis on the trunk of the car as she is processing the exhibits. Cst. Coutinho opens the grinder and examines it. The tray is visible on camera and would have been visible to him.

[43] The applicant argues that it would have been impossible for Cst. Coutinho to have seen the tray from where he was positioned. The applicant says this is another example of Cst. Coutinho being influenced by information he learned after the fact. The Crown argues that Cst. Coutinho did see the tray, and the fact that Cst. Martin and Cst. Zamani said it was halfway under the passenger’s seat confirms his observation.

[44] I find that Cst. Coutinho probably did not see this tray during the initial traffic stop. Both officers Martin and Zamani, who found the tray, testified that it was half visible from the rear passenger’s seat. I have watched the video carefully to see what Cst. Coutinho’s viewing angle would have been into the back seat of the car behind the applicant. It seems highly improbable that Cst. Coutinho could have seen the tray while looking over the applicant’s right shoulder. More importantly, though Cst. Coutinho said during examination in-chief that the tray had cannabis on it, in cross-examination he said he could not remember if anything was on the tray. This is another example of the officer being influenced by what he learned after the fact. Cst. Coutinho saw the tray when Cst. Martin was processing the exhibits. He may have seen flakes of cannabis on it then. It seems likely to me that after learning of the seizure of the tray, he incorrectly believed he had seen it earlier. I do not think that Cst. Coutinho is being untruthful about seeing the tray. Rather, I find that he believed he saw the tray during the traffic stop because he knew it had been seized later, and Mr. Wu mentioned a tray during the stop. Indeed, the way he answered the question, as highlighted in bold text, above, supports the conclusion that he thought he saw the tray during the traffic stop, because he saw it afterwards.

3.2. Section 10(a): the applicant was not told promptly about the reasons for his detention

[45] As mentioned above, the parties agree that the applicant was detained from the moment he was directed to get back into the Lancer (at 16:02:30). The applicant argues that Cst. Coutinho violated his s. 10(a) rights by not telling him why the Lancer had been pulled over, and also by not telling him in a timely way about why he was detained under the CCA.

[46] The Crown argues it would have been apparent to the applicant that he and Mr. Wu were being detained because of Mr. Wu’s alleged cell phone use, and then the cannabis found in the car. The Crown points out that an officer need not use any specific language to comply with s. 10(a). Rather, the court should consider what the officer said, and what the detainee would reasonably have understood.

[47] I agree that Cst. Coutinho violated the applicant’s s. 10(a) rights by not informing him clearly about the reason for the traffic stop. I also agree that Cst. Coutinho violated s. 10(a) by not informing the applicant immediately about the reason he was detained under the CCA.

[48] Section 10(a) requires police to inform a detainee immediately upon detention of the reason for their detention.[^6] Section 10(a) codifies the common law right that “a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why.”[^7] The right is “rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it.”[^8] Section 10(a) also “has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b)” because it informs a detainee of the extent of their jeopardy.[^9] The police do not need to use any specific language, and do not need to tell a detained person what charge or charges they may ultimately face. A detainee will have been properly advised of the reasons for their detention, “if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy.”[^10] As Watt J.A. observed in R. v. Gonzales:

The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. 10(b).[^11]

[49] Police may delay telling detainees of the reason for their detention where there are valid officer or public safety concerns.[^12] Otherwise, they are obliged to tell the detainee the reason for their arrest or detention immediately upon arrest or detention.

[50] The Crown correctly observes that Cst. Coutinho mentioned to the applicant and Mr. Wu that he had seen Mr. Wu on his phone. Anyone licensed to drive would know that using a phone while driving is unlawful. However, very quickly after that, the officer mentioned that he had turned around because “impaired driving is big.” His reference to impaired driving as his reason for turning around muddied the real purpose for the stop. That is especially so because the stop quickly transitioned into a CCA investigation.

[51] Cst. Coutinho did not tell the applicant promptly why he was being detained under the CCA. This detention was more consequential for the applicant. It justified a personal search since the CCA authorizes the search of the car and its occupants once cannabis is found improperly stored anywhere in the vehicle. Cst. Coutinho says on the video footage at 16:03:23 that he sees cannabis on Mr. Wu’s hand. It was at that point he testified that he had grounds to detain both Mr. Wu and the applicant under the CCA. He said that seeing the cannabis on Mr. Wu’s hands constituted his grounds. Referring to cannabis being on Mr. Wu’s hand was not enough to explain to the applicant why he was being detained. That is especially so given the officer’s earlier comment about impaired driving. It was apparent from what Mr. Wu and the applicant said that they believed that the officer thought they were smoking in the car. The reason for the detention under the CCA would not have been sufficiently clear to the applicant. There was nothing stopping Cst. Coutinho from very briefly explaining to both men, while they were still seated in the car, why they were being detained and what was happening. Instead, he left the applicant in the car while he dealt with Mr. Wu separately. He did not advise the applicant about the reason for his detention under the CCA until 16:07. The applicant had been detained for the traffic stop since 16:02:30. I appreciate that this may not seem like a long delay. But there was nothing stopping the officer from telling the applicant why he was not free to go. He was obliged to do so immediately, absent any officer safety concerns.

3.3. The applicant was not promptly advised of his right to counsel

[52] Like s. 10(b) of the Charter, s. 10(b) requires detainees to be advised immediately upon arrest or detention of their right to retain and instruct counsel without delay. Again, there is an exception to this informational component for officer safety reasons.

[53] The applicant argues that there is no justification for the delay in advising the applicant of his s. 10(b) rights. The applicant says that Cst. Coutinho did not bother advising him of his s. 10(b) rights until after he had arrested him for possession of the firearm.

[54] The Crown argues that the police obligation to advise a detained person of their s. 10(b) rights is briefly suspended at the roadside. The Crown argues that a roadside investigation under the CCA is analogous to an investigation under the Highway Traffic Act, and the Liquor License Act. The Crown relies on this court’s decision in R. v. Kanneh[^13] and the Ontario Court of Justice’s decisions in R. v. Williams[^14] and R. v. Grant[^15] in support of its argument that there is an implied suspension of s. 10(b) at the roadside during a CCA investigation.

[55] I cannot accept the Crown’s argument that any suspension of the applicant’s s. 10(b) rights at the roadside justified the delay in advising him of his right to counsel.

[56] In Kanneh, Petersen J. held that the length of the roadside suspension of s. 10(b) will vary depending on the circumstances and is only reasonable insofar as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of police powers to stop a vehicle for road safety purposes:

The jurisprudence clearly establishes that a temporary suspension of rights to counsel is justifiable in such circumstances pursuant to s.1 of the Charter. But the suspension must be brief and is only reasonable in so far as it can be justified by concerns for officer or public safety, or by the operational requirements of the exercise of statutory and common law police powers to stop a motor vehicle for road safety purposes: Suberu, at para. 42; Orbanski, at paras. 45-60; Wilson, at paras. 61-66; Graham, at para. 51; R. v. Grant, 2021 ONCJ 90, at para. 127 ("Grant (ONCJ)"); and R. v. Commisso, 2020 ONSC 957, at paras. 36 and 44. The extent to which a suspension of s. 10(b) rights can continue to be justified under s.1 of the Charter, where the purpose of the roadside detention transitions from a Highway Traffic Act violation to the investigation of a different offence, is a context-specific issue that will need to be determined based on the specific facts of each case.[^16] [Emphasis added]

[57] Moreover, when considering how long a suspension of s. 10(b) can be justified, it is important to keep in mind the distinction between the police’s obligation to inform detainees of their rights, and the obligation to provide detainees with a reasonable opportunity to exercise that right. As Verner J. recently observed in R. v. Armstrong:

I add that in assessing how long a suspension of s. 10(b) rights is necessary, the court must keep in mind that it is possible that the informational rights under s. 10(b) may feasibly be provided earlier in the detention, than when the implementational rights under s. 10(b) may feasibly be provided (R. v. Suberu, at para. 38).[^17]

[58] Assuming that s. 10(b) rights are suspended during roadside CCA investigations, the delay here cannot be justified. There were no safety or operational concerns that justified the delay in advising the applicant of his s. 10(b) rights.

[59] I have already detailed the delay in the applicant being advised of the reason for his detention. The applicant was not advised of his right to retain and instruct counsel until after he was arrested for possession of the handgun at 16:12:44. That was over 10 minutes after he had been initially detained during the traffic stop and nine minutes after he had been detained under the CCA. There were no operational concerns that prevented the police from advising the applicant of his right to counsel. That is apparent since Mr. Wu was advised of his s. 10(b) rights after being placed in handcuffs. There were no objective officer safety concerns that justified this delay. Indeed, Cst. Coutinho was able to explain, at length, the concerns he had about cannabis being in the car and its link to impaired driving. This was not a situation where safety search concerns could justify delaying informing the applicant of his s. 10(b) rights. In short, there was no need to have the applicant and Mr. Wu handcuffed and searched before advising them of their s. 10(b) rights.

3.4. There were insufficient grounds to search the applicant under the CCA

[60] The applicant argues that Cst. Coutinho did not have sufficient grounds to detain him and Mr. Wu for a CCA search. The applicant contends that the officer was not able to see that there were cannabis crumbs on Mr. Wu’s hand. There was no reason to believe that the crumbs were cannabis as opposed to tobacco. The officer made no attempt to seize this cannabis or document it on his body-worn camera. The applicant also argues that s. 12(3) of the CCA requires the police to have reasonable grounds to believe that there is additional cannabis contained in a vehicle, not just the cannabis that the police initially discover. In support of that proposition, he relies on this court’s decision in R. v. Sappleton.[^18] Further, the applicant argues that, even if Cst. Coutinho saw cannabis crumbs, what he saw was not enough to be consumable cannabis. He analogizes the officer’s observation to the dregs of liquid in a beer bottle not being sufficient grounds to conduct a similar kind of detention and search under the Liquor License Act (LLA). In support of his position, the applicant relies on this court’s decisions in R. v. Ellis,[^19] and R. v. Mackenzie-Walcott.[^20]

[61] The Crown argues that Cst. Coutinho’s observation of the crumbs on Mr. Wu’s hands supplied him with enough grounds to believe that cannabis was being transported in the Lancer in contravention of the CCA. The Crown says that the video supports Cst. Coutinho’s observation that Mr. Wu’s hand was behind the driver’s seat. Cst Coutinho’s testimony that he saw a “bunch” of cannabis on Mr. Wu’s hand supports a finding that there was a sufficient amount of cannabis to find a violation of the CCA. The Crown also relied on the officer’s claim that he could smell cannabis and could see the RAW brand tray, although, given my factual findings that he observed neither, I will not consider those indicia. I note that the officer said that it was not just the crumbs but also the tray of cannabis that he appeared to be discarding.

[62] Because the search here was warrantless, the onus is on the Crown to demonstrate that the police had lawful authority to conduct the search under the CCA.

[63] I will first address the applicant’s argument, relying on Sappleton, that s. 12(3) of the CCA requires an officer to have reasonable grounds to believe that additional cannabis is stored in a vehicle in addition to any cannabis already discovered in the vehicle. I cannot accept that this is a correct interpretation of the CCA’s search provision. The weight of authority, including cases which have interpreted the nearly identical provision in the LLA, do not support this more restrictive interpretation of the CCA’s search power.[^21] Those decisions include the Court of Appeal’s decision in R. v. Annett[^22] and this court’s decision in R. v. F. (J.).[^23] Both of those cases interpret the analogous LLA provision as authorizing the broad search power in the LLA upon discovery that alcohol is being transported in contravention of the LLA.

[64] In Annett, the police pulled over a driver who had an open six-pack of beer on the front passenger floor. One of the bottles had its cap removed and appeared to have been partially consumed. Martin J.A. held that the police’s observation of the six-pack supplied the police with reasonable grounds to believe that liquor was being kept unlawfully in the car and allowed the officers to search the car, under the LLA’s search provision:

Patently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 was clearly applicable and conferred upon the officers authority to search the vehicle.[^24]

[65] In my view, s. 12(3) of the CCA permits the police to search a vehicle and its occupants once they find cannabis being stored in contravention of the Act.

[66] I am not satisfied that the Crown has established that Cst. Coutinho had sufficient grounds to search the applicant under the CCA. First, as I found with the RAW brand tray and the smell of cannabis, Cst. Coutinho’s observation of the crumbs of cannabis on Mr. Wu’s hand is not reliable. I accept that Cst. Coutinho may have seen something on Mr. Wu’s hand. His observations were not captured on camera because his camera was pointed at the ground. More importantly, he seems to have tried to buttress his grounds by adding that he smelled fresh unburnt cannabis. As already mentioned, that addition came out in a will-say created almost two years after the incident. His attempt to buttress his grounds after the fact makes his purported observation of cannabis unreliable.

[67] It is questionable whether a small amount of cannabis (crumbs) is sufficient to support a belief that cannabis is being transported in a vehicle in contravention of the CCA. I doubt that crumbs of cannabis on a person’s hand constitutes transporting cannabis in contravention of the CCA. The purpose of the CCA’s restrictions on transporting cannabis in a vehicle are directed at public safety and ensuring that a driver does not have easy access to a potential intoxicant. Crumbs stuck to a person’s hand probably do not fall within the category of easily consumable cannabis that can impair a driver. In any event, I do not need to decide whether crumbs on a driver’s hand would contravene the CCA since I am not satisfied that the officer’s observation is reliable.

3.5. Was the traffic stop tainted by racial bias?

[68] The applicant’s final argument concerns an allegation that the traffic stop and ensuing search was motivated, at least in part, by racial bias. The applicant makes clear that he is not alleging that this is a case of overt racial bias. Rather, he argues that this is a case of unconscious or implicit racial bias. He relies on several factors in support of his submission that he says are indicia of unconscious bias.

[69] The Crown initially argued that the applicant lacked standing to advance any complaint about the traffic stop, since only a driver, and not a passenger is detained during a Highway Traffic Act stop. Crown counsel later abandoned this position and accepted that the applicant had standing to challenge the propriety of the traffic stop if it had been based on racial profiling. The Crown argues that there is insufficient evidence to draw a conclusion that the stop was motivated by racial bias. The Crown also argues that Cst. Coutinho’s behaviour and treatment of the applicant undermines any claims of racial bias. The Crown argues that the officer left the applicant alone in the Lancer while he dealt with Mr. Wu. Cst. Coutinho also did not draw his firearm during the traffic stop, or otherwise engage in behaviour that would suggest he believed the applicant was more likely to be involved in criminality because he is Black.

3.5.1. Legal principles respecting racial profiling

[70] There is no question that anti-Black racism is prevalent in our society. It is also beyond question that anti-Black racism affects the criminal justice system. As the Court of Appeal observed in R. v. Morris:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system.[^25]

[71] Given the systemic nature of anti-Black racism, and the prevalence of the problem, courts must take claims of racial profiling seriously.[^26] A significant body of case law has set out how courts should deal with these serious allegations. In R. v. Musara, Nakatsuru J. helpfully set out the following list of principles from that case law that apply in assessing allegations of racial bias:[^27]

• Racial profiling occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment.

• There are two components to racial profiling: (1) the attitudinal component, i.e. where the person in authority accepts that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous; and (2) the causation component, i.e. where this thinking consciously or unconsciously motivates or influences, to any degree, decisions by persons in authority in suspect selection or subject treatment.

• The inquiry is primarily focused on the motivations of the police, but given the unconscious nature of racism, a denial of racism by the police is not the end of the inquiry.

• Racial profiling will rarely be proven by direct evidence and will normally be proven by inferences drawn from circumstantial evidence, including the “correspondence test”, where the circumstances correspond to the phenomenon of racial profiling which provides a basis to reject direct evidence to the contrary.

• The existence of objective grounds for the detention cannot justify the impugned police decision or conduct if they are tainted by any degree of racial profiling. Policing decisions based even in part on racism or racial stereotypes are by definition objectively unreasonable decisions.

[Emphasis added; citations omitted]

[72] In applying the correspondence test referred to above, there is no need to find that an officer has lied about the reason for the allegedly racially motivated investigative step. That is because an officer may not be aware that they were influenced by race. That is the nature of unconscious bias. In R. v. Sitladeen,[^28] the Court of Appeal described the totality of circumstances approach courts should take in assessing claims of racial profiling. The court held that a trial court must “consider all the circumstances that led to an accused's detention and/or arrest” and then “determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law.”[^29]

3.5.2. Application of legal principles to this case

[73] I am satisfied that the totality of circumstances supports the conclusion that Cst. Coutinho’s detention and treatment of the applicant was based on the applicant’s race and on racial stereotypes.

[74] Before moving to the factors, I should say something about the court’s role in assessing unconscious bias. I understand that finding a police officer was motivated by unconscious bias may seem like an impossible task. Judges are not psychoanalysts. I could expect a reasonable member of the public (or a police officer) to wonder how a judge, far removed from the streets that police officers have to work, can possibly figure out what unconscious factors might motivate a police officer in a given case. I accept that it is often difficult to establish unconscious bias for the very reason that it is unconscious. However, biases manifest themselves in people’s outward behaviour. As I will explain, there are often differences in the way an officer treats one person over another. There are also differences in the way an officer may characterize behaviour based on a person’s background. These differences are not subtle. There is no psychoanalysis involved. That is why courts use the correspondence test referred to above. Courts considering racial profiling claims examine the evidence to see if it corresponds with what we understand to be indicia of racial profiling.

[75] I will now list the circumstances that, considered together, support a finding of racial profiling in this case.

3.5.3. The comments that disclosed bias

[76] “Is he going to get you in trouble?”: I begin with the most telling example of unconscious racial bias – asking Mr. Wu if the applicant was going to get him in trouble. At this point in the traffic stop, the only person who was implicated in the commission of an offence was Mr. Wu. According to Cst. Coutinho, he had cannabis on his hand, albeit crumbs. He had also possibly been using a cell phone while driving. The applicant may have been unusually talkative, but there was nothing about his behaviour that suggested he was engaged in anything criminal. Despite this, while searching Mr. Wu at the back of the Lancer, after asking to speak to him “in private,” Cst. Coutinho asked Mr. Wu (the East Asian man) whether the applicant (the Black man) was going to get him in trouble. To be clear, this was not just a poor choice of words. When Mr. Wu did not initially answer, the officer used the same words again. Even the officer’s explanation for asking this question demonstrated unconscious bias. The thrust of his answer was he wanted to know if the applicant was going to give the officer trouble. Putting aside that this was not the question he asked Mr. Wu, it is unclear why he had a concern that the applicant might get violent. Cst. Coutinho explained that he asked Mr. Wu about the applicant getting Mr. Wu in trouble because “I just wanted to make sure like he’s not going to try to fight me or anything.” His concern about the applicant’s potential for violence leads to the next indicator of unconscious racial bias.

[77] “Verbally resisting”: Cst. Coutinho explained that he was concerned about the applicant possibly becoming violent because the applicant had been “verbally resistive [sic].” When asked when the applicant was verbally resisting, Cst. Coutinho pointed to the interaction he had with the applicant after he had finished speaking with Mr. Wu. Moreover, the very characterization of the applicant’s conduct as verbally resisting, whenever it occurred, is an indicator of unconscious bias. The interaction that Cst. Coutinho called verbally resisting involved nothing more than the applicant repeating that he had not been smoking (cannabis), that he just got food at a nearby plaza, and that he felt scared. The applicant was certainly talking a lot, as he had been throughout the traffic stop. But he was not being impolite or uncooperative with Cst. Coutinho. His chatter may have seemed irritating. But he was not threatening. Referring to the applicant’s behaviour as “verbally resisting” is indicative of unconscious bias.

3.5.4. The escalation from a phone to crumbs of cannabis to handcuffs

[78] I agree with the applicant that the traffic stop escalated quickly from a simple traffic offence, to both Mr. Wu and the applicant in handcuffs being searched. The circumstances support the applicant’s submission that Cst. Coutinho seemed determined to search the car based on his assertion that he saw cannabis. That intention became apparent in his discussion with Mr. Wu and the applicant.

[79] When Cst. Coutinho spoke to Mr. Wu he told him, “if it’s just weed, all good.” On its own, this comment might seem fairly innocuous. The officer also said to the applicant when he told him everything would be fine “if we don’t find anything else.” These statements are puzzling, since the officer repeated his concerns about impaired driving to the applicant and Mr. Wu. These statements demonstrate an assumption on the officer’s part that there might be other illegal items in the car. They support the applicant’s argument that Cst. Coutinho seemed determined to search the car because he suspected that the two young men were reluctant to speak to police and must have been up to something. I find it difficult to accept the officer’s assertion that he said these things because he was just trying to “minimize the situation.” Again, this was a simple traffic stop. There was nothing to minimize. This traffic stop was in October 2021. Cannabis was legalized in October 2018. There was nothing to suggest that these two young men were committing anything more than a provincial offence akin to a LLA offence. While I do not wish to make light of drug-impaired driving, there was no suggestion that Cst. Coutinho thought that Mr. Wu was impaired. It is this kind of attitude – that the search for cannabis will lead to other contraband – that leads to cynicism about police’s use of the CCA’s expansive search powers as a pre-text to look for other evidence of wrongdoing.

[80] As an aside, the use of handcuffs during detention for such a minor offence is concerning. The applicant did not rely specifically on handcuffing as an indicator of racial profiling, but it is worth commenting on because it is relevant to the applicant’s treatment (even though I would have come to the same conclusion even if the applicant had not been handcuffed). As set out above, Mr. Okada-Phillips cross-examined Cst. Coutinho on why he kept handcuffs on the applicant, even after Cst. Zamani arrived. Cst. Coutinho’s answer was essentially that it was more convenient. I recognize that the police must be concerned for their safety during traffic stops. Policing is a difficult and dangerous job. When the police pull over a car, they do not know who they are dealing with. In most traffic stops, nothing eventful happens. This case demonstrates the kind of unknown threats the police face even when conducting a so-called routine task. But the handcuffing in this case seems to have been unnecessary, given what Cst. Coutinho knew at the time he handcuffed Mr. Wu and the applicant. The police were investigating a provincial offence.[^30] I find it difficult to believe that two middle-aged men in business attire would have been handcuffed if the police had found an open beer bottle in their car in the middle of the day on a suburban street. Even if the handcuffing could initially have been justified, any concerns about being outnumbered evaporated once Cst. Zamani arrived on scene. He arrived on scene as Cst. Coutinho was finishing handcuffing the applicant. Police officers have some discretion on how they restrict someone’s liberty when conducting an investigative detention. But they must exercise this discretion reasonably. Applying handcuffs may be justified in certain circumstances;[^31] however, handcuffing detainees should not be a routine practice. And when the rationale for handcuffing a detainee for safety reasons no longer exists, handcuffs should not be left on merely because it is more convenient. In this regard I agree with the following commentary by the authors of Criminal Procedure in Canada:

courts should be careful to avoid endorsing the use of handcuffs as a matter of course during all investigative detentions. Routine handcuffing is unwarranted and would result in the unnecessary erosion of an important distinction between brief investigative detentions and conventional arrests.[^32]

[81] I also agree with the applicant that using the applicant’s back to write his notes demonstrated a disrespectful attitude towards the applicant. I realize that, at this point, the officer had just discovered the loaded handgun, with a cartridge in the chamber. I accept his testimony that his adrenalin had gone from zero to a hundred. For that reason, I can excuse him telling the applicant to “shut the fuck up” as the applicant was telling him to take the magazine out of the gun. However, using the applicant as a “human board” (to use applicant’s counsel’s language) to write his notes was disrespectful. This was not a situation where Cst. Coutinho had to write his notes on the applicant’s back because he needed to keep him restrained while writing his notes. Cst. Zamani was right next to him, and Cst. Coutinho ultimately did write his notes without using the applicant’s back as a surface to write on. On its own, this behaviour may not have been indicative of anything, other than disrespectful treatment. Combined with the other factors I have mentioned, it supports the applicant’s submission that his treatment during the traffic stop was tainted by unconscious racial bias.

[82] Finally, I agree with the applicant that the traffic stop for a relatively minor offence is a circumstance that supports his allegation of racial profiling. I find it doubtful that Cst. Coutinho pulled over the Lancer just because he thought he saw Mr. Wu using a cell phone. Cst. Coutinho’s comment to Mr. Wu and the applicant that he had turned around “because impaired driving is big” was a statement he made spontaneously while speaking to the two men. It is unclear to me why he would have said that if he was simply pulling them over because he saw Mr. Wu holding what might have been a cell phone. His explanation that he was responding to what he thought the applicant was talking about – when the applicant talked about smoke coming from his food – is hard to square with him telling both men that he turned around because impaired driving is big. Moreover, Cst. Coutinho acknowledged in cross-examination that cell phone use while driving is very commonplace. He even very honestly volunteered that he has even briefly checked his own phone while driving. On its own, pulling someone over for this kind of traffic offence would not be unusual. And I should not be taken as making light of distracted driving. However, it is important to remember that the officers here had already booked off for lunch. That does not mean that their duty to enforce the law was suspended. What it does mean is that it would be less likely that they would conduct a traffic stop just before such a break. Again, on its own, I would not consider this significant. But combined with the other factors I have mentioned, it lends some support to a finding that the traffic stop was motivated, in part, by unconscious racial bias. In short, this traffic stop was a reason to pull over two racialized young men to see what they were up to.

[83] The foregoing factors support the applicant’s allegation that Cst. Coutinho’s interaction with the applicant was tainted by unconscious bias. The Crown made submissions that Cst. Coutinho’s conduct throughout the interaction undermines a finding of unconscious bias. I address those arguments next.

[84] I cannot accept the Crown’s submission that Cst. Coutinho’s behaviour as the “friendly neighbourhood cop” undermines a finding of racial profiling. I also reject the related submission that, because Cst Coutinho did not draw his gun on the applicant it shows that he did not consider the applicant to be dangerous because of his skin colour. Racial profiling does not have to involve police officers grossly overreacting or engaging in overt mistreatment of someone. I agree that Cst. Coutinho’s outward treatment of the applicant was friendly and non-threatening. He did not at any time become impatient or rude with the applicant before finding the handgun. However, this behaviour does not undermine the conclusion that he engaged in racial profiling. People whose actions are motivated by unconscious racial bias can be friendly and outwardly respectful. They do not need to use excessive force or overreact. The officer’s friendly treatment and failure to overreact does not have any bearing on my finding of racial profiling.

[85] For a similar reason, I cannot accept the Crown’s argument that Cst. Coutinho leaving the applicant alone in the car for a few minutes while he dealt with Mr. Wu somehow undermines a finding of unconscious bias. The Crown argues that the officer would have dealt with the applicant first if he really harboured unconscious bias, rather than leaving the applicant alone in the car, where he could have destroyed evidence (by swallowing drugs) or pulled out a weapon. Respectfully, this submission is undermined by the officer’s question to Mr. Wu about whether the applicant would get him in trouble, and his characterization of the applicant as verbally resisting. Again, as I have mentioned, it seems likely to me that Cst. Coutinho was thinking that the search was going to yield more than just cannabis. Moreover, the applicant was contained within the car, and if he had tried to get out to discard evidence, it would have been obvious that he was doing so. It is doubtful that there was any concern the applicant could destroy evidence by swallowing it.

[86] I also cannot accept the Crown’s submission that the way that the police treated the applicant after his arrest demonstrates that there was no unconscious bias. Again, in making this submission, the Crown relies on the fallacy that racial profiling necessarily involves rogue officers who have no respect for the law. That the police generally followed the rules does not undermine a conclusion that they have engaged in racial profiling based on unconscious bias. Simply put, following procedural constitutional requirements is not inconsistent with racial profiling.

[87] Finally, I will address an argument that the Crown made in its written submissions that is often made to defend against racial profiling claims. The Crown argued that “it is unrealistic for PC Coutinho to make up this traffic infraction to his colleagues and risk his career and credibility.” In the same vein, the Crown argued that, because Peel Regional Police is an ethnically diverse police force serving an ethnically diverse community, “making up a traffic infraction to hide racial profiling…would certainly undermine his credibility and reputation” with his colleagues. The Crown notes, in a footnote, that the Chief of the force, as well as three of the officers involved in this case “were all racial minorities and/or persons of colour.” To be clear, the Crown filed its written submissions in response to the applicant’s written submissions that the traffic stop was a ruse. However, it is important to address the aspects of the Crown’s submission about the risk to career and credibility, and the implicit suggestion that working on an ethnically diverse police force, in an ethnically diverse community, makes it less likely that an officer would engage in conscious or unconscious racial profiling.

[88] The Crown’s submission recycles the well-worn but incorrect argument that people who have an important career are unlikely to lie, or otherwise engage in wrongdoing, because they would be risking too much. Respectfully, judicial experience suggests otherwise, since people from all walks of life, with all kinds of occupations, lie and act improperly for many different reasons. I again stress that there is no suggestion, nor have I found, that Cst. Coutinho lied in this case. Also, just because a police force is ethnically diverse, and serves and ethnically diverse community, does not make it less likely that members of that force will engage in racial profiling. Finally, the suggestion that officers themselves who are from racialized backgrounds cannot have unconscious racial biases is based on a misunderstanding of unconscious bias and how such biases form. Nobody is immune from unconscious bias. Being non-white does not immunize someone from having biases, including against people who share their own background.

[89] Based on the foregoing, I am satisfied that Cst. Coutinho decided to pull over the Lancer, in part, because of unconscious racial bias. He was also determined to search the car to see if he could find something based on the thin observation that he saw crumbs of what he thought was cannabis. As explained above, based on his own statement to the applicant during the traffic stop, I am satisfied that he saw the applicant’s face and therefore saw his skin colour. Moreover, Cst. Coutinho’s conduct of the traffic stop, and his treatment of the applicant, was impacted by unconscious racial bias.

[90] I must be very clear that a finding that a police officer has acted based on unconscious racial bias is not a finding that the officer is a racist. Unconscious bias, by definition, refers to attitudes and beliefs that are not held consciously. Everyone has them. Police officers, lawyers, and judges included. Anyone can fall victim to allowing those biases to affect their behaviour. When they infect a police officer’s behaviour, the result is that the officer will be found to have breached the affected person’s Charter rights.

[91] The applicant has established that his ss. 8 and 9 Charter rights were breached because his detention, treatment during detention, and search were due to unconscious racial bias. I will next explain the reason that these breaches result in exclusion of the evidence.

3.6. The evidence must be excluded

[92] Crown counsel quite properly acknowledges that a finding of racial profiling will inevitably lead to the exclusion of evidence under s. 24(2) of the Charter. Admitting evidence that is obtained from police action tainted by racial bias, conscious or unconscious, will bring the administration of justice into disrepute. Therefore, it is not necessary to go through the three steps of the R. v. Grant[^33] inquiry. However, because the outcome of this application will result in the applicant not facing prosecution in circumstances where he was quite obviously in possession of a handgun, it is important to explain why the exclusionary remedy is important in these kinds of cases. Many people may wonder how the long-term repute of the administration of justice is served by allowing someone who had a handgun in his jacket to go free.

[93] It is easy for criminal justice system participants – including judges – to develop their own biases about police and citizen interactions. The courts only see those cases where the police find evidence of wrongdoing. Cases where police conduct a traffic stop and find nothing do not make it before the courts.[^34] Had the applicant not been carrying a gun, this kind of traffic stop would never have made its way into a courtroom. It simply would have been a traffic stop where a young Black man was taken out of a car, handcuffed, and detained for 15-20 minutes. There is no way of knowing with certainty how frequently such interactions happen.[^35] The only ones that make it to court are the ones where some contraband is found.

[94] Some of the traffic stops that do not make it to court might involve a minor inconvenience with no element of racial profiling. But other such stops may involve something more concerning. Where people are stopped and detained by the police because they are racialized, the people who are detained suffer harm. And the criminal justice system suffers harm. Those being detained suffer harm because they are being improperly stopped based on their ethnic background or skin colour. The criminal justice system suffers harm because such encounters damage the system’s reputation, especially in the eyes of those being profiled.[^36]

[95] This is not some soft-on-crime, academic rhetoric. Anyone who cares about the safety of our communities should also care about these kinds of interactions between police and citizens. The reputational damage to the criminal justice system has a very real effect on public safety. A society which is founded on principles that recognize the rule of law must have faith that those who enforce the law exercise their powers fairly and without bias or prejudice. When people lose that faith, they have less reason to respect the law and those who enforce it.[^37] And when respect for the law suffers, public safety suffers.

[96] I know that the applicant is not a sympathetic figure. He was carrying a handgun that was ready to fire. He knew exactly how dangerous it was because he told Cst. Coutinho that there was a round in the chamber and instructed him to remove the magazine (which was obviously an overcapacity magazine, given how far it protruded from the gun’s grip). But it is important to understand that, before Cst. Coutinho found that gun, he believed he was dealing with a talkative young man whose friend had a bit of cannabis on his hand and may have been using his phone while driving. Both were taken out of the car and handcuffed at the side of the road. As mentioned above, courts do not see the cases of the racialized young men who are stopped, searched, and not charged. Before Cst. Coutinho found the handgun, the applicant had the right to be treated like any other person, racialized or not, who may have been in a car with someone else who was committing a provincial offence. He had the right not to be treated differently because he is a young Black man. The applicant is not getting off on a technicality. He is being given a remedy for the violation of his constitutional rights. And our constitution is not a technicality.

4. Conclusion

[97] The application is granted. The firearm seized from the applicant, and the cannabis seized from the Lancer are excluded from evidence pursuant to s. 24(2) of the Charter.

Rahman, J.

Released: December 4, 2023

[^1]: I heard this application as a case management judge under s. 551.3 of the Criminal Code. [^2]: I do not believe that Cst. Coutinho pointed his camera at the ground intentionally. [^3]: I set out the officer’s definition of shake because it is not the common usage of that term. [^4]: Mr. Okada Phillips played the video from 16:06:53 to 16:08:46. [^5]: RAW is a ubiquitous brand of cannabis paraphernalia. The brand has a distinctive red logo with the brand’s name in stylized capital letters. [^6]: R. v. Nguyen, 2008 ONCA 49 at para. 20 [^7]: Nguyen, at para. 16. [^8]: R. v. Gonzales, 2017 ONCA 543, at para. 124. [^9]: Nguyen, at para. 20. [^10]: R. v. Roberts, 2018 ONCA 411, at para. 78. [^11]: Gonzales, at para. 125. [^12]: Gonzales, at para. 128; R. v. Suberu, 2009 SCC 33, at para. 42 (officer or public safety is a justification for the delay in advising of the right to counsel, which also must be provided immediately upon arrest or detention). [^13]: R. v. Kanneh, 2022 ONSC 5413. [^14]: R. v. Williams, 2021 ONCJ 630. [^15]: R. v. Grant, 2021 ONCJ 90 [Grant (OCJ)]. [^16]: Kanneh, at para. 63. [^17]: R. v. Armstrong, 2023 ONSC 3154, at para. 62. [^18]: R. v. Sappleton, 2021 ONSC 430. [^19]: R. v. Ellis, 2021 ONSC 8155. [^20]: R. v. McKenzie-Walcott, 2022 ONSC 1350. [^21]: R. v. Graham, 2018 ONSC 6718, at paras. 81-82; R. v. Moulton, 2023 ONCJ 140, at para. 247; R. v. Williams, 2021 ONCJ 630, at para. 65; Grant (OCJ), at paras. 103-107. [^22]: R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 CCC 3d 332 (Ont. CA). [^23]: R. v. F. (J.), 2015 ONSC 3068. [^24]: Annett at p. 334. [^25]: R. v. Morris, 2021 ONCA 680 at para. 1. [^26]: R. v. Musara, 2022 ONSC 3190 at para. 354. [^27]: Musara, at para. 361. [^28]: R. v. Sitladeen, 2021 ONCA 303. [^29]: Sitladeen, at para. 54. [^30]: I note that neither the Provincial Offences Act, nor the CCA would have authorized the arrest of either Mr. Wu or the applicant for having improperly stored cannabis in the car. [^31]: Whether handcuffing is appropriate should be determined by applying the ancillary powers doctrine. [^32]: Penney, Rondinelli, and Stribopoulos, Criminal Procedure in Canada 3rd ed. LexisNexis Canada Inc. ¶2.174. I also note that the Criminal Code presumes that people who commit most criminal offences should not be arrested unless the circumstances in s. 495(2)(d) or (e) obtain. In other words, people who have committed criminal offences should not, in many circumstances, be handcuffed. [^33]: R. v. Grant, 2009 SCC 32 [Grant (SCC)]. [^34]: Grant (SCC), at para. 75 (“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.”) [^35]: Although the research in this area makes clear that racialized communities are over policed: R. v. Le, 2019 SCC 34 at paras. 93-97. [^36]: Le, at para 95; Peart v. Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 217 OAC 269 (C.A.), at para 93. [^37]: David M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention,” (2002) 40 Osgoode Hall L.J. 145, at pp. 163-164.