Court File and Parties

Court File No.: CR-23-665, CR-23-669 Date: 2024-04-16

Ontario Superior Court of Justice

Between: His Majesty the King, Respondent

• and - George Bailey, Applicant

Counsel: M. Moser, for the Crown Attorney M. McRae, for the Applicant

Heard: February 26, 27, 28 and March 1, 2024

Amended Pre-Trial Rulings - Application with respect to ss. 8, 9, and 24(2) of the Charter of Rights and Freedoms

A. J. Goodman J.:

[1] The applicant, George Bailey, ("Bailey") is charged with various offences including a weapons charge and two counts of possession of a controlled substance, namely fentanyl and cocaine, for the purpose of trafficking, contrary to their respective provisions found in the Criminal Code of Canada, R.S.C. 1985 c. C-46, and the Controlled Drugs and Substances Act, S.C. 1996, c. 19, respectively. The offences are alleged to have occurred on December 29, 2021, in the City of Hamilton.

[2] The applicant seeks to exclude the firearm and the drugs that were in his possession and seized by the police arising from a traffic stop on Wilson Street and subsequent search of him. The relief sought is premised on allegations including an arbitrary detention, a pretextual stop and racial profiling. Further, it is alleged there was an unlawful warrantless search pursuant to breaches of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms ("Charter").

[3] For the purpose of this Charter voir dire, the Crown called two police officers and filed exhibits. The applicant proffered an expert witness.

Introduction:

[4] Racial profiling is an act of decision-making. It is a reasoning process leading to a decision. It is not a general disposition or attitude. It may result from conscious or unconscious bias that diverts a decision-maker from proper individualized reasoning.

[5] Racial profiling occurs when race or racial stereotypes are used, either consciously or unconsciously, and to any degree in the selection or treatment of a suspect: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 76. The jurisprudence reflecting racial profiling describes it as an occurrence whereby "certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group": R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 7, citing R. v. Richards (1999), 1999 1602 (ON CA), 120 O.A.C. 344 (C.A.), at 295.

[6] There are two components to racial profiling: an attitudinal component and a causation component. The attitudinal component is the acceptance by a police officer or person in authority that race or racial stereotypes are relevant to identifying the propensity to offend or to be dangerous. The causation component requires this race-based thinking, whether conscious or unconscious, to play a causal role. In other words, race or racial stereotypes must motivative or influence the decisions of persons in authority regarding target selection or suspect treatment. See R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 54-55.

[7] The inquiry into whether a police officer racially profiled someone is not resolved by determining whether that officer in general holds conscious or unconscious racist attitudes. It is possible for the reasoning of someone who is otherwise scrupulously and self-consciously egalitarian to be misshapen by unconscious bias in making a particular decision. The focus is on evaluating the particular "internal mental process" that led to the specific police action under investigation: Le, at para. 78.

[8] If a police officer employs a negative racial stereotype as a premise in a chain of reasoning culminating in a decision to investigate, detain or arrest someone, that faulty decision-making cannot be cured by the fact that there were other, legitimate grounds the officer could have relied on to come to the same conclusion: Peart v. Peel Regional Police Services Board (2006), 2006 37566 (ON CA), 217 O.A.C. 269 (C.A.), at para. 91, leave to appeal refused, [2007] S.C.C.A. No. 10. The focus is on how the specific officer actually reasoned on this particular occasion.

The Facts:

[9] Officers Cole Malstrom ("Malstrom") and Sage Contos ("Contos") were on uniform patrol together on December 29, 2021. Their shift commenced at 7:00 a.m.

[10] Their involvement with the applicant was their first traffic stop of the day. The officers stopped their SUV next to the applicant's motor vehicle, a 2006 Honda Civic, at a red light at the intersection of Catherine and Wilson Street in downtown Hamilton just before 5:15 p.m. Both officers testified that they observed Bailey's hand touch the screen of a handheld device affixed to his dash, while stopped at the red light. Both officers agreed that they didn't see Bailey using the device while the vehicle was in motion or observe any bad driving conduct. Both officers denied identifying the applicant as a Black man before detaining his motor vehicle.

[11] On cross-examination, Malstrom and Contos both agreed that the applicant may have been placing a phone call or hanging up a call when he was touching the screen on his phone affixed to the dash. Neither officer was aware of the exceptions to the prohibition on using a handheld device while operating a motor vehicle including touching the phone to make, answer or end a call.

[12] Once stopped and questioned at the road side, Malstrom alleged that Bailey informed him he was using the navigational services on the phone.

[13] While speaking with the applicant, the officers testified that they smelled cannabis from inside Bailey's vehicle. Contos questioned the applicant about the smell. Bailey, who was at all times cooperative, reached into the center console and removed a sandwich baggie containing fresh cannabis.

[14] The officers explained that they exercised their discretion to detain the applicant for using a handheld communication device affixed to his dash while operating a motor vehicle contrary to s. 78.1 of the Highway Traffic Act, R.S.O. 1990, c. H-8 ("HTA"). The officers had no specific information pertaining to the applicant and believed him to be in lawful possession of the motor vehicle.

[15] Malstrom testified that he had no concerns that the applicant was impaired or otherwise driving poorly. He testified that he was familiar with the circumstances in which an individual could transport cannabis inside a motor vehicle. He agreed that the cannabis the applicant removed from the center console was not in a consumable format. He could not recall whether there was an odor of cannabis coming from Bailey or the vehicle after the bag was removed. Neither he nor Contos took any steps to determine whether there may be more marijuana readily available before deciding to conduct a search for cannabis. This decision was made after both officers returned to their police vehicle and had a brief conversation. Malstrom felt he had authority to search the vehicle and the applicant based on the odor of cannabis coming from inside.

[16] Contos testified that he detected an odor of fresh cannabis coming from the vehicle. He also had no concerns that the applicant was impaired. He did not detect an odor of cannabis coming from Bailey and could not say whether the vehicle continued to smell like cannabis. He confirmed that it was not burnt cannabis.

[17] Contos was not aware of all the circumstances in which someone could operate a motor vehicle with cannabis inside. He agreed the cannabis that was removed from the center console would require some device to be consumed and that it could not be smoked in its immediate format. Contos did not take steps to determine whether there might be more cannabis readily available after Bailey turned over the cannabis to him and before deciding to search the applicant.

[18] After handing over the cannabis, the applicant was told to exit the motor vehicle and place his hands on the roof to be fully searched. Contos advised that he had authority to do so in accordance with the Cannabis Control Act 2017, S.O. 2017, c. 26, Sched 1, ("CCA") and that he conducted a "pat down" search both for cannabis and for officer safety. This was conducted on the roadway as Contos didn't want to turn his back on the applicant. There were two officers present at the time of the search.

[19] The applicant was found in possession of a loaded Glock handgun on his hip, and a bag of cocaine and fentanyl in his pocket while being searched. The cocaine was separated into seven packages. An operational digital scale with white residue was seized from the vehicle's center console. Two cellphones were located in the car.

Positions of the Parties:

[20] Mr. McRae, on behalf of the applicant, submits that the stop and detention by police pursuant to the HTA and CCA was a pretext to conduct a more thorough criminal investigation. The Applicant takes the position that the search of his person was influenced by racial stereotyping or profiling and runs afoul of ss. 8 and 9 of the Charter.

[21] Specifically, the applicant contends that the police did not have reasonable grounds to believe that he was contravening s. 78.1 of the HTA when they detained him for the distracted driving infraction. Officers could not say whether the applicant was touching the screen of the handheld device for the purpose of making, answering or ending a call – an exception to the s. 78.1 prohibition included in Ontario Regulation 366/09 under the HTA.

[22] The applicant says that he was in lawful possession of the motor vehicle. Police had no reason to suspect that he was violent or dangerous. Other than touching the screen of a handheld device while stopped at a red light, his driving was entirely appropriate and there was no reason to suspect that he was distracted. The stop was entirely arbitrary. The officers knew he was a Black man when they saw the hand touch the screen. In any event, the applicant was fully cooperative and polite with officers. The officers did not suspect that he had been consuming marijuana or that the marijuana in his possession was consumable in its present state.

[23] Despite these facts, the police officers decided to search the applicant. They had him put his hands on top of the motor vehicle and face away from them while they searched him on the roadway in a degrading and unwarranted manner. It is submitted that police would never have conducted a similar type of search if the applicant were a white man.

[24] The applicant says that if the detention was influenced to any degree by his race, the existence of grounds for detention is irrelevant. Moreover, where race is used to any degree, there will be no reasonable grounds and the detention will amount to racial profiling in contravention of s. 9 of the Charter. Here, the manner of the search was influenced by the applicant's race and therefore resulted in a violation of s. 8.

[25] The Crown responds that s. 78.1 of the HTA was the authority for the stop. In addition, s. 12(3) of the CCA authorizes police to search a motor vehicle and anyone located inside where they have grounds to believe that cannabis is stored inside the vehicle that is not in its original packaging and has been opened or is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. Once the applicant provided police with the bag of fresh cannabis from the center console they had grounds to believe that cannabis was stored inside the vehicle or on his person.

[26] The Crown contends that there was no targeting of the applicant. The officers were acting with lawful authority to conduct a safety search of the applicant. The Crown submits that the officers acted appropriately, that there is no subjective or explicit or implicit evidence of racial profiling. The manner of the search was reasonable in the circumstances and under legal authority.

[27] The Crown submits that the applicant's rights pursuant to ss. 8, and 9 of the Charter were not violated by arbitrary detention, racial profiling or unreasonable warrantless searches. It is submitted that the evidence ought not to be excluded pursuant to s. 24(2) of the Charter and the application ought to be dismissed.

Issues:

[28] There are a myriad of issues in this application. First, is the police interaction with the applicant which proceeded in three parts: (i) An initial stop for the purpose of investigating a potential offence under s. 78.1 of the HTA; (ii) Upon stopping the vehicle and interacting with the occupant, the interaction morphed into a s. 12 CCA investigation; and (iii) the manner of search following the CCA investigation including an officer safety and CCA search. Then there is the subsequent criminal investigation into the charges before the court. Finally, if any breach of the applicant's rights is found, it must be determined whether the evidence found should be excluded pursuant to s. 24(2) of the Charter.

Section 9 of the Charter:

Legal Principles -

Section 9 states "Everyone has the right not to be arbitrarily detained or imprisoned."

[29] The jurisprudence provides that police have limited authority to detain an individual for investigative purposes. It is settled law that the police may conduct a search of a detainee for officer safety purposes.

[30] In the seminal decision of the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, Iacobucci J., speaking for the majority, held that police officers do not possess a general power of detention for investigative purposes but may detain individuals when there are reasonable grounds to suspect that they are connected to a crime and that detention is reasonably necessary. At para. 34, Iacobucci J. stated:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must be further assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

[31] "Reasonable grounds to detain" was defined by Doherty J.A. in R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at 202, as requiring "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

[32] Police do not require reasonable and probable grounds to believe an offence has been committed to detain a suspect. Rather, they only need reasonable grounds rising to the level of "reasonable suspicion". This standard is more than a hunch or gut reaction, but something less than what is necessary for an arrest: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 165. Courts have been reluctant to propose a definitive checklist for reasonable detentions, preferring instead to conduct case-specific analyses that examine the totality of the circumstances.

[33] The Supreme Court of Canada has made clear that "not every interaction between the police and a member of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter": R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3. As Iacobucci J. observed in Mann, at para. 19, "[t]he person who is stopped will in all cases be 'detained' in the sense of 'delayed', or 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint."

[34] In Suberu, the Supreme Court confirmed that where police believe a crime has been recently committed, they may engage in preliminary questioning without giving rise to a detention under ss. 9 and 10 of the Charter: Suberu, at para. 28. The court characterized this questioning as "an exploratory investigation" and not a "detention" within the meaning of s. 9: Suberu, at paras. 30, 35.

[35] A person is detained when "a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away": R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para 25, citing R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at 644. Where there is no physical restraint or legal obligation to cooperate, the question is whether a reasonable person in the individual's circumstances would conclude that he or she had no choice but to cooperate with the police: Grant, at para. 44. This is an objective determination in which the court may consider the following as set out in Grant, at para. 44:

A) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

B) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

C) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[36] Section 78.1(1) of the HTA provides that: no person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device. Section 78.1(3) provides that despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

[37] Section 14(1) of O. Reg. 366/09 provides that a person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call… if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position.

Legal Principles Applied to this Case:

[38] In this case, both officers testified that they decided to stop and detain the applicant for using a handheld device while operating a motor vehicle. Both officers agreed that they could not tell what the applicant was doing with his phone and that it was possible he was making, answering or ending a call. Neither officer was aware of the exceptions to the prohibition when they made the decision to detain Bailey, nor had either made any relevant inquiries or informed themselves subsequent to the event, or even after the preliminary inquiry.[^1] Contos confirmed that he didn't know that you could use a cell phone affixed to the dash to place or hang up a phone call.

[39] Frankly, I am not persuaded by Contos' evidence. While he presents well in court, it seems to me that much of his evidence is glossed over by a lack of details, and filling in the gaps where necessary. His dearth of notes of his involvement in the case does not bode well for his independent recollection of the events. He resorted to explaining his testimony by referring to some conjecture, rather than what actually may have occurred. His equivocal responses with respect to what he claimed he observed while in the police cruiser and his attempt to reconcile his notes with whether or not he was driving or operating the police cruiser is illogical and not reliable.

[40] On the other hand, I find that Malstrom was forthright and that his evidence is credible. The officer conceded points in cross-examination and did not embellish his evidence. It is clear, however, that he was inexperienced and suffered from a lack of knowledge regarding his authority under s. 78.1 of the HTA.

[41] According to the evidence presented by the applicant, and despite their assertions to the contrary, both officers had not made similar stops nor issued tickets for similar s. 78.1 offences in the past.

Was the detention arbitrary because it was influenced by racial profiling?

[42] To establish racial profiling, the party alleging it has the onus of proving it on a balance of probabilities.

[43] Racial profiling can seldom be proven by direct evidence. Rather it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling: Peart at para. 95.

[44] The case of Le was not a racial profiling case per se, but the Supreme Court nevertheless explored the role of systemic racial discrimination in the perception of an accused detained by police. At para. 78, the Supreme Court held:

If a police officer engages in racial profiling when arbitrarily detaining an individual, whether in whole or in part, it may give rise to a violation of s. 9 of the Charter. This is because a detention based on racial profiling "is one that is, by definition, not based on a reasonable suspicion."

[45] In R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at para. 54, the court stated that officers who detain persons or stop vehicles on the basis of race or racial stereotypes are unlikely to admit their bias. The matter becomes more complicated when the officer is unaware they were influenced by race because of unconscious or implicit bias. In other words, a police officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling.

[46] The Ontario Court of Appeal in Sitladeen, at para. 54, also gave instructions to trial judges on their role when racial profiling is alleged. The role of the trial judge in such cases is to consider all the circumstances leading to the detention and/or arrest of the accused person. The goal is to determine whether the circumstances correspond with the phenomenon of racial profiling. Then, the trial judge can decide whether those circumstances form a basis to find the stop was based on racial profiling, contrary to the evidence of the officer. It is not necessary for the trial judge to find that the police officer was lying when they testified that race or racial stereotypes did not play a role in their decision making. The trial judge can find racial profiling occurred while also finding the officer did not lie in their testimony.

[47] Moreover, to find racial profiling, an officer's decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. Where race or racial stereotypes factor into the decision of selecting suspects or treating subjects, to any degree, it defeats any reasonable suspicion or reasonable grounds. Simply put, there will be no reasonable grounds or reasonable suspicion if race or racial stereotypes played a role in suspect selection or subject treatment. See Dudhi, at paras. 62-63.

[48] Indeed, in Sitladeen the officers testified that they made the decision to detain the accused for impaired driving before pulling up next to him and identifying him as a Black man. The trial judge accepted the officer's evidence and found that the detention was not influenced by racial profiling because the police had grounds to detain him and were not lying about whether racial stereotypes influenced their decision. The Court of Appeal found that "by failing to address whether unconscious racial bias played any role in the officers' decision to stop or arrest the appellant, the trial judge eliminated the possibility that the stop or arrest may have been tainted by racial profiling, even if there was also another available basis to justify the police actions": Sitladeen, at para. 57.

[49] Returning to the previous discussion, to determine whether an officer's prima facie unlawful interference with an individual's liberty falls within his or her common law powers, a court must engage in a two-step analysis: Mann, at para. 24. Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law? If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?

[50] In this case, the officers allege that they didn't observe the applicant was a Black male until after he was pulled over. This may be questionable in light of all of the circumstances of the detention – including the fact that the police were stopped directly beside the applicant at a red light and could observe his hand touching the screen of his cell phone. Also, their evidence was nebulous in that they originally testified that there was a swiping motion of the phone affixed to the dash, but later admitted it could have just been a momentary touch of the screen.

[51] However, I am unable to accept in all the circumstances in this case that the officers' decision to detain the applicant was influenced, in some measure, by racial stereotypes. I reject the applicant's assertions that these circumstances included, inter alia, the officers' duties for the day and the fact that Bailey was their first traffic stop more than ten hours after their shift began. There is no basis to sustain that general patrol officers do not conduct traffic stops per se. I am also not persuaded by the location of the stop and its stated purpose – for a very minor traffic infraction - gives rise to the racial profiling alleged.

[52] It is trite law that for a detention to not be arbitrary, it must be authorized by law, the law must be non-arbitrary, and the detention must be carried out in a reasonable manner: Grant, at para. 56.; Le, at para. 124.

[53] Police officers have both statutory and common law authority to stop motor vehicles. The statutory power is grounded in s. 216(1) of the HTA, which reads as follows: A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[54] Contos and Malstrom testified that they stopped the applicant's motor vehicle because they observed him touching the screen of a hand-held device while stopped at a red light. Using or holding a hand-held device while driving a motor vehicle on a highway is an offence under the Highway Traffic Act unless the purpose for doing so falls under a legislated exception or exemption. This is the case even when the motor vehicle is stopped at a red light.

[55] The bare observation of the officers in this case amounts to a prima facie offence under s. 78.1 of the HTA.

[56] There is a notable exception to the general prohibition on contact with a hand-held device, namely, s. 14(1) of O. Reg. 366/09, mentioned above. This is a tightly prescribed exception. It requires both a specific purpose (a call, not some other use) and a specific method of execution (securely fastened, quickly visible, and easily in reach). I agree with the Crown attorney that an officer cannot be expected to know the purpose for which the driver is holding or using the device at the time of the initial observation.

[57] Because an officer cannot be expected to know the purpose for which the driver is holding or using a held-held device, the ability to conduct the traffic stop cannot be dependent upon an assessment of the possibility of exceptions or exemptions. The relevance of exceptions or exemptions arises only after a traffic stop has been conducted and inquiries are made

[58] That said, I confess to having some difficulty with Contos' testimony, that he had viewed the s. 78.1 HTA infraction from the passenger side of the police car, furthest away from the applicant and his position in his vehicle.

[59] I prefer Malstrom's evidence on this point. I am prepared to accept that Malstrom did not observe the race of the applicant or the colour of his hand from his police SUV vantage point at the intersection, prior to the stop. It was getting dark or was dark outside and the cellphone affixed to the dash of the car may have illuminated the applicant's hand without being able to distinguish its colour or shade.

[60] Given the wording of the HTA and its regulations, the stop and the subsequent and direct inquiry made of the applicant about the cellphone, post-stop could be objectively reasonable.

[61] Conducting a traffic stop upon observing an HTA offence is within the lawful execution of a police officer's duties and responsibilities. The initial stop in this case cannot be said to be arbitrary.

[62] In the totality of the circumstances, I find that the s. 78.1 HTA stop and the initial detention were not racially motivated or in violation of s. 9 of the Charter.

Section 8 of the Charter

Legal Principles -

[63] Section 8 of the Charter states " Everyone has the right to be secure against unreasonable search or seizure."

[64] The jurisprudence provides that a warrantless search and seizure is prima facie unreasonable and violates s. 8 of the Charter. In the event of a warrantless search, the onus is on the Crown to rebut the presumption of unreasonableness.

[65] There exist certain overarching principles with respect to an analysis of s. 8 of the Charter, including those set out in R. v. Amoa-Yeboah, 2018 ONSC 1965, at para. 77. To summarize, they include:

i. An individual's reasonable expectation of privacy is a personal right that is protected by s. 8 of the Charter from unreasonable state search and seizure;

ii. A search occurs when police conduct interferes with a reasonable expectation of privacy;

iii. A seizure occurs when there is a non-consensual taking of something by the police;

iv. Warrantless searches are presumptively unreasonable;

[66] The seminal case on point is R. v. Mann, 2004 SCC 52. Some of the prevailing jurisprudence is referenced below:

Individual privacy is the "essential value protected by s. 8 of the Charter": R. v. Kokesch (1990), 1990 55 (SCC), 61 C.C.C. (3d) 207 (S.C.C.) at 228. "Any expectations of privacy must be reasonable" to be afforded constitutional protection: R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.) at 459. A reasonable expectation of privacy is a personal right the existence of which is determined on the totality of the circumstances in each case having regard to the guidelines in R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.) at 148-152. Further, the purpose behind the right "is to protect the privacy of individuals from unjustified state intrusion": R. v. Hape, 2007 SCC 26, [2007] S.C.J. No. 26 at para. 166 per Bastarache J. Therefore, "[t]he purpose of s. 8 of the Charter is to protect against unreasonable searches": R. v. Alkins (2007), 2007 ONCA 264, 218 C.C.C. (3d) 97 (Ont. C.A.) at para. 44.

"[P]olice conduct interfering with a reasonable expectation of privacy is said to constitute a "search" within the meaning of" s. 8 of the Charter: Law, at 457. The essence of a "seizure", in constitutional terms, involves a non-consensual taking of something by agents of the state: R. v. Buhay (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.) at 113; R. v. Dyment, 1988 10 (SCC), [1988] 2 S.C.R. 417 (S.C.C.) at 431.

To justify police actions interfering with a reasonable expectation of privacy, the state "must be able to point to a specific statute or common law rule that authorizes the search" – "[o]therwise, they [the police] are constrained by the same rules regarding trespass…as everyone else": R. v. Caslake [1998] (1998), 1998 838 (SCC), 1 S.C.R. 51, 121 C.C.C. (3d) 97, at 105.

Warrantless searches are presumptively unreasonable unless the Crown demonstrates on a balance of probabilities their reasonableness in the context of s. 8 principles: Mann, at 324; Buhay at 112, 114; R. v. Evans (1996), 1996 248 (SCC), 104 C.C.C. (3d) 23 (S.C.C.) at 34.

Common law authorization may emanate from conditions of urgency: "[w]arrantless searches are presumptively unreasonable, absent exigent circumstances" (R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.) at 142) making it impracticable to obtain a warrant: R. v. Plant (1993), 1993 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.) at 169; Grant, at 189.

The Crown cannot rely on "ex post facto justifications" of searches by their results: Kokesch, at 227; R. v. Genest (1989), 1989 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.) at 408. A search, unlawful from the beginning, cannot be converted into a reasonable search because it is carried out in a reasonable manner: R. v. Moran (1987), 1987 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.) at 247.

The police may act only to the extent empowered to do so by law: Mann, at 318. Where the authority to act does not emanate from statute, the common law may provide legal authority as described in Mann.

[67] As mentioned, there is a two-pronged test for determining whether a police officer acted within their common law powers when the officer's conduct is prima facie an unlawful intrusion on an individual's right to privacy: Mann, at para. 24. First, the court considers whether the police conduct giving rise to the intrusion falls within the general common law powers of police. If this threshold is met, then the court goes on to consider whether the conduct of the officer involved an unjustifiable use of police powers. Factors to consider in determining if the use of police power was justified include "the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference": Mann, at para. 39.

Legal Principles Applied to this Case:

[68] There are three questions that I answer in this part of the analysis. Was the search unreasonable as the police did not have grounds to believe there was other cannabis stored improperly inside the vehicle? Did the officers exceed their authority under the CCA? Was the search and discovery of the firearm and the drugs a violation of s. 8 of the Charter?

[69] There are two principal authorities under which officers may conduct a safety search during an investigative detention. The most common way is the search incident to detention as set out in Mann. As referenced, in that case the court held that during an investigative detention, "where a police officer has reasonable grounds to believe that his or her own safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual": Mann, at para. 45.

[70] It bears repeating that an investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer's suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence. To conduct this analysis, the court must assess the overall reasonableness of the detention decision, testing it against all the circumstances, including the extent to which the interference with individual liberty is necessary to perform the officer's duty and the extent of the interference.

[71] To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police.

[72] The second authority is the stand-alone power to conduct a safety search, identified by the Supreme Court in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37. The accused in MacDonald was not detained. LeBel J. explained at para. 40, that "where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search."

[73] In order for a search to be reasonable, the search must be authorized by law, the authorizing law must be reasonable, and the search must be conducted in a reasonable manner: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at 278. Here, the Crown argues that the CCA provides such authorization.

[74] Section 12 of the CCA provides:

(1) No person shall drive or have the care or control of a vehicle, whether or not it is in motion while any cannabis is contained the vehicle. (2) Subsection (1) does not apply with respect to cannabis that, is in its original packaging and has not been opened; or Is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. (3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

[75] Cannabis can easily be stored either on someone's person or in an accompanying satchel or container. An example of this is found in the case of R. v. Moulton, 2023 ONCJ 140. In that case, the jurist engaged in a fulsome analysis of RIDE stop that morphed into a CCA investigation. Henschel J. noted that police were not required to accept the defendant's statement about the presence or absence of cannabis in the vehicle. Similarly, the court opined, at para. 218, that where the officer had subjective grounds to believe there could be more cannabis present "it would have been negligent for PC Cyrus to allow the individual to continue on his way on the roadway without satisfying himself that there was no more cannabis readily available to him." This was so even once the officer was satisfied the driver was not impaired: Moulton, at paras. 216-217.

[76] The Crown argues that, similarly in this case, the CCA search was authorized by statute and that subsequent pat-down search conducted shortly after the applicant was detained was justified, as expressed by the officers. The Crown contends that a stop on proper grounds with the intention of further investigation hoping to find evidence in plain view is permissible and could well be indicative of good police work. However, I observe that the underlying circumstances and facts in Moulton are distinguishable from the case at bar.

Was the search and seizure unreasonable because it was influenced by racial profiling?

[77] Returning to the central issue in this case, the inquiry into whether racial profiling occurred is focused entirely on the chain of reasoning that led a police officer to investigate, detain, or arrest a particular suspect: Le, at paras. 76-78. As a reminder, racial profiling occurs where: [a] police officer … 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": Peart, at para. 90. Racial profiling is rarely proven by direct evidence; more often it must be inferred from the circumstances surrounding the police action said to be the product of racial profiling: Peart, at para. 95. The focus is on how the specific officer actually reasoned on this particular occasion.

[78] During the interaction at bar, Malstrom smelled cannabis, and shortly thereafter advised Contos. Contos testified that he also smelled fresh cannabis. Malstrom had some notes, while Contos' notes were sparse. Contos inquired about the smell of cannabis. Upon demand, the applicant produced a sandwich style baggie of fresh marijuana. At all material times, the applicant was fully cooperative with police. At one point, the officers returned to their cruiser, had a brief discussion and then went back to the driver's side. The officers asked the applicant to exit the vehicle, and, subsequently, PC Contos searched him.

[79] It may be that the baggie of cannabis produced by Bailey during the conversation with police did not comply with s. 12(2) of the CCA. In this case, however, there was no smell of burnt marihuana, nor did the officers testify that they suspected the applicant had consumed any marihuana.

[80] In another related case, R. v. Sharma, 2013 ONSC 5010, the court stated at paras. 30 and 31:

The law is clear that burnt marijuana by itself can rarely if ever supply police grounds for a Cannabis Control Act search of a vehicle under Section 12(3) of the Act. The leading authority is R. v. Polashek, (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.). I discussed Polashek in a previous Section 12(3) case (R. v. McKenzie-Walcott, 2022 ONSC 1350) and will not delve back into it in detail now. Simply put, the law is that the odour of burnt marijuana may linger well after it is smoked and is too subjective and unreliable to itself form reasonable grounds that there is marijuana in a vehicle. As Jang points out as well at para. 30, another less significant factor going against grounds to search for improperly packaged cannabis arises from the reflection that an occupant may have smoked all the marijuana that was in the vehicle, leaving none remaining.

The police officers in this case appeared to understand that the odour of marijuana was insufficient. All, however, testified that they observed cannabis in plain view prior to the search. However, there are disconcerting discrepancies between the cannabis observations of the different police officers.

[81] In relation to the search power authorized by s. 12(3), in R. v. Sappleton, 2021 ONSC 430, at para. 57, the court clarified that police may not search a vehicle or a person where they believe there is cannabis being stored in contravention of the regulations unless they have requisite grounds. If requisite grounds are present, a reasonable search and additional questioning may be warranted: Sappleton, at para. 64. However, the court also made clear that finding cannabis is not an open license for police to unreasonably interfere with an individual's Charter rights: Sappleton, at para. 63.

[82] In Sappleton, the applicant was pulled over for a HTA infraction. He was in breach of his recognizance and police arrested him for that reason. The applicant was searched incident to arrest and cannabis was located inside a satchel on his person. Police decided to search the vehicle pursuant to the CCA as they had discovered marijuana that was easily accessible to the driver. De Sa J. found that police did not have grounds to believe there was any other marijuana stored improperly inside the vehicle. As a result, they exceeded the scope of their search authority in contravention of s. 8.

[83] When evaluating the requirements to properly store cannabis, the following analysis was carried out by De Sa J. at paras. 45-46, 48, 50, 61 (footnotes omitted):

The Applicant points to various cases under the LLA to establish that observations of alcohol within the proximity of the driver are not sufficient to support a search of a vehicle. The Applicant submits that provided that the marijuana is in a bag which is "fastened close" as in this case, the storage is compliant with 12(b) of the regulations.

I disagree with the Applicant that proximity to the driver and accessibility is not a relevant factor to be considered. The purpose of the regulation is to limit accessibility/availability of the marijuana to occupants of the vehicle. Marijuana, like alcohol, should be properly stored away while being transported.

I agree with the Crown that "packed in baggage that is fastened closed" should be read together with "or is not otherwise readily available to any person in the vehicle or boat." They are not completely distinct exceptions. If they were, they would have been listed separately like the exception in s. 12(a) of the CCA. Section 12(b) contemplates that the marijuana will be stored away and not be readily available to the driver or other occupants of the vehicle.

Obviously, whether the marijuana is properly stored (not readily available) is very much a contextual assessment. This assessment is informed by the underlying purposes of the regulations. The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. R v. Burke, 2020 ONCJ 516: R. v. Wise, 1992 125 (SCC), [1992] 1 S.C.R. 527, at p. 534: R. v. Belnavis, 1997 320 (SCC), [1997] 3 SCR 341, at paras. 38-39. See R. v. F., 2015 ONSC 3068. Accessibility/availability of the marijuana for use will clearly be a relevant consideration.

However, statutory authority cannot be used as pretext to improperly interfere with Charter rights. Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. R. v. Nolet, supra, at para. 39. As explained in R. v. Caslake, 1 SCR 51, at para. 27:

In this case, the officers did not have reasonable grounds to believe that any additional marijuana was stored in the vehicle in contravention of the CCA. I also agree with defence that there was no basis for officers to search the trunk or the various other locations of the vehicle in the manner that they did.

[84] I find the Sappleton instructive. In many situations, decisions of the investigating officers to take further steps to ensure there was no other cannabis on the driver's person may be entirely reasonable. It is true that the officers were under no obligation to accept at face value an explanation or assume that the cannabis present in the vehicle was contained in the bag. However, that presupposes that questions are posed to the driver. Such was not the case here.

[85] In R. v. Byfield, 2023 ONSC 4308, at paras. 111-113 and 117, Barnes J. reviewed and adopted De Sa J.'s approach to the CCA in Sappleton. In Byfield, Barnes J. found that the officer's decision to detain and search the applicant was influenced to some degree by unconscious racial bias and contravened ss. 8 and 9 of the Charter. Barnes J. adopted a narrower interpretation of the search authority authorized by s. 12(3) due in part to the increased risk of systemic bias posed by a broader search authority.

[86] In my view, a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be "based on" race or racial stereotypes. I agree with the Ontario Court of Appeal's instruction in Dudhi, at paras. 62-63, that if illegitimate thinking about racial stereotypes factors into suspect selection or subject treatment, any assertion that the decision was reasonable is defeated.

[87] Indeed, if the police had grounds to believe that marijuana was still being stored in contravention of the CCA, a reasonable search for the marijuana would have been warranted. Additional questioning regarding the presence of marijuana and the location and/or manner it was stored would have also been a reasonable exercise of police authority. In some cases, questioning of this nature may obviate the need for a further or extensive search of the offender or the vehicle.

[88] The applicant alleges that the decision to search him was influenced in part by his race. He submits that if the police do not have grounds to believe the applicant had marijuana readily available on his person or in his vehicle, any connection to the legislative objective dissipates and the search results in an unnecessary intrusion on his privacy interest.

[89] Here, the officers did not consider whether there was any other marijuana stored inside the vehicle or on the applicant. After being provided with the baggie, the officers made no further inquiries. The applicant had provided them the cannabis in direct response to their query. The police did not consider asking any more questions or trying to detect whether there was an ongoing odor once the marijuana was removed. The officers relied on certain preconceived assumptions prior to undertaking their search and investigative authority.

[90] I agree with the applicant that the police viewed the discovery of the marijuana as an "opportunity" to conduct a further search. They chose to exercise the discretion they believed they had to determine whether the applicant was in possession of anything illegal. They did so without reasonable grounds to believe he had marijuana, or anything else illegal, on his person in the context of this regulatory provision. Recall that possession of cannabis is legal, it is the manner of its storage or transport in the vehicle that is captured by the relevant regulatory provision.

[91] That said, I do agree with the defence that the police must possess the requisite grounds to believe that marijuana is stored in contravention of the regulations.

[92] I prefer the principle articulated in Sappleton and adopted in Byfield. The principle was described by Barnes J. in Byfield, at paras. 117-118, as follows:

In effect, an officer is authorized by s. 12(3) of the CCA to conduct a warrantless search when the officer has articulable reasonable grounds to believe that cannabis is being stored in contravention of s. 12(1), in each part of the vehicle or on the person of the occupants the officer intends to search. In other words, regardless of where the cannabis is discovered, its discovery must be sufficient to support the officer's reasonable grounds that cannabis may be stored in contravention of s. 12(1) of the CCA in any place the officer intends to search (i.e., in any compartment of the vehicle or on the person of the occupants).

In effect, lawful exercise of the search power under s. 12(3) of the CCA requires the peace officer to have reasonable grounds to believe that marihuana has been stored in contravention of s. 12(1) in the place in the vehicle where the peace officer intends to search.

[93] In other words, regardless of where the cannabis is discovered, its discovery must be sufficient to support the officer's reasonable grounds that cannabis may be stored in contravention of s. 12(1) of the CCA in any place the officer intends to search must be reasonable in all the circumstances.

[94] I find that the grounds for the continued search for cannabis both in the vehicle and on the applicant himself was related to implicit racial profiling. However, if I am wrong in my aforementioned assessment, I turn to the next issue of import, which are not the grounds for the search, but rather, the manner of search.

The Exercise or Manner of Search:

[95] The exercise of the search power is limited to what is necessary for the carrying out of the specific regulatory purpose. It must be exercised reasonably, having regard to the nature of the privacy interests involved. Regulatory search powers, like the police use of random check-stop programs, "must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search": R. v. Mellenthin, [1992] 3 S.C.C. 615, at 664. See also R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2, at 35.

[96] In parliamentary debates related to the enactment of the CCA, the then Attorney General of Ontario indicated that the purpose of the CCA is to protect the public from the havoc cause by drug-impaired driving. Parliament's intent in enacting the CCA is to protect public health and safety, protect youth and restrict their access to cannabis, and provide law enforcement with the tools to achieve these objectives: Ontario, Legislative Assembly, Official report of Debates (Hansard), 41st Parl., 2nd Sess., No. 115 (2 November 2017), at p. 6143-6144 (Hon. Yasir Naqvi); Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 30 (1 October 2018), at p. 1342. (Hon. Caroline Mulroney).

[97] The applicant called Professor Haag, a criminologist and expert in racial profiling and social context experience. I permitted Professor Haag to offer an opinion on racial profiling and pretextual stops, as an expert in his field of study.

[98] For the most part, Professor Haag's evidence met the relevant tests for admissibility. In this regard, I provided brief oral reasons to the parties during the hearing. However, there were occasions when he tended to morph into an advocate. On those rare occasions, I have discounted that segment of his testimony.

[99] Overall, I accept his evidence as assisting me with understanding the socio-economic conditions under which many Black people in Ontario reside and their overall experiences with education, employment, policing, and the criminal legal system. In particular, his evidence providing me with a more comprehensive understanding of the individual and systemic factors that can lead to the use of potentially racially biased tactics by the police is helpful.

[100] Professor Haag testified as to the ongoing reality of anti-Black racism and discrimination in Canadian society:

A growing body of scholarship, including academic study and several government commissions and task forces, have documented and confirmed the ongoing reality of anti-Black racism and discrimination in Canadian society. As Mullins, Morgan, and Quelleng (2016) describe, Canada's history of anti-Black racism is manifested in the present-day "social, economic, and political marginalization of African Canadians in society such as the lack of opportunities, lower socio-economic status, higher unemployment, significant poverty rates and overrepresentation in the criminal justice system" (p. 23). Mullins, D.V., Morgan, A., & Quelleng, H.K. (2016). Canada the Great White North where Anti-Black Racism Thrives: Kicking Down the Doors and Exposing the Realities. Phylon, 53(1), 20-41.

Concerns over disparate enforcement of the HTA align with widespread and long-standing claims made by Black motorists of being unfairly stopped by the police, experiences often described concerning the phrase 'driving while Black.' For example, in a recent investigation of racial profiling conducted by the Ontario Human Rights Commission, one of the main themes to emerge from their consultations was that of Black people describing experiences of biased traffic stops. Ontario Human Rights Commission. (2017). Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario. These experiences included being stopped for dubious reasons, being stopped under the pretext of investigating a minor offence or experiencing what they perceived to be selective enforcement of laws while driving, such as being stopped for an offence while White motorists engaging in the same behaviours were not.

Regarding the workings of the Canadian criminal legal system, there is a growing but still comparatively limited body of scholarship examining the intersections of race with criminal legal policies and practices. This lack of race-based data can be attributed to, in part, a long-standing informal ban on the collection and dissemination of statistics on the racialized identities of individuals who are processed through the Canadian criminal legal system. Owusu-Bempah, A., & Wortley, S. (2014). Race, Crime, and Criminal Justice in Canada. In S. M. Bucerius & M. Tonry (Eds.), The Oxford Handbook of Ethnicity, Crime, and Immigration. (pp. 281-320). Oxford University Press. However, the available data indicates that Black people face disparate impacts throughout the system. These impacts include disproportionate levels of police surveillance, including stops, searches, and arrests, gross overrepresentation in major and minor police use of force incidents, overrepresentation in police charges, disparities in access to pretrial detention, and significant over representation in our jails and prisons. Owusu-Bempah, A., & Wortley, S. (2014). Race, Crime, and Criminal Justice in Canada. In S. M. Bucerius & M. Tonry (Eds.), The Oxford Handbook of Ethnicity, Crime, and Immigration. (pp. 281-320). Oxford University Press.; Wortley, S. & Jung, M. (2020). Racial Disparity in Arrests and Charges: An analysis of arrest and charge data from the Toronto Police Service. Ontario Human Rights Commission.; Wortley, S., Laniyonu, A, & Laming, E. (2020). Use of force by the Toronto Police Service. Ontario Human Rights Commission.

[101] Likewise, Professor Haag testified as to the experiences of Black Canadians with police and the role that bias and racial profiling has played in police forces in Canada:

For decades, Black Canadians have complained that they are subject to unnecessary and unjustified police-initiated stops, field interrogations, searches, and arrests. Wortley, S., & Tanner, J. (2004). Discrimination or 'good' policing? The racial profiling debate in Canada. Our Diverse Cities, 1(Spring), 197-201. These complaints typically involve allegations of racial profiling or racially biased tactics by the police. While the terms racial profiling and racially biased policing or bias-based policing are often used interchangeably, racial profiling is but one form of racially biased policing. Within the Criminological literature, there is an ongoing debate regarding the definition of racial profiling. Siu, B. (2018).

In essence, racial profiling by law enforcement entails the use of racial stereotypes, or aspects of an individual's social, cultural, or religious identities associated with race, as proxies for risk in discretionary decision-making.

Conscious or explicit bias, which is also known in the research literature as the racial animus model, contends that within society, there are individuals who hold overtly racist or biased beliefs and attitudes against other racialized groups. As members of a police service are drawn from the public they serve, it is likely that, at least to some degree, individuals who hold overtly biased beliefs will be represented among members of the service. In this regard, research suggests that, over the past several decades, Canadians have become significantly more accepting of racial and ethnic diversity and inclusion, with public displays of racial animus becoming much less tolerated. Fleras, A. (2013). Racisms in multicultural Canada: paradoxes, politics, and resistance. Wilfrid Laurier University Press.

Explicit biases that consciously manifest in behaviours are, by nature, readably identifiable and easier to access and measure. However, scholarship suggests that we must also consider the role of implicit biases that operate at the subconscious level and how these influence judgments and behaviours. Spencer, K.B., Charbonneau, A.K., & Glaser, J. (2016). Implicit Bias and Policing. Social and Personality Psychology Compass. 10(1), 50-63. Broadly speaking, humans rely on categorizations and cognitive stereotypes as a sort of mental shortcut for managing and processing information. These processes become even more salient when facing highly demanding or stressful situations. By the nature of their duties, police officers are called upon to respond to address situations involving behaviours that range from benign to those that may represent a threat to officer or public safety.

Among police officers, implicit biases, which draw on stereotypes linking certain racialized groups with criminality or dangerousness, can contribute to a host of negative outcomes. For example, when police encounter or observe individuals who they believe fit a group stereotype, that individual may be subject to increased scrutiny and surveillance, more searches, poor tactics and investigations, and unjustified or excessive use of force. Fridell, L. A. (2017). Producing Bias-Free Policing A Science-Based Approach (1st ed. 2017.). Springer International Publishing. For Black civilians, these practices are often described with the phrases 'walking while Black' or 'driving while Black.' In these situations, which involve a high degree of officer discretion, often incomplete or ambiguous information about the individuals involved, and fast movements, implicit bias will play a more significant role in determining officer actions than in low-discretion or non-discretionary situations, such as completing a search following an arrest. Fridell, L. A. (2017). Producing Bias-Free Policing A Science-Based Approach (1st ed. 2017.). Springer International Publishing. Furthermore, implicit biases can shape not only the decision to initiate a pedestrian or vehicle stop but also the conduct of officers and how they use their discretion during that stop, including the types of questions an officer chooses to ask and the decision to increase the intrusiveness of the stop by initiating a search of the driver and/or vehicle. Warren, P., Tomaskovic-Devey, D., Smith, W., Zingraff, M., & Mason, M. (2006). Driving while black: Bias processes and racial disparity in police stops. Criminology, 44(3), 709-738.; Carroll, L., & Gonzalez, M. L. (2014). Out of place: Racial stereotypes and the ecology of frisks and searches following traffic stops. Journal of Research in Crime and Delinquency, 51(5), 559-584. Regarding the decision to initiate a stop, officers may do so using the justification of a relatively minor offence, such as a minor traffic violation or, for a pedestrian stop, jaywalking, with the goal of investigating more serious forms of criminality, what is often described as a 'pretextual stop.'

[102] Professor Haag suggests that pretextual stops are a form of proactive, officer-initiated activity whereby officers decide to initiate a police-citizen encounter, such as a vehicle or pedestrian stop, under the guise of investigating a relatively minor offence to investigate other, more serious forms of criminality:

A pretextual stop may result in an investigation leading to a criminal charge for an offence unrelated to the original grounds for the stop. However, in other cases, these stops may result in a charge for an offence unrelated to the original grounds for the stop and for which an officer would have no means of detecting before initiating the stop, such as driving with a suspended license or without proper insurance. These types of charges are known as 'out-of-sight' driving offences, and they are strongly associated with racially biased police practices. Wortley, S. & Tanner, J. (2003). Data, Denials, and Confusion: The Racial Profiling Debate in Toronto. Canadian Journal of Criminology and Criminal Justice, 45(3), 367-390.; Wortley, S. & Jung, M. (2020). Racial Disparity in Arrests and Charges: An analysis of arrest and charge data from the Toronto Police Service. Ontario Human Rights Commission.

The available evidence suggests that both conscious and unconscious biases held by police officers are contributing factors to racialized disparities in police practices. However, to fully understand racial profiling, it is important to also consider the role of institutional factors in shaping the nature and extent of police-citizen encounters. For example, higher-crime neighbourhoods will experience a greater police presence, including routine patrols and more aggressive order-maintenance focused efforts, such as zero-tolerance strategies, heightened traffic enforcement, crackdowns, saturation policing, and specialized units. Meng, Y. (2017). Profiling minorities: Police stop and search practices in Toronto, Canada. Human Geographies – Journal of Studies and Research in Human Geography, 11(1), 5-23.; Doob, A.N. & Gartner, R. (2017). Understanding the Impact of Police Stops.

Many residents of Black communities in Ontario report experiences with the police that are consistent with what is often described as the paradox of over and under-policing. Over policing takes place when police are seen to be engaged in excessive surveillance, unjustified stops, field interrogations, and unjustified searches and arrests. In this regard, residents often describe the focus of the police as being on seemingly minor offences, many of which bear little relation to the community safety concerns of residents. Scholars have equated over-policing with the use of aggressive, order-maintenance tactics by the police, such as carding or street-checks…

[103] According to Professor Haag, several Canadian police agencies have either adopted or signaled their intention to adopt policies and training intended to address systemic discrimination and unconscious or implicit bias, including but not limited to the Toronto Police Service, Royal Canadian Mounted Police, Peel Regional Police, Winnipeg Police Service, and Durham Regional Police.

[104] Professor Haag also noted that recent, positive policy shifts to address systemic discrimination have also occurred with the Hamilton Police Service.

[105] Professor Haag admitted that he was unable to provide a definitive opinion as to whether the circumstances of this case are representative of racial profiling on the part of the officers involved. Regardless, I would have rejected any such conclusion.

[106] It bears emphasizing that the applicant, by virtue of his race, is not immune from being stopped by police for traffic violations or other objective and rational grounds. The research and Professor Haag's views do not give rise to a blanket immunity for individuals who are stopped by police for legitimate reasons but happen to be Black. Nor does such an approach accord with the jurisprudence.

[107] Here, the applicant is a Black man of Jamaican origin with dreadlocks. As discussed, racial profiling extends beyond the colour of someone's skin to include aspects of an individual's background or identity associated with race. As the Ontario Human Right Commission, Under Suspicion: Research and consultation report on racial profiling in Ontario, (Toronto: Ontario Human Rights Commission, 2017), p. 22, reveals, As the Ontario Human Rights Commission. (2017). Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario reveals, many individuals report experiencing profiling based on aspects of their dress or appearance, such as having dreadlocks.

[108] Returning to the applicable legal principles, for any warrantless search to be reasonable it must be authorized by law, the law must be reasonable and the search must be conducted in a reasonable manner: Collins, at 278. If the police decision to search the applicant in the manner that they did, was influenced in any part by racial bias it will be an unreasonable search.

[109] In Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at 186, L'Heureux-Dubé J. noted the following in relation to the police ability to conduct a "frisk" search incident to arrest:

This power does not impose a duty…. They (police) must be in a position to assess the circumstances of each case so as to determine whether a search meets the underlying objectives… and the search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation.

[110] As discussed, there may be a spatial or ecological dimension to racial profiling, whereby perceptions of risk, dangerousness, and suspicion are conditioned by the neighbourhood or area in which the police operate. Implicit biases held by officers may be triggered by neighbourhood context or included experience, thus influencing police behaviour and shaping how they use their discretion.

[111] When the applicant rolled down his window, the officers could see into the car. Malstrom and Contos could tell the gender and race of the occupant and from that vantage point. The only reasonable inference is that they saw that the applicant was a Black man seated in the driver's seat. There was some contradictory evidence between the two officers about whether there was a discussion between them about whether to proceed with a subsequent search.

[112] In effect, a lawful exercise of the search power under s. 12(3) of the [CCA](https://www.ontario.ca