Court File and Parties

COURT FILE NO.: CR-24-6140-0000 DATE: 20241227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HIS MAJESTY IN RIGHT OF ONTARIO AND: STEVE-RAY BROWN, Accused

BEFORE: Justice M.A. Cook

COUNSEL: R. Pollock, for the Crown P. Brown, for Mr. Brown

HEARD: February 12, 13, 14, 15, 16, July 29, 30, 31, August 1, October 3, November 13, 2024.

RULING – CHARTER APPLICATION

[1] On November 13, 2024, I made an order under s. 24(2) of the Charter excluding evidence seized from the accused as a remedy for breaches of the accused’s Charter rights, with reasons to follow. These are my reasons.

Overview

[2] In the early morning hours of December 8, 2020, two OPP officers on general patrol in Leamington, Ontario, followed a motor vehicle owned and operated by the accused, Steve-Ray Brown, for several minutes before initiating a sobriety check under the Highway Traffic Act, RSO 1990, c H8 (as amended) (the “HTA”).

[3] The officers initiated the HTA stop at a time that Mr. Brown’s vehicle was parked on private property, and Mr. Brown was outside his vehicle.

[4] During the stop, police officers saw what they believed to be cannabis in Mr. Brown’s vehicle. The officers formed grounds under s. 12(3) of the Cannabis Control Act, 2017, SO 2017, c 26, Sch 1 (the “CCA”) to search the vehicle and its occupants. During the CCA search, the police found crack cocaine, powdered cocaine and oxycodone. Mr. Brown and his passenger were charged with possession of a Schedule 1 substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c.19 (as amended).

[5] Mr. Brown seeks an order excluding all of the evidence seized from him and his vehicle during the search. Mr. Brown alleges that the traffic stop, his detention, the CCA search and his arrest were all tainted by racial profiling and violated his ss. 8, 9, 10(a) and 10(b) Charter rights.

Factual Context

[6] The Charter voir dire and trial proceeded in “blended” fashion.

[7] The Crown called five officers and one expert witness to testify:

a. Police Constable (PC) Melodie Gratton (now Detective Dawes) and PC Mitchell Smithson were on patrol together in a marked OPP cruiser. After following Mr. Brown’s vehicle, PC Gratton and Smithson initiated what they described in their testimony as a “sobriety check” which ultimately led to their search of Mr. Brown and the BMW; b. PC Curtis Warren attended at the scene to assist with Mr. Brown and to conduct the search of Mr. Brown’s BMW; c. Provincial Constable (PC) Jeff Weglarz received, sampled, and processed the various substances seized from Mr. Brown and his vehicle. PC Weglarz had no direct involvement with Mr. Brown; and d. Detective Constable (DC) Atkinson was qualified as an expert witness to provide the court evidence respect to the indicia of personal use cocaine and crack cocaine, the indicia of trafficking in cocaine and crack cocaine, and levels of trafficking.

[8] Mr. Brown testified in the voir dire and trial. The defence also called PC Burt of the Leamington OPP, who arrested Mr. Brown for personation when he attended at the Leamington OPP detachment to retrieve his vehicle following his release from custody.[^1]

The Evidence

The Stop

[9] On December 8, 2020, PC Gratton and PC Smithson were on uniformed patrol together in a marked OPP cruiser in Leamington, Ontario. PC Smithson was the officer in charge (“OIC”) and was driving, while PC Gratton was riding in the passenger seat with access to the cruiser’s police computer.

[10] At 1:28am, PC Smithson was driving the cruiser southbound on Erie Street South in Leamington, approaching the intersection of Erie Street South and Oak Street. Traffic was very light. Both officers noticed a black BMW travelling southbound on Erie Street South some distance in front of them, travelling slowly. Neither officer made note of the speed but believed that the vehicle was travelling well below the posted speed limit of 50 kilometres per hour. The slow driving suggested to the officers that the driver of the BMW might be impaired.

[11] PC Gratton queried the BMW plate through the Ministry of Transportation (“MTO”) database. She received information that the BMW was properly registered to Steve-Ray Teranny Brown of Etobicoke, Ontario, and was insured. None of the information received from the MTO raised any concern.

[12] The MTO database allows users to access a photo of the licenced driver associated to a vehicle. PC Gratton testified that she could not recall whether she accessed Mr. Brown’s driver’s licence photograph when making her MTO inquiry.

[13] As the BMW approached Pulford Avenue, it turned into the Beer Store at the corner of Erie Street South and Pulford Avenue. The BMW proceeded slowly through the parking lot, and exited left onto Pulford Avenue before coming to a stop at the red light at the intersection of Pulford Avenue and Erie Street South.

[14] The fact that the BMW turned into a Beer Store parking lot suggested to the officers that the driver might be trying to obtain more alcohol, adding to the officers’ concerns about the driver’s sobriety.

[15] PC Smithson did not follow the BMW into the Beer Store parking lot. He continued south on Erie Street South, through the Pulford Avenue intersection.

[16] When the light at Pulford Avenue changed, the BMW turned left onto Erie Street South and started heading north. PC Smithson pulled a U-turn on Erie Street South so that the officers could continue their surveillance.

[17] The BMW drove approximately 1 kilometre north before reaching the intersection of Erie Street South and Oak Street. PC Smithson testified that the BMW continued to drive below the posted speed limit, and he observed that the BMW brake lights light up several times for no apparent reason. PC Smithson testified that he decided to do a sobriety check of the driver, but the cruiser was too far behind the BMW to initiate a traffic stop.

[18] When the BMW reached the Oak Street intersection, it had the green light. It went through the intersection. The officers then saw two vehicles turn right from Oak Street onto Erie Street South, immediately behind the BMW. One of the vehicles appeared to pull to the left, in an apparent attempt to pass the BMW, but it could not do so. It braked and returned behind the BMW.

[19] Approximately 20 metres north of the Oak Street intersection, the BMW turned right, into the parking lot of a 7-11. The BMW circled around the gas pumps and came to a stop in front of the 7-11 store, facing westbound toward the Erie Street South entrance.

[20] The other two vehicles travelled northbound for approximately 50 metres before turning left into the entrance of a Dominos Pizza parking lot located on the west side of the street. The officers testified that both drivers got out of their vehicles and gesticulated in a manner that the officers interpreted as being directed at the BMW.

[21] PC Smithson pulled into the 7-11 parking lot. The officers saw the Black male driver of the BMW exit the vehicle and start walking toward the 7-11 store.

[22] PC Smithson pulled the cruiser directly in front of the BMW, so the front end of the cruiser was facing the front of the BMW. PC Smithson activated his emergency lights to signal the traffic stop. Both officers saw a white female sitting in the front passenger seat of the BMW.

The Sobriety Check

[23] PC Gratton exited the police cruiser. She had to say something to get the driver’s attention, because he was walking away from her. She asked him to come over to speak with her. PC Gratton described the driver as being hesitant and confused about why she wanted to speak with him, but cooperative.

[24] PC Gratton testified that she told the driver that he had been stopped to check for his sobriety and to speak to him about the interaction between the BMW and the Dominos drivers. PC Gratton asked the driver for his driver’s licence, vehicle registration and proof of insurance.

[25] PC Gratton did not observe anything to suggest that the driver was impaired before she demanded production of the driver’s licence, proof of insurance and vehicle registration. PC Gratton did not observe any problems with how the driver was walking. She did not smell any alcohol on the driver’s breath while she was speaking to him. He did not have glassy eyes. PC Gratton testified that she asked the driver for his driver’s licence, insurance and registration “because [she] was looking for his manoeuvres of his hands for fine motor skills” as indicators of impairment.

[26] The driver indicated to PC Gratton that his documents were in the BMW. PC Gratton directed him to retrieve them. The driver returned to the BMW. PC Gratton followed. In cross-examination, PC Gratton testified that she stayed close to the driver because he was going to present his documents to her and because she was still “making observations about possible impairment”.

[27] PC Gratton testified that, when the driver opened the door to the BMW to get his documents, she saw a clear Ziplock-type bag in the door containing a dried leafy substance that she believed to be dried cannabis. PC Gratton did not smell any cannabis. PC Gratton could not recall whether the bag was in the front or the rear door of the BMW.

[28] PC Gratton testified that the presence of what she believed to be cannabis in a Ziplock bag in the door of the BMW gave her grounds to search the BMW and both occupants under the CCA.

[29] In the meantime, PC Smithson got out of the cruiser and went to the passenger side of the BMW. He testified that he wanted to know who was in the vehicle, for officer safety.

[30] PC Smithson testified that the passenger window of the BMW was rolled down. In cross examination, PC Smithson denied that he directed the passenger to roll her window down and speak with him.

[31] PC Smithson testified that he advised the female passenger that they were conducting a sobriety check of the driver. PC Smithson testified that he smelled what he believed to be dried cannabis. PC Smithson began to investigate the cannabis. PC Smithson testified that he observed a Ziplock bag in plain view between the female passenger’s feet on the floor of the BMW which contained two small clear plastic bags which PC Smithson believed to contain dried cannabis.

[32] PC Smithson testified that he told the female passenger that he would be conducting a search of the BMW and both passengers under the CCA, and directed her to step out of the vehicle.

[33] PC Smithson and PC Gratton had a brief conversation about what each of them had seen, and planned the CCA search. They decided to search the driver first, and then deal with the BMW.

Search and Arrest

[34] At 1:33 a.m., PC Smithson searched the driver, while PC Gratton stood by for officer safety. PC Smithson located and seized a baggie from the front left pocket of the driver’s vest. PC Smithson believed the baggie to contain cocaine of some type. The baggie from the driver’s vest pocket was later determined to contain 41.6 g of crack cocaine.

[35] The driver, now identified as Steve-Ray Brown, was arrested for possession of a controlled substance, placed in handcuffs and escorted to PC Smithson’s cruiser. Once at the cruiser, PC Smithson conducted a further search incident to arrest, and found two additional baggies containing what was later analyzed to be 5.4 g of powdered cocaine and 4.4 g of crack cocaine.

[36] At 1:36 a.m., PC Smithson re-arrested Mr. Brown for possession for the purpose of trafficking, and provided Mr. Brown with a caution and rights to counsel.

[37] At approximately 1:34 a.m., PC Warren arrived on scene after responding to PC Smithson’s request for assistance with a male in custody. He noticed a female standing outside the 7-11 at some distance from the BMW. PC Warren did not know how the female was involved in the investigation until PC Gratton told him that she was the passenger in the BMW.

[38] PC Gratton asked PC Warren to search the BMW. PC Warren started his search in the front passenger quadrant. He located a pink marijuana grinder and cannabis vape cartridges in sealed packaging in the pocket of the front passenger door. In the centre console of the BMW, PC Warren located a hotel key and two clear plastic baggies. The first baggie contained a white powered substance that PC Warren suspected to be powdered cocaine and the second contained three white pills suspected to be oxycodone.

[39] At 1:41 a.m., PC Smithson was free to help PC Warren search the BMW. PC Smithson searched the driver’s area of the vehicle. PC Smithson testified that he seized a small baggie containing brown and green hard chunks of an unknown substance located in the driver’s door handle.

[40] PC Warren advised PC Gratton to arrest the female passenger, now identified as Cassidy Smithers, for possession of a controlled substance because the substances he seized from the console of the BMW, being the pills and suspected cocaine, were accessible to both the driver and passenger.

[41] On PC Warren’s direction, PC Gratton arrested Ms Smithers for possession and took her to PC Warren’s cruiser. PC Warren testified that he heard PC Gratton provide Ms Smithers rights to counsel and caution, and noted that Ms Smithers asked to speak to her lawyer.

[42] PC Warren noticed that Ms Smithers had a tattoo which he believed to be a Toronto gang symbol or mark. PC Warren shared his observations with PC Gratton. Each of PC Warren and PC Gratton asked Ms Smithers whether she was being trafficked by Mr. Brown. Ms Smithers denied any suggestion of trafficking.

[43] At 1:49 a.m., PC Warren transported Ms Smithers to the Leamington OPP detachment.

[44] At 1:54 a.m., PC Smithson and PC Gratton transported Mr. Brown to the Leamington OPP detachment. PC Smithson had all of the seized items from the BMW in his possession.

[45] At 2:33 a.m., PC Smithson implemented Mr. Brown’s rights to counsel. At 2:37 a.m., after indicating he was satisfied with his counsel, Mr. Brown was lodged in cells and held for a bail hearing. At the time of his arrest, Mr. Brown had no criminal record.

[46] At 4:00 a.m., Ms Smithers was released on a Form 10 undertaking. At the time of her arrest, Ms Smithers was facing other drug possession charges and was out on bail.

Issues to be Decided

[47] The issues to be decided on this application are:

a. Whether Mr. Brown’s s. 9 Charter rights were violated; b. Whether Mr. Brown’s s. 8 Charter rights were violated; c. Whether Mr. Brown’s s. 10 Charter rights violated; d. In the event of a breach of a Charter right, whether the admission of the evidence would bring the administration of justice into disrepute, such that it should be excluded pursuant to s. 24(2).

Position of the Parties

Position of Mr. Brown

[48] Mr. Brown claims that the police violated his rights under ss. 9, 8, 10(a), 10(b) of the Charter.

[49] Mr. Brown alleges that he was he was arbitrarily detained, searched and arrested because he was a Black man from the Greater Toronto Area driving a black BMW in Leamington in the early morning hours. Mr. Brown asserts that the “sobriety check” was a pretext stop used by police to arbitrarily detain him in furtherance of a baseless criminal investigation.

[50] Mr. Brown argues that, because his initial detention was unlawful and tainted by racial profiling, the CCA search of his person and the BMW violated his s. 8 Charter right to be free from unreasonable search and seizure.

[51] Mr. Brown denies that police advised him of the true reason for his initial detention, contrary to s. 10(a) of the Charter. Mr. Brown submits that the police were required to provide rights to counsel immediately upon detention and they failed to do so.

[52] Mr. Brown asserts that the police failed to provide rights to counsel in contravention of s. 10(b) of the Charter.

[53] Mr. Brown asks for an order excluding the evidence found in the unlawful search under the R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 (“Grant”) analysis called for under s. 24(2) of the Charter.

Crown Position

[54] The Crown denies that any of the stop, detention or search were tainted by racial profiling or infringed Mr. Brown’s Charter rights.

[55] The Crown concedes that the officers had no statutory authority under the HTA to conduct a sobriety check of Mr. Brown. However, the Crown submits that the officers exercised valid common law powers of investigative detention, based on a reasonable suspicion, that Mr. Brown was an impaired driver.

[56] The Crown submits that the lawful investigative detention led to a valid and reasonable search of Mr. Brown’s person and vehicle under the CCA.

[57] The Crown concedes that, if this Court finds that racial profiling tainted the traffic stop, detention, search or arrest of Mr. Brown as alleged, the evidence seized from Mr. Brown’s person and the BMW should be excluded. In the absence of a finding of racial profiling, however, the Crown submits that the evidence should not be excluded under s. 24(2).

Analysis

[58] The outcome of this application is driven primarily by my assessment of the reliability and credibility of the evidence provided by PC Gratton and PC Smithson, and by the inferences that I draw from that evidence.

[59] In R v. Morrissey, (1995), 97 CCC (3d) 193 (CA) at p. 205, the Court of Appeal addressed the reliability of testimonial evidence, and the relationship between credibility and reliability:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

[60] There is no hard and fast rule as to when inconsistencies in the evidence of a witness will cause a trier of fact to conclude that the witnesses’ evidence is not credible or reliable. However, a witness’ testimony should not be considered in isolation, but rather in the context of the evidence as a whole: FH v. McDougall, 2008 SCC 53 at para. 58.

Was the Applicant’s s. 9 Charter right breached?

[61] Section 9 of the Charter provides that everyone has the right to not be arbitrarily detained or imprisoned. Section 9 “is a manifestation of the general principle, articulated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice. This is one of the most fundamental norms of the rule of law.”: R. v. Donnelly, 2016 ONCA 988 at para. 67.

[62] The detention of a person is arbitrary and unlawful unless it is authorized by law: R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, (“Mann”) at para. 24.

[63] Mr. Brown argues that the “sobriety check” was an unlawful pretext, and that the police lacked reasonable and probable grounds to detain him and ask him questions.

[64] Each of PC Gratton and PC Smithson testified that they were conducting a traffic stop under the HTA for the purpose of checking the Applicant’s sobriety. They did not specify which section of the HTA they were relying on, however, ss. 48(1) and 216(1) each authorize a police officer to stop a driver of a motor vehicle for the purpose of checking sobriety. Sections 48(1) and 216(1) provide:

Determining whether to make a demand

48 (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code (Canada). 2007, c. 13, s. 10; 2019, c. 8, Sched. 1, s. 1.

Power of police officer to stop vehicles

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop. 2016, c. 5, Sched. 12, s. 9.

[65] The Crown concedes that the officers had no authority under the HTA to stop Mr. Brown’s BMW. I agree. Neither s. 48(1) nor 216(1) of the HTA authorizes police to follow a vehicle onto a private driveway to conduct a random sobriety check: R. v. McColman, 2023 SCC 8 at para. 51. The BMW was parked in the 7-11 parking lot by the time PC Smithson and PC Gratton initiated the stop. Mr. Brown was not a “driver” for the purposes of the HTA when PC Smithson initiated the stop.

[66] The Crown submits that, despite lacking any statutory authority to detain Mr. Brown, the police lawfully exercised their common law powers to detain Mr. Brown to investigate whether he was driving while impaired.

[67] I cannot accept the Crown’s submission.

[68] An inquiry into the actions of police properly focusses on the actual choice made by them and not on an alternate choice that was theoretically available: R. v. Charley, (1992) 22 CR (4th) 297 (Ont. C.A.), R. v Whitaker, 2008 BCCA 174, 170 CRR (2d) 309, leave to appeal to SCC refused; R. v Sabiston, 2023 SKCA 105 at para. 4. The officers were consistent in their evidence that they were exercising statutory powers under the HTA to conduct a sobriety check. Neither testified to detaining Mr. Brown to investigate the crime of impaired driving.

[69] In any event, I find the officers lacked the reasonable suspicion necessary to lawfully exercise common law powers of investigative detention.

[70] Police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the individual is connected to a particular crime and that such a detention is necessary: Mann, at para. 34; and R. v. Chehil, 2013 SCC 49, [2013] SCR 220 (“Chehil”) at paras. 25-35.

[71] A “reasonable suspicion” must be based on objectively discernable facts that withstand exacting judicial scrutiny: Chehil, at para. 26.

[72] Police experience and intuition cannot substitute for an objective basis for reasonable suspicion: Chehil, para. 47.

[73] After careful consideration of all of the evidence in this case, I find that the police officers did not have the reasonable suspicion necessary to justify investigative detention at common law because:

a. PC Smithson, as the OIC, decided to stop the BMW before the BMW crossed Oak Street. At the time, the officers had seen the BMW travelling slowly, pull through the Beer Store parking lot, and activate the brakes several times for no apparent reason; b. Neither officer noted the speed of the BMW despite the vehicle’s rate of speed being the ostensible reason that the BMW came to the attention of the officers; c. None of the driving observed by the officers constituted a serious violation under the HTA; d. The driving observed by the officers was consistent with a driver being lost or overly cautious; e. Both officers had an opportunity to observe Mr. Brown exiting the BMW and walking across the parking lot of the 7-11 before detaining him, and neither observed anything to suggest that Mr. Brown was impaired; f. Neither officer testified that they had grounds to detain the driver for investigative detention. To the contrary, PC Gratton testified that she was still formulating grounds when she demanded Mr. Brown’s driver’s licence, registration and insurance.

[74] The interaction between the driver and the Dominos drivers does not assist the Crown in establishing grounds for investigative detention. PC Smithson testified that the incident with the Dominos drivers did not inform his decision to stop the BMW. In any event, I find the officers’ evidence about the Dominos drivers unreliable because the OPP cruiser was 50-60 metres south of the intersection, and the officers had already singled out the BMW for attention. It is human nature to interpret information in a way that confirms one’s existing beliefs. In this case, I find that the officers’ interpretation of the incident was informed by their existing concerns about the BMW.

[75] The BMW went through the Oak Street intersection on a green light and had the right of way. The two Dominos drivers were permitted to turn right onto Erie Street South only after stopping their vehicle at the red light, yielding to the BMW, and entering the northbound lane safely: HTA, s. 144(19). Bearing in mind that the BMW never lost the right of way and was travelling slowly at all times, I cannot accept that two Domino’s drivers turned safely onto Erie Street South, or that the BMW impeded traffic, in the time it took the BMW to travel the 20 metres between the intersection and the entrance to the 7-11 parking lot.

[76] In all the circumstances, I find the objective link between the officers’ observations of the BMW and criminality was too weak to support a reasonable suspicion justifying investigative detention.

[77] In the absence of any lawful authority to stop the BMW and detain Mr. Brown, the detention was unlawful and arbitrary. Mr. Brown has established that his detention violated his s. 9 Charter rights.

Was Mr. Brown’s detention tainted by racial profiling?

[78] While Mr. Brown has already established that his detention was unlawful and arbitrary, I will go on to consider whether the detention was tainted by racial profiling as alleged.

[79] 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 (“Le”), at para. 76. Thus, a detention that is informed by consideration of race or skin colour is improper racial profiling which taints the entirety of the interaction between the police and the target individual: Brown v. Regional Municipality of Durham Police Service Board, (1998) 43 OR (3d) 223 (“Brown (1998)”), at paras. 38, 39; R. v. Sitladeen, 2021 ONCA 303 (“Sitladeen”), at paras. 52-53; Peart v. Peel (Regional Municipality) Police Services Board (“Peart”) at para. 92, leave to appeal refused, .

[80] Justice Goodman eloquently summarized the law of racial profiling recently in R. v. Bailey, 2024 ONSC 2136, at paras. 4-8:

[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. 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”.

[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.

[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.

[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. The focus is on how the specific officer actually reasoned on this particular occasion. (citations omitted)

[81] The task of the Court in evaluating an allegation of racial profiling is to consider all of the circumstances leading to the detention and/or arrest of the accused person, and “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”: Sitladeen, at para. 54; R. v. Brown (2003), 64 O.R. (3d) 161 (Ont. C.A.) (“Brown (2003)”) at para. 45. Where the circumstances of the interactions between police and suspect correspond to the phenomenon of racial profiling, the record is then capable of supporting a finding of racial profiling.

[82] After carefully considering the evidence, I find that Mr. Brown has not established that his race factored into the officers’ decision to stop the BMW, but has established that racial profiling tainted the manner in which he was detained, searched and ultimately arrested.

Police Stop

[83] Some of the circumstances of the initial traffic stop correspond to the phenomenon of racial profiling.

[84] Driving an expensive car is a recognized risk for racial profiling: R. v. Smith, 2015 ONSC 3548, 338 C.R.R. (2d) 1, at paras. 182-183; R. v. Khan (2004), 189 C.C.C. (3d) 49 (Ont. S.C.), at para. 68. Given the relatively minor traffic concerns described by the officers, their level of interest in the BMW was surprising. Travelling slowly is not a traffic offence unless it impedes traffic. Neither officer noted the actual speed the BMW was travelling. Traffic was light. The BMW was not impeding traffic at any time prior to when PC Smithson decided to stop the BMW.

[85] PC Smithson had ample opportunity to conduct a lawful HTA traffic stop to check sobriety but, for reasons unexplained, they did not do so. The officers testified that they were so concerned about driver sobriety that they pulled a U-turn to maintain their surveillance of the BMW, but then they continued to follow the BMW rather than checking sobriety at their earliest convenience.

[86] Despite these troubling facts, I am not satisfied that the traffic stop was motivated by racial stereotypes or profiling.

[87] I accept the careful evidence of PC Gratton and PC Smithson that they did not know that the driver of the BMW was Black before seeing Mr. Brown get out of the BMW at the 7-11. Mr. Brown’s evidence does not contradict that of the officers. Mr. Brown testified that he noticed a police cruiser while he was stopped at the intersection of Fulton Avenue and Erie Street South. Mr. Brown did not testify where the cruiser was in relation to his BMW or that the officers, or either of them, saw him or made eye contact. I accept PC Smithson’s evidence that the BMW was leaving the Beer Store parking lot as the cruiser drove south through the intersection.

[88] In all of the circumstances, including the fact that it was dark outside and the windows of the BMW were tinted, I am not persuaded that either officer knew that the driver of the BMW was Black until Mr. Brown got out of the BMW at the 7-11.

Detention

[89] The circumstances surrounding the traffic stop and Mr. Brown’s detention had potential to trigger anti-Black racial stereotypes. Mr. Brown was a young, Black male from the Greater Toronto Area, driving a black BMW in the early morning hours in Leamington Ontario. Mr. Brown had no known ties to the area.

[90] With this context in mind, I find what was intended to be a statutory sobriety check shifted almost immediately into a broad and groundless criminal investigation which I find was informed by anti-Black bias.

[91] PC Gratton knew within moments of speaking to Mr. Brown that she had no reason to believe that he was impaired. She had not observed any issues with Mr. Brown’s motor coordination. He did not smell of alcohol when she spoke with him. He did not have glassy eyes. His speech was not slurred. In short, PC Gratton had no reasonable basis to continue Mr. Brown’s detention. The absence of objective grounds for detention can support an inference that the continued detention of Mr. Brown was racially-motivated: R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97, at para. 20, affirmed, 2016 SCC 14, [2016] 1 S.C.R. 180.

[92] I reject PC Gratton’s testimony that she asked Mr. Brown to produce his driver’s licence, registration and insurance for the purpose of assessing Mr. Brown’s sobriety. I find PC Gratton’s testimony on this point to lack credibility. If PC Gratton had any residual concern that Mr. Brown was impaired, which I do not accept, one would expect to her to ask Mr. Brown whether he had been drinking. She did not. I infer from the circumstances that PC Gratton’s demand of Mr. Brown’s driver’s licence, registration and insurance was made in furtherance of a broader and unfounded criminal investigation of Mr. Brown.

[93] PC Smithson’s testimony that he went to the passenger side of the BMW out of concerns for officer safety lacked any valid underpinning in circumstances, and supports an inference of stereotypical reasoning about Mr. Brown’s dangerousness: R. v. Wong, [1990] 3 S.C.R. 36, at para. 19. As PC Smithson acknowledged, PC Gratton was fully capable of conducting the sobriety check without his assistance. The sobriety check was taking place some distance from the BMW and Mr. Smith was being cooperative. PC Smithson could see Ms Smithers from inside the police cruiser and knew her to be the only occupant of the vehicle. There was no reasonable basis for PC Smithson to approach the BMW.

[94] I find that PC Smithson and PC Gratton exercised their powers under the CCA in a manner that supports an inference of stereotypical reasoning. As noted above, Mr. Brown was a cooperative and compliant suspect. There were no objective grounds to be concerned about dangerousness or officer safety. Upon observing a bag of suspected cannabis, PC Gratton did not ask Mr. Brown any questions or evaluate whether a search was necessary. Instead, she told Mr. Brown that he and his vehicle were going to be searched. The officers then planned for PC Smithson to conduct the search with PC Gratton standing by for safety. Neither officer appears to have evaluated the need to search Mr. Brown and I find that the decision to search and the manner the CCA search was conducted was in response to perceived safety risks animated by racial stereotypes. The fact that Mr. Brown was never charged with any offence under the CCA suggests that the CCA search was not directed at regulatory enforcement but to advance a criminal investigation.

[95] Finally, the fact that PC Smithson and PC Gratton treated Mr. Brown differently than Ms Smithers throughout the interaction supports an inference racial profiling. In particular:

a. PC Smithson and PC Gratton prioritized searching Mr. Brown over Ms Smithers; b. Despite the officers’ stated concerns about officer safety, neither PC Smithson nor PC Gratton knew where Ms Smithers was for most of the time they were at the 7-11 parking lot; c. PC Warren testified that PC Smithson requested assistance with a male in custody, with no mention having been made by the female passenger; d. When PC Warren arrived on scene, there was nothing to suggest that Ms Smithers was detained by police; e. Ms Smithers was arrested only after PC Warren instructed PC Gratton to do so.

[96] Having carefully considered all of the circumstances, I find that racial stereotypes about Black criminality and dangerousness informed how the officers treated Mr. Brown at each step of their interaction with him, from the time PC Gratton first spoke with him until his arrest.

[97] Because the search of Mr. Brown and the BMW came about only because of the unlawful and arbitrary detention, the evidence seized from Mr. Brown and the BMW must be excised from the reasonable grounds to arrest: R. v. Zacharias, 2023 SCC 30, (2023), 431 C.C.C. (3d) 421 (Ont. C.A.), at para 44. As there would be no reasonable grounds left to arrest Mr. Brown for any offence, the arrests for possession and possession for the purpose of trafficking were also unlawful.

Were the Applicant’s s. 10 Charter Rights breached?

[98] Everyone has the right on arrest or detention

a. to be informed promptly of the reasons therefor; and b. to retain and instruct counsel without delay and to be informed of that right.

Section 10(a)

[99] The purpose of s. 10(a) of the Charter is to promptly inform a person who is detained of the reasons for the detention so that the detainee understands the extent of their jeopardy and can exercise the right to counsel under s. 10(b) of the Charter in a meaningful way.

[100] There is no question that Mr. Brown was detained as soon as PC Smithson pulled the cruiser in front of the BMW and activated the emergency lights.

[101] Mr. Brown denies being provided any meaningful information about the nature of the detention. Mr. Brown testified that a police officer who approached him near the front of the 7-11 store stated that police had received a call about a “road traffic violation”. Mr. Brown denied being told by the police that he was being stopped to check his sobriety.

[102] PC Gratton testified that she could not recall what she said to Mr. Brown when she approached him, but that she said words to the effect that he was being stopped “to check for his sobriety” and to discuss the interaction with the Dominos drivers.

[103] There is no dispute that PC Gratton provided some explanation to Mr. Brown about why he was being detained. The question is the content of that information. On this point, I prefer the evidence of PC Gratton. PC Gratton was candid in her testimony that she could not recall exactly the words spoken to Mr. Brown but was confident that she advised him that he was being stopped to check his sobriety and to discuss his interactions with the Dominos drivers. I find Mr. Brown’s testimony on this point to be less reliable. He could not recall whether the individual he was speaking to was a male or female, and the balance of his testimony quite vague about the interaction. As between the two accounts, I accept PC Gratton’s evidence that she advised Mr. Brown that he had been stopped for a sobriety check and to discuss the Dominos drivers.

[104] That said, I am not satisfied that the information provided by PC Gratton to Mr. Brown was sufficient to enable Mr. Brown to have known that he was being investigated for a criminal matter. Given that PC Gratton believed that she was conducting a highway traffic stop, I am not satisfied that she provided enough information to Mr. Brown that he was being detained for a criminal investigation. Moreover, PC Gratton told Mr. Brown that she wanted to discuss his interaction with the Dominos drivers, which may have confused Mr. Brown about the true reason for his detention and could explain Mr. Brown’s testimony that he was told that he had been pulled over about a traffic violation. In all the circumstances, I find that Mr. Brown was not provided with the information necessary to effectively exercise his rights to counsel, and his right under s. 10(a) was infringed.

Section 10(b)

[105] Section 10(b) ensures that a person subject to detention can consult with legal counsel about the nature of the jeopardy they are facing. Section 10(b) is directed primarily at assisting detainees with regaining their liberty and protecting them against the risk of involuntary self-incrimination: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, (“Suberu”) at para. 40; R. v. Keshavarz, 2022 ONCA 312 at para. 114.

[106] There are two components to the right to counsel: informational and implementational. The police must inform the detainee of the right to speak to counsel “without delay” – interpreted as “immediately” – and provide the detainee with a reasonable opportunity to exercise that right without delay: Suberu, at paras. 38-42. This obligation requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so: Suberu, para. 42.

[107] Mr. Brown was not advised of his rights to counsel at any time prior to his arrest, and his rights to counsel were not implemented for an hour after he arrived at the Leamington police detachment.

[108] Mr. Brown ought to have been advised of his section 10(b) rights and provided a caution prior to PC Gratton demanding that he produce his driver’s licence, registration and insurance from the BMW. There were no exigent circumstances or safety concerns that reasonably prevented PC Gratton from providing Mr. Brown his rights in a timely manner. PC Gratton candidly acknowledged that she did not provide Mr. Brown his section 10(b) rights because she and PC Smithson were conducting a highway traffic stop under the HTA and she believed Mr. Brown’s rights were not engaged.

[109] Given that Mr. Brown was not provided with his rights to counsel at any time before his arrest, I conclude that his rights under s. 10(b) of the Charter were breached.

Remedy

[110] Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[111] Section 24(2) requires an objective inquiry aimed at maintaining the integrity and public confidence in the justice system. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[112] The onus is on the applicant, Mr. Brown, to establish on a balance of probabilities that the admission of the evidence seized would bring the administration of justice into disrepute.

[113] In Grant, at para. 71, the Supreme Court of Canada outlined the following three lines of inquiry to consider when determining whether the admission of the evidence brings the administration of justice into disrepute:

a. the seriousness of the Charter-infringing state conduct; b. the impact of the breach on the Charter-protected interests of the accused; and c. society’s interest in the adjudication of the case on its merits.

[114] The Supreme Court clarified the Grant test in Le, noting at para. 141 that the first two lines of inquiry “work in tandem in the sense that both pull towards exclusion of the evidence”. It is the sum, and not the average of the first two lines of inquiry that are considered in the balancing exercise. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility.

The Seriousness of the Charter-Infringing State Conduct

[115] The question under this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute. This factor requires that I consider whether there has been misconduct from which the court should dissociate itself, situating the conduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, at paras. 57-59.

[116] Cumulatively, the Charter-infringing police conduct in this case sits at the higher end of the spectrum of culpability and seriousness given the central role that racial profiling played in how the police treated Mr. Brown. The Crown concedes, rightly in my view, that any finding of racial profiling warrants exclusion of the evidence without further inquiry.

[117] The first line of inquiry strongly favours exclusion. Admitting evidence obtained from an arbitrary detention tainted by racial profiling would undermine the legitimacy of the administration of justice, and erode public confidence in the police and the justice system.

Impact of the Breaches on Mr. Brown’s Interests

[118] Mr. Brown’s interests were severely impacted by the breaches in this case.

[119] Moments before Mr. Brown’s detention, he was driving his BMW on a highway and could expect to be subject to a random traffic stop at any time. It is tempting to minimize the seriousness of the impact of Mr. Brown’s unlawful detention given that the officers intended to pull him over before he reached the 7-11 parking lot.

[120] That initial detention, however, gave rise to a cascading investigation tainted by racial profiling. Racial profiling undermined Mr. Brown’s fundamental individual right to be treated equally under the law without discrimination based on his race. Mr. Brown was subjected to discriminatory and invasive police conduct, resulting in an unlawful detention, a baseless demand for his driver’s licence, vehicle registration and proof of insurance, and the invasive CCA search that followed.

[121] I am not persuaded that drugs would have been discovered without the role race played in this interaction.

[122] The second line of inquiry strongly favours exclusion.

Society’s Interest in an Adjudication of the Case on Its Merits

[123] The evidence seized from Mr. Brown was real and reliable evidence essential to the Crown’s prosecution. Exclusion of the evidence will bring the prosecution to an end, and defeat the community’s interest in having the matter decided on its merits.

[124] The third line of inquiry favours inclusion.

Balancing

[125] This is not a close case. The case law is consistent and clear. A finding of racial profiling will result in the exclusion of evidence: Bailey, para. 153. Anti-Black bias, whether implicit or otherwise, must be denounced as anathema to the rule of law and the integrity of our justice system.

[126] The Application is granted. All evidence obtained on the search of Mr. Brown and his BMW is excluded.

Justice M.A. Cook Date: December 27, 2024

[^1]: Evidence of Mr. Brown’s arrest for personation is not relevant to the question of whether Mr. Brown’s Charter rights were violated by the police at the time of the vehicle stop, detention and arrest on the charge of possession for the purpose of trafficking. I placed no weight on Officer Burt’s evidence in arriving at my decision in this Charter application.