Ontario Superior Court of Justice

Court File No.: 23-11400405
Date: 2025/04/09

BETWEEN:
His Majesty the King
– and –
Prosper Chenjelani, Appellant

Appearances:

• Graham Mayeda for the Crown
• Appellant, Self-Represented

Heard: October 9, 2024

Reasons for Decision on Summary Conviction Appeal
Anne London-Weinstein

Introduction

[1] The Appellant, Mr. Chenjelani, was convicted of driving with a blood alcohol concentration over 80 mg in 100 ml of blood contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 on April 25, 2024. The Appellant appeals that conviction on the following grounds:

i) The trial judge made a palpable and overriding error in rejecting the evidence that the officer was lying about the reason for the stop. The Appellant argues that the only reasonable inference available based on the evidence at trial was that the officer stopped the Appellant as a result of racial profiling;

ii) The trial judge erred in law by refusing to find racial profiling existed on the basis of the officer’s knowledge that the owner of the GMC Sierra pickup truck was black due to the Ministry of Transportation of Ontario (MTO) check the officer conducted; and

iii) The trial judge provided insufficient reasons to explain the court’s acceptance of the officer’s evidence that she did not see into the Appellant’s vehicle and observe that he was a black man.

Factual Background

[2] In his reasons, the trial judge provided a detailed review of the evidence and arguments of both parties. He rejected the Appellant’s claim that Cst. Laroche was motivated by overt, subconscious and institutional racial bias in detaining the Appellant. The trial judge found as follows with regard to the material facts:

• Cst. Laroche was on general patrol in the early hours of New Year’s Day in the Vanier neighborhood of Ottawa.
• The officer drove a fully-marked police cruiser facing north on Lafontaine Avenue where it intersects with Montreal Road.
• At 2:00 a.m., she observed a black GMC pickup truck pass through the intersection as it travelled westbound on Montreal Road. The officer did not see the driver of the vehicle at that point.
• The officer turned left onto Montreal Road and travelled behind the GMC pickup truck. The officer followed the truck for an unspecified period of time before it stopped at a red light.
• As the light turned green, the officer observed that the truck sped off the start line quite quickly which caught her attention.
• She followed the truck and by keeping apace with it, estimated its speed to reach approximately 85 km/h.
• She also noted the truck straddling lanes on Montreal Road. As she followed the truck, she noted its licence plate and ran the plate number through the MTO database. This returned information that the vehicle was registered to the Appellant. The MTO information included an image of the Appellant, revealing that he is a black man.
• The officer held the view that she had reasonable and probable grounds to believe that the driver of the truck was impaired. She conducted a traffic stop of the vehicle at 2:03 a.m. After she stopped the vehicle, she confirmed that the driver was a black man.
• She queried whether he had consumed alcohol and he informed her he had one beer. As he stepped out of his truck, the officer observed two open beer bottles in the driver’s area of the vehicle.
• One of the bottles was in the cup holder in the centre console and the other was in the driver’s side door. The Appellant appeared to the officer to be unsteady on his feet and unable to keep a normal distance from people, such that she had to put her hand up to keep her personal space. The Appellant raised his voice to the officer, arguing that he did not have to comply with her demands.
• Cst. Laroche made a demand for a breath sample from the Approved Screening Device at 2:10 a.m. and she administered the test at 2:13 a.m. The Appellant blew a “fail” reading and the officer placed the Appellant under arrest for impaired driving at 2:14 a.m.
• The Appellant was searched subsequent to his arrest and seated in the back of the police cruiser. At 2:17 a.m., the officer read the Appellant his right to counsel and provided both primary and secondary cautions as well as the s. 524 warnings. The Appellant indicated he wished to speak to counsel.
• The handcuffs were hurting him and he complained about the pain. At 2:18 a.m., Cst. Laroche read the Appellant the demand for a breath sample for the breathalyzer.
• The Appellant was transported to the Ottawa Police Service police station on Elgin Street arriving at 2:32 a.m.
• The Appellant was upset about the pain caused by the handcuffs and he raised his voice as he was being processed by the Cell Block Sergeant.
• Between 2:52 a.m. and 3:10 a.m., the officer gave the Appellant three opportunities to contact counsel. He chose two names from the list.
• He left a message for the first lawyer and received a busy signal with the second call to a different lawyer. He then indicated that he did not want to speak to an incompetent lawyer as he has a law degree.
• The officer placed the Appellant in a dry cell. He requested to go to the washroom but was not permitted to do so. He urinated in his cell.
• At 3:10 a.m., the Appellant was in the custody of the breath technician, who also offered the Appellant another opportunity to contact counsel. At 3:47 a.m., the Appellant was returned to the custody of Cst. Laroche.
• He was notified that his second reading had registered a blood alcohol concentration of 122-123 mg in 100 ml of blood. He was advised he would be charged with over 80 under s. 320.14(1)(b).
• The Appellant maintains that the stoplight from which the officer observed the Appellant drive away at a high rate of speed was at the corner of Lafontaine Avenue and Montreal Road where the officer first observed the Appellant’s vehicle.
• However, the trial judge found that the incident of pulling away from a stoplight that constituted an element of reasonable and probable grounds occurred later. The officer observed the GMC truck for the first time while at the intersection of Lafontaine Avenue and Montreal Road, but she did not observe it stop and drive away from that intersection at a high rate of speed.
• Her evidence was that the truck stopped at a red light sometime later while she was following it along Montreal Road, and it was at this point that the truck pulled away at a high rate of speed once the light turned green.
• The Appellant also argues that the officer observed him driving approximately 85 km/h throughout the entire period she was following him. The Appellant argued at trial that it was mathematically impossible for him to have been travelling at this rate of speed.
• However, the trial judge found that the officer observed the vehicle travelling at approximately 85 km/h at some point in the period between the red light on Montreal Road, which the Appellant left at great speed and the traffic stop near the intersection of North River Road and Montreal Road.
• The trial judge also accepted the officer’s evidence that she did not initially observe the driver of the motor vehicle as it passed her.
• She identified the Appellant by name and subsequently viewed a picture of him from his driver’s licence once she ran record checks from her police cruiser while following him and once he stopped his vehicle.
• To be clear, the trial judge found that the officer had already started following the Appellant’s vehicle before identifying the Appellant as being a black male.
• The trial judge also accepted that the officer tracked the Appellant’s speed for a period of time at approximately 85 km/h. The trial judge emphasized the word “approximately”.
• The trial judge expressly rejected the Appellant’s contention that the speed was inconsistent with the distance travelled based on his mathematical calculations. Those calculations included reliance on a Google map that demonstrated the distance travelled and knowledge of the length of traffic light cycles.
• The trial judge said he was not convinced that the Appellant was not going approximately 85 km/h at some point, as opposed to travelling 85 km/h the entire time the officer was following the Appellant.
• The trial judge also considered it relevant to the formation of the officer’s reasonable and probable grounds that it was shortly after midnight on New Year’s Eve morning at 2:00 a.m.
• The trial judge took judicial notice of the fact that a matter of “unfortunate common sense” that there are a lot of parties that go on around midnight on New Year’s Eve and drinking does occur in and around that timeframe which may explain why police would be out patrolling generally and monitoring traffic.
• The trial judge noted that it is also dark outside at 2:00 a.m., which the trial judge found could make it difficult to see inside a motor vehicle as it drives past and identify a person’s skin color, despite commercial lighting on a street.
• The trial judge noted the rear windows of the Appellant’s truck were tinted, which potentially can be an obstacle to seeing who’s driving the vehicle, what their skin colour may be, in addition to the darkness and the fact that it was a moving vehicle going by the officer which the officer described as a high rate of speed.
• The trial judge did not afford any weight to the issue of the officer’s claim that she observed the Appellant straddling lanes in his vehicle. The Appellant testified that his vehicle is equipped with technology which prevented this type of lane straddling. There was also evidence that the road was snow covered.
• The trial judge found that the Appellant failed to meet his burden of demonstrating on a balance of probabilities that his ss. 8 and 9 Charter rights were breached by reason of racial profiling by police in this case.
• The trial judge noted the Appellant’s affidavit on his Charter application was unsworn but was accepted by the trial judge in light of the fact that the Appellant was representing himself.

Legal Issues

[3] Did the trial judge make a palpable and overriding error in finding that the officer had articulable cause to detain him in this case? The Appellant argues that the officer stopped him because she was influenced by racial stereotypes; that is, she saw a black man driving an expensive car in a “relatively sketchy” neighbourhood of the city and decided to stop him because he is black, and not for a reason related to a traffic offence. Was there a breach of ss. 8 and 9 of the Charter by his detention and the taking of the roadside breath sample?

Analysis

[4] The Appellant argues that the trial judge ignored the officer’s testimony that she observed the black GMC pickup truck travelling at 85 km/h for the entire three minutes between the time the officer first observed the truck and when she stopped it. At trial, the Appellant argued that it would be a mathematical impossibility for him to have been travelling at that rate of speed for the entire period of the officer’s observation. The Appellant argued that the trial judge failed to draw the inference that the officer was lying about the reason for the stop because a reasonable officer would have immediately pulled over a vehicle driving 85 km/h in those road conditions and in a 50 km/h zone rather than following it for three minutes.

[5] A trial judge has the authority to hear evidence from which factual conclusions are drawn. The trier of fact may accept all, some, or none of what a witness says: R. v. D.A.I., 2012 SCC 5, para 72, per McLachlin C.J. In other words, a trier of fact may accept parts of a witness’s evidence and reject other parts. Similarly, the trial judge may also assign different weights to individual pieces of evidence: R. v. Howe, para 44, per Doherty J.A. The trier of fact can accord different weights to different parts of the evidence it has accepted.

[6] In this case, the officer’s testimony regarding the speed of driving was as follows:

The officer’s evidence in examination in chief was that it was early in the morning on New Year’s Day, about 2 a.m. when she first observed the Appellant. She was at the intersection of Lafontaine and Montreal Road. The Appellant was travelling at a relatively high rate of speed as he drove through a green light. The speed limit on Montreal Road is 50 kilometers per hour, she said. As her light turned green, she proceeded to the next intersection where the Appellant was at a red light. When the light turned green, the Appellant sped away very quickly, which also caught her attention, along with the fact it was New Year’s she said.

She drove westbound on Montreal Road following the vehicle and was able to “pace it with her speedometer and it hit approximately 85 kilometers per hour.” She noted the vehicle also started straddling the middle lane of Montreal Road, and did not correct to enter one lane. The truck continued down Montreal Road through the Vanier parkway “straddling in the line.” She then conducted a traffic stop.

[7] In cross-examination, the officer was unable to say exactly what time she began observing the Appellant’s driving. She reiterated in cross-examination that it was approximately 2:00 a.m. She did not recall seeing another vehicle. She started following the Appellant after the light turned green and his truck’s wheels sped rapidly off the start line.

[8] The officer said the Appellant’s truck was travelling at approximately 85 km/h. She agreed that it remained at that rate of speed. She did not believe there were any other stops prior to her pulling the truck over. When asked, she reiterated that the speed of the truck remained at approximately 85 km/h. She could not recall observing any other vehicles or whether it was snowing.

[9] In this case, the trial judge was entitled to conclude that the Appellant was not speeding during the entire time that the officer was observing and following him (i.e., three minutes). The trial judge was entitled to accept the officer’s evidence that the Appellant travelled at 85 km/h at some point between pulling away quickly from the red light and the stop near North River Road.

[10] In fact, the trial judge did not accept that the officer testified that the Appellant was travelling 85 km/h for the entire period she followed and observed the Appellant, and was entitled to find, as he did, that the speed was approximate.

[11] The Appellant also argued that the trial judge ignored the Appellant’s evidence that there was another vehicle in front of him on Montreal Road, which supported the inference that the Appellant could not have been speeding. The trial judge was entitled to find that the fact the officer did not recall seeing another vehicle in front of the Appellant was not determinative of whether he was speeding or not. Again, the trial judge did not accept that he was travelling at a constant speed of 85 km/h.

[12] The Appellant argued that the trial judge erred in accepting the officer’s evidence that she did not look into the Appellant’s vehicle when she first saw it. However, the trial judge was entitled to accept the officer’s evidence on this issue. He had no concerns with regard to the reliability or credibility of her evidence.

Standard of Review for Findings of Fact

[13] This is largely a fact-based appeal. Fact-based appeals are hard to win because they often “run aground on the shoals of appellate deference to findings of fact made at trial”: Peart v. Peel Regional Police Services, para 156, per Watt J.A.

[14] The trial judge in this case gave detailed reasons for his findings. Credibility findings are particularly resistant to reversal on appeal. Detailed reasons that display a clear grasp of the evidence and arguments and provide a complete explanation for the findings of fact require the Appellant to demonstrate clear and significant errors in the fact-finding process articulated in those reasons in order that a reversal be warranted: Peart, at para. 157.

[15] In H.L. v. Canada (Attorney General), 2005 SCC 25, para 56, Fish J. for the majority described the standard of review applicable of facts as follows:

…it seems to me that unreasonable findings of fact—relating to credibility, to primary or inferred “evidential” facts, or to facts, in issue—are reviewable on appeal because they are “palpably” or “clearly wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence.

[16] The standard of review of a “palpable and overriding error” is a deferential standard. In order to succeed, the Appellant must be able to demonstrate that it is clearly apparent that the trial judge has misunderstood the evidence: see Canada v. South Yukon Forest Corp., 2012 FCA 165, paras 46-53. The factual findings under review must also be considered within the context of the entire record.

[17] The existence of conflicting evidence is not sufficient to warrant intervention by an appeal court, as it is the trial judge’s task to sort out conflicting evidence and make findings of fact: see Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, para 60.

[18] The trial judge was also entitled to accept the officer’s evidence that she did not see another vehicle other than the Appellant.

[19] In addition, it was not put to the officer that it would be unreasonable of her to follow the Appellant at 85 km/h rather than immediately pulling him over given the road conditions. The trial judge therefore did not have the officer’s response to that question. Further, the officer was not asked about the road conditions. When asked about this, the officer indicated that she could not recall if it was snowing that day. This was the extent of her evidence as to the road conditions. The Appellant indicated that there was snow partially obscuring the lanes on the road. The Appellant could not recall whether it was snowing. Therefore, in my view, it was not an error for the trial judge to fail to draw an inference which is not supported by the evidence. That is, that it would be unreasonable to allow the Appellant to continue driving at 85 km/h due to the road conditions.

[20] Finally, it was open to the trial judge to accept the officer’s evidence that she did not look into the Appellant’s vehicle when she first observed the Appellant driving by her. The officer testified that she pulled the Appellant over based on a culmination of factors: his high rate of speed; his starting off the line quite quickly; his straddling the middle of the road; and even when she pulled him over, he went up over the curb; and that “it was New Year’s Eve.” She agreed that she most likely ran his licence plate on the MTO prior to pulling him over but could not recall exactly when she ran the licence plate.

[21] I find no palpable and overriding error by the trial judge in his conclusions on the evidence in this case.

Sufficiency of Reasons

[22] The Appellant argues that the trial judge provided insufficient reasons with regard to why the trial judge accepted the officer’s evidence that she did not initially observe who was driving the motor vehicle as it passed her.

[23] The trial judge found that he accepted the officer’s evidence that she did not initially observe who was driving the motor vehicle as it passed her. He found that she identified the Appellant by name and subsequently viewed a picture of him from his driver’s licence once she ran record checks from her police cruiser while following him and once he stopped his motor vehicle. The trial judge found that she had already commenced following that vehicle before identifying the Appellant.

[24] At page 63 of his reasons for judgment, the trial judge noted that it was dark outside at 2:00 a.m. when the officer observed the Appellant’s truck drive past her. While there was evidence from the Appellant that there was commercial lighting in the area and it was not that dark because there was some light, the trial judge noted that it could still be difficult to see inside a motor vehicle as it drives past and to identify a person’s skin colour. The trial judge also noted that there was evidence from the Appellant that while the front windows of the vehicle were not tinted, the rear windows were. The trial judge reasoned that the tint in the windows could potentially be an obstacle to see who is driving the vehicle, what their skin colour may be, in addition to the darkness and the fact that it was a moving vehicle going by the officer at which the officer described as a high rate of speed.

[25] In my view the trial judge’s reasons, read in context, explain why the trial judge reached the conclusion that he did with respect to why he accepted the officer’s evidence that she did not see the skin colour of the Appellant prior to checking his driver’s licence. The reasons, read in their entire context, explain the basis of the verdict, provide public accountability and permit meaningful appeal: see R. v. R.E.M., 2008 SCC 51, paras 11, 17. The “what”—the verdict—and the “why”—the basis for the verdict—are discernable when looked at within the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

Racial Profiling Factors as Set Out in Brown

[26] The Appellant also argues that the trial judge failed to properly address the racial profiling factors as set out in R. v. Brown, para 45 and ruled on the “sufficiency of racial profiling factors rather than whether there was racial profiling”.

[27] The Appellant argues that the trial judge erred by failing to explain why he preferred the testimony of the officer over that of the Appellant regarding whether the officer had reasonable grounds to detain the Appellant.

Legal Analysis

[28] The Appellant bears the burden of establishing on a balance of probabilities that racial profiling played a role in the detention: R. v. Gala-Nyam, 2023 ONSC 224, para 42. Proof that the officer knew that a driver of the vehicle was black at the time of the detention is insufficient evidence to establish racial profiling. If this knowledge alone were sufficient, it would create a rebuttable presumption of racial profiling—a legal notion the Court of Appeal for Ontario has repeatedly rejected: see R. v. Sitladeen, 2021 ONCA 303, paras 67, 75, per Feldman J.A., for the majority (rejecting the idea that the majority created such a presumption) and 75, per Miller J.A., dissenting (suggesting a rebuttable presumption “would be a substantial departure from the court’s jurisprudence”).

[29] A finding of racial profiling requires accepted evidence that race played a role in the reason for the Appellant’s detention. There are two elements: the attitudinal element and the causation element: R. v. Dudhi, 2019 ONCA 665, para 54. The attitudinal element requires accepted evidence that the officer considers race as a relevant factor in assessing an individual’s propensity for committing crime: Dudhi, at para. 55. The causation element requires accepted evidence that this attitude was either consciously or unconsciously motivated or influenced the police’s decision regarding suspect selection or subject treatment, including choosing to investigate the accused: see Dudhi, at paras. 55, 72; R. v. Holloway, 2021 ONSC 6136, para 57.

[30] Racial profiling requires an analysis of all of the facts involving the interaction between the officer and the accused. The trial judge then must ascertain whether he or she is satisfied that the officer relied on race as a relevant factor in assessing the person’s propensity for committing a crime and that this attitude was one of the reasons that the police chose to investigate the accused.

[31] In Brown, supra, at para. 45, Morden J.A. wrote:

The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under s. 9 of the Charter.

[32] In Peart, supra, at para. 135, Doherty J.A., clarified that the above quoted passage from Brown requires that the trial judge be convinced there is sufficient evidence to draw the inference of racial profiling and that Brown does not create an irrebuttable presumption of racial profiling:

The argument that a finding of racial profiling must be made if certain primary facts are found is an argument in support of an irrebuttable presumption of racial profiling in certain circumstances. I see no reason to distort the fact finding process by introducing the artificiality of an irrebuttable presumption. The passage from R. v. Brown, supra, … describes a permissive and not a mandatory inference. The inference described in R. v. Brown may be drawn if certain indicators of racial profiling are present. Those indicators do not demand a finding of racial profiling.

[33] More recently in Sitladeen, supra, in the dissenting reasons, Miller J.A. indicated that creating a de facto, if not de jure, rebuttable presumption, as opposed to an irrebuttable presumption referenced in Peart, wherever a police officer becomes aware of the racial identity of a suspect when making a traffic stop “would be a substantial departure from the court’s jurisprudence and should be rejected”: at para. 75.

[34] The trial judge articulated the legal basis for a finding of racial profiling. He referred to Brown, supra, and observed that racial profiling can rarely be established by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop the motorist. The court noted that if racial profiling is to be proven, it must be done by inferences drawn from circumstantial evidence.

[35] At page 18 of his reasons for judgment, the trial judge quoted that: “Where the evidence shows that the circumstances relating to a detention correspond to the phenomenon on racial profiling and provide a basis for the Court to infer that the police officer is lying about why he or she signalled (sic) out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling.” As discussed, these principles were set out by the Court of Appeal for Ontario in Brown, at para. 45.

[36] In fact, it is not necessary for the trial judge to find that the officer was being dishonest. Racial profiling can be established even in the absence of proof that the police officer was not being honest with the court: see Sitladeen, supra, at paras. 48, 54. In Sitladeen, Feldman J.A. observed that the focus of the racial profiling test “as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer”: at para. 54 (footnotes omitted).

[37] Although it was not explicitly argued as the Appellant is self-represented on this appeal as he was at trial, I considered whether in relying on that segment of Brown the trial judge set the bar too high, requiring that he find that the officer was being dishonest before a finding of racial profiling could be made. However, after reading the trial judge’s entire reasons in context, I am not satisfied that he made that legal error. I am satisfied that the trial judge was aware that an officer may not be lying and may not even be aware that racial profiling played any part in their reasoning for stopping a person as that element of their reasoning can be unconscious.

[38] This is demonstrated in the trial judge’s reasons for judgment, where, at page 20, the trial judge noted that the court in Brown indicated that “the attitude underlying racial profiling may be consciously or unconsciously held that is the police officer need not be an overt racist; his or her conduct may be based on subconscious racial stereotype[s]” (emphasis added). An officer who was unaware of the unconscious rationale for detaining an individual would not be lying about the reason for the detention, the officer would honestly not be aware of his or her unconscious reasoning based on racial profiling.

[39] At page 19, the trial judge also noted that the court in Brown held that “racial profiling involves the targeting of individual members of a particular racial group not of the supposed criminal propensity of the entire group.” The trial judge further cited the decision of R. v. Richards, where Rosenberg J.A. wrote:

Racial profiling is criminal profiling based on race. A racial or colour profiling, refers to that phenomenon 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 the group in this context. Race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

[40] At page 20, the trial judge held that the test, as set out in Brown, was whether the Appellant could establish on a balance of probabilities that it was more probable than not that there was no articulable cause for the stop on the evidence, and that the actual rationale for the stop was based on reliance on a racial stereotype.

[41] Reading the trial judge’s reasons in whole and in context, I can see no misapprehension of the evidence, nor a misapplication of the test to determine whether racial profiling occurred in this case. The trial judge reviewed the evidence in this case and the law, applied the evidence to the law and explained why he did not find that the Appellant had established that the officer engaged in racial profiling in detaining the Appellant.

Conclusion

[42] Accordingly, the appeal is dismissed.

Anne London-Weinstein
Released: April 9, 2025