Superior Court of Justice – Ontario

Court File No.: CR 1754/24
Date: 2025/06/09

Re: R. v. Douvainn Dean

Before: M.D. McArthur

Counsel:
A. Nguyen, Counsel for the Provincial Crown
S. Rinas, Counsel for Mr. Dean, Defendant/Applicant

Heard: December 18 and 19, 2024

Ruling on Sections 8 and 9 Charter Application

Introduction

[1] The applicant is charged on April 14, 2023 with multiple counts (24) on an indictment that include handgun possession; breaching orders for possessing a firearm when prohibited; possession for the purpose of trafficking of prohibited substance; possession of a stolen motor vehicle and a master key to the vehicle as a result of his detention arrest; and seizures made on this date.

[2] The applicant alleges breaches of his Section 8 and 9 rights under the Canadian Charter of Rights and Freedoms and seeks the exclusion of evidence seized.

Background

[3] The parties, by agreed statement of facts, agreed that the Acura vehicle was stolen on April 4, 2023 from Toronto Pearson Airport, that Mr. Dean was not the registered owner of the vehicle, that Mr. Dean was apprehended outside the nearby Home Hardware store at 1:06 p.m. and searched incident to apprehension and found to be in possession of a loaded 9 mm handgun, another magazine with 10 rounds, 196.65 grams of cocaine, 11.35 grams of fentanyl with cutting agents, 3 Oxycodone pills, a scale, $1,647 in Canadian currency, a black balaclava, two cell phones, and a key which was later found to belong to the Acura vehicle.

[4] The trial proceeded on a blended basis along with the Charter application. This is a ruling on the Charter application.

[5] On April 14, 2023, members of the Waterloo Regional Police Service were investigating the stolen Acura motor vehicle located parked and unoccupied in a triangular shaped-parking lot to the rear and immediately adjacent and associated with the apartment building at 44 Walnut Street, Kitchener. The overview of this area is depicted in Exhibit #3. Cst. Mortenson, a surveillance officer, drove into this parking lot in an unmarked SUV vehicle with tinted windows, parked and commenced observations in that parking lot area at approximately 11:40 a.m.

[6] A laneway from the street went along one side of a collective of lower-rise apartment buildings to a rear parking lot that accommodated approximately 15 vehicle spaces. There were approximately 6 other vehicles in the parking lot at that time, some proximate to the Acura. A footpath continued northerly and away from the apartment building and parking lot generally parallel to a set of railway tracks to the immediate east of the complex property, to another public street and area where there was a Home Hardware store on Park Street. The applicant was unknown to the officers involved.

[7] At approximately 12:56 p.m., the applicant was observed alone, wearing a hooded sweatshirt, a COVID-style mask, carrying a black backpack. He was walking and using his cell phone coming from the front south side of the apartment area. He walked into the parking lot area and walked past the officer’s idling and heavily tinted SUV vehicle and continued walking on a route over a 15 to 20 second period. The applicant’s route while walking was generally between the rear of the SUV and the front of the Acura that were about 15 to 30 feet apart and then went onto the footpath and out of sight of the officer.

[8] Cst. Mortenson then sent a voice message to other officers who were also working the case one to two blocks away and he indicated to them he believed the defendant to be involved in the theft or possession of the stolen Acura. Those officers were asked to locate and detain the applicant for the possession of a stolen motor vehicle or possession over $5,000 on the basis that they were told by, or understood from, Cst. Mortenson that the applicant was leaving or walking away toward a stolen vehicle and “fled” on foot from the stolen vehicle or ran away from the area who Cst. Mortenson described as a black male with short dreadlocks, black pants, black/white shoes, black shirt, black hat and had a facemask on.

[9] Officers Cst. Robb and Cst. Jennings then individually travelled in their respective cruisers to the area of the Home Hardware store on Park Street. Cst. Jennings had observed the defendant enter the store. The officers together both entered the store with the intention to locate and place the applicant under investigative detention and await the arrival of Cst. Mortenson. Both officers believed from information provided by Cst. Mortenson that the defendant had “fled” the rear parking lot area of the Walnut Street apartment complex.

[10] Cst. Robb spoke in the store to an employee who indicated the defendant had gone to a bathroom. Cst. Jennings went to other areas of the store looking for the defendant.

[11] Cst. Robb walked to the washroom area. When the defendant exited from the washroom, Cst. Robb was about 20 feet away and directed the defendant saying, “come here.” The applicant, who was not wearing a mask, was described as “argumentative” by his body language with the officer, did not look at the officer “in a calm manner”, appeared “disinterested” and his facial features “were not happy”. The applicant then walked away and proceeded down a different aisle toward the main entrance.

[12] After an estimated 5 second duration, the defendant then began to run and went directly to the exit. Cst. Robb ran after the defendant and yelled to Cst. Jennings who was able to physically tackle the defendant to the ground as the applicant exited the doorway outside. The defendant was handcuffed by the officers after some passive resistance and taken to a nearby police cruiser. An exterior surveillance video recording of 5-to-6-minute duration captured this part of the encounter. This was Exhibit 6.

[13] Upon search of the defendant, the items were located and seized as noted above.

Position of the Parties

[14] The applicant’s counsel submits the applicant was detained by Cst. Robb and that Cst. Robb lacked both the subjective and objective grounds to detain the applicant that amounted to a violation of his rights under s. 9 of the Charter. He also submits that the selection of the applicant as a subject and his treatment by police are the product of racial profiling which gives rise to a further s. 9 violation. He also submits his s. 8 Charter rights were violated on the basis such that s. 9 breaches were not authorized by any common law power and were unreasonable. He submits the entire chain of events and circumstances should lead to exclusion of all items seized pursuant to s. 24(2) of the Charter of Rights and Freedoms.

[15] The Crown submits the applicant was not arbitrarily detained and that the police had the power to detain the applicant for investigative purposes and was accompanied by a valid safety search pursuant to investigative detention. The Crown also submits, even if there was a breach of either s. 8 or 9 of the Charter, the police obtained real evidence in good faith and the evidence should not be excluded. The Crown acknowledges that if the evidence is excluded, the Crown would be unable to prove the case against the defendant.

Legal Principles

Section 8 Charter Right

[16] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

Section 9 Charter Right

[17] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.

[18] An officer may rely on grounds formed by another officer to effect an arrest. When an officer is directed to make an arrest for a specified offence but places the person under arrest for a different offence, the courts have found that such an arrest is not lawful. This case illustrates some analogous concerns that arise where a detention is sought by an officer who relays grounds to other officers for the detention.

Analysis

Cst. Mortenson did not have subjective nor objective grounds for detention

[19] This court finds that Cst. Mortenson could not have had the objective grounds to detain the applicant based on the information he possessed while in the parking lot area nor even after the applicant left the parking lot area walking along the pathway. Furthermore, this court finds that the officer did not have the subjective basis for a detention. This can be inferred from the evidence of Cst. Robb, who accepted on cross-examination, the entirety of what he was told by Cst. Mortenson was to the effect of “a black male with short dreadlocks was suspected to be involved in the theft of the Acura and was heading north to Park Street.”

[20] As this case demonstrates, inconsistent or incoherent articulations as to the basis of detention between officers may contribute and prove fatal to prosecution. Some of these features will be referenced in these reasons.

[21] During the entire period of surveillance by Cst. Mortenson, other than some delivery truck attendances at the apartment buildings, the only person in the parking lot at any point was the applicant who was coming from the south side and along the laneway and continued onto the pathway proceeding north. At the highest, Cst. Mortenson entertained a suspicion that was nothing more than a reflexive hunch or baseless conclusion communicated with the patina of urgency.

[22] This court agrees with the defence that there was no suggestion on evidence of Cst. Mortenson that the applicant ever walked up to the Acura vehicle, paused in front of it, looked in its direction, nor returned back to the area of the SUV occupied by Cst. Mortenson – all of which may be more suggestive of a person second-guessing a decision to approach a stolen vehicle. Rather, the officer agreed that the applicant came within 6 feet of his SUV, “veered” a little bit towards his SUV, might have recognized him as a police officer but the applicant did not stand in one position very long and continued along his path of travel while continuously looking at his cell phone.

[23] Cst. Mortenson also agreed on cross-examination that the applicant did not interact with the stolen vehicle in any way, that he had not received information as to the physical description from anyone in relation to the theft of the Acura, he did not have any information whether a suspect was a resident of the apartment complex at this location nor did the officer know anything about the applicant and he acknowledged that the applicant was roughly walking right down the middle of the parking lot. All of these are facts that the court must consider in totality.

[24] This court is most cognizant that what is required in assessing the constellation of factors is whether the facts, in the totality of the circumstances, are objectively indicative of the possibility of criminal behavior, which in this case is that of being in possession of a stolen vehicle or participating in a theft. See R. v. MacKenzie, 2015 SCC 50, para 72. This court finds in this case the answer is clearly no.

[25] There were other gaps and inconsistencies in the evidence of Cst. Mortenson, Cst. Robb and Cst. Jennings. It will not be necessary to examine these features further in view of the finding made above.

Cst. Robb and Cst. Jennings did not have subjective grounds for detention

[26] The means of communications between Cst. Mortenson and the other officers were by phone and/or radio transmission. The direction by Cst. Mortenson clearly was to detain the applicant and await the arrival of Cst. Mortenson. That latter event never arose in this case. The impressions left with the officers as to the applicant “running” or “fleeing” the parking lot area of the apartment building simply could never have been made based on Cst. Mortenson’s own testimony at trial. Cst. Mortenson testified he could not recall if he had used the word “fled” or “approached” and that he recalled conveying that there were some grounds to suspect that a male of the applicant’s description was associated with the stolen Acura. Cst. Mortenson’s recall on these significant features was significantly lacking.

[27] How the sense of some immediacy or urgency arose in this case is also a feature that this court simply cannot determine on this record. It is as unsettling as it is confounding and confusing. However, this is a feature that, practically speaking in the context of these circumstances, ultimately weighs adversely against the prosecution and favourably for the applicant who has the burden on the Charter application.

[28] Cst. Robb’s evidence has already been reviewed earlier. Cst. Robb essentially acted on the direction of Cst. Mortenson to detain the applicant who Cst. Jennings had observed enter the Home Hardware store. That detention was to be for the purpose as mentioned by Cst. Mortenson - to continue the investigation of possession of a stolen vehicle. Cst. Robb also received a description that included that the person sought to be detained had a facemask on.

[29] Cst. Jennings was about 100 to 150 meters away from Cst. Mortenson by 12:56 p.m. and was going to assist should an arrest or other interaction involving the stolen vehicle occur. He repositioned himself in his cruiser to view the Park Street area. He testified that Cst. Mortenson had called him on his phone to indicate a description of the suspected person, that this person walked close to the stolen vehicle, noticed Cst. Mortenson as a police officer and immediately looked at his phone and began typing and then turned around and walked off in completely the other direction. Again, there were obvious inconsistencies from what Cst. Mortenson actually testified to in this regard.

[30] Upon observing the applicant crossing Park Street and enter the Home Hardware store, Cst. Jennings observed the applicant go into Home Hardware and he then called Cst. Mortenson. It was Cst. Mortenson who indicated he had grounds for investigative detention. He essentially joined Cst. Robb to assist in the investigative detention. Cst. Jennings did recall the applicant was wearing a black COVID mask while the applicant was walking along Park Street but could not recall whether he was wearing one when apprehended. In any event, this officer thought wearing a mask at that time was a bit strange in 2023 but it could have meant the person was sick and attempting to keep others healthy and could also have been used to conceal one’s identity.

[31] In the cases of Cst. Robb or Cst. Jennings, it is clear that neither had any subjective grounds to detain the applicant other than the direction to detain and perhaps some indications of suspected criminal activity from Cst. Mortenson.

Timing of Detention

[32] The Crown submits that a detention occurred when the applicant was tackled when exiting the main doors of the Home Hardware store. He submits that the applicant immediately bolted when he saw Cst. Robb, and this is a factor to consider in determining the validity of the detention at this point. The Crown also submits this feature on its own provides reasonable suspicion and that, combined with other features such as walking towards a stolen car and wearing a mask to conceal identity, are further grounds for reasonable suspicion since the test relies on reasonable possibilities, not probabilities. The Crown relies upon R. v. Nesbeth, 2008 ONCA 579, paras 13–20 as well as other cases of flight from police. See R. v. Kang-Brown, 2008 SCC 18, para 87 and R. v. Chehil, 2013 SCC 49, para 31.

[33] The applicant’s counsel submits that the detention occurred as the applicant exited the washroom and Cst. Robb directed the applicant to “come here”. The applicant’s counsel submits that the officer singled the applicant out for a focused investigation and the officer was not providing either general assistance nor maintaining general order at that point, that the language used by the officer was that of an order or command to the applicant, and that the command was directed at the applicant and only the applicant with no one else present. Counsel also submits that the court should consider the fact that the applicant is a black man, 27 years of age and was being directed by a uniformed police officer while leaving a private washroom in an enclosed retail store and not in any public area.

[34] The prohibition of arbitrary detention in section 9 of the Charter is meant to protect individual liberty against unjustifiable state interference. It limits the state’s ability to impose intimidating coercive pressure on citizens without adequate justification. See R. v. Le, 2019 SCC 34. As long established by the Supreme Court of Canada, there are three categories of detention: (1) psychological restraint with legal compulsion, (2) psychological restraint without legal compulsion; and (3) physical restraint. See R. v. Mann, 2004 SCC 52.

[35] Where, as here, there is claimed psychological restraint without legal compulsion, the court must consider, on an objective basis, would the conduct of the police cause a reasonable person, in all the circumstances, to conclude that their liberty is restricted. Neither the subjective intention of the police officer nor the subjective understanding of the applicant controls the analysis in this regard. Rather, the analysis must address the reasonable person placed in the shoes of the applicant imbued with the same personal characteristics of the applicant.

[36] In these situations, the court must consider three factors: (1) the circumstances giving rise to the encounter as they would be reasonably perceived by the claimant, (2) the nature of the police conduct, including the language used by the police, any physical contact between the police and the claimant, the place where the interaction occurred, the presence of others and the duration of the encounter; and (3) the characteristics or circumstances of the claimant, where relevant, including age, physical stature, minority status and level of sophistication. See R. v. Grant, 2009 SCC 32, paras 28-32.

[37] The Crown characterized these circumstances as the applicant immediately bolting and submitted this factor favours a finding of detention upon being tackled by police officers as he exited the building. The Crown submits its position is supported by the decision in R. v. Nesbeth, 2008 ONCA 579.

[38] In Nesbeth, the Ontario Court of Appeal found that the individual was not detained by police where an officer said “stop, police” and instead immediately fled from the police. The court found the detention began only upon the being tackled at the end of a police chase. Justice Rosenberg, in finding the trial judge erred and sending the case back for retrial, found that the accused was not detained until he was tackled. He found that:

[17] …. The validity of that detention had to be measured by the facts known to the police at that time. Those facts included the following:

• The respondent had immediately bolted when he saw the uniformed officers. • He used some force in an attempt to impede the officers’ progress by throwing a shopping cart in their way. • He threw away a knapsack that he had been tightly holding up until then. • It was late at night, and the respondent was in the stairwell of a building known to be a high-crime area.

[18] This constellation of factors was sufficient to give the police officers reasonable grounds to suspect that the respondent was involved in criminal conduct. These were not the actions of a mere trespasser. While the court in Mann speaks of reasonable grounds to suspect that the individual is connected to “a particular crime”, in my view, it is not necessary that the officers be able to pinpoint the crime with absolute precision. Given the respondent’s behaviour in relation to the knapsack and the desperation with which he fled the police, the police could reasonably suspect that he was in possession of contraband: either drugs or weapons or both. They were therefore entitled to detain him for investigation in accordance with Mann.

[19] Before leaving the detention issue, I note that there is one possible gap in the evidence. None of the police officers actually articulated in their evidence why they detained the respondent. Perhaps they thought it was obvious given the rapid unfolding of events: the pursuit and the almost simultaneous discovery of the contraband in the knapsack. In R. v. Storrey, 53 C.C.C. (3d) 316 (S.C.C.) at 324, the court held that for an arrest to be valid the officer must have both a subjective belief in reasonable and probable grounds to arrest and those grounds must be objectively established. It may be that the same form of analysis should apply to a Mann investigative detention: see R. v. Simpson, 79 C.C.C. (3d) 482 (Ont. C.A.) at 501-502.

[20] In this case, I have found that the officers objectively had reasonable grounds to detain the respondent, even though none of them articulated their subjective belief as to the grounds. While it would have been helpful had the officers expressly testified to their grounds for detaining the respondent, the court is entitled to draw reasonable inferences from the circumstances. In my view, it is apparent that the officers believed that they had grounds to detain the respondent by the time the chase ended.

[39] In this case, unlike Nesbeth, the applicant did not immediately bolt when he saw a police officer, the applicant did nothing to impede the officer, the applicant did not discard any items and there was no evidence suggesting that the Home Hardware store was a high-crime location or in an area of significant crime in relation to stolen vehicle activity. There were no concerns for the public safety in relation to the applicant when in the store. Furthermore, the officers who entered the Home Hardware store had no subjective grounds to detain the applicant and, as found earlier, Cst. Mortenson, had no grounds for the detention of the applicant.

[40] In Le, the Supreme Court of Canada found that a detention occurred upon a police entry into a backyard area gathering of a number of young male individuals as part of a police community policing initiative. Of significance, in considering all of the circumstances of the police encounter, the Court found that the first Grant factor - the circumstances giving rise to the encounter as the police would be perceived by the individual - supported a finding of detention arising prior to officer’s inquiry about the content of the accused’s satchel.

[41] The Court in Le found that the conduct of the police exceeded the norms of community policing, there was no obvious cause for any police presence in the backyard, the police never expressly communicated to the young man why they were there, they immediately started questioning the young man and the height of the fence allowed for full interaction of police without entry. In view of these circumstances, the court found a reasonable person would not perceive the police entry into the backyard as merely assisting in meeting needs or maintaining basic order.

[42] In this case, a reasonable person would not perceive multiple uniformed police officers’ entry in the Home Hardware store, looking for and awaiting the exit of an individual from the washroom with the immediate direction to that person to “come here” as merely assisting in meeting the needs or maintaining basic order. Rather, the reasonable person in such circumstances having the attributes of a young black individual would perceive that he/she was being specifically targeted and singled out for some temporally immediate reason by a uniformed police authority.

[43] Here, this court finds that the detention of the applicant occurred upon him exiting the washroom and immediately encountered and confronted by Cst. Robb. A reasonable person in the applicant’s shoes would feel obligated to comply with the officer’s direction and would perceive that there was a coercive restriction of his liberty being imposed on him in particular by the police.

[44] This court also finds that the applicant did briefly acquiesce to Cst. Robb’s presence and demand. Unlike Nesbeth where the circumstances were late at night in the stairwell of a high crime area and the accused immediately bolted upon seeing the police and also discarded a backpack and used force to impede the police officer’s progress, here the circumstances were markedly different in that applicant was in a retail business setting, during the day, exiting a washroom and was immediately confronted by a uniformed police officer who directed him to “come here”.

[45] The applicant did not immediately bolt. Rather, the applicant who was unmasked was described by Cst. Robb as “argumentative” by “his body language” with the officer, did not look at the officer “in a calm manner”, appeared “disinterested” and his facial features “were not happy”. However, this court observes that the officer testified “Mr. Dean was looking directly at me, was speaking, I don’t know what he was saying, more argumentative body language”. He also testified that the applicant “…had no intention to follow my commands but I didn’t know the words that he was saying directly. It could be distance, it could be volume. I’m not sure”. The applicant then walked away and proceeded down a different aisle toward the main entrance and, after an estimated 5 second duration, began to run to the exit. This court finds there was conversation that did occur with the applicant however, without any words mentioned, vague impressions from body language alone imply and this court finds that the encounter at that point was more than a mere 5 seconds.

[46] This court is also aware of the Ontario Court of Appeal decision in R. v. Dunkley, 2016 ONCA where upon the accused exiting a kiosk at a gas station, a detective asked for the accused’s identification. The accused backed away and then ran from the scene. Detectives then gave chase and yelled “Stop! Police!” but abandoned their pursuit soon after. The trial judge’s finding that the accused was detained when the officers approached him even though the detention was momentary even if the person flees. In Le, the encounter lasted less than a minute and was found to amount to a detention.

[47] Cst. Robb was in a police uniform, was directly in front of and provided direction to the applicant that was of a direct command which was of an unusual nature in that setting and would certainly be intimidating to any reasonable person. The applicant was certainly singled out by the officer. The applicant did not immediately flee.

[48] This court also takes into account all of the circumstances including that the applicant was a youthful black individual with a minority status in a retail store area. On the evidence presented, it appears that the applicant was not a sophisticated person nor exceptionally articulate. In these circumstances, there are a variety of inferences that would embrace confusion, anxiety, coercion and possibly persecution amongst others. This court is mindful of the observations in Le, at paras. 72 and 73 that persons in racialized minorities may have different experiences and relationships with the police than others, and such may impact upon their reasonable perceptions of whether and when they are being detained and how to react.

[49] In Le, the court emphasized that the detention analysis is principally objective in nature (para. 114) and cautioned and directed as follows with bolding provided:

[115] Undue focus on subjective perceptions detracts from the underlying rationales for adopting an objective test, of which there are at least three. First, as this Court held in Grant, the objective nature of the analysis enables the police “to know when a detention occurs [and, therefore,] allow[s] them to fulfill their attendant obligations under the Charter and afford the individual its added protections” (para. 32). Second, the objective nature of the analysis ensures that the rule of law is maintained in the sense that the claims of all individuals will be subjected to the same standard. That is, the objective standard ensures that all individuals will be treated equally and enjoy the same Charter protections regardless of their own subjective thresholds of psychological detention or their individual perceptions of police interactions. In other words, the objective nature of the analysis leads to some level of uniformity in applying the Charter to police conduct. Third, and relatedly, the objective nature of the analysis accounts for the reality that some individuals will be incapable of forming subjective perceptions when interacting with the police.

[116] The focus of the s. 9 analysis should not, therefore, be on what was in the accused’s mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonably perceived. To find otherwise puts the onus on the claimant to gauge correctly when they are detained and when they are not. This very problem arises in this case. Mr. Le testified that he was not permitted by the police to go into the house and was physically prevented from doing so. If one accepts Mr. Le’s full account of events, then his subjective perception, howsoever fleeting, that he could go into the house was simply wrong. Further, if, as our colleague concludes, the detention occurred when the officer told the young man to keep his hands visible, Mr. Le’s subjective perception would have arisen only after the detention had already begun. Even accepting that there may be cases in which the subjective perception of the accused is relevant, this case cannot be one of them.

[50] In view of these cautions and directions, this court does not find the applicant’s conduct, when considered with all the circumstances, has the material significance to negative or erroneously overwhelm the analysis that leads this court to find a psychological detention occurred as the applicant exited the washroom area and was confronted by Cst. Robb.

[51] This court finds the applicant was detained as he exited the washroom area. This court also finds that the objective facts of the police individually nor collectively were indicative of the possibility of criminal behavior involving the applicant. This court also finds the police have not been able to point to particularized conduct or evidence of criminal activity of the applicant in order to ground reasonable suspicion.

[52] Simply put, the police had no discernible nexus between the applicant and his involvement in the theft of, or the possession of the stolen motor vehicle. The detention of the applicant was arbitrary because at the time of detention, the police officers did not have reasonable suspicion of recent or ongoing criminal activity. As Le also declares at para. 133, “Investigative objectives that are not grounded in reasonable suspicion do not support the lawfulness of a detention and cannot therefore be viewed as legitimate in the context of a Section 9 claim.”

Section 9 Charter Determination

[53] For these reasons as provided, this court finds there was a s. 9 Charter violation in relation to the applicant. Like Le, this case can be disposed on the basis of s.9 Charter grounds.

Racial Profiling

[54] Defence counsel also asserted racial profiling in this case. In Le, the court specifically addressed the differences between race and racial profiling under section 9 of the Charter as follows:

[75] At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.

[76] In contrast, the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment (Ottawa Police Service, Racial Profiling (June 27, 2011), Policy No. 5.39 (online), at p. 2).

[77] This Court adopted the following definition of racial profiling in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39:

Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.

Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis deleted; para. 33.]

[78] Thus, racial profiling is anchored to an internal mental process that is held by a person in authority — in this case, the police. This means that racial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion. Racial profiling is also relevant under s. 24(2) when assessing whether the police conduct was so serious and lacking in good faith that admitting the evidence at hand under s. 24(2) would bring the administration of justice into disrepute.

[79] For this reason, a finding that there has been no racial profiling has little bearing on the timing of the detention where the focus is on what a reasonable person in the shoes of the accused would perceive and not on what motivated the officers to act as they did.

[55] In R v. Dudhi, 2019 ONCA 665, the Court of Appeal affirmed the definition of racial profiling from Le in that this is primarily concerned with the motivation of the police and occurs when race or racial stereotypes about offending or dangerousness are used consciously or unconsciously, to any degree in suspect selection or subject treatment.

[56] Racial profiling has two components:

a. an attitudinal component which consists of the acceptance by a person in authority that the race or racial stereotypes are relevant in identifying the propensity to offend (see Peart v. Peel Regional Police Services Board), and;

b. a causation component which requires that the race-based attitude motivate or influence, consciously or unconsciously, decisions by the person in authority regarding suspect selection or subject treatment.

[57] For clarity, policing decisions based on race or racial stereotypes are not objectively reasonable decisions. A decision does not need to be solely or even mainly based on race or racial stereotypes to rise to the threshold of racial profiling. As the courts have stated, where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling. The courts have also found that the presence of reasonable grounds does not disprove racial profiling.

[58] In this case, the evidence in this regard necessarily is that only involving Cst. Mortenson. This court previously made references as to the evidence and concerns of the evidence of Cst. Mortenson. Those concerns should not be conflated nor confused in this case.

[59] This court finds that the only person subject to surveillance and observed by Cst. Mortenson over this period at that location was the applicant. This court is satisfied upon hearing Cst. Mortenson’s testimony and that of the other officers in this case, that race or racial attitudes or stereotypes did not motivate Cst. Mortenson nor the other officers in this matter. This court finds that other than a description of the applicant as provided by Cst. Mortenson which was relayed to the other officers, there was no racial attitude nor causal component established that operated in these circumstances.

Section 24(2)

[60] This court need not exhaustively review the cases in this regard, particularly where many cases including that of Le as referred to above. It is sufficient to repeat from Le at para. 140 that where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, the focus of the court must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. The fact of a Charter breach signifies, in and of itself, injustice and a consequent diminishment of the administration of justice.

[61] The courts are mandated by section 24(2) to consider whether the administration of justice risks doing further damage by diminishing the reputation of the administration of justice, such that, for example, reasonable members of Canadian society might wonder whether the courts take individual rights and freedoms from police misconduct seriously.

[62] This court will consider the three identified lines of inquiry as follows in this case.

The seriousness of the Charter infringing conduct

[63] A search that is based on a hunch and is bereft of any reasonable suspicion, as it was here, cannot be justified by the results obtained later in these circumstances. What occurred here amounted to no legally justified grounds by Cst. Mortenson to detain Mr. Dean in the circumstances. Neither of the other officers had even sufficient subjective grounds to detain Mr. Dean. Essentially, they were acting for Cst. Mortenson on the belief Cst. Mortenson would be attending. That apparently may not even had occurred in the circumstances. Nevertheless, this is the type of state individual and systemic negligence that effectively undermines Charter standards that a court should dissociate itself from. Such a legally groundless detention is a serious violation of an individual’s s. 9 rights, that is, all individuals are not to be arbitrarily detained.

The impact of the breach on the Charter protected interests of the accused

[64] The applicant’s interests are to be protected involving his liberty from unjustified state interference. This extends not only to unjustified intrusions upon physical liberty but also against incursions on mental liberty by prohibiting coercive pressures of detention from being applied to people without adequate justification. See Le infra at paras. 152–154. This is not a case where the impact on this applicant’s interests was trivial. When weighing even as brief a detention against the absence of any reasonable basis for that justification, the police conduct is most concerning and heightened. This was not a situation where the applicant’s protected interest was minor. This is likewise a factor leading to exclusion.

Society’s interest in the adjudication of the case on its merits

[65] The charges against the applicant are serious and involve serious drugs and a weapon along with the ammunition. However, an adjudication on the merits, in a rule of law state, presupposes an adjudication grounded in legality and in respect for long standing constitutional norms. The seriousness of the items seized collectively somewhat tend toward admission.

[66] When balancing these Grant factors, this court finds that the evidence discovered after the applicant was tackled outside the Home Hardware store and seized should be excluded under s. 24(2) of the Charter. The nature of the conduct by police authorities was without grounds and involved the applicant’s significant liberty interest was serious, the detention of the applicant was legally absent despite it involving serious illicit substances, weapon and a vehicle.

Summary

[67] I find that the defendant has met the burden of establishing s. 9 of the Charter violation. The evidence seized shall be excluded.

M.D. McArthur

Date: June 9, 2025