Court File and Parties

Court File No.: CR-23-00016110-0000
Date: 2025-01-03
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Anden Alexander and Jesiah Byer-Coates

Appearances:
Sara MacDonald, for the Crown
James Miglin, for Anden Alexander

Heard: May 29, 2024

Reasons for Decision by: S.T. Bale

Introduction

[1] Anden Alexander and Jesiah Byer-Coates were charged with possession of a loaded prohibited or restricted firearm, and unauthorized possession of a firearm in a vehicle. Mr. Alexander was also charged with flight from a peace officer.

[2] Mr. Alexander applied for an order excluding the firearm evidence pursuant to s. 24 of the Canadian Charter of Rights and Freedoms. He alleged breaches of his rights under Charter sections 8 and 9.

[3] In particular, Mr. Alexander alleged that he was racially profiled, and that his initial detention was therefore arbitrary. He alleged that because his initial detention was arbitrary, his subsequent arrest and the search of his person and vehicle were unlawful.

[4] Following the hearing, I dismissed the motion with reasons to follow. The following are my reasons for the dismissal.

Background Facts

[5] On Tuesday, September 6, 2022, Police Constables Boodhoo and Scott of the Durham Regional Police Service were conducting uniformed patrol in a marked police cruiser in Whitby. PC Boodhoo was in the passenger seat; PC Scott was driving. PC Boodhoo was coaching PC Scott.

[6] At about 12:20 a.m., the officers observed a black Acura SUV travelling southbound on Thickson Road, near Burns Street East. The vehicle was in front of them, in the curb lane. There was nothing about the vehicle or the way it was being operated that would lead police to suspect any suspicious or unlawful behaviour. There were no other vehicles in the vicinity.

[7] Using the Mobile Data Terminal (“MDT”) in the police vehicle, PC Boodhoo conducted an MTO search of the Acura’s license plate. The search revealed that the registered owner of the vehicle was an adult female who was not licensed to drive.

[8] PC Scott pulled up alongside the driver’s door to see who was driving. According to the officers, they observed a young male to be driving. They said they observed him to have light skin and believed him to be white. They said that they were unable to see the person in the passenger seat.

[9] Officer Boodhoo testified that with several more taps on the MDT, he determined that an Anden Alexander resided at the same address as the adult female and that he held a G1 driver’s licence. G1 licenses prohibit the licence-holder from driving between midnight and 5:00 a.m.

[10] The officers then pulled back in behind the Acura, and activated their emergency lights, signalling the Acura to stop. In response, Mr. Alexander pulled the Acura off the road and into a Honda dealership, followed by the police vehicle. The Acura then executed a three-point turn, causing it to face the police vehicle.

[11] The officers exited their vehicle and approached the Acura. As they did so, the Acura drove past Officer Scott (on the driver’s side of the police vehicle), proceeded southbound on Thickson Road and then onto the westbound lanes of Highway 401. Officer Scott then reported the “take-off” to dispatch and the officers followed the Acura onto the 401. However, they did not see the Acura nor did they activate their emergency lights. There was no chase.

[12] About 9 minutes later, PCs Miller and Gillings (who were on uniformed patrol in a marked vehicle) noticed the Acura heading north on Brock Road in Pickering (they had heard the dispatch). They followed the Acura to Brock Ridge Community Park. The Acura made a left turn into the park and attempted to make a U-turn. However, PC Miller was able to block the exit of the Acura with his police vehicle. The two occupants of the car (Alexander and Byer-Coates) then fled on foot into the park.

[13] PC Gillings chased Mr. Byer-Coates and caught up with him not far from the Acura. He was detained, searched and arrested for flight from police. He was not a party to this motion.

[14] PC Miller chased Mr. Alexander. Miller fell during the chase which allowed Alexander to gain ground on him. Alexander rounded a stand of trees causing Miller to lose sight of him. When Miller regained sight of him, Alexander was standing with his arms raised in the air. He was detained and handcuffed, and then taken back to where police vehicles were parked. He was arrested for flight from police. He was searched and provided his right to counsel. By this time, police were flooding the area and were setting up a perimeter.

[15] PC Domenico searched the Acura with the assistance of PC Gillings. The search began either just before or at the same time as Mr. Alexander was being arrested.

[16] About 20 minutes later, PC King with the assistance of a K9, located the subject firearm under a bush not far from where Mr. Alexander had surrendered to PC Miller.

Analysis

Grounds for Application

[17] Defence counsel argues that police violated Mr. Alexander’s rights under Charter ss. 8 and 9, that the violations were serious, and that evidence of the firearm should therefore be excluded under s. 24(2). He argues that the original traffic stop involved racial profiling and that as a result, the detention was arbitrary. He argues that because the detention was arbitrary, there was nothing unlawful about Mr. Alexander’s subsequent conduct. He argues that because the stop at Brock Ridge Park was premised on the flight from the initial detention, both the stop and subsequent arrest were unlawful. He argues that the searches of Mr. Alexander’s person and the Acura were unlawful because they were incident to an unlawful arrest.

Unlawful Detention and Racial Profiling – Charter s. 9

[18] Racial profiling occurs whenever race or racial stereotypes are used by police, to any degree, in suspect selection or subject treatment, whether consciously or unconsciously. Any detention based on racial profiling is, by definition, arbitrary and not based on reasonable suspicion or grounds: R. v. Le, 2019 SCC 34, paras. 76-78.

[19] Racial profiling can rarely be established by direct evidence, because it involves an internal mental process of a person in authority. A police officer is unlikely to admit to being influenced by racial stereotypes. Accordingly, if racial profiling is to be proved, it must be done by inference drawn from circumstantial evidence: R. v. Brown, para. 44.

[20] “[W]here 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”: Brown, para. 45.

[21] Because racial profiling may occur unconsciously, police officers may not be aware of the fact that race played a role in their decision-making. It is the role of the trial judge to consider all the circumstances and determine whether they correspond to the phenomenon of racial profiling. “[T]o reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying”: R. v. Sitladeen, 2021 ONCA 303, para. 54.

Charter s. 9 – Whether the Traffic Stop on Ritson Road Involved Racial Profiling

[22] Defence counsel argues that the police decision to detain Mr. Alexander was based on their observations of Mr. Alexander and his passenger as young, black males driving late at night. He argues that while there may have been Highway Traffic Act grounds to support the traffic stop, the decision to detain was made only after the police pulled up alongside the vehicle and observed them. In support of his argument, he submits:

• that it is highly unlikely, if not impossible, for the police to have conducted the searches they said they did, in the time period in which they say they did; and
• that neither the police call record nor any other record has been produced showing the searches to have been made before initiation of the traffic stop.

[23] Counsel argues that based upon the officers’ testimony as to when they first saw the Acura and the speed they were travelling, and a Google map of the area, I should infer that there was insufficient time for Officer Boodhoo to conduct the searches which revealed that the registered owner of the vehicle was unlicensed and that Mr. Alexander’s licence was a G1. He argues that it is not just a matter of how long it takes to “hit a button” on the MDT and get a response, but rather, I should consider that the information has to be read and processed, and decisions made. While I agree with this approach, I am not satisfied that Boodhoo did not do what he said he did in the time he had. His evidence was that it was just a few taps on the MDT to get from the vehicle plate number to the owner and her licence status, and then from her address to another person registered to that address (Mr. Alexander) and his license status. In terms of processing the information and decision-making, Boodhoo was an experienced officer on general patrol enforcing the Highway Traffic Act. I do not see the reasoning or decision-making processes from the plate number to the owner, her address and her licence status, and from there to the licence status of another person residing at the same address to be overly complicated.

[24] While it is true that the police call record does not show the MDT searches to have been made before initiation of the traffic stop, it does not purport to be a record of MDT searches made by the officers.

[25] In these circumstances, I am not satisfied that there was racial profiling or that the initial detention was otherwise arbitrary.

Charter s. 8: Warrantless Searches

[26] Defence counsel argues that if Mr. Alexander was unlawfully detained, then his flight from police was lawful, his arrest for flight was unlawful, and that any search conducted incident to that arrest would also be unlawful. I agree; however, for the reasons already given, I have found he was not arbitrarily detained.

[27] Mr. Alexander’s arrest for flight from police was lawful, and the search of his person incident to arrest was reasonable on grounds of both police safety and discovery of evidence related to the offence.

[28] Defence counsel argues that there was no valid objective to search the Acura incident to the arrest of Mr. Alexander for flight from police. He argues that there were no safety concerns because both occupants of the vehicle were in custody, and that there was no reasonable basis on which to believe that evidence related to the offence of flight from police would be found inside the vehicle. While I agree with counsel’s argument relating to safety concerns, it was reasonable for police to believe that there must have been some reason for the flight, and that evidence of that reason might well be found in the vehicle.

[29] While defence counsel argues that the subject firearm was not abandoned, he concedes that the police have the right to search a public park and that the K9 search which located the firearm was lawful.

Admissibility of the Evidence – s. 24(2) of the Charter

[30] 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.

[31] Whether the administration of justice would be brought into disrepute by admitting the evidence involves examining the impact its admission would have on public confidence in the administration of justice over the long term, based on a balancing of the factors set out in R. v. Grant, 2009 SCC 32, para. 71. The court must assess and balance the effect of admitting the evidence on society's long-term confidence in the justice system having regard to three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

[32] While the public has a heightened interest in seeing firearm and other weapons offences adjudicated on their merits, if I had found racial profiling to be involved in the initial traffic stop, I would have excluded the firearm evidence based upon the very serious nature of racial profiling, and the impact of the breach on Mr. Alexander’s Charter-protected interests.

[33] However, if I had found the searches of Mr. Alexander’s person and vehicle to be unlawful for reasons unrelated to racial profiling or the initial detention (i.e. because they were not sufficiently incidental to his arrest as argued by the defence), I would not have, for those reasons, excluded the evidence. Those searches were unrelated to the finding of the firearm and revealed no contraband.

Disposition

[34] For these reasons, I dismissed Mr. Alexander’s application for exclusion of the firearm evidence.

“S.T. Bale”
January 3, 2025