



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dudhi, 2019 ONCA 665

DATE: 20190822

DOCKET: C64147

Watt, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rusheed Martine Dudhi

Appellant

Mark Halfyard, for the appellant

Aaron Shachter, for the respondent

Heard: March 21, 2019

On appeal from the convictions entered by Justice George
    S. Gage of the Ontario Court of Justice on June 14, 2017, with reasons reported
    at 2017 ONCJ 398.

Paciocco J.A.:

OVERVIEW

[1]

During the arrest of Rusheed Dudhi, a man of colour, the arresting
    officer made a comment over the radio to his police colleagues about brown
    drug dealers. Mr. Dudhi relied on that comment and on the surrounding
    circumstances to argue that he was racially profiled and therefore arbitrarily
    detained, contrary to s. 9 of the
Charter
. While the comment clearly
    troubled the trial judge, he did not agree that an arbitrary detention took
    place. In his view, there was no link between the comment and the reason for
    the arrest.

[2]

However, the trial judge did find a separate s. 9 breach, because he concluded
    that Mr. Dudhis arrest for breach of recognizance was precipitous and unreasonable
    on a different basis. The arresting officer had seen Mr. Dudhi using a
    cellphone, but the arresting officer had reason and the means to inquire into
    whether the recognizance condition prohibiting Mr. Dudhi from possessing a
    cellphone was still in force. The arresting officer nonetheless relied on that
    condition to go ahead with the arrest, without checking. As it happened, the
    condition had been varied and Mr. Dudhi was no longer prohibited from
    possessing a cellphone.

[3]

Notwithstanding the breach, the trial judge declined to exclude the
    narcotics found in Mr. Dudhis vehicle on the basis that the admission of this
    evidence would not bring the administration of justice into disrepute.

[4]

For the reasons that follow, I would allow Mr. Dudhis appeal. I am of
    the view that the trial judge erred by improperly assessing Mr. Dudhis racial
    profiling claim. He also erred in finding that the search incidental to the
    unlawful arrest complied with s. 8 of the
Charter
, and in his s. 24(2)
    analysis.

[5]

I would therefore allow the appeal and set aside Mr. Dudhis conviction
    of possessing cocaine for the purpose of trafficking, as well as a related
    breach of recognizance conviction.

MATERIAL FACTS

[6]

On September 16, 2014, Cst. James Clayton of the Hamilton Police Service
    was conducting undercover surveillance in connection with a drug investigation.
    One of the vehicles of interest to the surveillance team was a blue BMW being
    driven by a white male.

[7]

In the very late afternoon, he saw a vehicle that matched that
    description  a BMW of the same colour and model  driven by Mr. Dudhi. Cst.
    Clayton followed in his unmarked car.

[8]

At the time, Cst. Clayton was in radio contact with fellow surveillance
    officer, Cst. Darryl Oosterhoff. Transcribed radio communications, made an
    exhibit at Mr. Dudhis trial, provide a significant record of what happened
    next.

[9]

While following Mr. Dudhi, Cst. Clayton asked Cst. Oosterhoff to verify the
    original target vehicles licence plate. Mr. Dudhi then pulled into a parking
    lot of a strip mall. Cst. Clayton did so too, to maintain observation.

[10]

Within a minute of asking for confirmation of the original target
    vehicles license plate, Cst. Clayton noticed that the vehicle he had
    encountered was not being driven by the white suspect he was looking for, but
    by a black man. He called off the request for the license plate of the suspect
    vehicle, saying [d]isregard. Its the wrong guy here.

[11]

Within roughly 30 seconds, Cst. Clayton asked Cst. Oosterhoff to run the
    license plate of Mr. Dudhis BMW. He explained:

And I got eyes on a blue BMW that theres a middle age black
    guy driving, and hes uh, looking for someone, driving around. Hes parked over
    in this plaza near the Montanas and uh, he was mean mugging me hard so Im
    going to pay attention to this guy.

[12]

In his evidence-in-chief, Cst. Clayton did not use the expression mean
    mugging when describing what prompted his interest in Mr. Dudhi. He testified
    that when he was in the parking lot, with no other vehicles around, Mr. Dudhi drove
    in front of his vehicle. Cst. Clayton testified in cross-examination that he
    believed that Mr. Dudhi was engaging in some counter-surveillance.

[13]

After being told of Cst. Claytons interest in Mr. Dudhi, Cst. Oosterhoff
    asked, [w]ant me to call the plate in? Cst. Clayton replied, [v]ery much so.

[14]

Slightly over two minutes later, Cst. Clayton reported that Mr. Dudhi
    was out of the car, [d]oing a lot of walking and waiting.

[15]

Approximately one minute later, Cst. Clayton asked [a]nything on that
    plate Darryl?

[16]

Cst. Oosterhoff replied:

Its taking me so long because its such a good one. [
The Records Clerk is] going to pull more conditions from the
    file
. So its Rusheed Dudhi born in 88. Hes accused with us on a [recognizance]
    of failure to comply x 2 and [possession for the purpose of trafficking].
    Conditions include no contact with people of criminal record, curfew 9 p.m., no
    drugs and
no cell phone or telecommunication device or
    pager
, etc. [Emphasis added.]

[17]

In fact, Cst. Clayton did not wait for all of Mr. Dudhis conditions to
    be pulled from the file. He responded, [w]ell hes on a cell phone, get your
    butt over here. He directed Cst. Oosterhoff to take him down in his car.

[18]

During Mr. Dudhis trial, Cst. Clayton affirmed the importance of
    providing a complete and detailed description of a suspect to other
    participating officers, and he said that he had a good opportunity to see Mr.
    Dudhi when outside of his vehicle. However, the only description he offered
    over the radio was, [h]es a
brown-skinned
, is
    there any description of him from Records? Because hes a huskier guy
    (emphasis added).

[19]

Shortly after, Cst. Clayton observed Mr. Dudhi get into the back seat of
    a white Mercedes SUV. Cst. Clayton provided Cst. Oosterhoff with the license plate
    of that vehicle, and then said:

Im not following because hes just going to do a loop and come
    back to his vehicle Im assuming. But this is going to be a drug deal. Ive
    already got him on his phone at 18:28-ish when hes playing around texting so
    theres grounds for this guy.

[20]

Three to four minutes later, Mr. Dudhi returned to the parking lot on
    foot. The trial judge accepted Cst. Claytons testimony that Mr. Dudhi stared
    at Cst. Clayton, got into the BMW, and drove away.

[21]

Cst. Clayton pursued Mr. Dudhi in his unmarked car, radioing the
    surveillance team of the BMWs movements. He commented while doing so, [d]efinitely
    a drug deal and hes definitely picked up.

[22]

Mr. Dudhi drove in what Cst. Clayton concluded, and the trial judge
    accepted, was an evasive manner.

[23]

Cst. Michael OHagan, who had joined in the pursuit, also joined in the
    radio conversation. He asked, referring to the original surveillance suspect, [i]s
    this our target?

[24]

Cst. Clayton responded: 
[n]o, its another brown
    guy who is a drug dealer
 (emphasis added). These are the key words
    relied upon by Mr. Dudhi to establish his racial profiling claim.

[25]

When the officers were in a position to do so, they took down the BMW
    by boxing it in at an intersection. Cst. Clayton, the first officer to arrive,
    asked the driver whether he was Rasheed Dudhi. Mr. Dudhi affirmed that he was.
    Cst. Clayton removed Mr. Dudhi from the vehicle and told him that he was under
    arrest for failing to comply with the conditions of his release because he had
    a cellphone.

[26]

Mr. Dudhi immediately indicated that his no cellphone release
    condition had been varied. He eventually produced a judicial interim release
    order dated June 1, 2012, which allowed him to possess a single cell phone, the
    number of which was to be provided to Det. Read of the Hamilton Police Service.
    But before Mr. Dudhi produced this order, the officers noticed that, in
    addition to the cellphone he had in his hand, there was another cellphone in
    the centre console of the vehicle. So, they continued the arrest.

[27]

Mr. Dudhi was searched, as was the interior of his vehicle. The officers
    testified at trial that this warrantless search was conducted incident to
    arrest, for further evidence of a breach of recognizance offence. They denied
    that they were conducting a drug search.

[28]

During the search of the car, in the recessed well under the loose
    plastic cover of the rear seat fold down armrest, Cst. Oosterhoff found a
    concealed compartment with a finger hole to permit opening. Inside he located
    497.32 grams of cocaine, having a street value of $28,000 to $35,000.

[29]

As a result, Mr. Dudhi was charged with possession of cocaine for the
    purpose of trafficking, and two counts of breach of recognizance. The latter
    included one count for violating the no cellphone condition, and another count for
    violating the condition to abstain from possessing narcotics.

THE TRIAL AND THE JUDGMENT

[30]

At trial, Mr. Dudhi brought a
Charter
challenge. On consent,
    the trial judge conducted a blended trial, without a separate
Charter voir
    dire
, so that the officers evidence would not have to be repeated. At the
    close of the Crowns case, the trial judge received submissions on the
Charter
arguments, and then proceeded with the trial. It is convenient in these
    reasons to separate the
Charter
issue from the trial finding.

A.

The Charter Challenge

[31]

Mr. Dudhis
Charter
motion alleged that he was arbitrarily arrested
    contrary to s. 9, and that he had been unreasonably searched contrary to s. 8.

[32]

Mr. Dudhi advanced two grounds for his arbitrary arrest claim.

[33]

First, he said his arrest for breaching the no cellphone condition was
    precipitous. The arresting officer knew that there were more [judicial interim
    release] conditions on his electronic file, and that a review of those additional
    conditions might reveal that Mr. Dudhi was no longer subject to a cellphone
    prohibition. As it happened, a variation to the recognizance had removed the
    cellphone prohibition relied upon for Mr. Dudhis arrest. Mr. Dudhi argued that
    the decision to proceed with his arrest, without confirming that the condition
    justifying the arrest was still in force, was therefore arbitrary.

[34]

Second, Mr. Dudhi claimed that the arresting officer engaged in racial
    profiling, violating his right to be free from arbitrary detention.

[35]

With regard to s. 8, Mr. Dudhi contended that the officers conducted a
    pretence search. Mr. Dudhi argued that the focus of the officers investigation
    was on a suspected drug deal. He claimed that the officers conducted the search
    of his vehicle for narcotics under the pretence that they were searching
    incidental to his arrest for breaching the no cellphone condition.

[36]

The trial judge accepted Mr. Dudhis first s. 9 argument:

I find that proceeding with an arrest on the basis of
    information that all concerned knew was incomplete was both arbitrary and not
    objectively reasonable and the stop and arrest was therefore a breach of
    Dudhis right under section 9 of the
Charter
to be free from arbitrary
    detention.

[37]

In his testimony during the blended trial, Cst. Clayton claimed race
    played no part in Mr. Dudhis investigation, arrest, or search. He was later
    challenged about this in cross-examination:

Q: Im going to suggest to you when you said earlier  Im quite
    shocked at the idea that race never played in this investigation in any way.
    Im going to suggest that comment that you say there notes another brown guy
    is a drug dealer, Im going to suggest that that shows this

A: Im not racist, if thats what youre saying. Im not
    racist. Race did not have anything to do with this.

[38]

After confirming that there would be no re-examination, the trial judge
    asked follow-up questions:

Q: Officer, the original target  was he also a black?

A: He was a white male.

Q: So can you help me with what you meant by another brown guy?

A: Another drug dealer, that was my reference, and he was a
    brown male. Theres no racial overtones to suggest that Im targeting someone of
    race. It was a drug investigation originally, being  a blue BMW motor vehicle
    being driven by a white male. My investigations are never racially motivated or
    targeted, only through police intelligence and observations.

Q: But you didnt say another drug dealer.

A: Thats correct.

[39]

During argument on the
Charter
motion, the trial judge made it
    clear that he was having difficulties accepting that a racial profiling
Charter
breach had been made out. His concerns focused on the timing of Cst.
    Claytons impugned statement, after Cst. Clayton had formed his grounds for
    arrest. He challenged Mr. Dudhis counsel on this:

And my only point is that its not clear to me how I can take
    that objectionable statement and transfer it back to what happened at the mall.

[40]

After further argument on the point, he said:

Well, the problem I see with that argument, counsel, is that it
    kind of ignores everything that happens at the mall after the eyeballing. Now
    if the constable had been eyeballed, and thought to himself, Well, hes got
    brown skin and hes previously been charged with trafficking. I think Ill
    follow him and stop him just to see what hes up to, I might agree with you.
    But the officer didnt do that.

[41]

The trial judge addressed the racial profiling challenge only briefly in
    his decision, rejecting it with these words:

The comment another brown guy who is a drug dealer does not
    reflect well on Officer Clayton. His explanation for why he used that
    expression was not convincing. Nevertheless the comment was made after he had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. In other words, although there is a suggestion
    of racialized thinking inherent in the remark, it did not inspire any
    precipitous or improper action.

[42]

The trial judge did not find that a s. 8 breach occurred either. The
    Crown conceded before us that he should have. To rely on the search incident to
    arrest power requires a lawful arrest, and the trial judge found that Mr.
    Dudhis arrest was arbitrary. The entire arrest was tainted, as was the search
    conducted incident to it.

[43]

The trial judge did not directly address Mr. Dudhis separate s. 8 pretence
    search argument, but it is clear he rejected it. In the course of his s. 24(2)
    ruling, the trial judge said that the search had been conducted incidental to
    the breach of recognizance arrest, and that the search was confined to the area
    arms length from the driver seat and in the location where the two cell phones
    were located. Therefore, a search of the interior of the vehicle for the
    presence of other cellphones within the reach of the driver was justified.

[44]

Notwithstanding the s. 9 breach he did find, the trial judge admitted
    into evidence the drugs found in the vehicle, based on the factors set out in
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353. The trial judge concluded that
    the failure by the officers to dig deeper into the status of Mr. Dudhis release
    conditions was not a deliberate effort to circumvent
Charter
rights,
    and falls closer to the less serious negligence or lack of due diligence end
    of the continuum. He also found that the seriousness of the breach was
    attenuated because Mr. Dudhi could have been stopped for [
Highway Traffic
    Act
] purposes, or to see if the cellphone Mr. Dudhi was using complied
    with the amended release conditions. He noted that the expectation of privacy
    in a vehicle sits at a lower level than a residence, and then concluded, [i]n
    summary, none of the
Grant
factors favours exclusion.

B.

The tRIAL

[45]

Based on the evidence he admitted, the trial judge found Mr. Dudhi to be
    guilty of possession of cocaine for the purpose of trafficking, and breach of
    recognizance for possessing those narcotics.

[46]

Mr. Dudhi was acquitted of another count of breach of recognizance for
    possession of more than one cellphone, because the Crown failed to prove that
    the second cellphone was connected to a network and capable of supporting
    communication.

[47]

Mr. Dudhis convictions occurred in the face of defence evidence. He testified
    for the defence, as did his brother, Anthony Reid. Not surprisingly, the incredible
    and implausible story they told did not raise a doubt in the trial judges
    mind.

[48]

In essence, the brothers testified that even though Mr. Dudhi was the
    registered owner of the vehicle he was driving, Mr. Reid actually owned and
    financed the motor vehicle. Mr. Dudhi permitted Mr. Reid to put the vehicle in
    Mr. Dudhis name because Mr. Dudhis credit rating was better.

[49]

Mr. Reids evidence was that he hid the drugs in a stash box he had
    installed in the vehicle before he was arrested and incarcerated in February or
    March of 2013. Although Mr. Dudhi was using the car, he did not tell Mr. Dudhi about
    the drugs, including after he was released on strict conditions in December 2013.
    Mr. Reid said he hoped to get the $30,000 worth of cocaine from the vehicle
    himself, after his release conditions lightened up. Mr. Reid explained that he did
    not come forward after Mr. Dudhis September 2014 arrest, only doing so in 2015
    after he found God.

[50]

For his part, Mr. Dudhi confirmed that he had never been told and was
    unaware the drugs were in the car.

[51]

The Crown contends that the rejection of this manifestly implausible
    testimony was inevitable, but concedes that the trial judge erred in rejecting
    Mr. Reids testimony by relying on the fact that he first disclosed in
    circumstances wherein his admission could not be used against him. This
    concession is appropriate. Absent a proved motive to testify falsely, such as
    a plot to lie or to obtain favours, it is an error of law to discredit a
    witnesss evidence because they are testifying under the protection of s. 13 of
    the
Charter
:
R. v. Jabarianha
, 2001 SCC 75, [2001] S.C.R. 430,
    at paras. 26-27. There was no evidence to bring this case into the
Jabarianha
exception.

[52]

The Crown asks us to apply the curative proviso to this error. The
    invitation is tempting, but in my view, we need not decide whether we will do so,
    given how I would resolve the appeal issues related to the
Charter
.

ISSUES

[53]

The contested
Charter
issues on appeal can be framed simply, as
    follows:

A.

Did the trial judge err in rejecting the s. 9 racial profiling
    challenge?

B.

Did the trial judge err in not excluding the narcotics pursuant to s.
    24(2)?

ANALYSIS

A.

THE TRIAL JUDGE ERRED IN REJECTING THE CLAIM OF RACIAL PROFILING

(1)

The Meaning of Racial Profiling

[54]

Racial profiling has two components: (1) an attitudinal component; and
    (2) a causation component. As Brown and Martin JJ. explained in
R. v. Le
,
    2019 SCC 34, at para. 76, for the majority of the Court:

[T]he 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. [Citations omitted.]

[55]

The attitudinal component is the acceptance by a person in authority,
    such as a police officer, that race or racial stereotypes are relevant in
    identifying the propensity to offend or to be dangerous:
Peart v. Peel
    Regional Police Services Board
(2006), 43 C.R. (6th) 175 (Ont. C.A.), at
    para. 90, leave to appeal dismissed, [2007] S.C.C.A. No. 10. The causation component
    requires that this race-based thinking must consciously or unconsciously play a
    causal role. Meaning, race or the racial stereotype must motivate or influence,
    to any degree, decisions by persons in authority regarding suspect selection or
    subject treatment.

[56]

There are passages in the case law that can be taken to suggest that
    racial profiling does not occur unless there is no reasoned foundation for the
    suspect selection or subject treatment other than race or racial stereotyping.
    In other words, if there is other information that would meet the required
    legal standard  whether that required legal standard is reasonable suspicion
    [also known as articulable cause] or reasonable grounds  racial profiling does
    not exist even if race or racial stereotypes contribute to suspect selection or
    subject treatment.

[57]

A passage from
Quebec (Commission des droits de la personne et des
    droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training
    Center)
, 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 33, quoted by Brown
    and Martin JJ. in Le, at para. 77, can be strained to read this way:

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. [Emphasis added.]

[58]

There is a similar passage in
R. v. Brown
(2003), 64 O.R. (3d)
    161 (C.A.), at para. 11, that the Crown relies upon before us to argue that [t]o
    succeed on an application alleging a s. 9 breach on the basis of racial
    profiling, an applicant must show that it was more probable than not that there
    was no articulable cause for the stop, specifically that the stop was based on
    the persons colour.

[59]

This is not the law. As Brown and Martin JJ. said in
Le
, at
    para. 76, racial profiling occurs where race or racial stereotypes are used 
to any degree
in suspect selection or subject treatment
    (emphasis added). Similarly, in
Peart
,

at para. 91, Doherty
    J.A. explained:

[Racial profiling] is wrong regardless of whether the police
    conduct that racial profiling precipitates could be justified apart from resort
    to negative stereotyping based on race. For example, a police officer who sees
    a vehicle speeding and decides to pull the vehicle over
in
    part
because of the drivers colour is engaged in racial profiling
even though the speed of the vehicle could have justified the
    officers action
:
Brown v. Durham Regional Police Force
(1998),
    131 C.C.C. (3d) 1 (Ont. C.A.). [Emphasis added.]

[60]

The case law that relates racial profiling to the absence of reasonable
    suspicion or reasonable grounds must be understood in the context of the
    principle that policing decisions based on race or racial stereotypes are not,
    by definition, objectively reasonable decisions. For example, in
R. v.
    Brown
, at para. 10, Morden J.A. cited
Brown v. Durham Regional Police
    Force
in explaining that [i]f a police officer stops a person based on
    his or her colour (or on any other discriminatory ground) the purpose is
    improper and clearly would not be an articulable cause (citations omitted).

[61]

Similarly, I read para. 33 of
Bombardier
as consistent with the
    proposition that a decision made in reliance on race or racial stereotypes cannot
    provide the reasonable basis for that decision. In
Le
, Brown and
    Martin JJ. made this same point after quoting para. 33 of
Bombardier
,
    when they said that a detention based on racial profiling is one that is, by
    definition, not based on reasonable suspicion: at para. 78.

[62]

In my view, it is self-evident that a decision need not be motivated
solely or even mainly
on race or racial stereotypes to
    nevertheless be based on race or racial stereotypes. If illegitimate thinking
    about race or racial stereotypes factors into suspect selection or subject
    treatment, any pretence that the decision was reasonable is defeated. The
    decision will be contaminated by improper thinking and cannot satisfy the legal
    standards in place for suspect selection or subject treatment.

[63]

Put simply, passages such as para. 11 of
R. v. Brown
, and para.
    33 in
Bombardier
, are entirely consistent with the proposition
    accepted in
Le
and
Peart
. 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.

[64]

This outcome is sensible, even leaving aside questions about what
    reasonableness entails. If objective considerations could negate improper
subjective
reliance on race or racial stereotypes, the
subjective
component of these legal standards would be
    ignored. That should not be. As was recently explained in
R. v. Lai
,
    2019 ONCA 420, at paras. 29-30, the subjective component of the relevant legal
    standards plays an important role in ensuring that the police act for
    legitimate purposes and turn their minds to the legal authority they possess:
    see also
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 27. A body of law
    that permits officers to exercise their power when subjectively, their
    decisions are influenced by race or racial stereotypes, has little to commend
    it.

[65]

Moreover, it would undermine other relevant interests at stake to accept
    that racial profiling does not occur even when race or racial stereotypes influence
    a decision, unless there is no reasonable foundation for that decision. In
Peart
,

Doherty J.A. explained in simple terms, at paras. 91 and 93, why racial
    profiling is wrong. It is offensive to fundamental concepts of equality and 
    human dignity. It not only undermines effective policing by misdirecting
    resources and alienating members of the community, it fuels negative and
    destructive racial stereotyping. This mischief, including the offence against equality
    and human dignity, operates whenever race or racial stereotypes contaminate
    decision-making by persons in authority.

[66]

In sum, there are two components to racial profiling. The first is the
    attitudinal component, which is the acceptance by a person in authority that
    race or racial stereotypes are relevant in identifying the propensity to offend
    or to be dangerous. The second is the causation component, which requires that
    this race-based thinking consciously or unconsciously motivate or influence, to
    any degree, decisions by persons in authority in suspect selection or subject
    treatment.

(2)

The Trial Judge Erred in his Analysis of the Causation Component

[67]

The trial judge committed two errors in his racial profiling reasoning,
    each relating to the causation component. First, he believed improperly that the
    racist comment made by Cst. Clayton could not support a racial profiling
    finding because it was uttered after the decision to arrest had already been made.
    Second, he gave undue weight to what he felt were reasonable grounds that would
    have justified Mr. Dudhis arrest in any event.

[68]

The place to begin is with the trial judges findings relating to racial
    profiling. As I read the trial judges decision, he found that Cst. Claytons
    conduct satisfied the attitudinal component, but not the causation component.
    Therefore, he concluded that racial profiling did not occur.

[69]

For convenience, I will repeat the trial judges brief analysis of the
    racial profiling allegation:

The comment another brown guy who is a drug dealer does not
    reflect well on Officer Clayton. His explanation for why he used that
    expression was not convincing. Nevertheless the comment was made after he had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and after his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. In other words, although there is a suggestion
    of racialized thinking inherent in the remark, it did not inspire any
    precipitous or improper action.

[70]

As can be seen, the trial judge did not
expressly
find that Cst. Clayton satisfied the attitudinal component of racial profiling.
    However, that finding is necessarily implicit in his reasoning.

[71]

Cst. Clayton testified that when he commented, [n]o, its another brown
    guy who is a drug dealer, he was simply saying that this was another drug
    dealer, other than the initial surveillance target, and that this person was a
    brown male. In his decision, the trial judge found that this innocent
    explanation was not convincing, and that the comment did not reflect well on
    Officer Clayton. These features of the decision make plain that the trial
    judge found Officer Clayton harboured racial stereotypes, consciously or
    unconsciously. It is equally clear that the trial judge concluded the actual
    explanation for the comment was that it reflected an offensive, stereotypical
    link between race and crime. Even though he couched his finding gently, by
    referring to the suggestion of racialized thinking inherent in the remark, the
    only rational interpretation of his finding is that the comment reflected Cst.
    Claytons belief that there is a link between brown skin and drug dealing.

[72]

The trial judge stopped short, however, of finding that this attitude
    contributed to Cst. Claytons decision to arrest Mr. Dudhi. The trial judge
    said it did not inspire any precipitous or improper action.

[73]

It is open to a trial judge in an appropriate case to find that despite an
    officers demonstrated conscious or unconscious racist attitude, that attitude
    did not influence the decisions that were made. As Brown and Martin JJ. recognized
    in
Le
, at para. 80, it is still open to a trial judge to determine
    that something that often occurs [namely, racial profiling] did not actually
    happen in the particular case before them. I would therefore not interfere
    with the trial judges finding, had it been properly arrived at. The difficulty
    I have here is that this finding was not, in fact, properly arrived at.

[74]

First, as indicated, the trial judge gave undue and improper emphasis to
    the timing of the impugned statement  the fact that it was made after Cst.
    Clayton had already decided to arrest Mr. Dudhi.

[75]

To understand the problem with this thinking, it is helpful to
    appreciate that racial profiling is as difficult to prove as it is pernicious.
    As Doherty J.A. recognized in
Peart
, at para. 95:

Racial profiling can seldom be proved by direct evidence.
    Rather, it must be inferred from the circumstances surrounding the police
    action that is said to be the product of racial profiling.

[76]

This makes it necessary for judges to consider all of the circumstances
    surrounding the police action. The trial judge failed to do so because he
    allowed the timing of the statement to dull its impact.

[77]

During argument, the trial judge put to Mr. Dudhis counsel its not
    clear to me how I can take that objectionable statement and transfer it back to
    what happened at the mall. The trial judge then went on to find that racial
    profiling had not been established in part because the comment was made after
    the observations that provided the grounds for arrest.

[78]

It was an error for the trial judge to isolate the officers comment in
    this way. It is well established that after-the-fact conduct by an accused
    person can be important circumstantial evidence in revealing their earlier
    state of mind:
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433. Similarly,
    if an officers state of mind is a material issue that officers relevant subsequent
    conduct, including comments made by the officer, can equally be used as
    circumstantial evidence of the officers earlier state of mind. Here, the
    comment reflected an attitude or belief, and attitudes or beliefs do not come
    and go in the moment. They are held. This is an important circumstance that
    remains relevant, even where a statement revealing the attitude or belief is
    made proximate to, but after, an impugned decision has been made. In those rare
    cases where conscious or unconscious racist attitudes or beliefs are exposed by
    evidence at trial relating to the event in question, the trial judge must closely
    consider whether the attitudes or beliefs  shown to be held by the officer at
    the time  may have contributed to the decision made. This can only properly be
    done by closely examining all of the circumstances of the case.

[79]

Here, for example, there was other evidence consistent with racial
    profiling. Mr. Dudhi is a man of colour who was driving an expensive car, a
    well-known risk factor 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. Within roughly 60 seconds of
    recognizing that Mr. Dudhi was not the suspect who was to be put under
    surveillance, Cst. Clayton communicated Mr. Dudhis skin colour when describing
    his suspicious behaviour. Cst. Clayton also precipitously chose to arrest Mr.
    Dudhi before completing his inquiry into the release conditions. These features
    do not make inevitable a finding that Cst. Clayton was racial profiling at the
    time but, as I say, they are consistent with racial profiling. The trial judge
    should have paid closer attention to these features of the case when
    considering whether the attitude reflected in Cst. Clatyons brown guy who is
    a drug dealer comment may have influenced the decision he made to arrest Mr.
    Dudhi.

[80]

In addition, the officer provided what the trial judge found to be an
    incredible explanation for the comment he made. As Morden J.A. accepted in
R.
    v. Brown
, at para. 45:

[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. I accept that
    this is a way in which racial profiling could be proven.

[81]

Of course, here the trial judge did not find that Cst. Clayton lied
    directly about why he singled out Mr. Dudhi for attention. But the trial judge
    did find that Cst. Clayton gave incredible testimony about why, in the course
    of the arrest, he made a comment that portrayed racist thinking. The trial
    judge should have considered whether the officers attempt to deny that the
    comment was racist was an attempt to mask the thinking that went into the
    decisions the officer made.

[82]

The trial judge also erred by giving undue weight to the presence of reasonable
    grounds in defeating a racial profiling finding.

[83]

Recall that in addition to relying on the timing of the statement, the
    trial judge rejected the claim of racial profiling because the officer had
    information on the basis of which he legitimately believed he had grounds to
    arrest Dudhi and his interest in Dudhi had been legitimately tweaked by
    Dudhis behaviour at the mall. The trial judge then continued, [i]n other
    words, although there is a suggestion of racialized thinking inherent in the
    remark, it did not inspire any precipitous or improper action.

[84]

I am troubled by the trial judges use of the phrase in other words.
    This phrase equates the presence of reasonable grounds with the conclusion that
    the racialized thinking inherent in the remark did not inspire improper
    action. There is no such fast link. The presence of reasonable grounds does not
    disprove racial profiling.

[85]

To be sure, as Strathy C.J.O. observed in
R. v. Safarzadeh-Markhali
,
    2014 ONCA 627, 122 O.R. (3d) 97, at para. 20, affd on other grounds, 2016 SCC
    14, [2016] 1 S.C.R. 180: [t]he absence of objective grounds for detention, or
    the fabrication of grounds, can lead to an inference that the detention was
    racially-motivated. Similarly, the presence of objective grounds is no doubt
    relevant in providing an alternative, innocent explanation for a decision to
    detain. However, the trial judge put things far too strongly. The presence of objective
    grounds does not undermine a finding of racial profiling. As described, racial
    profiling can exist, regardless of whether the police conduct that racial
    profiling precipitates could be justified apart from resort to negative
    stereotyping based on race:
Peart
, at para. 91.

[86]

To be clear, I am not purporting to find that racial profiling occurred
    in this case. I am simply expressing my view that the trial judges racial
    profiling analysis was undertaken in error.

B.

THE TRIAL JUDGE ERRED IN HIS SECTION 24(2) ANALYSIS

[87]

Mr. Dudhi also alleges that the trial judge committed errors in his
    section 24(2) analysis. The Crown conceded before us that the trial judges s.
    24(2) analysis was deficient. Specifically, the trial judge believed wrongly
    that none of the
Grant
factors favours exclusion. The Crown agrees
    with Mr. Dudhi that some of the considerations required by
R. v. Grant
do favour exclusion. The Crown also conceded that the trial judge failed to
    demonstrate that he had conducted a proper balancing.

[88]

The Crown asked us to remedy these deficiencies by conducting the s. 24(2)
    analysis and finding that the admission of the evidence would not bring the
    administration of justice into disrepute. We cannot accept the Crowns
    invitation. If racial profiling did occur, this is an aggravating factor that
    elevates the seriousness of the breach:
R. v. Li
, at para. 78. It may
    be, as Mr. Dudhi urged before us, that even absent racial profiling, racially
    inappropriate conduct by an officer falling short of racial profiling that
    occurs in the course of effecting an arbitrary detention makes the breach more
    serious, but I will leave that proposition unresolved given that it was not
    argued before the trial judge. The immediate point is that it cannot be
    determined whether the admission of the evidence would bring the administration
    of justice into disrepute until a new trial has settled all of the relevant
    circumstances that inform a proper s. 24(2) decision.

[89]

Since a new trial is required, it is helpful to identify two other
    difficulties in the trial judges s. 24(2) decision that were properly raised
    before us.

[90]

First, I cannot accept the trial judges finding that the failure of the
    officers to dig deeper before arresting Mr. Dudhi falls closer to the less
    serious negligence or lack of due diligence end of the continuum. This conclusion
    reflects an error in principle: the continuum spans good faith to bad faith. Negligence
    or the lack of due diligence does not fall at either end of that continuum. In
Le
,
    at para. 143, Brown and Martin JJ. observed that good faith is not
    demonstrated by pointing to mere negligence in meeting
Charter
standards,
    and that courts may be required to dissociate themselves from evidence obtained
    as a result of police negligence in meeting
Charter
standards. The
    negligence demonstrated by the officers in this case is far removed from good
    faith and actually sits more proximate to the bad faith end of the breach
    spectrum:
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras.
    100-103;
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at paras.
    49-51;
R. v. Burke
, 2009 QCCA 85, 312 D.L.R. (4th) 196, at paras. 76-82,
    affd on other grounds, 2009 SCC 57, [2009] 3 S.C.R. 566.

[91]

Second, I cannot agree with the trial judges view that even had the
    police learned that the cellphone prohibition had been varied, they could have
    stopped Mr. Dudhi in any event under the authority of the
Highway Traffic
    Act
. I agree with Mr. Dudhis submission on this point. Had the police used
    the
Highway Traffic Act
to pursue a drug investigation, this would
    have been a pretence stop, contrary to the
Charter
:
R. v. Harris
,
    2007 ONCA 574, 225 C.C.C. (3d) 193, at paras. 30-32, 63;
Brown v. Durham
    Regional Police Force
, at paras. 31, 38-39.

[92]

Nor could Mr. Dudhi have been stopped, as the trial judge believed, to check
    to see whether the cellphone he possessed complied with the terms of this new
    recognizance. There were no grounds available to the officers to believe that
    the cellphone Mr. Dudhi was observed with did not comply with the terms of his
    new recognizance. He would have been arbitrarily detained had he been pulled
    over to check randomly whether he was complying.

DISPOSITION

[93]

Given the legal errors I have identified, I would allow the appeal, set
    aside the convictions, and order a new trial.

Released: DW August 22, 2019


David M. Paciocco J.A.
I agree. David Watt J.A.
I agree. Gary Trotter J.A.



