



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sitladeen, 2021 ONCA 303

DATE: 20210510

DOCKET: C65932

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Damaine Sitladeen

Appellant

James L. Miglin, for the appellant

Katie Doherty, for the respondent

Heard: October 7, 2020 by videoconference

On appeal from the convictions entered
    by Justice Patrice F. Band of the Ontario Court of Justice on November 14,
    2017, with reasons reported at 2017 ONCJ 805.

Feldman J.A.:

A.

Overview

[1]

The appellant is a Black man who was pulled over
    for suspected impaired driving, then wrongfully arrested for driving while
    suspended. When he was searched following the arrest, he was found with a
    loaded firearm. The appellant was convicted of possession of a firearm with
    ammunition and possession of a firearm contrary to a weapons prohibition. He
    appeals his convictions.

[2]

The appellants position at trial and on this
    appeal is that the stop and the arrest were unlawful because they were tainted
    by racial profiling. Therefore, the firearm should have been excluded from
    evidence under s. 24(2) of the
Canadian Charter of Rights and Freedoms
.
    The Crown agrees that if racial profiling played any part in the stop or the
    arrest, the evidence should be excluded.

[3]

The primary issue on the appeal is whether the
    trial judge misapplied the test for racial profiling, and erred in law by
    requiring a finding that the police lied about the reasons for the stop and for
    the arrest.

[4]

I agree with the appellant. I would allow the
    appeal and order a new trial.

B.

Factual Background

(1)

Circumstances of the Stop

[5]

The stop occurred at around 2:46 a.m. on March
    5, 2017. The appellant was driving a Ford Focus rental vehicle. He was driving
    west on Derry Road near the airport. There was little traffic. Two Peel police
    officers, PC Robert Delmar and PC Jane King, were on general patrol in a marked
    police vehicle, and happened to be driving behind the appellant.

[6]

The appellant was not speeding. However, PC
    Delmar observed the appellants car activate its right turn signal and enter
    the right turn lane, but not turn right. The car swerved back into the thru-lane
    without signalling, eventually reactivated the right turn signal, but again did
    not turn right. PC Delmar said he saw the vehicle swerve within its lane. He
    concluded that the driver might be impaired. In his testimony at trial, PC
    Delmar described the appellants driving as a marked departure from what he ordinarily
    saw on the roads. PC King corroborated PC Delmars account of the aborted right
    turn, but she said the right turn signal was never deactivated and she did not
    see the vehicle swerve within its lane.

[7]

The officers pulled up beside the appellant, and
    as they continued to drive, shone the alley light from their vehicle into the drivers
    side of the appellants vehicle. The officers saw that the appellant was a
    young Black man with a beard alone in the car. They then dropped back behind the
    appellants vehicle and activated their emergency lights directing him to stop.
    The officers said the appellants car touched the curb when he stopped, which
    he denied.

[8]

At trial, the officers described their procedure
    as a combination stop that they commonly use. The purpose is to get a look at
    the driver and obtain information that could identify him before the driver
    knows he is being stopped, in case the driver takes off.

[9]

The officers notes describing these events did
    not say that the officers made the decision to stop the appellant before they
    saw that he was a Black man. The notes were silent on this issue. However, after
    the appellant served and filed his
Charter
challenge alleging racial
    profiling, the officers met with the Crown attorney (not Crown counsel on the
    appeal), and subsequently prepared will-say statements stating that they had made
    the decision to stop the appellants vehicle based on the appellants driving, before
    they performed the combination stop and saw the appellant.

(2)

Circumstances of the Arrest

[10]

PC Delmar went to the drivers side of the
    appellants vehicle and spoke to him while PC King went to the passenger side
    and looked into the vehicle. PC Delmar asked the appellant if he had been
    drinking and he answered no. There was no smell of alcohol, but PC Delmar
    noticed the smell of fresh marijuana. PC Delmar saw a pill bottle in the
    vehicle, which he took from the appellant and placed on the roof of the car
    along with the keys. He asked the appellant for his license, ownership and
    insurance, but the appellant could not produce any of the requested documents. Instead,
    he gave the officers the name, Donovan Sitladeen, which was not his name but
    his brothers.

[11]

When PC Delmar went back to his car to check the
    name in CPIC, a police database, he made a mistake in the spelling of Sitladeen,
    inputting Sitaldeen instead. He thus received results with a partial score.
    They revealed the possibility that Donovan Sitladeen was a suspended driver,
    subject to a weapons prohibition, known to be armed and dangerous and of
    interest to the Toronto Police. However, CPIC attached an accuracy score of
    13/26 which indicated to PC Delmar that something was off regarding the identity
    of the driver. PC Delmar believed that he needed to confirm the appellants
    identity.

[12]

PC King subsequently informed PC Delmar that the
    pill bottle had the name, Damaine Sitladeen. PC Delmar checked the new name in
    CPIC, but again with the incorrect spelling, Sitaldeen. The result left the
    officer more confused than before. The system would usually provide a
    photograph if there was information in the database, but no photograph was
    generated in either instance.

[13]

In the meantime, another officer, PC Statham,
    arrived at the scene. Although PC Delmar did not have any further discussion
    with the appellant to ask about his identity, he decided that he was going to
    arrest the appellant for driving while suspended because he wasnt able to
    confirm his identity. PC Statham agreed with that decision. PC Statham walked
    over to the car and asked the appellant about the status of his drivers
    license and whether he had any unpaid fines. The appellant responded that his
    license was good and that there should be no unpaid fines.

[14]

PC Delmar came over to the car and told the
    appellant he was under arrest for driving while suspended. By then, a fourth
    officer had arrived at the scene. The appellant stated that he thought the officers
    were making a big deal over nothing. PC Statham responded that it was a simple
    matter of confirming his identification and getting him a court date.

[15]

The appellant was reluctant to exit the car. When
    PC Delmar attempted to gain control of the appellant to handcuff him, there was
    a struggle which culminated in three officers
[1]
taking the appellant to the ground, revealing that he had a gun in his
    waistband.

[16]

The entire interaction between the appellant and
    police from when they observed him driving, to his arrest and search took ten
    minutes.

C.

the trial judges decision

(1)

The Issues

[17]

The primary issue for trial was whether the
    stop, the arrest and/or the search of the appellant were tainted by racial
    profiling. If they were, it was agreed that the evidence found would be
    inadmissible. To address the issue, the trial judge had to state the correct
    test for racial profiling, and then weigh the evidence to determine whether it
    met the test.

[18]

The appellant raised two arguments at trial. First,
    the purported sobriety check was a pretext stop by the police to allow them to detain
    and search a Black driver. This submission was based primarily on evidence that
    PC Delmar exaggerated the nature of the impugned driving, the officers drove up
    beside the appellant and saw that he was a Black man before they effected the
    stop, and following the stop, they did not conduct any investigation for
    impaired driving after the appellant said that he had not been drinking and
    they observed no smell of alcohol.

[19]

Second, and in the alternative, if the traffic
    stop was lawful, the circumstances of the arrest of the appellant for driving
    while suspended and the subsequent search by the police indicated that they were
    motivated by the appellants race.

(2)

The Test for Racial Profiling

[20]

The trial judge quoted paras. 7 and 44-45 from
    the leading Ontario Court of Appeal case on racial profiling,
R. v. Brown
(2003)
,
64 O.R. (3d) 161 (C.A.), for the definition, and the test for
    making a finding of racial profiling:

[7] Racial profiling is criminal profiling based
    on race. Racial or colour profiling refers to that phenomenon whereby certain
    criminal activity is attributed to an identified group in society on the basis
    of race or colour resulting in the targeting of individual members of that
    group. In this context, race is illegitimately used as a proxy for the
    criminality or general criminal propensity of an entire racial group.



[44] A racial profiling claim could rarely be
    proven by direct evidence. This would involve an admission by a police officer
    that he or she was influenced by racial stereotypes in the exercise of his or
    her discretion to stop a motorist. Accordingly, if racial profiling is to be
    proven it must be done by inference drawn from circumstantial evidence.

[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.

[21]

The defence sought to file and rely on a recent
    article, Applying the Racial Profiling Correspondence Test (2017) 64 Crim L.Q.
    359, by Professor David M. Tanovich, whom the trial judge acknowledged to be a
    respected academic and author who had been cited by the Supreme Court of Canada
    and all levels of court in Ontario. The Crown, however, objected to the court
    receiving the article, on the basis that it contained hearsay and opinion, and because
    it is an advocacy piece on the interpretation of the law of racial profiling
    that could usurp the role of the trial judge.

[22]

In considering whether to receive the article,
    the trial judge referred to this courts decision in
Peart v. Peel Regional
    Police Services Board
(2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 95, leave
    to appeal refused, [2007] S.C.C.A. No. 10, where Doherty J.A. explained that
    studies, academic writings and expert evidence have been used by the courts
    to recognize a variety of factual indicators that can support,

but will
    not dictate, the drawing of an inference of racially motivated conduct by
    police. The trial judge concluded that he would receive the article, but rely
    on it only for the limited purpose of shed[ding] light on a number of factors
    and stereotypes at play in the social context in which this case and others
    have arisen, including police reaction to a young Black man driving an
    expensive car, or police overreaction to a minor transgression by a Black
    person.

[23]

When considering the use he would make of
    Professor Tanovichs article, the trial judge identified what he believed was
    an error by Professor Tanovich in the description of what is referred to as the
    correspondence test for racial profiling, at para. 45, of
Brown
. In quoting
    the test from
Brown
, Professor Tanovich focused on the circumstances
    that can correspond to racial profiling and did not include the phrase: 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.

[24]

The trial judge called the omitted phrase an
    element that is crucial for judges intending to operationalize the test.

[25]

Having concluded that finding that the officer
    or officers were lying was a crucial element of the test for racial profiling,
    the trial judge went on to analyze the evidence through the lens of the
    credibility of the officers, in particular, PC Delmar and PC Statham.

(3)

The Evidence and Associated Findings

(i)

The officers notes

[26]

The trial judge addressed each of the circumstances
    raised by the defence as evidence of behaviour from which an inference of
    racial profiling could be drawn.

[27]

The first was that the officers only prepared
    their notes after meeting together with detectives from the Criminal
    Investigations Branch who would be taking over the investigation of the firearm.
    The trial judge identified a number of concerns with this police procedure that
    could undermine the publics confidence in law enforcement, including the spectre
    of collusion and the inconsistency with the duty of police officers to make
    their notes as soon as practicable:
Wood v. Schaeffer
, 2013 SCC 71, [2013]
    3 S.C.R. 1053, at para. 67.

[28]

However, the trial judge found there was no
    collusion, based on some potentially important differences in the accounts of
    the officers, and his opinion that had they colluded, they would have come up
    with a better account of PC Delmars grounds for the arrest. The trial judge
    was also satisfied, based on the way PC Delmar answered questions, that his
    evidence was his own and was based on his independent recollection of the
    event.

(ii)

The officers will-say statements

[29]

The second circumstance raised by the defence
    was the creation of the officers will-say statements following a meeting with
    the Crown attorney after the
Charter
challenge based on racial
    profiling was filed. The defence argued that the officers used their will-say
    statements to embellish the critical issue for this trial, i.e. at what point
    they made the decision to pull over the appellant. The will-says fleshed out
    the manner in which the stop was conducted. They identified by name the
    combination stop procedure, and explicitly indicated, for the first time, that
    it was before the officers pulled up beside the appellant and shone their light
    on him that they formed the grounds to stop him.

[30]

The trial judge found that there was nothing
    inherently wrong or necessarily suspicious about the Crown attorney meeting
    with the officers prior to trial, nor was it surprising that additional notes
    would follow the meeting.

(iii)

The stop

[31]

With respect to the combination stop, the trial
    judge first commented that he had never before heard of the procedure, although
    there was evidence that it was one of the methods used by Peel police to
    prevent a pursuit, the idea being that a driver is less likely to flee if the
    police are able to identify him. The trial judge accepted PC Delmars evidence
    that he uses the combination stop regularly.

[32]

Defence counsels main argument was that the
    following evidence supported the inference that the stop of the appellants
    vehicle was racially motivated: (1) the officers decided to pull the appellant
    over only after they drove up beside him and saw that he was a young Black man
    with a beard; (2) their notes, which were made before they knew there was going
    to be a s. 9
Charter
challenge based on racial profiling, did not state
    when they decided to pull over the appellants car; and (3) the notes do not refer
    to a combination stop. The officers versions of the impugned driving were also
    different, including that PC King did not see the appellant swerve within his
    lane.

[33]

I note here that in his closing submissions,
    defence counsel emphasized another factor that indicated the stop was a ruse.
    Even though the officers claimed that the reason they had stopped the
    appellants vehicle was for suspected impairment, after he denied any alcohol
    consumption and they did not smell any alcohol on the appellant, they took no steps
    to investigate the smell of fresh marihuana and the two pill bottles in the
    car. The trial judge did not address this argument in his main analysis of the
    propriety of the stop, but only referred to it briefly in the reasons following
    the discussion of the appellants arrest.

(iv)

Evidence of the officers

[34]

In his reasons, the trial judge reviewed the
    evidence given by the two officers, PC Delmar and PC King, with respect to the
    appellants driving, and found that he preferred PC Delmars evidence over the
    evidence given by PC King. He was not troubled by the fact that their notes neither
    stated when the officers formed the grounds to effect the stop, nor mentioned
    the combination stop because the notes contained functional descriptions of
    both.

[35]

The trial judge then made the finding that he
    believed PC Delmar saw the poor driving and found out that the Ford Focus was a
    rental car before he decided to undertake the combination stop and learned the
    race of the appellant. The trial judge agreed with the officer that the nature
    of the appellants driving in that specific area and at the time of night
    provided ample articulable cause for the stop. He accepted PC Delmars concern
    that had the appellant fled, the potential consequences would have been on him.
    As a result of believing the officer, the trial judge concluded that the
    circumstances did not correspond to racial profiling, and the defence had not
    demonstrated a pretext stop.

[36]

After making that finding, the trial judge considered
    whether the evidence of what happened following the stop, leading up to the
    arrest and search, undermined PC Delmars credibility regarding the reason for
    the stop. Defence counsel asserted that the stop was used to create an
    opportunity to arrest and search the appellant because he is a Black man. Defence
    counsel focused on two points: (1) what he argued was PC Delmars exaggerated
    description of the appellants alleged poor driving; and (2) PC Delmars failure
    to conduct an impaired driving investigation.

[37]

The trial judge rejected both arguments because
    he accepted PC Delmars explanations. He found PC Delmars description of the
    appellants driving as a marked departure to be reasonable because he was
    dealing with a situation where the appellant suddenly veered out of the right
    turn lane, also described as a channel lane. While agreeing that what occurred
    following the stop was not a typical impaired driving investigation, the trial
    judge accepted PC Delmars explanation for taking no steps to investigate
    impairment. He accepted that in the absence of an odour of alcohol, burnt
    marijuana or obvious signs of impairment, PC Delmars suspicion of impaired
    driving was not borne out. He was also satisfied that PC Delmar gave some
    consideration to the pills, but he did not recognize them and did not give them
    more thought because they were obviously not narcotics.

(v)

The arrest

[38]

The trial judge found, however, that PC Delmars
    decision to arrest the appellant because he was confused about the appellants
    identity and concerned that the appellant might be a suspended driver was not
    based on reasonable and probable grounds. While the trial judge concluded that
    PC Delmar did not act in bad faith, he characterized the officers actions as
    careless and hasty. He concluded that PC Delmar became overly focused on the
    difficulty of confirming the appellants verbal identification and that his inadvertent
    spelling error [in the CPIC search], and his failure to pause and consider his
    own human frailty, only contributed to the problem. As a result, the trial
    judge held that the arrest and the search violated the appellants ss. 8 and 9
Charter
rights.

[39]

Having made these findings, the trial judge
    again addressed the racial profiling allegation. He found first that the arrest
    and search were not racially motivated, and second, that the subsequent
    breaches of s. 8 and s. 9 by the police did not make him believe that the initial
    traffic stop was a ruse. He then concluded the racial profiling issue at para.
    75 of his reasons by finding that the circumstances did not give him a basis to
    find that the officers were lying:

[75] Nonetheless, I am aware of the optics
    surrounding the arrest and believe it is important to address them. Within 10
    minutes of being lawfully stopped by two officers who reasonably (but
    incorrectly) suspected that he was an impaired driver, a Black man was arrested
    and taken to the ground by four officers. From a birds eye view, these factors
    gave me pause. However, when understood in context, they did not give me a
    basis upon which to infer that the officers were
lying
. PC Stathams
    testimony was of particular interest. It was thoughtful and credible. I accept
    that it is common for officers to slide-by a traffic stop and that PC Statham
    did so while knowing nothing about the details. I also believed him that he
    gave PC Tisdale a thumbs-up just prior to Mr. Sitladeens arrest. This tells
    me that until that point, the situation was rather routine. [Emphasis added.]

(4)

Section 24(2) of the
Charter

[40]

In light of the ss. 8 and 9
Charter
violations, the trial judge conducted a s. 24(2) analysis regarding the admissibility
    of the evidence of the firearm. In applying
R. v. Grant
,
2009
    SCC 32, [2009] 2 S.C.R. 353, the trial judge found that while the
Charter
-infringing
    conduct was not a trivial or minor breach, it was careless and hasty but not
    reckless. He noted that PC Delmars decision to arrest the appellant must be
    viewed in context: the appellant did not produce a drivers license when asked
    to do so and gave a false name, leading to a murky situation that was
    complicated by the partial CPIC results. The trial judge expressed concern that
    PC Statham agreed with PC Delmars decision to arrest without reasonable and
    probable grounds, but he did not find that to be evidence of a systemic or institutional
    concern. As a result, on the first
Grant
factor, he concluded that the
    seriousness of the police conduct did not pull strongly in favour of exclusion.

[41]

The second factor, the impact on the appellants
Charter
protected interests, did pull strongly in favour of exclusion,
    while the third factor, societys interest in adjudication on the merits,
    pulled strongly in favour of inclusion. Balancing the three, the trial judge
    ruled that the evidence was admissible.

D.

Issues on the Appeal

[42]

There are three issues on this appeal:

1.

Does the test for racial profiling require the
    trial judge to find that the police officers lied about their motivation for a
    stop or arrest?

2.

Did the trial judge err in law in his racial
    profiling analysis by focusing on whether the officers lied?

3.

If the trial judge made no error in his racial
    profiling analysis, did he err in his s. 24(2) analysis by failing to find that
    taken together, the first two
Grant
factors pulled in tandem toward
    exclusion of the evidence?

E.

Analysis

(1)

Issue 1: Does the test for racial profiling require the trial judge
    to find that the police officers lied about their motivation for a stop or
    arrest?

[43]

In the seminal decision of this court on the
    issue of racial profiling,
R. v Brown
, the court established a number
    of principles regarding the operation and effect of racial profiling by police:

·

The definition of racial profiling was adopted,
    at para. 7, from the decision of Rosenberg J.A. in
R. v. Richards
(1999), 26 C.R. (5th) 286 (Ont. C.A.). (quoted by the trial judge  see para. 20
    above)

·

The attitude that underlies racial profiling may
    be consciously or unconsciously held.
[2]
Consequently, a police officer need not be an overt racist to engage in conduct
    based on unconscious racial stereotyping: at para. 8.

·

Crown counsel did not challenge the existence of
    the phenomenon of racial profiling by the police
[3]
,
    and the court noted that that responsible position was supported by significant
    social science research: at para. 9.

·

A police officer who stops a motorist based on
    their race or colour has no articulable cause for the stop: at para. 10.

·

A racial profiling claim is rarely going to be
    proved by direct evidence. That would require an admission by the officer that
    racial stereotypes influenced the decision to stop the accused. Accordingly, if
    racial profiling is to be proven, it must be done by inference drawn from
    circumstantial evidence: at para. 44.

[44]

Morden J.A. also discussed a method for proving
    racial profiling. He accepted, at para. 46, the suggestion put forth by
    accuseds counsel that in the context of the facts of the
Brown
case,
    an inference of racial profiling could be drawn where there was evidence support[ing]
    the argument that the officer was not being truthful about the real reasons for
    the stop. That method is the oft-quoted correspondence test from para. 45 of
Brown
, referred to by the trial judge:

[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.

[45]

Morden J.A. accepted, at para. 45, that the
    proposed test was 
a
way in which racial profiling could be proven
    (emphasis added). However, he did not say it was the only way to articulate and
    apply the test. He noted that it did not set the hurdle too low or too high, recognizing
    the potential for unfairness to honest police officers performing their duties
    in a professional and unbiased manner, and to victims of racial profiling by
    making it virtually impossible to receive s. 9
Charter
protection.

[46]

A few years later, in
Peart
, where Doherty
    J.A. rejected a claim of racial profiling, he discussed the
Brown

test
    and did not refer to lying. He stated, at para. 131:

[131]
R. v. Brown
,
supra
, does
    not break any new ground in describing the fact finding process used in
    litigation.
R. v. Brown
acknowledges that some facts, of which racial
    profiling is an example, are not generally susceptible to proof by direct
    evidence, but are proved by inference from established primary facts.
R. v.
    Brown
also recognizes that where circumstantial evidence is directed at a
    fact in issue, the inferences to be drawn from that circumstantial evidence can
    assist in assessing the credibility and reliability of direct evidence offered
    as proof of the same factual issue. This is also nothing new. Factual
    determinations are made by a consideration of the totality of the relevant
    evidence be it direct or circumstantial. [Emphasis added.]

[47]

Doherty J.A., at para. 133, accepted as accurately
    reflecting the essence of the decision in
Brown
, the following summary
    by the trial judge in
Peart
:

The court [in
Brown
] accepts that one
    way of proof of racial profiling is to compare the facts with the
indicia
of racial profiling to provide a basis for an inference that the officer is
    untruthful as to why the plaintiff was singled out. The record is then capable
    of supporting a finding of racial profiling.

[48]

I highlight these two passages because they show
    that the focus of the correspondence test is not necessarily whether the
    circumstances demonstrate that the officer was lying, i.e. deliberately
    misleading the court, but rather, whether the circumstances give the court a
    basis to reject the officers evidence as untrue because they are indicative of
    racial profiling.

[49]

This approach to the correspondence test is
    consistent with the concept of unconscious bias, where a person either does not
    recognize, or does not acknowledge his own bias.
[4]
An officer who has unconsciously allowed racial stereotypes to influence his
    decision to detain a racialized person may not believe he is being untruthful,
    and therefore may not be lying when he testifies that racial stereotypes played
    no role in the decision. Nevertheless, a trial judge is entitled to reject that
    evidence as untruthful, if the judge is satisfied, based on the circumstances
    consistent with racial profiling, that unconscious bias and racial profiling
    were factors in the decision.

[50]

R. v. Le
,
2019 SCC 34, 375 C.C.C. (3d) 431, was not a racial profiling case,
    but explored the role of systemic racial discrimination in the perception of an
    accused as to whether he is being detained by police. In that context, the Supreme
    Court commented on racial profiling by police and confirmed, at para. 76, that racial
    profiling occurs when race or racial stereotypes are used, either consciously
    or unconsciously, and to any degree, in the selection or treatment of a
    suspect.

[51]

This court elaborated on that comment from
Le
in its recent decision on racial profiling in
R. v. Dudhi
, 2019 ONCA
    665, 147 O.R. (3d) 546. There, one of the arresting officers referred to brown
    drug dealers in a radio transmission to police colleagues before he arrested
    the accused. The accused claimed that the arrest was tainted by racial
    profiling. The trial judge, however, rejected the claim on the basis that the
    arrest was justified on other grounds. This court held that the trial judge
    erred in so doing.

[52]

In
Brown
, this court stated, at para.
    11, that to prove a s. 9 breach, the applicant must show that there was no
    articulable cause for the stop and it was based on colour. Paciocco J.A. for
    this court in
Dudhi

explained, at paras. 62-63, that the
    statement does not mean that in such cases, the racial profiling component is
    irrelevant to the analysis. To the contrary, where an officer has objective
    grounds to detain an individual, those grounds cannot justify that decision if
    they are tainted by any degree of racial profiling:

[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.

[53]

He concluded, at para. 64:

[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.

[54]

To summarize, the case law from
Brown
onward recognizes that in cases where an officer had objective grounds to
    detain a person or stop a vehicle but was also subjectively motivated by racial
    stereotypes, the officer is unlikely to admit his bias. The matter becomes more
    complicated when the officer is unaware that he was influenced by race because
    of unconscious bias. The officer may not be consciously lying about his
    motivation, but that does not mean he did not unconsciously engage in racial
    profiling. It is the role of the trial judge in such cases to consider all the
    circumstances that led to an accuseds detention and/or arrest and to determine
    whether they correspond to the phenomenon of racial profiling, as understood in
    the social science literature, the reports of inquiries into race relations
    with police
[5]
,
    and the case law. The trial judge can then decide whether those corresponding circumstances
    form a basis to infer that the record is capable of supporting a finding that
    the stop was based on racial profiling, contrary to the evidence of the
    officer. Ultimately, to 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.

(2)

Issue 2: Did the trial judge err in law in his racial profiling
    analysis by focusing on whether the officers lied?

[55]

The Crowns position is not that lying is a
    necessary element of the correspondence test, but that the trial judges
    reasons show that he did not believe that it was, because that would be inconsistent
    with his recognition that racial profiling can be subconscious. I agree that it
    would be inconsistent.

[56]

The Crowns position is that the trial judge
    considered the totality of the circumstances in concluding that there was no
    conscious or unconscious racial profiling.

[57]

I do not accept this submission. In my view, it
    is clear from the reasons that the trial judge was focused on the need to find
    that the officers were lying in order to draw the conclusion that there was
    racial profiling. While he mentioned early in his reasons that racial profiling
    can be the result of subconscious attitudes, he did not specifically find that
    there was no unconscious racial profiling by PC Delmar. This is critical
    because by failing to address whether unconscious racial bias played any role
    in the officers decision to stop or to arrest the appellant, the trial judge eliminated
    the possibility that the stop or arrest may have been tainted by racial
    profiling, even if there was also another available basis to justify the police
    actions.

[58]

I refer first to para. 26 of the reasons, where
    the trial judge stated: Professor Tanovichs version [of the correspondence
    test] eliminates an element that is crucial for judges intending to
    operationalize the test. That element was that the circumstances must 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.

[59]

From that point forward, the trial judge focused
    on the credibility of PC Delmar and considered each of his impugned actions in
    that context: the potential for collusion between officers in making their
    notes after meeting together; the differences between the notes and the will-say
    statements on the crucial issue of when the officers decided to stop the
    appellants car; whether the appellants driving was sufficiently aberrant to
    give the police the basis to stop the appellant on suspicion of impaired
    driving and whether their subsequent failure to conduct a sobriety
    investigation was consistent with their alleged concern; whether PC Delmar
    exaggerated the description of the erratic driving by calling it a marked
    departure from the driving he usually sees; and, the haste to arrest the
    appellant for the offence of driving while suspended for which they did not
    have reasonable and probable grounds. In respect of each action, the trial
    judge found that he believed the officer and that his conduct or his reaction
    was a reasonable one. From that, the trial judge concluded that there was no racial
    profiling.

[60]

I also highlight the final two paragraphs of the
    trial judges reasons on this issue. In para. 74, after finding that there were
    no reasonable and probable grounds for the arrest and search of the appellant
    and that the officers violated the appellants ss. 8 and 9
Charter
rights, the trial judge found the arrest and search were not racially motivated
    and further, that those breaches did not lead [him] to find that the traffic
    stop was probably a ruse after all. A ruse is a deliberate act. That
    characterization excludes the possibility that the breaches were or could have
    been the result of unconscious bias.

[61]

Finally, in para. 75, already quoted, the trial
    judge makes his key finding that while the optics surrounding the arrest gave
    him pause, when understood in context, they did not give [him] a basis upon
    which to infer that the officers were lying. He added that PC Stathams
    testimony was of particular interest because it was thoughtful and credible,
    and indicated a routine situation.

[62]

The major factual issue that all parties focused
    on at trial was the purpose and effect of the combination stop. From the
    appellants point of view, what occurred was that he was driving normally, not
    speeding, when a police car drove up beside him, shone a light on him, saw that
    he was a Black man, then fell back, and turned on its lights and siren to pull him
    over. The officers version was that they decided to stop the appellant before
    they saw him and knew he was Black. If that was true, then racial profiling was
    not a factor in the stop.

[63]

While it was therefore important for the trial
    judge to assess the credibility and reliability of the officers evidence on the
    issue of when they decided to carry out the stop, by focusing on whether they were
    lying, the trial judge failed to also consider whether the circumstances that
    could correspond to racial profiling could support the inference that unconscious
    racial profiling played a role.

[64]

For example, even if the police were concerned
    about the appellants driving before the combination stop, given all the
    circumstances, including a low-end rental vehicle driving in an area with clubs
    and bars late at night, did seeing that the appellant was a Black man have the
    effect of confirming a decision to stop his vehicle?
[6]
In respect of the arrest, was PC
    Delmars confusion and haste leading to an illegal arrest and search of a Black
    man a circumstance that corresponds with unconscious racial profiling?

[65]

In my view, by concentrating on whether the
    officers were lying to the court when he assessed their impugned conduct and whether
    the circumstances could correspond to racial profiling, the trial judge improperly
    limited his analysis. While he acknowledged that racial bias is often
    subconscious and therefore hard to prove, his approach did not allow him to assess
    the reliability of the officers testimony about their own motivation in the
    context of all the circumstances.

[66]

In response to my colleagues dissent, at para. 108 of his
    reasons, he states that the officers mental state or attitude on subsequently
    discovering that the appellant was a Black man could not negate or taint the
    reasonableness of the earlier decision to make the traffic stop. That could be
    true if the officer had implemented the decision to stop before he saw that the
    appellant was a Black man. However, here, he did not stop the car until after
    he saw the appellants race.

[67]

I also reject his suggestion that my reasons create a presumption
    of racial profiling, instead of recognizing the onus of proof on an accused
    when a
Charter
breach is alleged. The onus of
    proof was not in dispute or at issue at trial or on the appeal. The issue is
    the trial judges fundamental responsibility to correctly articulate and apply
    the test for racial profiling based on the evidence. Here, the trial judge had
    circumstantial evidence from which a finding of racial profiling could be made,
    but he failed to correctly state and apply the correspondence test to that
    evidence to determine if racial profiling affected the decisions of the police
    to stop and arrest the appellant.

(3)

Issue 3: If the trial judge made no error in his racial profiling
    analysis, did he err in his s. 24(2) analysis by failing to find that taken
    together, the first two
Grant
factors pulled in tandem toward exclusion
    of the evidence?

[68]

The appellant argues in the alternative that the
    trial judge erred in law in his weighing of the
Grant
factors, and
    that as both of the first two factors pulled in favour of exclusion of the
    evidence, although one more strongly than the other, the evidence should have
    been excluded and the appellant acquitted.

[69]

This submission is based on the Supreme Court of
    Canada decision in
Le
, which gave new guidance on the way courts
    should conduct the s. 24(2) analysis, and came out after the trial decision in
    this case.

[70]

At para. 141 of
Le
, the Supreme Court explained
    that where the first two
Grant
factors pull in favour of exclusion,
    they need not do so with the same strength in order to compel exclusion of the
    evidence, nor is it necessary that both even favour exclusion for a court to
    determine that admitting the evidence would bring the administration of justice
    into disrepute. The Supreme Court went on to state that it is possible that
    serious
Charter
-infringing conduct, with a weak impact on the accuseds
Charter
-protected interest, could be found to taint the evidence such
    that its admission would bring the administration of justice into disrepute.
    The Supreme Court concluded, that [i]t is the sum, and not the average, of
    those first two lines of inquiry that determines the pull towards exclusion.

[71]

Based on this new teaching from the Supreme
    Court, the appellant submits that in this case, the trial judge erred in his
    balancing analysis. The appellant says that the trial judge should have
    characterized the decision to arrest and search the appellant as negligently
    made, taking it closer to bad faith and therefore pulling more strongly in
    favour of exclusion.

[72]

I would not give effect to this submission. It
    cannot be said that the trial judge erred in his characterization of the first
Grant
factor or in the balancing exercise he performed. He found the case to be a
    close one and made his call after careful reflection on which decision would
    best accord with the repute of the administration of justice.

F.

Conclusion

[73]

Because the trial judge failed to apply the
    correct test to determine whether the stop or the arrest of the appellant were
    tainted by racial profiling, a new trial must be ordered. On that basis, I
    would allow the appeal and order a new trial.

K. Feldman J.A.

I agree.
E.E.
    Gillese J.A.



Miller J.A.
    (dissenting):

A.

overview

[74]

The doctrine of
    racial profiling  first articulated in
R.
    v. Brown
(2003), 173
    C.C.C. (3d) 23 (Ont. C.A.) but based on fundamental principles established long
    before  has provided a stable framework for identifying a particularly
    pernicious form of unjust treatment. My colleague and I agree that the trial
    judge stated the doctrine correctly. We disagree as to whether the trial judge
    followed the doctrine he articulated.

[75]

On my review of
    the trial judges reasons and the transcripts of the hearing, it is apparent
    that the trial judge was well aware that racial profiling is more commonly the
    result of unconscious rather than conscious bias, and that he did not restrict
    his analysis to conscious bias. Beyond our disagreement about how the trial
    judge actually reasoned, my colleague and I have a deeper disagreement over
    what is required to establish a claim of racial profiling. My colleagues
    reasons, as I read them, amount to a de facto (if not de jure) adoption of a
    rebuttable presumption of racial profiling wherever a police officer becomes
    aware of the racial identity of a suspect when making a traffic stop. This
    would be a substantial departure from this courts jurisprudence and should be
    rejected.

[76]

I do, however,
    agree with my colleagues analysis of s. 24(2) of the
Canadian Charter of Rights and Freedoms
, and conclude that the trial judge did
    not err in admitting the Glock handgun and oversized magazine into evidence.
    Accordingly, I would dismiss the appeal in its entirety.

B.

analysis

(1)

What is racial profiling?

[77]

Racial profiling is an injustice rooted in a failure of practical
    reasoning. The inquiry into whether racial profiling occurred is focused
    entirely on the chain of reasoning that led a police officer to investigate,
    detain, or arrest a particular suspect:
R. v. Le
,
    2019 SCC 34, 434 D.L.R. (4th) 631, at paras. 76-78. As this court explained in
Peart

v.
    Peel Regional Police Services Board

(2006), 43 C.R. (6th) 175 (Ont. C.A.)
at para. 90,
leave to appeal refused, [2007] S.C.C.A. No. 10, racial profiling
    occurs where
:

a police officer  uses race (consciously or subconsciously) as
    an indicator of potential unlawful conduct based not on any personalized
    suspicion, but on negative stereotyping that attributes propensity for unlawful
    conduct to individuals because of race

[78]

Racial profiling is an act of decision-making  a reasoning
    process leading to a decision. It is not a general disposition or attitude.
    Racial profiling may result from conscious or unconscious bias that diverts a
    decision-maker from proper individualized reasoning:
Peart
,
    at para. 93. Accordingly, the inquiry into whether a police officer racially
    profiled someone is not resolved by determining whether that officer in general
    holds conscious or unconscious racist attitudes. It is possible for the
    reasoning of someone who is otherwise scrupulously and self-consciously
    egalitarian to be misshapen by unconscious bias in making a particular
    decision. The focus is on evaluating the particular internal mental process
    that led to the specific police action under investigation:
Le
, at para. 78.

[79]

If a police officer employs a negative racial stereotype as a
    premise in a chain of reasoning culminating in a decision to investigate,
    detain, or arrest someone, that faulty decision-making cannot be cured by the
    fact that there were other, legitimate grounds the officer could have relied on
    to come to the same conclusion:
Peart
, at
    para. 91. The focus is on how this particular officer
actually
reasoned on this particular occasion. It is therefore a factual question:
Peart
, at paras. 6, 104, 131. How an officer reasoned at
    the relevant time cannot, however, be impacted by things the officer did not
    know or believe, even if that information might have impermissibly influenced
    the officers decision-making had it been known.

[80]

Racial profiling is seldom established by direct evidence. More
    commonly, it must be inferred from the circumstances surrounding the police
    action that is said to be the product of racial profiling:
Peart
, at para. 95. That is, a judge must determine
    whether it can be inferred from all the evidence that one of the premises in
    the police officers chain of reasoning was that, because of the suspects
    racial characteristics, the suspect is more likely to have engaged in criminal
    activity. The burden of proof is on the accused.

[81]

Inferences drawn from circumstantial evidence can assist a judge
    in assessing the credibility and reliability of direct evidence offered as
    proof of the same factual issue:
Peart
, at
    para. 131.

[82]

Additionally, if a police officers explanation of his or her
    reasoning seems unbelievable, this can support an inference that the officers
    actual reasoning employed negative racial stereotyping:
R.
    v. Dudhi
, 2019 ONCA 665, 147 O.R. (3d) 546, at paras. 80-81. The
    inference may be especially powerful if the trial judge concludes that the
    officer was deliberately lying:
Brown
, at
    para. 45;
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.

(2)

Did the Trial Judge Apply the Law Incorrectly?

(i)

The Trial Context

[83]

Racial profiling was the central issue at trial.
    The trial judge, in the second paragraph of his reasons, acknowledged the
    wrongness of racial profiling, its existence in the criminal justice system,
    that it tends to occur unconsciously rather than consciously, and that it must
    therefore usually be proven by inference from circumstantial evidence. The
    hearing of the
Charter
application included extensive exchanges
    between the trial judge and both counsel on whether an inference of bias could
    be drawn from the circumstantial evidence. It is telling, however, that the
    language of unconscious bias was almost entirely absent from defence counsels
    initial argument, which for the most part did not distinguish between conscious
    and unconscious racial profiling. The concept of unconscious bias only came
    under the spotlight when the trial judge himself raised the issue during the trial
    Crowns submissions. The subject was only then taken up by defence counsel in
    reply.

[84]

The trial judge
    was required to ascertain the officers actual chain of reasoning. To do that,
    the trial judge could rely on the officers direct evidence explaining their
    reasoning, as well as inferences drawn from the circumstances of the traffic
    stop and arrest. Circumstantial evidence might confirm or undermine what the
    officers said. Some circumstantial evidence  such as how quickly the officers
    decided to arrest the appellant  might support the inference that the
    appellants racial identity was a factor in the decision to arrest. But the
    presence of one or more factors consistent with racial profiling does not
    generate a presumption of racial profiling:
Peart
, at para. 135. A trial judge is required
    to examine all the evidence, consider the available inferences, and determine
    what the officers actual reasoning was.

(ii)

The Findings at Trial

[85]

The evidence
    before the trial judge included the officers testimony and a statement made by
    the appellant on arrest. The appellant did not testify on the application. The
    officers denied that the appellants racial identity played any role in their
    decisions and explained their reasons for the combination stop and arrest.

[86]

The trial judge
    focused on the reasoning of PC Robert Delmar, finding that the traffic stop and
    arrest were both his decision. The trial judge found that PC Delmar decided to
    effect the traffic stop based on the substandard driving he observed, and the
    time and place he observed it. He found PC Delmar had a reasonable suspicion
    that the driver was impaired. He found, further, that the decision to stop the
    driver was made before PC Delmar learned that the driver was a Black man.

[87]

With respect to
    the arrest, the trial judge found that although the police lacked reasonable
    and probable grounds to arrest the appellant for driving with a suspended
    licence, the officers hasty actions were not influenced by racial stereotypes.
    He drew the inference that their haste was the result of their concern 
    arising from the Canadian Police Information Centre (CPIC) search results 
    that the appellant could be armed and dangerous.

[88]

The appellant
    itemizes eight factors, each of which were raised before the trial judge, which
    he claims support a finding of racial profiling. The trial judge considered
    each factor, in context, and concluded that the appellant was not racially
    profiled. These factors, and the trial judges analysis of them, are as
    follows:

1.

PC Delmars exaggerated characterization
    of the appellants driving:
the trial judge
    rejected the claim that PC Delmar exaggerated his actual observations of the
    appellants driving. He therefore also rejected the argument that PC Delmar was
    thereby attempting to shield from view his real reason for the traffic stop:
    the appellants race;

2.

The combination stop (or, the use of
    the alley light to illuminate the inside of the appellants car and observe the
    driver before stopping the vehicle):
the trial
    judge found that PC Delmar decided to stop the appellants vehicle before
    discovering the appellant was a Black man. He accepted the decision to stop the
    appellant was based on the nature of the appellants driving, late at night, in
    an area known for impaired driving. He further accepted that the combination
    stop was a routine decision, undertaken as the car was a rental, creating a
    flight risk. Since the car was a rental, the appellants identity could not be
    determined by running the plates. The trial judge accepted that combination
    stops are performed on the theory that if the driver of a vehicle has been
    visually identified, the driver may be less likely to flee, and rejected the
    argument that PC Delmar was motivated to stop the appellant because he was a
    Black man;

3.

The omission of a reference to the
    combination stop in the officers notes:
the
    trial judge rejected the argument that the absence of a reference to a
    combination stop in PC Delmars notes suggested PC Delmars testimony was
    dishonest. The trial judge was untroubled by this omission, as the notes
    contained [a] functional and detailed description of the concept;

4.

That the appellant was a single Black
    male, driving a rental vehicle late at night, in a suspicious area of the city:
the trial judge did not find that, with respect to the traffic
    stop, substandard driving by a young Black man in an inexpensive car
    corresponded with any negative racial stereotypes;

5.

There was no investigation of the
    appellant for impaired driving, despite this being the justification for the
    traffic stop:
the trial judge rejected the
    argument that, because the police immediately abandoned the impaired
    investigation, it must have been a ruse or pretext for searching the appellant
    and his vehicle. He found that PC Delmar abandoned the investigation after he
    questioned the appellant, found no odour of alcohol or other indicia of
    impairment, and concluded that his reasonable suspicion [that the appellant
    was impaired] was not borne out;

6.

The immediate arrest of the appellant as
    a suspended driver without satisfactorily ascertaining his identity:
the trial judge concluded that the hasty arrest was caused by the
    appellants failure to produce a drivers licence, his lie about his identity,
    and the CPIC search results raising concerns about the appellants potential
    danger to the community;

7.

The presence of four officers at what
    was ostensibly a routine impaired driving investigation:
the trial judge accepted that neither of the additional two officers
    had been called in, but independently stopped to determine if help was
    required. The trial judge found that this was routine. He accepted that PC
    Delmar failed to signal to PC Statham, the third officer to arrive, that all
    was routine because he did not notice him. He also accepted that, shortly
    before the appellants arrest, PC Statham gave PC Tisdale, a fourth officer,
    the thumbs up signal. In the trial judges view, this meant that the
    situation was routine up until that point;

8.

The quick and forceful takedown
    of the appellant by three or four police officers:
although this gave the trial judge pause, he was satisfied that
    the explanation for the hasty arrest was the potential that the appellant was
    armed and dangerous.

In short,
    the trial judge considered and addressed each contextual factor that the
    appellant claims supported the inference that he was racially profiled. Some
    were rejected on the basis that they did not correspond with the facts found by
    the trial judge. The remainder were evaluated together with the rest of the
    evidence.

(iii)

The Argument on
    Appeal

[89]

On appeal, the
    appellant argues that the trial judge rejected the application because he could
    not conclude the officers were lying about their reasons for the stop, arrest,
    and search. That is, the trial judge misapplied the test for racial profiling
    by requiring a finding of deliberate lying.

[90]

The trial judge
    is said to have restricted his analysis to whether he believed the evidence of
    the officers. In doing so, he allegedly overlooked the possibility that the
    officers denials of racial profiling were credible, as were their explanations
    for their actions, only because they were themselves ignorant of their actual
    reasons that relied on racial stereotypes. By focusing on credibility, the
    trial judge is said to have failed to consider the totality of the evidence and
    missed the ultimate issue: what were the actual reasons for the traffic stop,
    arrest, and search?

[91]

As I explain
    below, I am not persuaded that the trial judge made this error. The trial
    judges reasons demonstrate that he made his findings about the actual reasons
    for the traffic stop, arrest, and search by carefully considering the
    circumstantial evidence, the appellants statement, and the evidence of the
    police. To the extent that he accepted the officers own accounts of their
    reasoning, it was not solely or even primarily because of findings of
    credibility, but because the accounts were consistent with what he concluded
    from the circumstantial evidence.

(iv)

The Framing of
    the Argument at Trial

[92]

It is important
    to consider how the argument was framed before the trial judge. The appellants
    submissions, for the most part, did not distinguish between conscious and
    unconscious stereotyping. The defence argument was simply that the police
    officers, particularly PC Delmar, had stopped and arrested the appellant
    because he was a Black man. All else was said to be pretext. On the defence
    argument, it necessarily followed that everything the officers said to the
    contrary was false.

[93]

It did not
    matter, for the appellants purposes, whether the police were intentionally
    lying or whether they genuinely had no insight into their own thought
    processes. Either way, they were not telling the truth  either about what they
    thought or what they did. The trial judge was required to make factual findings
    about what happened and determine, from the circumstantial evidence canvassed
    earlier, whether the police relied on racial stereotyping in their
    decision-making. This is what he did. Indeed, this is reflected in his conclusion
    that he did not find that the arrest and search were racially-motivated. This
    reference to racial motivation encompasses both conscious and unconscious
    motivation.

(v)

Did the Trial Judge Misapply the Test?

[94]

The evidence
    that the trial judge erroneously required a finding of dishonesty by the
    police, and otherwise did not have unconscious racial bias in mind, is said to
    be twofold.

[95]

First, is his
    focus on assessing the credibility of the police witnesses. However, this focus
    is entirely responsive to the submissions of defence counsel, whose main thrust
    was that the police witnesses should not be believed.

[96]

Second, are the
    trial judges two references to lying in his reasons. I will address these
    references in greater detail.

(1)

The References
    to Lying

[97]

Two statements
    by the trial judge are said to support the argument that he was focused on the
    question of whether the officers were consciously lying about not having been
    influenced by racial stereotypes, and therefore did not consider whether the
    evidence supported the inference that the officers unconsciously engaged in
    racial profiling and were untruthful in their evidence without having been
    aware of it.

[98]

The trial
    judges first reference to lying is made obliquely in ruling on the appropriate
    use of an academic article by Professor David M. Tanovich. The second is in his
    reasons final paragraph addressing the racial profiling issue. I will address
    each in turn.

(i)

The Tanovich article

[99]

The trial judge
    discussed the article, Applying the Racial Profiling Correspondence Test
    (2017) 64 Crim L.Q. 359, by Professor Tanovich, in an early digression in the
    reasons. There was a dispute between the defence and the Crown over the
    defences intended use of the article. The defences position was that the
    article would be helpful for its summary of the case law on racial profiling.
    The Crown objected because of a risk that the article would be relied on for an
    improper purpose: the backdoor admission of expert social science evidence.

[100]

As the trial
    judge noted, much contemporary legal scholarship is expressly written for the
    purposes of advocacy. That is, its primary purpose is not to describe what the
    law is, but to argue for how the law can be used or changed to better conform
    to the authors agenda. Such articles may rely on unproven factual assertions,
    controversial philosophical or sociological theses, or untested statistical
    analyses. The opinions expressed may be outside the authors and reviewers
    areas of expertise. Even if the social science scholarship is undoubtedly
    within the authors area of expertise, it does not mean that the theses
    proposed will be in any sense neutral or objective. Accordingly, the use of
    scholarly writing in litigation can be problematic, creating the risk that parties
    will introduce untested expert evidence and bypass the procedural safeguards
    intended to control its admission.

[101]

The trial judge
    was alive to all of this when considering the Tanovich article. He noted he had
    to exercise caution, even with the ostensibly descriptive aspects of an article
    written as legal advocacy. One of the stated purposes of the article was to
    advocate for modifying the racial profiling analysis by adopting a reverse onus
    and rebuttable presumption of racial profiling. The trial judge noted these
    proposals had been rejected by this court in
Peart
. But,
    he was also concerned that even where the article was self-consciously
    descriptive, its statements of legal doctrine needed to be read with care. The
    trial judges approach here is salutary: before a judge cites an academic
    article in reasons for judgment, the judge should, at a minimum, have read the
    article. Better still, the judge should have some sense of where the article
    fits in the wider scholarly discourse, lest it be mistaken for representing a
    consensus view where there is, or ought to be, disagreement and debate.

[102]

It was in this
    context that the trial judge expressed his concern with Professor Tanovichs
    recitation of the passage in
Brown
. He observed that the articles quotation
    of the correspondence test from
Brown
was incomplete, explaining:

[t]he second
    ellipsis omits the phrase 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. While perhaps an effective way to focus counsels efforts to
    identify and marshal facts, Professor Tanovichs version eliminates an element
    that is crucial for judges intending to operationalize the test [Emphasis in
    original].

[103]

The trial judge
    did not criticize the author for having edited the reasons for his purposes.
    But the editing of the decision underlined for the trial judge the need to
    exercise care in using the article as a guide to the relevant doctrine. It
    omitted an element  whether the officer was lying about his or her reasons 
    that the trial judge characterized as crucial for judges intending to
    operationalize the test.

[104]

My colleague
    expresses concern about the trial judges characterization of this phrase from
    Brown. But indeed, the element is crucial, bearing in mind that crucial means
    important (or even decisive) rather than necessary: see e.g. The Oxford
    English Dictionary, 2nd ed., sub verbo crucial. In several cases, a finding
    that officers lied about their reasoning process had been crucial to drawing
    the inference of racial profiling: see e.g.
Elmardy
    v. Toronto Police Services Board
, 2017 ONSC 2074, 136 O.R. (3d) 471 (Div. Ct.), at paras. 21-23;
R. v. Byrnes
,
    2019 ONSC 1287, 430 C.R.R. (2d) 28, at paras. 28-29. But the statement,
    standing alone, does not support the thesis that the trial judge thought
Brown
required a finding that a witness lied in order for the defence to establish a
    claim of racial profiling.

[105]

The trial
    judges only other statement about lying occurs in the concluding paragraph of
    his analysis on the racial profiling issue.

(ii)

The Concluding Paragraph

(a)   The Traffic Stop

[106]

Before
    addressing the substance of the concluding paragraph, which focused on the
    circumstances of the appellants arrest, it is important to keep in mind how
    the trial judges analysis of the traffic stop had unfolded by this point in
    his reasons. In doing so, I intend to make clear why the impugned paragraphs
    reference to lying raises no concern as it relates to the judges analysis of the
    traffic stop.

[107]

On the facts as
    found by the trial judge, he could not infer that race factored into the
    officers decision to make the traffic stop. This flows from the trial judges
    finding that the officer decided to stop the vehicle after observing substandard
    driving, but before he could have known of the drivers race. He made the
    decision to undertake a two-stage stop  first pulling alongside and making
    visual contact with the driver, and then drawing back to engage the lights 
    after running the vehicle plates and discovering the car to be a rental
    vehicle.

[108]

My colleague
    argues that, despite this finding, subsequent knowledge of the drivers race
    could potentially have the effect of confirming a decision to stop his
    vehicle, and thus tainted the decision before it could be fully executed.
    This argument is speculative and intended merely as an example of the type of
    inquiry the trial judge is said to have overlooked because he is said to have
    focused solely on conscious bias. But it misconceives the nature of racial
    profiling. The reason why a person made a particular decision is a question of
    fact. Those reasons are what they are and cannot be tainted by that persons
    subsequent knowledge and emotional reactions. The most obvious reason why my colleagues
    example of unconscious bias would not have been addressed by the trial judge
    was not because he failed to consider the possibility of unconscious bias. It
    would be because
the officers mental state or attitude
    on subsequently discovering that the appellant was a Black man could not negate
    or taint the reasonableness of the earlier decision to make the traffic stop
.

[109]

Significantly,
    trial defence counsel conceded that the allegation of racial profiling would be
    in trouble if the trial judge found that the officers decided to stop the
    appellant before they learned of his race. The trial judges finding that the
    officer did not know the driver was a Black man before deciding to make the
    traffic stop was dispositive of the racial profiling argument concerning the
    traffic stop. The trial judge did not make the error of concluding there was no
    racial profiling because there was also another available basis to justify the
    police actions. He concluded there was no racial profiling in the decision to
    stop the appellant because the circumstantial evidence did not support the
    claim.

(b)   The Arrest

[110]

With respect to
    the arrest, the trial judge placed the defence case at its highest:

Within 10 minutes of being lawfully stopped by
    two officers who reasonably (but incorrectly) suspected that he was an impaired
    driver, a Black man was arrested and taken to the ground by four officers. From
    a birds eye view, these factors give me pause. However, when understood in
    context, they did not give me a basis upon which to infer that the officers
    were lying.
[7]

[111]

My colleague
    reads the ultimate sentence as confirming that the trial judge was focused
    entirely on the question of whether the officers were lying, to the exclusion
    of the circumstantial evidence potentially supporting a finding of unconscious
    racial profiling.

[112]

I do not agree.
    As mentioned earlier, by this point in the reasons, the trial judge had
    considered all of the contextual factors offered in support of the argument
    that the appellants race must have motivated the police officers  whether
    consciously or unconsciously  to stop and arrest the appellant. He had
    explained why he was not persuaded that race was a factor in the decision to
    make the traffic stop. And with the decision to make the arrest  a decision
    that the trial judge found to have been arbitrary and a violation of s. 9  the
    trial judge explained what he concluded had motivated it:

The most probable
    explanation of what happened, based on all the evidence, is that PC Delmar
    became overly focused on the difficulty he was having in confirming [the
    appellants] verbal identification on the police computer. His inadvertent
    spelling error, and his failure to pause and consider his own human frailty,
    only contributed to the problem. While not evidence of bad faith, it was
    careless and led to haste.



In coming to this
    conclusion, I do not find that the arrest and search were racially motivated.

[113]

The trial judge
    undertook a more complete analysis of this context in his s. 24(2) analysis. He
    observed that the arrest was careless and hasty, but not reckless. The murky
    situation confronting PC Delmar included the CPIC results suggesting the
    appellant presented a danger to the community, which added to his concerns at
    a time when he was required to make quick decisions.

[114]

This context
    informed the trial judges conclusion on the racial profiling issue. The
    appellant had given a false name. The name he chose to give  his brothers 
    carried considerable baggage. The CPIC search not only raised the possibility
    that the appellant  if he was who he claimed to be  had a suspended licence
    and was under a weapons prohibition order, but also that he was a person known
    to be armed and dangerous and of interest to the Toronto Police Service. This
    was, in short, a situation of potentially great danger. The officers knew the
    appellant might not be the person described in the CPIC search. Yet they did
    not know who he was, and it would have been reasonable for them to conclude
    that the appellant believed that giving them this name was to his greater
    advantage than telling the officers who he really was. The trial judge reasoned
    that it was these circumstances that led the officers to act with more haste
    than was justified. This is part of the context that the trial judge had in
    mind when he concluded that the factors that gave him pause did not give him a
    basis upon which to infer that the officers were lying, presumably about not
    having been motivated by racial bias.

[115]

The trial judge
    had, by this point, considered all of the evidence proffered by the defence. He
    found the officers actions were not racially motivated, had a ring of truth,
    and were based on individualized suspicion.

[116]

The trial judge
    did not err by failing to expressly state the conclusion that PC Delmar did not
    engage in unconscious racial profiling. It was not an error for the trial judge
    to reject the claim, having clearly explained why he was persuaded that the
    officers decisions were not informed by racial stereotyping. This does not
    constitute the error identified in Peart, at para. 91, of finding that racial
    stereotyping was part of the officers reasoning process, yet justifying it
    because the stop and arrest could have been grounded on some other basis.
    Instead, it is a finding  based on a considered conclusion about how the
    officers actually reasoned, after having considered the totality of the
    evidence  that the impugned decisions were reached without use of racial
    stereotyping. Requiring the Crown to establish anything more would amount to
    imposing the presumption that was rejected by this court in Peart.

[117]

After finding
    that the circumstantial evidence did not raise an inference of racial
    profiling, the trial judge considered what remained for him the decisive
    question  did the officers lie? If he concluded the officers had been attempting
    to deceive him, then notwithstanding that the circumstantial evidence did not
    lead him to the inference sought by the appellant, the fact of an attempted
    deception very likely would have. If the officers were not lying, then that was
    necessarily the end of things.

[118]

The only
    question the trial judge needed to answer was whether the appellants racial
    identity factored into the officers decision to make the traffic stop and
    arrest. It did not matter whether the bias was consciously held or
    unconsciously held, or whether the officers were aware of their reasoning or
    not. The question was to be resolved by looking at all of the evidence,
    particularly the circumstantial evidence. The trial judge did not restrict his
    inquiry to the officers denials of racial profiling or whether they were
    attempting to hide their real reasons from him. He did not reason as if, should
    he not find that the police were lying, he would not be able to find racial
    profiling any other way. If he had reasoned in this way, one would have
    expected him to have addressed the issue of lying first, and not engaged with
    the circumstantial evidence in the way he did. Instead, he considered the whole
    of the evidence and found that it did not establish racial profiling. He fully
    and fairly considered the arguments before him and made a finding that was open
    to him. There was nothing else left for him to do. There is no basis to
    interfere with his judgment.

C.

disposition

[119]

I would dismiss
    the appeal.

Released: May
    10, 2021 K.F.

B.W. Miller J.A.





[1]
The trial judges reasons state three officers at one place and
    four officers at another place took the appellant to the ground.



[2]

Morden J.A. used the words unconscious and subconscious interchangeably
    in relation to racial profiling and bias.



[3]
On October 14, 2020, the Ontario Human Rights Commission, Peel
    Regional Police, and the Regional Municipality of Peel Police Services Board
    entered into a Memorandum of Understanding (MOU) that committed to the
    development and implementation of legally binding remedies aimed at the
    elimination of systemic racism in policing. The MOU includes, as its objectives,
    the need to acknowledge the reality of racial profiling, to engage with racialized
    communities about their experiences with racial profiling, and to adopt
    policies geared towards the elimination of racial profiling. The MOU can be
    accessed online at
    http://www.ohrc.on.ca/en/memorandum-understanding-between-ontario-human-rights-commission-and-peel-regional-police-and



[4]
The Ontario Human Rights Commission
, Policy on eliminating
    racial profiling in law enforcement
(Toronto: Ontario Human Rights
    Commission, 2019), defines unconscious bias (referred to in the policy as
    internal implicit bias) as based on racial stereotypes people hold without
    being consciously aware of them: at p. 27. The OHRC explains: Often without
    realizing it, people categorize others they do not know by their perceived
    group membership, and then attribute to these individuals the stereotypes
    associated with their group. Relying on these stereotypes can lead to racial
    profiling, even if there is no intent to discriminate: at p. 27.



[5]

See, for example, Michael. H. Tulloch,
Report of the
    Independent Street Checks Review
(Toronto: Queens Printer for Ontario,
    2018); Ontario Human Rights Commission,
Paying the Price: The Human Cost of
    Racial Profiling
(Toronto: Ontario Human Rights Commission, 2003);

Ontario
    Human Rights Commission
, Under Suspicion: Research and Consultation Report
    on Racial Profiling in Ontario
(Toronto: Ontario Human Rights Commission, 2017);
Ontario Human Rights
    Commission,
A Collective Impact: Interim report on the inquiry into
    racial profiling and racial discrimination of Black persons by the Toronto
    Police Service
(Toronto: Ontario Human Rights Commission, 2018); Ontario
    Human Rights Commission,
A Disparate Impact: Second interim
    report on the inquiry into racial profiling and racial discrimination of Black
    persons by the Toronto Police Services
(Toronto: Ontario Human Rights
    Commission, 2020); Ontario, Race Relations and Policing Task Force,
The
    Report of the Race Relations and Policing Task Force
(Toronto: Race
    Relations and Policing Task Force, 1989); Ottawa Police Service,
Racial
    Profiling, Policy No. 5.39
(2011), online: <
https://www.ottawapolice.ca/en/news-and-community/resources/racial_profiling_policy27jun11_finalpdf.pdf
>.



[6]

The trial judge comments in a footnote that the concept of
    police racial profiling is not commonly associated with a Black person driving
    an inexpensive vehicle. I agree that Driving while Black is associated with a
    Black person driving an expensive vehicle (Is this your car?). However, there
    is no basis to assume or conclude that racial profiling by police is limited in
    that way.



[7]

The evidence at trial indicates that only two of the
    officers were initially involved in the take-down, PC Delmar and PC Statham. A
    third came in to assist once the appellant was on the ground.


