R. v. Sitladeen

R. v. Sitladeen Collection Decisions of the Court of Appeal Date 2021-05-10 Neutral citation 2021 ONCA 303 Docket numbers C65932 Judges Feldman, Kathryn N.; Gillese, Eileen E.; Miller, Bradley Subject Criminal Decision Content 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 appellant’s 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 appellant’s 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 appellant’s driving as a marked departure from what he ordinarily saw on the roads. PC King corroborated PC Delmar’s 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 driver’s side of the appellant’s 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 appellant’s vehicle and activated their emergency lights directing him to stop. The officers said the appellant’s 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 appellant’s vehicle based on the appellant’s driving, before they performed the combination stop and saw the appellant. (2) Circumstances of the Arrest [10] PC Delmar went to the driver’s side of the appellant’s 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 brother’s. [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 appellant’s 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 wasn’t 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 driver’s 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 judge’s 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 appellant’s 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 court’s 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 Tanovich’s 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 public’s 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 Delmar’s 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 Delmar’s evidence that he uses the combination stop regularly. [32] Defence counsel’s main argument was that the following evidence supported the inference that the stop of the appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s driving, and found that he preferred PC Delmar’s 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 appellant’s driving in that specific area and at the time of night provided ample articulable cause for the stop. He accepted PC Delmar’s 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 Delmar’s 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 Delmar’s exaggerated description of the appellant’s alleged poor driving; and (2) PC Delmar’s failure to conduct an impaired driving investigation. [37] The trial judge rejected both arguments because he accepted PC Delmar’s explanations. He found PC Delmar’s description of the appellant’s 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 Delmar’s 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 Delmar’s 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 Delmar’s decision to arrest the appellant because he was confused about the appellant’s 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 officer’s actions as careless and hasty. He concluded that PC Delmar became overly focused on the difficulty of confirming the appellant’s 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 appellant’s 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 bird’s 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 Statham’s 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 “thumb’s-up” just prior to Mr. Sitladeen’s 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 Delmar’s decision to arrest the appellant must be viewed in context: the appellant did not produce a driver’s 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 Delmar’s 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 appellant’s Charter protected interests, did pull strongly in favour of exclusion, while the third factor, society’s 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 accused’s 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 officer’s 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 accused’s 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 Crown’s position is not that lying is a necessary element of the correspondence test, but that the trial judge’s 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 Crown’s 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 Tanovich’s 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 appellant’s car; whether the appellant’s 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 judge’s 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 appellant’s 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 Statham’s 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 appellant’s 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 appellant’s 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 Delmar’s 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 colleague’s dissent, at para. 108 of his reasons, he states that “the officer’s 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 appellant’s 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 judge’s 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 accused’s 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 judge’s 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 colleague’s 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 court’s jurisprudence and should be rejected. [76] I do, however, agree with my colleague’s 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 officer’s 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 officer’s chain of reasoning was that, because of the suspect’s 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 officer’s explanation of his or her reasoning seems unbelievable, this can support an inference that the officer’s 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, aff’d 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 counsel’s 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 Crown’s 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 appellant’s 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 appellant’s 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 judge’s analysis of them, are as follows: 1. PC Delmar’s exaggerated characterization of the appellant’s driving: the trial judge rejected the claim that PC Delmar exaggerated his actual observations of the appellant’s 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 appellant’s race; 2. The “combination stop” (or, the use of the alley light to illuminate the inside of the appellant’s car and observe the driver before stopping the vehicle): the trial judge found that PC Delmar decided to stop the appellant’s vehicle before discovering the appellant was a Black man. He accepted the decision to stop the appellant was based on the nature of the appellant’s 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 appellant’s 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 officer’s notes: the trial judge rejected the argument that the absence of a reference to a combination stop in PC Delmar’s notes suggested PC Delmar’s 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 appellant’s failure to produce a driver’s licence, his lie about his identity, and the CPIC search results raising concerns about the appellant’s 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 appellant’s arrest, PC Statham gave PC Tisdale, a fourth officer, the “thumb’s up” signal. In the trial judge’s 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 judge’s 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 appellant’s 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 appellant’s 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 appellant’s 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 judge’s 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 judge’s 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 reason’s 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 defence’s intended use of the article. The defence’s 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 author’s 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 judge’s 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 Tanovich’s recitation of the passage in Brown. He observed that the article’s 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 counsel’s efforts to identify and marshal facts, Professor Tanovich’s 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 judge’s 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 judge’s 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 appellant’s arrest, it is important to keep in mind how the trial judge’s analysis of the traffic stop had unfolded by this point in his reasons. In doing so, I intend to make clear why the impugned paragraph’s reference to lying raises no concern as it relates to the judge’s analysis of the traffic stop. [107] On the facts as found by the trial judge, he could not infer that race factored into the officer’s decision to make the traffic stop. This flows from the trial judge’s finding that the officer decided to stop the vehicle after observing substandard driving, but before he could have known of the driver’s 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 driver’s 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 person’s subsequent knowledge and emotional reactions. The most obvious reason why my colleague’s 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 officer’s 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 judge’s 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 bird’s 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 appellant’s 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 appellant’s] 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 judge’s conclusion on the racial profiling issue. The appellant had given a false name. The name he chose to give – his brother’s – 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 officer’s 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 officer’s 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 appellant’s 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 judge’s 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: Queen’s 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.