R. v. Dudhi, 2019 ONCA 665
RACIAL PROFILING - ARBITRARY DETENTION - 24(2) ANALYSIS
Facts
PC Clayton was conducting undercover surveillance in connection with a drug investigation. He spotted a vehicle matching the description of a vehicle of interest. The vehicle was being driven by the Appellant, Mr. Dudhi, a person of colour. PC Clayton followed the vehicle. He then realized the driver was a black man, not the white suspect he was looking for. PC Clayton was in radio contact with PC Oosterhoff. Despite not being the intended suspect, PC Clayton believed the Appellant was engaging in counter-surveillance and asked PC Oosterhoff to run the plate anyways. PC Oosterhoff informed PC Clayton that the Appellant was subject to a recognizance and began listing his conditions. PC Clayton only provided a generic description of the Appellant over the radio as “brown-skinned”. PC Clayton continued to pursue the Appellant’s car, radioing the rest of the surveillance team that he believed the Appellant had just engaged in a drug deal. PC O’Hagan joined the pursuit; PC Clayton informed him that this was not the original target but was “another brown guy who is a drug dealer”.
The officers boxed the Appellant in at an intersection. PC Clayton confirmed the Appellant’s identity and arrested him for failure to comply as he was using a cellphone. The Appellant promptly informed PC Clayton that this condition had been varied. The Appellant and thee inside of his vehicle were searched “incident to arrest”. During this search, nearly 500g of cocaine was recovered. The Appellant was charged with possession for the purpose of trafficking, and two counts of breach of recognizance.
Trial Judge’s Decision
At trial, the Appellant brought a Charter challenge alleging that he was both arbitrarily detained, and unreasonably searched contrary to sections 9 and 8 of the Charter, respectively. The Appellant advanced two grounds for his section 9 claim. First, he alleged that the arresting officer arrested him without confirming that the cellphone condition was still in arrest. Second, he claimed that the arresting officer engaged in racial profiling. The trial judge agreed with the first ground finding that the arrest was precipitous given the lack of complete information. The trial judge, however, rejected the racial profiling argument and the section 8 challenge finding that the search was properly conducted incident to arrest. Despite finding a section 9 breach, the trial judge admitted the evidence under section 24(2) of the Charter.
As a result, the Appellant was found guilty of possession for the purpose of trafficking, and one count of breach of recognizance (for possessing drugs). The Appellant was acquitted of the second count of breach of recognizance.
Issues on Appeal
Racial Profiling
The ONCA affirms Brown and Martin JJ definition of racial profiling from R v Le, 2019 SCC 24:
“The concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used. Consciously or unconsciously, to any degree in suspect selection or subject treatment”.
Racial profiling has two components: (A) an attitudinal component, which consists of the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend (see: Peart v Peel Regional Police Services Board, 2006 ONCA) and (B) a causation component, which requires that the race-based attitude motivate or influence, consciously or unconsciously, decisions by persons in authority regarding suspect selection ro subject treatment.
Policing decisions based on race or racial stereotypes are not objectively reasonable decisions. A decision does not need to be solely or even mainly based on race or racial stereotypes to rise to the threshold of racial profiling.
“PARA 63: 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.”
It is open to a trial judge to find that despite a person of authority’s demonstrated racist attitude (attitudinal component), that attitude did not motivate or influence the decisions made (causation component) (See: R v Le, 2019 SCC 24 at para 80).
In the case at bar, however, the trial decision did not properly arrive to this conclusion. First, the trial judge gave improper weight to the fact the racist comment was made after the basis for arrest was formed. Racist attitudes do not occur in isolation, rather they can be inferred from the circumstances surrounding the police behavior. The officer’s comment about “another brown drug dealer” reflects the officer’s attitude or belief; this belief remains relevant throughout the remainder of the interaction between the police and the Appellant.
Second, the trial judge erred in giving undue emphasis to the presence of RPG in defeating a finding of racial profiling. At para 84, Paciocco JA succinctly states, “the presence of reasonable grounds does not disprove racial profiling.”
2. Section 24(2) Analysis
The Crown concedes that the trial judge’s s. 24(2) analysis was deficient. Specifically, the trial judge erred in finding that all of the Grant factors favoured inclusion. On appeal, the ONCA found that the presence of racial profiling would aggravate the seriousness of a Charter breach. The ONCA declined to conduct a fresh s. 24(2) analysis as a new trial was required to settle all the relevant considerations that inform a s. 24(2) analysis.
It was an error in law for the trial judge to conclude that the police officers’ negligence fell at the “less serious negligence end of the continuum”. The spectrum under the first branch of the Grant test is concerned with good and bad faith, not less and more serious negligence. The trial judge ought to be concerned with whether the officers’ negligence is more proximate to good or bad faith conduct.
PACIOCCO JA, writing for the court, allowed the appeal, set aside the Appellant’s conviction and ordered a new trial.
Read the full decision here.