COURT OF APPEAL FOR ONTARIO
MORDEN, LASKIN and FELDMAN JJ.A.
BETWEEN: HER MAJESTY THE QUEEN Applicant/Appellant - and - DECOVAN BROWN Respondent J. K. Stewart for the applicant/appellant Philip Campbell and Steven Skurka for the respondent Julian N. Falconer and Julian K. Roy for the intervener The Urban Alliance on Race Relations Sheena Scott and Lisa LaBorde for the intervener The African Canadian Legal Clinic Heard: January 17, 2003
On appeal from an order of Justice W. Brian Trafford of the Superior Court of Justice dated January 28, 2002.
MORDEN J.A.:
Introduction
[1] This is an application for leave to appeal and, if leave is granted, an appeal by the Crown from an order of Trafford J., sitting as a summary conviction appeal court judge, that set aside the respondent's conviction on a charge of driving "over 80" contrary to s. 253(b) of the Criminal Code, R.S.C. 1985, c.C-46 and ordered a new trial. Trafford J.'s reasons are reported at 57 O.R. (3d) 615.
[2] Trafford J.'s decision to set aside the conviction is based on his conclusion that the trial judge's conduct of the trial gave rise to a reasonable apprehension of bias. The sole issue on this appeal is whether he rightly came to this conclusion. For the reasons that follow I would dismiss the appeal.
Overview of the Case
[3] Before addressing the appellant's submissions, I shall set forth a brief overview of the case and state the basic issue at the trial. On November 1, 1999, Constable Olson, who was an Acting Sergeant at the time in the Toronto Police Service ("the officer") was engaged in general patrol duties on the Don Valley Parkway in Toronto in a marked police supervisor's jeep. At around 12:55 a.m., he signalled Decovan Brown (the respondent), an African-American who was wearing a baseball cap and a jogging suit and driving a brand new Ford Expedition, to pull over to the right shoulder of the road. The officer informed the respondent that the speed limit was ninety kilometres an hour and that the respondent had been travelling "in excess" of that speed.
[4] The officer detected the odour of alcohol on the respondent's breath and suspected that he had alcohol in his body. The respondent, who was on his way home from a Halloween party, said that he had consumed a couple of drinks. He failed the roadside screening test demanded by the officer who then arrested him for "driving over 80". He was taken to the police station at 45 Strachan Avenue, which was the closest location where breath-testing equipment was set up and manned. The subsequent breath analysis showed that the respondent's blood-alcohol concentration was 140 milligrams of alcohol in 100 millilitres of blood. He was released after the breath test.
[5] There was only one issue raised at the ensuing trial: what was the reason for the officer stopping the respondent on the Don Valley Parkway? Was it because the respondent was speeding and had twice crossed out of and back into the lane in which he was travelling, as testified to by the officer, or was it because he was a young black male driving an expensive car?
[6] At the outset of the trial the respondent's counsel applied under ss. 9 and 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding the evidence of the breath analysis. The defence contended that the officer's stopping of him was an arbitrary detention under s. 9 because it was based, not on the fact that he was speeding, but rather on racial profiling.
[7] There is no dispute about what racial profiling means. In its factum, the appellant defined it compendiously: "Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group" and then quoted a longer definition offered by the African Canadian Legal Clinic in an earlier case, R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), as set forth in the reasons of Rosenberg J.A. at p. 295:
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.
[8] The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping.
[9] In the opening part of his submission before this court, counsel for the appellant said that he did not challenge the fact that the phenomenon of racial profiling by the police existed. This was a responsible position to take because, as counsel said, this conclusion is supported by significant social science research. I quote from the Report of The Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen's Printer for Ontario, 1995) (Co-chairs: M. Gittens and D. Cole) at 358:
The Commission's findings suggest that racialized characteristics, especially those of black people, in combination with other factors, provoke police suspicion, at least in Metro Toronto. Other factors that may attract police attention include sex (male), youth, make and condition of car (if any), location, dress, and perceived lifestyle. Black persons perceived to have many of these attributes are at high risk of being stopped on foot or in cars. This explanation is consistent with our findings that, overall, black people are more likely than others to experience the unwelcome intrusion of being stopped by the police, but black people are not equally vulnerable to such stops.
[10] There is no dispute respecting the test to be applied under s. 9 of the Charter. The question is whether the police officer who stopped the motorist had articulable cause for the stop. Articulable cause exists where the grounds for stopping the motorist are reasonable and can be clearly expressed: R. v. Wilson (1990), 56 C.C.C. (3d) 142 (S.C.C.) at 144. If a police officer stops a person based on his or her colour (or on any other discriminatory ground) the purpose is improper (Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.) at 17) and clearly would not be an articulable cause.
[11] Accordingly, to succeed on the application before the trial judge, the respondent had to prove that it was more probable than not that there was no articulable cause for the stop, specifically, on the evidence in this case, that the real reason for the stop was the fact that he was black.
[12] The trial judge heard the application. By agreement, the Crown adduced its evidence on the application and on the trial at the same time. It called two witnesses, the officer and Constable O'Donovan. The defence adduced evidence solely with respect to the application, calling the respondent and a private investigator, Albert Duncan, who had made a videotape of the stretch of the Don Valley Parkway where the events had occurred.
[13] Following the evidence and hearing submissions on behalf of the respondent, the trial judge, after stating that he did not need to hear from the Crown counsel, dismissed the application. No further evidence was offered at the trial and the trial judge convicted the respondent and imposed a fine of $2,000.
An Outline of the Evidence and of the Trial Judge's Reasons
[14] There are three south bound and three north bound lanes on the Don Valley Parkway. The officer testified that he was travelling at approximately 100 kilometres an hour south bound in the slow lane, on the right, near the Don Mills Road exit. Shortly after 12:45 a.m. he caught sight of the respondent's vehicle in his left rear view mirror as it was overtaking him travelling south bound in the lane closest to the centre divider. The respondent's vehicle passed the officer at a speed that the officer estimated at 120 kilometres an hour. The Don Valley Parkway has a posted speed limit of 90 kilometres an hour.
[15] The officer changed lanes, got behind the respondent and began to follow him. In his evidence in-chief, the officer said there appeared to be a single occupant in the car. In cross-examination he said that he determined that there was one occupant in the car when he approached it on foot after they had come to a stop. He said that he had had "no indication whatsoever" whether there was one person or five people in the respondent's car when he was on the road. The defence contended that his reluctance in cross-examination to admit an ability to see into the car, which he had acknowledged in-chief, tended to support Mr. Brown's evidence (to which I shall refer) and to discredit his own.
[16] After the officer got behind the respondent's vehicle, it slowed down to between 80 to 85 kilometres an hour over the kilometre and a half to two kilometres that the officer estimated he followed the respondent. The wheels on the passenger side of the respondent's vehicle crossed over the lane dividing line twice. As the result of his observations, the officer activated his emergency equipment at 12:55 a.m. and pulled the respondent's vehicle over on the right shoulder of the road just north of the Bayview exit ramp on the south bound Don Valley Parkway.
[17] A printout from the Mobile Data Terminal (MDT), established that the officer had done a vehicle check on the respondent's vehicle at 12:52 a.m., before he pulled him over. An MDT is a small terminal in the police vehicle that allows the officer to run vehicle checks that can be read on a small screen. In this way, the officer can determine ownership of the vehicle being checked, run CPIC queries, and find out whether the vehicle has been reported stolen or if it had been the subject of other police inquiries. The officer said that such checks were a matter of police safety and that he did them routinely. The respondent's vehicle had not been reported stolen. The officer did not remember whether he received this information before or after he pulled the respondent over...