From Judge Wayne Gorman:

In R. v. Dudhi, 2019 ONCA 665, August 22, 2019, the accused was charged with the offences of possession of cocaine for the purpose of trafficking and breach of recognizance.  The police arrested the accused for breaching a condition of his recognizance that was no longer in force.  After the arrest, the police searched the vehicle the accused had been driving and found cocaine.

At the trial, there was evidence that the “the arresting officer [Constable Clayton] made a comment over the radio to his police colleagues about ‘brown’ drug dealers”.

The accused argued that “he was racially profiled and therefore arbitrarily detained, contrary to s. 9 of the Charter”. The trial juge concluded that “there was no link between the comment and the reason for the arrest”. The cocaine was admitted as evidence and the accused was convicted.

The accused appealed from conviction.  The Ontario Court of Appeal concluded that the trial judge erred in his analysis of whether racial profiling had occurred and in his application of section 24(2) of the Charter.  The Court of Appeal set aside the convictions and ordered a new trial.

Racial Profiling:

The Court of Appeal indicated that racial profiling “has two components: (1) an attitudinal component; and (2) a causation component”.  These components were explained by the Court of Appeal in the following manner (at paragraph 55):

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous…The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

The Court of Appeal indicated that “racial profiling occurs where race or racial stereotypes are used ‘to any degree in suspect selection or subject treatment’” (at paragraph 59). Thus, “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” (at paragraph 62).

In the context of this case, the Ontario Court of Appeal concluded that the trial judge “committed two errors in his racial profiling reasoning, each relating to the causation component. First, he believed improperly that the racist comment made by Cst. Clayton could not support a racial profiling finding because it was uttered after the decision to arrest had already been made. Second, he gave undue weight to what he felt were reasonable grounds that would have justified Mr. Dudhi’s arrest in any event” (at paragraph 67).

Section 24(2):

The Court of Appeal also concluded that the trial judge erred in his application of section 24(2) of the Charter (at paragraphs 90 and 91):

First, I cannot accept the trial judge’s finding that the failure of the officers to “dig deeper” before arresting Mr. Dudhi “falls closer to the less serious negligence or lack of due diligence end of the continuum.” This conclusion reflects an error in principle: the continuum spans good faith to bad faith. Negligence or the lack of due diligence does not fall at either end of that continuum…The negligence demonstrated by the officers in this case is far removed from good faith and actually sits more proximate to the bad faith end of the breach spectrum…

Second, I cannot agree with the trial judge’s view that even had the police learned that the cellphone prohibition had been varied, they could have stopped Mr. Dudhi in any event under the authority of the Highway Traffic Act. I agree with Mr. Dudhi’s submission on this point. Had the police used the Highway Traffic Act to pursue a drug investigation, this would have been a pretence stop, contrary to the Charter.

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