Racial profiling is a serious allegation and if made out should be treated very seriously; our Court of Appeal has clearly recognized this: R v Brown, 2003 CarswellOnt 1312 (CA). Conversely, it is a serious allegation that should not be made lightly and should properly be raised. As the Court of Appeal noted, in "quickly" dispensing with a non-meritorious claim of racial profiling in R v Clayton, 2005 CarswellOnt 1061 (CA) [overturned on other grounds]:
There is no basis in the trial record for this submission [of racial profiling] which, as indicated above, was made for the first time on appeal. It is unfair to those who are the target of this serious allegation to raise it for the first time on appeal. In addition, advancing a claim of racial profiling where it is so obviously devoid of merit tends to trivialize a matter of serious concern within the community. [Emphasis added].
In the recent case of R v Noel and St-Louis, Ontario Court of Justice, Ottawa, June 23, 2011, it was alleged that the arresting officer may been involved in racial profiling. Unfortunately, these allegations were made during a preliminary hearing and absent a formal complaint or Charter motion (indeed the court had no jurisdiction to consider the validity of the stop or detention). Respectfully, it seems equally unfair to raise such a serious allegation in the context of a judicial proceeding where the court has no jurisdiction to properly consider the allegation and without the benefit of a full and fair hearing.
Moreover, the allegation of "racial profiling" was legally irrelevant in the proceedings. A claim of "racial profiling", in the context of a criminal trial, has a specific meaning and consequence; it is relevant where a stop and/or detention of an accused is at issue or some other Charter remedy is being sought. If proven its consequences may be a stay or exclusion of evidence. However, where there is no formal claim or the court has no jurisdiction to consider it, a claim of "racial profiling is legally irrelevant. The comments of the court in R v Humphrey, 2011ONSC 3024, 2011 CarswellOnt 3817 - where racial profiling was alleged - are instructive:
Once it is determined that the H.T.A. grounds for the stop were not a mere ruse, and that the police genuinely acted, at least in part, on the basis of the expired val tag, it becomes very difficult to establish racial profiling. As Morden J.A. put it in Brown, supra, the burden on the accused is to establish on a balance of probabilities "that there was no articulable cause for the stop" or that the H.T.A. grounds were "a pretext for a racially motivated stop", as Doherty J.A. put it in Peart, supra. On the facts of the present case, the "extra interest" that motivated the police to stop the Cadillac was the possible association of the car to criminal gang members. As in Brown v. Durham Regional Police Force, the racial make-up of the possible criminal gang associates does not appear to have been a factor. Whether they were black or white, the possibility of gang associations was a perfectly good reason to show some "extra interest" in the car. [Emphasis added].
Unfortunately, but not unexpectedly, these allegations and the results of the case have spurred much commentary. For example, in a blog on "Politic?" the author offers the following critique on the comments by the court in R v Noel and St-Louis:
It's the troubling aspect of how the courts perceive their mission in weighing evidence put before them through the professional conduct of police, coming to the unwarranted conclusion that as a result of imputed behavioural misdemeanors, that evidence is to be set aside that should concern us. The police doing their professional best and the courts insisting on leniency based on political correctness.
On the other side, Dawg's Blawg seems to view the courts comments in a much more favourable light.
Obviously this is a subject which will stir up emotion and strong opinions; before jumping to conclusions however, it is important to consider some facts.
First, as noted at the outset, this was a preliminary hearing. There was no formal allegation of racial profiling made, no Charter motion alleging the stop or detention was unlawful, arbitrary or based on racial profiling; nor could there be as the court was without jurisdiction to consider same. Absent such a motion (and jurisdiction for the court to consider it) it is unfair and legally irrelevant to raise the allegation.
Second, to the extent that the stop and detention was alleged to be based on racial profiling, it should be recognized that the officer was legally authorized to make the stop. Pursuant to section 32(1) of the Highway Traffic Act and section 3(1)(a)(i) of the Compulsory Automobile Insurance Act, combined with section 216 of the Highway Traffic Act the officer was lawfully entitled to stop the men and check their licence and insurance. The officer testified that he did stop them for that purpose; after explaining why he ran the plate, "to see if there's stolen vehicles...if they're expired, who owns the vehicle, if the vehicle is stolen...", the officer testified as follows regarding the reasons for the stop [as reported by the Ottawa Sun]:
OFFICER FERRIE: I stated the reason for my stop, I’m just checking documents and ensuring that he’s allowed to be in the vehicle. I asked him who owned the vehicle and he stated his — his mother did.
Is it racial profiling to stop a motorist, for a valid and lawful purpose, just because they are black? It could be racial profiling, if there was any evidence to support that allegation. On the other hand, it could be good police work to rely on a valid authority to stop two young men driving a Cadillac registered to an older female in the Market to ensure they were properly licenced and had insurance and registration for the vehicle. The officer could have stopped any person driving through the Market that night to check on their licence. He choose to stop these young men for that purpose; true, he did so in part because they raised suspicion in his mind, yet, he did so for a valid purpose. That is good police work, not racial profiling.
The recent case of R v Hopkins, 2011 ONCJ 349 makes this point in circumstances which most people will easily accept and likely agree with [see my blog: Quotable Quote: It can be Random, it Need Not be Pointless]. In Hopkins the defence argued that it was a Charter violation for an officer to select and stop motorists in the area of a bar under section 48 of the Highway Traffic Act - a section which permits officers to stop motorists to determine if they may be impaired. The argument was essentially that the officer was "alcohol profiling". That argument was rejected. It would be odd to permit officers to stop motorist to check on their sobriety but not permit them to stop motorist who are more likely to be impaired, such as those who are leaving a bar. Similarly, it would be odd that officers are permitted to stop motorist to check on their licence, registration and insurance but not to stop those who are more likely in contravention of those sections (such as two young men who are in an older female's Cadillac).
Third, as far as it appears from all reports and reference to the case, the officer never admitted or conceded that he was racial profiling. A finding that it was racial profiling in the absence of any evidence to support same is troubling - as noted in Humphrey, if the allegation were made in a proper Charter motion, it would be the accused who bore the onus of establishing, on a balance of probabilities, that there was no valid reason for the stop.
It is interesting to note, in this regard, one of the questions posed by the judge during the questioning of the officer [as reported by the Ottawa Sun]: "How many white women do you stop in the market just because they're driving a car?". The officer replied "I couldn't even tell you". Of course, the more relevant question - if you were attempting to allege racial profiling or determine if there was racial profiling is "How many young white men driving cars in the market that are registered to older females do you stop?". This could provide relevant evidence on racial profiling. The actual question posed is completely irrelevant, with respect.
Racial profiling is a serious allegation and must be rejected and admonished by the courts. It must not be alleged or found, however, in the absence of a formal Charter motion and a full and fair hearing.
Coincidentally, during the stop the officers found the following: 13 grams of pot, 5 grams of crack and $1,685 in cash.
DG Mack