Décision

JW 0143
COURT OF QUEBEC
CANADA
PROVINCE OF QUEBEC
DISTRICT OF					MONTREAL
TOWN OF				MONTREAL
Criminal Division
No:			500-01-004657-042-001
DATE:		January 27, 2005
______________________________________________________________________
BY	THE HONOURABLE						JUANITA WESTMORELAND-TRAORÉ, J.Q.C.
______________________________________________________________________
THE QUEEN
v.
CAMPBELL, Alexer
______________________________________________________________________
JUDGMENT orally rendered January 27, 2005 CORRECTED AND EDITED VERSION February 1, 2005
______________________________________________________________________

[1]                In April 2004, at about 10:30 pm, Alexer Campbell was walking down the street, when he was arrested by two police officers for a breach of his bail conditions in a pending case; he admits that at the time he was restricted by a curfew from 10:00 pm to 7:00 am.   When arrested, he was found in possession of 1.52 grams of marijuana as well as drug related paraphernalia, and a new charge was laid for possession of a narcotic for the purposes of trafficking.  Later, a search of the police car in which he was transported to the police station produced a small packet containing 26 grams of cocaine base (crack) leading to the laying of a further charge of possession of crack cocaine for the purpose of trafficking.

[2]                Alexer Campbell believes that he was a victim of racial profiling because he was a young black male riding in a taxi.  The arresting officer who testified denies this claim and declares that before the arrest, he did not know that the accused was a black man.

[3]                The case began with a hearing on a Voir Dire to determine the lawfulness of the arrest and subsequent search of Campbell; it was agreed that the evidence on the Voir Dire would serve for the decision on the Defence's Motion for Stay of Proceedings by virtue of Articles 7, 9, 15 and 24(1) and (2) of the Canadian Charter of Rights and Freedoms.  Depending on the Court's decision on the Motion,  this evidence would also serve as evidence in the trial itself.  The accused testified at the Voir Dire and the decision on the Charter Motion was reserved.  The case continued with further cross-examination of the arresting  officer and the testimony of a second officer who processed the seized items at the police station. 

[4]                The Court must therefore decide if the Defence has succeeded on its' Charter Motion for a Stay of Proceedings, or, alternatively, for exclusion of the evidence made by the officers, including the results of their search.  If this Motion is rejected, the Court must decide,  on the Voir Dire, the lawfulness of the arrest and search of Alexer Campbell.  If the Court finds the arrest and search to be lawful, the Court must then decide whether, the Crown has met the burden of proving the accused Campbell guilty beyond a reasonable doubt.

SUBMISSIONS OF THE PARTIES

[5]                The Crown submits that the officers were carrying out their duties to preserve the peace and repress crime.  They are authorized to observe anyone whom they consider to be acting suspiciously;  they intervened and arrested Alexer Campbell only when one of the officers recognized him and recalled that he had conditions to respect.  This officer did not know that the accused was a black man until he recognized him. The accused was not detained by the officers.

[6]                Both the arrest and incidental search were lawful and respected Alexer Campbell's constitutional rights.  The testimony of the accused cannot be accepted because he is not credible.  There is no contestation of the beach of the curfew. Marihuana was found on the accused and circumstantial evidence links him inexorably to the crack cocaine which was found in the police car under the seat where he was sitting.

[7]                The Defence submits that racial profiling can be unconscious and that they have proved, by a preponderance of proof, the factors necessary to conclude that racial profiling existed in this case.  Without the racial profiling, the accused would never have been followed.  He was the subject of psychological restraint which constituted detention. This detention was arbitrary and a breach of Section 9 of the Charter. The search incident to this detention exceeded the security search authorized in R. v. Mann. This violation of the accused's constitutional rights calls for a stay of proceedings or, alternatively, the exclusion of the evidence obtained because of the racial profiling.

[8]                If this constitutional argument fails, the Defence argues that the officers had no reasonable grounds to detain the accused and the incidental search was therefore illegal; the search was also unreasonable in that it was carried out in an excessive manner and was not related to the offence; it constituted a fishing expedition. The admission of this evidence would bring the administration of justice into disrepute and call for its exclusion under S. 24(2) of the Charter. The evidence of possession of crack cocaine is inconclusive. 

[9]                Moreover, the Crown has failed to meet its burden of proving the guilt of the accused beyond a reasonable doubt because of important discrepancies in the testimony  of its' witnesses.

THE FACTS

[10]            The evidence made by the Crown and by the Defence on Voir Dire is compatible in many respects, but differs in other significant aspects.

1. The version of the Crown

[11]            While patrolling at 10:34 pm, officers  Ransom and Dumas drive east on Bourret Street near Coolbrook Avenue.  A taxi proceeds north on Coolbrook and turns onto Bourret in front of them.  As they drive behind the taxi,  officer Ransom, who is the driver of the patrol car,  describes what he calls somewhat suspicious behaviour by the passenger in the taxi.  According to his testimony, the passenger in the taxi seems to lean forward at a 45° angle, as if to avoid being seen.   He therefore drives closer to the taxi.

[12]            According to the testimony of Officer Ransom, a few metres before the intersection of  Decarie Boulevard and Bourret, the passenger suddenly exists  the taxi and begins to  walk quickly southward on Decarie. Since the officers consider the behaviour suspicious, they advance to get a better look.  At this moment, Officer Ransom recognizes Alexer Campbell whom he has arrested in the past.  

[13]            He testifies that a fellow officer,  Agent Martinais, had told him a few days previously that Campbell had to respect a curfew from 10:00 pm to 7.00 am  because he had been arrested a few months earlier in February for possession of narcotics.  Officer Martinais had checked the condition and found that it was still in force at the time.

[14]            Officer Ransom told his partner that the accused was in violation of his curfew.  While Officer Ransom parked, Officer Dumas got out of the patrol car and called after Campbell.  Officer Ransom did not recall whether he had told Officer Dumas the name of the accused.  Officer Ransom also got out to join Officer Dumas.  When the accused started to run, Officer Dumas ran after him without saying why and tackled him a few metres away.  Since the accused resisted, the officers put him on the ground and forcefully handcuffed him behind his back. 

[15]            At 22:37, Officer Ransom arrested Alexer Campbell for breach of conditions and searched his clothing. 

[16]            According to the testimony of Officer Ransom, they searched every pocket.  They found a cell phone and $140.00 in twenty dollar bills in the left sleeve of his coat.  They found an additional $35.00,  5 five dollar bills and 1 ten dollar bill,  in the front left pocket of his pants.  They found an electronic scale in the right pocket of his coat.  They also found 1 gram of marijuana in the right front pocket of his pants.  At 22:40, they arrested the accused for possession of narcotics.

[17]            They then placed him in the back seat of the patrol car, locked the doors; however, before seating him in the back seat, they searched beneath the seat, lifting it up as was their custom.  There was nothing in the car.  Officer Ransom explained that Alexer Campbell was known to police as a trafficker and in his experience, suspects often hide drugs under the car seat.  He then drove to the Western Operations Centre. They arrived at 22:54.

2. The version of the Defence

[18]            Alexer Campbell admits that when he first saw the police officers it was approximately 10:20 pm; it was before 10:30 and he was in breach of his bail conditions.  However, he testifies that he first saw the "the cop car" parked at the corner of Coolbrook and Lucy, one short block away from where he stopped to see his sister; according to the accused, the patrol car drove off when he alighted from his taxi and rang his sister's doorbell.  The police car went around the corner and parked.

[19]            Since there was no answer, Campbell got back into the taxi, going along Bourret to the corner of Decarie to see if his sister was there but got out a little before Decarie Boulevard. He testified that he saw the police officers again while he was in the taxi and that he did not tell the taxi driver to go faster.  He paid between $15 and $17 for the taxi fare before he got out and started walking towards Decarie.  He testified that he walked normally.

[20]            All of a sudden, the police car was behind him when he was getting out of the taxi.  He heard someone yelling; when he looked it was the partner of Officer Ransom running after him from about 5 metres away.  The officer didn't say he was under arrest and Campbell walked faster and started to run.  They approached him and tackled him after a few metres, pushing him to the ground, and placed him in handcuffs.  They told him he was arrested for breach of conditions.  

[21]            According to the testimony of the accused, the officers searched him "from head to toes".  He was wearing a winter jacket, sweater, blue jeans and a baseball cap. They took off his jacket and lowered his pants almost to his knees.  They searched his pants, pockets, shoes, jacket "and everything". 

[22]            After the search, he was given his rights and the reason for his arrest.

3. Crown evidence concerning procedures and seizure at the police station

[23]            Officer Ransom testified that when they arrived at the Operational Centre, they removed their weapons, and took the accused out of the car. They did not remove the handcuffs from the accused until he was inside the police station.  Officer Ransom was the last to leave the car and  no-one else approached the car.  When he returned, he found a small sachet containing 26 grams of crack cocaine under the seat where the accused had been sitting.  On cross-examination, he testified that he had searched his car at the beginning of his shift at 15.00, as he usually did and that there was nothing under the seat at that time.

[24]            Finally Officer Antonio Romero who processed the case at the police station testified that the  file number of the original case in which conditions were imposed is not mentioned in the police report, nor in the complementary report.  The date mentioned in the complementary report as the date of Campbell's previous arrest is erroneous;  the date mentioned is an earlier date when the administrative or investigation file was opened.  However, the conditions imposed on Campbell appear in the computer when a request  is made of the central information system (CRPQ).

THE LAW

1. Definition of racial profiling

[25]            The test for the challenge based on racial profiling to succeed was enunciated in R. v. Brown [173 CCC (3d) 23, par 10 ff]; the accused must prove that it is more probable than not that there was no articulable cause for the stop and that based on the evidence, the real reason for the stop was the fact that the accused was black.

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 discrimination 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.

[26]            Racial profiling was adopted originally in the United States as an investigatory technique in drug trafficking cases.  The practice was subsequently adopted by certain Canadian forces, including the R.C.M.P. Factors such as age, gender, race, location, dress, perceived life style and socio-economic status are among the indicators used to target  suspects.  Other indicators are associated with specific activities such as driving.  Case law reveals that young black men driving expensive cars is one profile of drug dealer suspects; at the other end of the spectrum, young black males who are poor are also profiled as drug dealers.

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 p. 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. [R. v. Brown at para. 9].

[27]            In Quebec, several public reports analyse policing practices in the context of racial and ethnic minority groups. A study published by INRS, Centre Culture et Société, presents a summary of many reports (Denise Helly, Revue des études ethniques au Québec, 1977 - 1996, INRS, Centre Culture et Société, novembre 1997) and in particular the final report of the Comité d'enquête à la Commission des droits de la personne du Québec, Enquête sur les relations entre les corps policiers et les minorités visibles et ethniques (Rapport Bellemare) 1988:

[le rapport] relève l'existence d'attitudes et de comportements discriminatoires de la part de policiers, notamment à l'égard des personnes racialisées. Il rapporte des données recueillies lors des rencontres: expression de préjugés favorables en faveur des résidents dits des «Blancs», exemples d'abus de pouvoir de certains policiers montrant des réactions exagérées ou adoptant des attitudes arrogantes, parfois brutales, et souvent doublées de propos racistes; preuves de harcèlement des jeunes d'origine antillaise ou latino-américaine; exemples d'accusations plus fréquentes de personnes appartenant à une «minorité visible»; détentions abusives et injustifiées de ces dernières; pratique de signalements et d'assignations plus systématique de jeunes «Noirs» devant le Tribunal de la jeunesse, comme de perquisitions sans mandat plus nombreuses à domicile, notamment dans le cas de résidents d'origine latino-américaine. [Cité par Noël Saint-Pierre et Michèle Turenne , Profilage racial, Tour d'horizon, Actes du Congrès du Barreau du Québec, 2004; for a list of reports, see Note 29, at page 132. See also Noël Saint-Pierre, "Le profilage racial devant les tribunaux", Développements récents en droit criminel, Service de la Formation permanente du Barreau du Québec, 2004, Vol. 211, aux pages 88 et 89.

[28]            Profiling was discussed in  R. v. Calderon, a recent decision of the Ontario Court of Appeal [2004] O.J. No. 3474].  Although officers who have more recently been trained will have been taught that certain profiles are more likely to correspond to certain categories of criminal activity, professional experience of police officers doesn't appear to confirm these classifications.  In Calderon,  Mr. Justice Laskin demonstrates the unreliability of profiling in drug cases; he classifies as stereotyping the allusion that the expensive car, a Lincoln, didn't seem to fit in the circumstances.  Other factors, such as the presence of cell phones, pagettes,  and fast food were equally unreliable. In Calderon, both officers admitted that in practice, none of the suspects whom they had stopped because they presented a particular profile, were eventually arrested.

However, on cross-examination Osborne admitted that these "indicators" were neutral, that they might be found in any car. In the world we now live in, that is not a surprising admission - fast food, duffel bags, a road map, cell phones, even pagers now form part of many people's lives. Moreover, Osborne conceded that since he had taken the training course he had stopped between ten and twenty cars relying on these indicators and had made no arrests. Rome also took the training course, and relying on these same indicators, he had stopped between fifty and one hundred cars. He, too, had made no arrests. Given the neutrality and apparent unreliability of these indicators, I fail to see their presence could amount to reasonable grounds for detention. [ R. v. Calderon, at para. 72.]

[29]            While the effectiveness of profiling as an investigative technique intended to facilitate the solution of crime is doubtful, the use of race as a factor in profiling leads to a disproportionate impact in policing.

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.(5^th) 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 [page 29] 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. [R. v. Brown, at para. 7]

[30]            Racial profiling reinforces the cynicism of certain members of racial minority groups because it confirms their misgivings about equal treatment and their sense that policing authorities are biased against them. Commission ontarienne des droits de la personne, un prix trop élevé: les coûts humains du profilage racial - rapport d'enquête, décembre 2003.

[31]            The practice contributes to the stereotyping of certain groups, and in particular blacks and people of African origin, as well as hispanic youth. To the extent that racial profiling contributes to the relative overrepresentation of these groups in criminal proceedings, it accounts for increased negative attitudes  towards them . According to recent studies of illicit drug activities, illicit drug dealing is  not more prevalent in black communities than in others, yet policing practices foster higher rates of interception.  [cf. Racial Profiling Act of 2001 (S. 969, 107 the Congress (2001) to ban racial profiling by all federal agencies, cited by Saint-Pierre and Turenne , op. cit. p. 130.

2. Racial Profiling as discrimination

[32]            While Section 15 has not been invoked, the cases attribute racial profiling to an unlawful purpose. In R. v. Richards [1999] 26 C.R. (5^th) 286, the Appeal Court of Ontario concluded that if there was a reasonable doubt that the demand under the Highway Traffic Act to the driver to identify himself was racially motivated, the arrest would be unlawful and the accused acquitted. (at par. 25). This finding was based on the decision in Brown and Durham Regional Police Force [1998], 131 CCC (3d) 1 (Ont. C.A.).

[33]            As an obiter dicta in R. v. Ferdinand [2004] O.J. No. 3209, the Court cautions that if the use of simple investigative techniques such as survey cards proves to be an indirect means to mask subjective assessments based upon race, the practice will be discriminatory. (R. v. Ferdinand, at par. 22 and 23).

[34]            As with other systemic practices, racial profiling can be conscious or unconscious, intentional or unintentional. Racial profiling by police officers may be unconscious.

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. [R. v. Brown, at para. 8.]

[35]            Failing an admission on the part of the officers, which is unlikely, the proof of racial profiling will most often be indirect. 

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 [page 38] to be proven it must be done by inference drawn from circumstantial evidence. [R. v. Brown, at par. 44.]

[36]            Proof may be constituted in part by proof of errors in police procedures; it may also be revealed by unusual actions such as preparation of additional reports to justify police action.  In the case of Brown , when the officer learned that the accused was a celebrity basketball player, he prepared an additional report  to explain why he stopped the car of the accused which was travelling above the speed limit on an expressway.

3. Perception of evasion

[37]            A person has the right not to comply with an illegal arrest.  In Kirk Johnson v. Michael Sandford and Halifax Regional Police Service , [Philip Girard, Board of Inquiry, December 22, 2003], the decision of the Board of Inquiry analyzes the conduct of a person of a racial minority whose experience or perception of policing causes him to be apprehensive [op. cit. par. 43]. The attempts of this person to evade police custody could be interpreted as proof of a guilty mind but in the context of a racialized person it may only be consistent with their mistrust of police action.  More often than not, however, the actions of the person only serve to reinforce the original suspicions of the police officers.

I accept that, in general, a perception of evasion by a police officer is good justification for stopping a vehicule, but I must still consider all the surrounding circumstances, and R. v. Brown directs me to be alive to the possibility of subconscious stereotyping. (at p. 15).

[38]            Further on in the decision, the Board of Inquiry concludes: "I find Constable Sandford did not display the reasonable tolerance and tact required of someone in his position and I infer that race was a major factor in this professional failing". (at p. 24).

[39]            Similarly in R. v. Ferdinand, Justice Laforme of the Ontario Superior Court of Justice, as he then was, found that the arbitrary detention of the suspect, a young black man, was triggered when the suspect, who had been talking to a young woman with a baby, got up and began walking away as the police approached. "For him [police officer] personally this would have been a reasonable intuitive hunch because: When he approaches people, they don't usually move away from him unless they have something to hide." R. v. Ferdinand, at para. 52.

[40]            In the case of Ferdinand, psychological detention of a suspect is illustrated when the police officer walks briskly up to the suspect for no apparent reason and demonstrates his intention to not allow that person to simply continue leaving.

"The reasonable conclusion would be that he or she is being required by a police officer to remain. In other words, he or she is being detained for a reason. That is, the person's ordinary right to move about in the community on foot without interference was being denied. It was not consistent with a brief police detention for purposes of only identification or an interview. In all the circumstances, the nature of this detention had aspects to it such that one would conclude it was something more. In short, and on the facts of this case, this amounted to a psychological - if not significant - restraint. R. v. Ferdinand, at par. 43.

[41]            The officer had assumed control of the suspect and if he continued walking away there would be consequences. Indeed, a struggle of titanic proportions ensued.

4. Application of s. 24 (2) of the Canadian Charters of Rights and Freedoms

[42]            Alexer Campbell pleads that his constitutional rights were violated, and in particular the right to equality before the law, as provided in Section 15, freedom from arbitrary search and seizure, as provided in Section 8, and freedom from arbitrary detention and arrest as provided in Section 9.

[43]            If the accused proves that he was the object of racial profiling and that it is more probable than not that he was detained and arrested because of this, then the remedy he is seeking for exclusion of evidence pursuant to Section 24 (2) of the Charter should be granted.  In the case of Khan [2004] O.J. No. 3819], the Crown conceded that if the evidence revealed racial profiling, the evidence should be excluded. After a detailed analysis of the evidence and findings of credibility, the Court concluded that racial profiling had been proved; it then excluded the evidence.

[44]            These decisions  are authority for the seriousness of constitutional violations based on racial stereotyping.

Mr. Khan's rights under both ss. 8 and 9 of the Charter were violated.  The Crown fairly conceded that if there was a finding of racial profiling, it would not be appropriate to admit the evidence of the cocaine under s. 24(2) of the Charter.  I agree entirely.  Conduct of this kind by the police is reprehensible.  It cannot be condoned or excused.  It is a most serious breach of Mr. Khan's human rights, as well as his rights under ss. 8 and 9 of the Charter. The evidence of the cocaine is excluded.  In the absence of the drugs, the Crown has no case.  The charge against Mr. Khan is dismissed.  [at para. 69]

[45]            In the case of Calderon, the Ontario Court of Appeal ruled that the evidence obtained illegally should have been excluded by the trial judge and, as a result, entered an acquittal for each of the appellants. In coming to this conclusion, Justice Laskin agreed with the trial judge that the large quantity of marihuana seized in the trunk of the car was not conscriptive evidence; however he held that the violation of the rights of the appellants was serious and had serious consequences for them. Since the trial judge had not assessed all the evidence, the Court found his decision to be unreasonable.

[46]            Despite the fact that both arresting officers acted courteously and although one officer was in good faith when relying on drug courier indicators according to his training, Justice Laskin observed that there had nevertheless been three constitutional violations. He relied on R. v. Mann [2004] C.S.C. 52 ] in considering that even if the investigative stop had been lawful, an unconstitutional search of the appellant's pockets was sufficient grounds for excluding the evidence. In Calderon, the Appeal Court of Ontario held that the breach is even more serious where the detention was unconstitutional.

Indeed, but for the unconstitutionality of the investigative detention, the police would not have discovered the marijuana. R. v. Calderon, at par. 93.

[47]            Other factors considered by the Appeal Court were the absence of urgency or necessity, the non-technical nature of the violations, the warrantless search, a reasonably high expectation of privacy in the trunk of the car and the absence of reasonable and probable grounds for the search of the trunk.

Viewing the circumstances objectively, these indicators [of drug couriers] do not establish reasonable and probable grounds.

[48]            Moreover, in the Calderon case, other investigative means were available.

[49]            The Appeal Court concluded that even though the charges were serious and although the exclusion of the evidence would lead to an acquittal, admitting the evidence would adversely affect the administration of justice. R. v. Calderon, at par. 106.

[50]            In R. v. Ferdinand, Justice Laforme followed the conclusion in R. v. Burgher that:

Subjecting pedestrians to unlawful arrest and the potential consequences of being handcuffed, searched and incarcerated or placed under bail conditions solely on the basis of a hunch and instinct is so serious an infringement of liberty that to receive evidence arising therefrom in such cases on a regular basis would have grave consequences over the long-term for the administration of justice. R. v. Ferdinand, at para. 74.

5. Proof beyond all reasonable doubt

[51]            While the standard to be met by the Defence on the Charter motion is the preponderance of probabilities, on the merits of the case the Crown must prove the guilt of the accused beyond all reasonable doubt. Where the evidence is contradictory, the Court follows the rules established in R. v. W(D), [1991] 1 R.C.S. 742 ; however, the Crown is held to meet its burden on the totality of the proof and not on each individual element. The Court must be sure that the accused committed the offences; the Crown is to meet a standard which is closer to absolute certainty than to the preponderance of probabilities. R v. Lifchus [1997]  3 R.C.S. 320 and  R. v. Starr [2000] 2 R.C.S. 144 .

ANALYSIS

[52]            Applying the test established in R. v. Brown, and as structured in R. v. Ferdinand, the Court must decide if there was a indeed

1.         detention of the accused

2.         if the detention was arbitrary, and

3.         whether the evidence should be excluded.

1. Detention of the accused

[53]            The Court finds that there was a detention of the accused.  Detention is the restraint, whether physical or psychological, of the liberty of movement of a person.

[54]            The evidence proves, on a balance of probabilities,  that Alexer Campbell was followed by the two officers in their patrol car; they were parked at the intersection of Lucy and Coolbrook.  This is a short distance from where he was standing.  Coolbrook runs north and south and is the next street parallel to Decarie Boulevard, on the west side of Decarie.  Coolbrook runs one way north.  Lucy is the first cross street south of Bourret and runs parallel to Bourret.   He saw them from the time he was ringing his sister's doorbell on Coolbrook.  The officers drove around the corner and waited, probably driving north on Coolbrook and waiting on Bourret.  

[55]            When Campbell reentered the taxi, he saw the patrol car behind him.  The officers saw the taxi turn at the intersection of Bourret and Coolbrook and pass in front of them, as they testified.  When Campbell's taxi passed in front of them the officers had the opportunity to take a good look at him, as argued by the defence,  because they would have seen the passenger in the taxi from the side window of the taxi as it turned in front of them. 

[56]            Although it was night time, the taxi turned at an intersection which would have to have been sufficiently lighted for traffic.  This is a location in the city in the heart of Cote des Neiges district.

[57]            The Court believes that Officer Ransom saw that Campbell was a black man.  Officer Ransom, who patrolled in the Cote des Neiges area for six years, was accustomed to observing persons of racial minorities, including black people.  The Crown submitted in argument that the Court could take judicial notice that black persons were a minority in the Cote des Neiges district, a significant minority.  The patrol car followed the accused the very short distance between Coolbrook and the place where he exited the taxi near Decarie.  Because of the very short distance between these two points, the patrol car had to be following the taxi at a short distance. In any event, Campbell saw the car following him.  The officers were also close enough to see, according to them, that he bent over on about a 45 degree angle in the taxi.  This, to them, was suspicious and the motive they invoked for following him.

[58]            The officers testified that they drove up closer to Campbell when he exited the taxi to get a better look, because of their suspicion.  They  were at this point investigating.  They approached Campbell in their car, but remained behind him.  They did not speak to him or address him by name; they did not say what they were about.  Instead, officer Dumas got out of the car and started calling after the accused, without using his name.  At this point, the accused was aware that his liberty of movement was restricted by the police officers; arguably he was psychologically detained from the time he saw the patrol car for the second time.  So much so, that the accused started to run.  He would not have run had he not thought that his liberty of movement was being restrained.

[59]            In the context of a minority person, his reflex to move away from the police does not necessarily infer that he had committed an offence. 

[60]            The officers caught up with the accused rapidly, tackled him, and since he struggled with them, they put him on the ground and handcuffed him.  They did not tell him he was arrested until after they tackled him.  According to Officer Ransom, they did not arrest him before they tackled him.  Since there was no verbal exchange between the officers and the accused before this unprofessional conduct, the accused was under no obligation to stay and talk to the police or answer their questions.

[61]            From this evidence, the Court finds that Alexer Campbell was detained psychologically, in the sense that his liberty was restrained significantly by the close pursuit of the officers both in their patrol car and on foot.

[62]            He was arrested after he was handcuffed.  He was then told that he was under arrest for breach of his conditions and his rights were explained to him.  Nothing prevented the officers from addressing Campbell by name, if in fact Officer Ransom recognized him as Alexer Campbell, nor from explaining their presence and proceeding to arrest him if they had reasonable and probably grounds to do so.  The evidence doesn't support a claim that it was necessary to proceed as they did.

[63]            The Crown argued that this was not a detention nor investigative stop, but an arrest.  The Court finds that the accused was detained before his arrest.  The detention, however, was unlawful because it was based on racial profiling.

[64]            In coming to this conclusion, the Court assessed the credibility of the accused who testified on the Voir Dire.  His testimony corresponds with that of the Crown on many facets of his pursuit and psychological detention.  He declares that he saw the patrol car following him; the difference is that he declares that he saw the police car before they began to follow him.  Even though he saw the patrol car previously at Coolbrook and Lucy, he also saw it driving behind him on Bourret, as the officer testified.  He did drive in the taxi a short distance and disembarked near the intersection of Decarie and Bourret.  He did walk along Decarie before beginning to run.  Officer Dumas did not call his name or give him reasons for his detention or arrest before tackling him. 

[65]            Besides this significant compatibility in the recounting of the event, the geographical location supports the version of the accused.  The accused could see the patrol car parked at Lucy and Coolbrook, even if Officer  testified that he could not recognize the accused or see his colour as he was sitting in the taxi driving a short distance in front of him.

[66]            Alexer Campbell also testified against what he could perceive as his  self-interest when he admits that he ran and when he admits that he was out during his curfew; he also testified that after handcuffing him, the officers told him he was arrested for breach of conditions.  The Crown characterized this testimony as nonchalant and untrustworthy; the weakness of the testimony of the accused is really when he testifies that he went to visit his sister, but he is found in possession of marijuana, and an electronic scale. He could have gone to visit his sister, but his activities during that time were not only social.  Nevertheless, his testimony can be believed because it is consistent with other evidence, with the location and chronology of the events, and also in some ways against his self interest. 

[67]            Probably the strongest factor in his favour is that it is a more reasonable version than that of  the police officer who claims that he was suspicious and decided to follow the accused because he just noticed him bending over in the taxi.  Such a commonplace action would surely not draw his attention when it could be explained simply because Campbell was leaning over to tie a shoe, or to count money to pay the driver, or to gather or rearrange his possessions. This assertion by the officer considerably weakens his credibility.

[68]            It is more likely that officer Ransom saw the accused at his sister's door, saw him ring but receive no answer and then get back into his waiting taxi.  While this version is more credible, it does not by itself constitute reasonable grounds to detain the accused.

2. Was the detention arbitrary?

[69]            Only Officer Ransom testified as to the events leading to the detention and subsequent arrest of the accused.  Besides the weakness  of the reason he gives for his suspicion, he is also unable to provide important details such as whether he told Officer Dumas the name of the accused or whether Officer Dumas called out to the accused by name. 

[70]            Officer Ransom is unable to provide details on the information he received from Officer Martinais.  As held in R. v. Simpson [(1993), 79 CCC (3d)  482] detention can only be justified if the officer has some articulable cause or a constellation of objectively discernable facts which provide a reasonable basis to suspect that the person detained is criminally implicated in the activity under investigation.  Simple intuition is insufficient, as is past experience or a hunch.  Justice Molloy, in R. v. Khan [2004] O.J. No. 3819], finds that the officers would have had articulable cause to detain the accused when they noticed him reaching into his glove compartment;  this finding was based in part on the reality of police officers who are required to make "split-second decisions in highly volatile, dangerous conditions."  However, she concludes that such grounds would not exist  if  she believed the accused that he did nothing wrong and that the police had no grounds to remove him from his car prior to the discovery of his license suspension.  "Again, the determining factor will be the credibility of the witnesses." [at. par. 61 - 62]

[71]            According to officer Ransom, he was suspicious because of the position of the accused in his taxi and because he knew the accused was in breach of his curfew.  His testimony is to the effect that the basis for this information was an exchange with Officer Martinais a few days previously.  Justice Ryan, in R. v. Lal [(1998), 130 VC.C.C. (3d) 413 (BCCA), leave to appeal dismissed [1999] S.C.C.A. No. 28], concluded that such information is regularly shared by police officers, however, for it to be relied upon as reasonable grounds there must be some evidence that it is reliable.

I agree that a police officer is entitled to act upon information given to the officer by another member of the police force.  To suggest that police officers cannot act on the assumption that a fellow officer's advice is reliable is unrealistic and would unduly hamper law enforcement.  But when the Crown is called upon at trial to justify a search based on reasonable grounds or a stop based on articulable cause, there must be some evidence placed before the trial judge that the police officer's information was in fact reliable or worthy of acting upon. Para 24.

[72]            Given the fundamental nature of the right to freedom of movement without government interference, the evidence of Officer Ransom, including his suspicion following his observation of the accused in the taxi,  was not sufficiently reliable  to be considered reasonable grounds to detain or articulable cause as a basis for detention.

[73]            Even if the officers were acting in good faith, and did not intentionally engage in racial profiling, their failure to verify the conditions before arresting the accused was an excessive departure from acceptable policing standards. Officers must believe subjectively in the existence of reasonable and probable grounds for the arrest and have objective basis for their belief.  [R. v. Storrey,   [1990] 1 S.C.R. 241 .]  The absence of reference to the pending case in the police reports is a further departure and leaves open the possibility that the officers did not check the original conditions, even at the time of making their reports and laying charges.

[74]            Other factors point to the arbitrary nature of the detention and the illegal nature of the subsequent arrest since the information on the existence of conditions was still not sufficiently reliable. At the time of arrest, the officer did not have objective grounds to believe that the accused had violated his curfew.

Indicators of racial profiling

[75]            In proactive policing, as in this case, investigative detention has been very important. In analyzing the impact of this practice, although articulable cause is required, it has been noted that it is vulnerable to the abuse of discretionary power. While the decision in Mann does not refer explicitly to racial profiling, it states nevertheless that in investigative detentions, "the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role." [at par. 18, as cited in Tanovich, David, "The Colourless World of Mann, 21 C.R. (6^th) 47, at p. 3.]

a) Profile of the accused

[76]            The accused presents many of the features of the profile of drug dealer suspects.

[77]            He is a young person, twenty two years old.

[78]            He is a black person.

[79]            He is male.

[80]            He is wearing casual dress with a cap.

[81]            He is poor.  Socio-economic status is a bifurcated indicator.  Young black males are the object of racial profiling if they are well to do and driving  expensive cars; they are also the object of racial profiling when they are poor.  In this case, no indicators place Alexer Campbell within the economically well to do category. [Saint-Pierre, Noël, "Le 'profilage racial' du point de vue d'un praticien" Actes Congrès du Barreau du Québec, 2004, at p. 162.]

[82]            Officer Ransom testifies that he didn't notice that Campbell was black until he recognized him when he got out of the taxi near the corner of Bourret and Decarie.  The Court finds this hard to believe since this Officer was patrolling in the Côte-des-Neiges district of Montreal for six years.  He was used to seeing Black people in Côte-des-Neiges.  As an officer, he would observe the personal characteristics of persons, especially those whose conduct he considered suspect.  Officer Ransom observed the accused from a distance while he was at the door of his sister's home; this was before the accused  got back into his taxi.   

[83]            As pleaded by the Crown, he lives in a neighbourhood where Blacks are a minority group.

b) Unfounded suspicion

[84]            Officer Ransom testifies that he considered the conduct of the accused to be suspect. The fact that the passenger in the taxi leaned over at a 45° angle made the person suspect.  He added in cross-examination that this posture was almost as if the person was attempting to hide himself.  He decided to follow the taxi.

[85]            In fact, it was while he was already observing Campbell in his taxi that he observes what he calls suspicious posture.

[86]            The Crown submitted that a police officer is a professional and entitled to his opinion of what constitutes suspicious behaviour.  Police officers have their own criteria and methods for their work; they are entitled to their opinions as to what constitutes suspicious behaviour and draws their attention.  They are required to exercise surveillance. Unless they base their decisions to arrest or detain on suspicions or hunches, these practices are not illegal.

[87]            This Court accepts the argument of the Defence that objectively, there was nothing suspicious about the position of the accused in the taxi.  The officer was unable to say whether he could see  whether the accused bent over to pay his fare, which is a strong possibility, given that the accused alighted from the taxi shortly after getting in.

[88]            After concluding that the accused was acting in a suspicious manner because he was bent over in the taxi, the officers acted upon this suspicion by following the accused.

c) Psychological detention

[89]            The Defence submitted that the accused was psychologically detained by the officers before his arrest.  Citing doctrine, the  Defence described the perception of a minority person and in particular a black person of being detained when they are followed or intercepted by police officers. It was because of this situation that the accused ran; however, as has been observed, the running was interpreted as suspicious, or conduct denoting a guilty mind.

[90]            While recent decisions have not defined detention precisely, the recent case of R. v. Mann holds that the person must be the subject of psychological or physical constraint which is more than transitory.  When the officers observed the accused at the door of the house, the Court does not find that he was detained.  Nor was he detained when the officers were following him in the taxi; he was not under restraint.  He could have continued in the taxi.  When the police car pulled up along side of him as he was walking, in the context of racialized youth, he would feel restrained in more than a transitory manner, especially since he was aware that he had been followed since his stop on Coolbrook. Although no words were spoken to him, the pursuit and then the running after him, would constitute restraint. The case of R. v. Ferdinand is authority for assessing psychological restraint within the social context of racialized youth. While the accused did not testify that he felt constrained, he manifested his belief by running.

[91]            Running in the context of police-minority relations may be the manifestation of mistrust. If a person feels his rights are being ignored, he is entitled not to cooperate. [Kirk Johnson v. Sandford and Halifax Regional Police, ibid.].

d) Absence of verification

[92]            At the time of detention and subsequent arrest, the officers did not verify the nature of the conditions imposed on the accused  nor their subsistence.  They did not check on their computer.  The Court has already found the information from his colleague not to be sufficiently reliable. He did not have objective grounds for his belief that reasonable grounds existed to detain the accused nor that reasonable and probable grounds existed to arrest him.  The officer was required to have objective as well as subjective grounds for his belief.

e) No mention of original case number

[93]            There is no mention of the case number of the pending case against the accused either in his report or in his complementary report.

[94]            The number mentioned in the complementary report prepared by Officer Romero is not the number referring to the arrest of the accused; the wrong date of arrest is indicated.

f) Absence of use of name of the accused

[95]            Officer Ransom testified that he recognized the accused when he drove up beside him, however, he did not speak to him at that point, nor call out to him.  He told his partner, Officer Dumas, that the accused had conditions; Officer Ransom doesn't remember if he told his partner the name of the accused.  The evidence reveals that Officer Dumas didn't call the name of the accused.  When the accused began to run, he had not been intercepted.  Before running, he was walking along the sidewalk.  He began to run when Officer Dumas began to call after him without using his name.

[96]            The Court finds that it is more probable than not that Officer Ransom did not in fact know the name of the accused and that the officers arrested him because he ran.  They had followed him, not knowing who he was; they had driven up close to him to investigate further. They were suspicious.  Until Officer Ransom testified that he recognized the accused, the officers had no grounds to detain, nor to arrest the accused.  Officer Ransom testified that he had arrested the accused in the past for drug trafficking.  Did he wish to detain the accused for questioning? 

[97]            Officer Ransom had not arrested the accused in his pending case, although the Crown was originally under this impression.

[98]            Moreover, Officer Ransom recorded on his report of items seized without a search warrant that other drugs had been found at the same time as the marihuana, which was inexact. At best it reveals lack of professionalism; at worst it was misleading.

[99]            The absence of verification of the conditions of the accused is the most telling lack of professionalism.  It also led to a false arrest. 

[100]       The accumulation of the factors, as opposed to any one factor, the absence of current, objective and precise information concerning the conditions, and departure from conventional police practice constitute a preponderance of proof that the accused was the object of racial profiling.  The weak credibility of the officer, and the lack of detail in his testimony are additional reasons.

[101]       Proof of racial profiling is proof of improper purpose and viciates the lawfulness of the detention.

Breach of Section 8 of the Canadian Charter

[102]       The search of the accused without a warrant is considered an illegal search; however, the officers rely on the power to search ancillary to arrest.  Since the arrest was illegal for the reasons mentioned above, this search was illegal.  A breach of the Charter right can be maintained only on proof, on a balance of probabilities, that the search was also unreasonable.

[103]       The evidence of the manner in which the search was conducted can be basis for a finding that the search was unreasonable; however this  evidence is contradictory.  Both the evidence of the Crown witness and the evidence of the Defence is that there was a thorough search.  Officer Ransom testified that they searched every pocket.  The Officer was entitled to search thoroughly, upon arrest, to insure his personal safety and the safety of others; he was also entitled to search in order to preserve evidence of the offence.

[104]       The accused testified however that he was tackled, put on the ground and searched thoroughly.  His jacket, his pants, his shoes were searched.  He declared that his pants were pulled down almost to his knees.  Such an investigative search on the side walk on Decarie Boulevard was excessive and rendered the search unreasonable.  The Officers could have searched for weapons and then searched the accused for evidence at the station or in a more private manner.

[105]       The Officers deny that they pulled down his pants almost to his knees, nor that they removed his jacket.  This Court has already assessed the credibility of the accused; the Court believes the accused.

[106]       The court concludes that the search of the accused was unreasonable and in violation of Section 8 of the Canadian Charter of Rights and Freedoms.

3. Should the evidence be excluded ?

[107]       The Court must balance on one hand the rights of Canadian society to safety and security and to that end, the effective  operation of policing and detection and, on the other hand, the protection of the fundamental rights of members of society as guaranteed by the Canadian Charter of Rights and Freedoms.

[108]       The Court reserves the stay of proceedings to the clearest of cases.  It will therefore consider the remedy under Section 24 (2) of the Charter for exclusion of evidence obtained in violation of the rights guaranteed by the Charter.

[109]       In the case of Khan, the Crown conceded that that racial profiling exists and if proved, the evidence obtained following the breach of constitutional rights should be excluded.  In this case, the Crown has also conceded that racial profiling exists in society; however the Crown submits that the evidence seized was real evidence, that crack cocaine which was found in the police car  is highly dangerous and that in Montreal it constitutes a grave social problem.  Excluding the evidence, which would endanger the case of the Crown, would lead to greater disrepute for the administration of justice than the admission of the evidence.

[110]       The defence pleads that in cases of racial profiling, the evidence must be excluded.  Furthermore, the accused was subjected to a highly intrusive and excessive search of his person.  He was detained and arrested in the most unprofessional way, on information which was not reliable and which was not verified.  The circumstances of the seizure of the crack cocaine in the patrol car do not lead to proof beyond a reasonable doubt that it was in the possession of the accused.  The accused possessed only a small quantity of marihuana.

[111]       The Court finds that the evidence was not conscriptive and therefore does not imperil the fairness of the trial.

[112]       The breach of the constitutional rights of the accused is nonetheless very  serious.

[113]       As in the case of Calderon, since the right to freedom from arbitrary detention as well as the right to freedom from unreasonable search were breached in this case, the accused was the subject of more than one charter violation.  

[114]       There was no urgency in this case.  The risk of evasion by the accused does not outweigh the damage which would be done to the administration of justice if on-going and serious  breaches of the fundamental liberty of movement were tolerated by the Courts. The accused was detained psychologically and arrested in excessive and unprofessional manner for a breach of his curfew.  The information concerning the original case was not available to the officers; yet two charter violations were perpetrated.

[115]       The racial profiling practiced in this case, as shown by the unreliable testimony and the cluster of indicators is also a serious concern of the Court.  While the racial profiling may have been practiced unconsciously, the good faith of the officers does not restore the right of all citizens  to non discriminatory treatment.

CONCLUSION ON THE CHARTER MOTION

 

WHEREFORE, This Court

[116]       Grants the motion;

[117]       Rules that the evidence of the marihuana and the crack cocaine found in the patrol car be excluded.

[118]       On the basis of this exclusion, the accused will be acquitted of the two charges.

CASE ON THE MERITS

[119]       While it is not necessary to pronounce on the case on the merits, the Court nevertheless finds that the proof of possession of crack cocaine by the accused  does not meet the burden of proof beyond all reasonable doubt.

1. Possession of cocaine base for the purpose of trafficking

[120]       The accused did not testify on the seizure of the cocaine in the police car however, in argument, the Defence pleaded that there is no proof beyond a reasonable doubt that the accused had the control and possession of this substance. 

[121]       The Court observes that the search of the accused did not reveal the presence of the cocaine.

[122]       The verification of the back seat of the police car was not conclusive in that there may have been other persons transported in the car during the shift.  The officer may not have seen the small packet at night on Decarie when he checked his back seat, especially in the circumstances of this arrest.

[123]       The wrong time indicated in the report of items seized also adds to the inconclusive nature of the proof.

[124]       The cocaine was found after the accused had been removed from the police car when Officer Ransom returned to the car.

[125]       There was no proof of fingerprints on the packet.

[126]       For the foregoing reasons there exists a reasonable doubt concerning the possession of the crack cocaine for the purpose of trafficking.

2. Possession of cannabis (marihuana) for the purpose of trafficking

[127]       The manner of the search of the person of the accused made the search unreasonable;  the evidence of marihuana is excluded for the reasons given on the Charter motion.

 

CONCLUSION ON THE MERITS

WHEREFORE, This Court

[128]       Acquits the accused of the charge of possession of cocaine base for purposes of trafficking as provided by section 5 (2) (3) a) of the Controlled Drugs and Substances Act ; and

[129]       Acquits the accused on the charge of possession of cannabis  (marihuana) for the purposes of trafficking as provided by section 5 (2) (4) of the Controlled Drugs and Substances Act.

		__________________________________ JUANITA WESTMORELAND-TRAORÉ
Mtre Marie-Josée Thériault
BUREAU DES SUBSTITUTS DU PROCUREUR GÉNÉRAL
Crown attorney
Mtre Judith Ann Shapiro Knight
SILVER, MORENA
Attorney for defence
Date of hearing:	January 27, 2005