Monday, December 14, 2009

Testifing in lying colours: Officers successfully convince judge that detention and search the product of racial profiling

In R. v. Ahmed, Justice Kiteley of the Ontario Superior Court of Justice threw out evidence obtained by the police because she was satisfied that race played a role in their decision to stop and search the accused, a 26 year-old Black male.

Ahmed was driving in his vehicle during daylight hours guiding the car behind him driven by his cousin’s girlfriend. She was not familiar with Toronto and needed Ahmed’s help in getting her to where her boyfriend was waiting for her to pick him up. Ahmed and the other car were waiting to turn left at an intersection. The light was red. While they were waiting, a police vehicle pulled up alongside Ahmed and looked at him. When the light turned green, Ahmed proceeded into the intersection waiting for traffic to pass. The police vehicle "did not proceed on the green but slowly inched forward. When Ahmed’s vehicle began making the left turn, the police vehicle cut off" the vehicle being driven by his cousin's girlfriend "made a left turn and pulled in behind Mr. Ahmed’s vehicle” (para 5). What ensued was a warrantless search of Ahmed and his vehicle. A small amount of marijuana and a bag of cocaine was discovered.

In her analysis of Ahmed’s Charter application under s. 24(2) of the Charter, Kiteley J. cited the 1995 Report of the Commission on System Racism in the Ontario Criminal Justice System, which included a finding “that the phenomenon of racial profiling by the police existed” (para 57). She also cited R. v. Brown [2003] O.J. No. 1251, which stated that “racial profiling will rarely be proven by direct evidence.” (para 58) Instead, “if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.” (para 58)

Ahmed testified that “over the years that he had been driving, he had been pulled over by police over 25 times” (para 8).

In addition to this social context evidence, the trial judge did not accept the evidence of the two officers in this case as either credible or reliable. Their evidence was in direct conflict with both Ahmed’s and his cousin's girlfriend's evidence. The officers' evidence was also in direct conflict with two civilian witnesses from the Toronto Police Service. Their evidence confirmed that the officers had lied when they testified that they got three computer hits about Ahmed in their vehicle. Such hits could only have been obtained from the police station given the technology at that time. As well, one of the officers had violated the judge's non-communication order when he spoke to his partner about the case after he had finished testifying.

As a result, Justice Kiteley said that the reasons for rejecting the officers’ evidence was “so compelling” (para 41). In her view, the circumstantial evidence in this case, when weighed on a balance of probabilities, compelled her “to draw the inference that Mr. Ahmed was investigated and arbitrarily detained because of his race.” (para 60)

Both the marijuana found on Ahmed and the cocaine found in his vehicle were excluded under s. 24(2) of the Charter as Kiteley J. found that Ahmed’s ss. 8, 9, 10(a) and 10(b) Charter rights were violated by the police.

This case sends a sharp message to the law enforcement community that Courts are alert to the existence of racial profiling by police and are just as alert in dealing with it.

Posted by Agnes Tong (Law II)


  1. Although Kiteley J. rendered an appropriate judgment in the circumstances, I'm troubled that Mr. Ahmed's case was even committed for trial....especially considering the fact that inconsistencies were noted in the officers' testimonies at his bail hearing and the prelim...I'm even more troubled that this individual spent a year in custody until his trial. I do agree with your comment Agnes that Courts are alert to the existence of police engaging in racial profiling, but I'm not sure that our criminal justice system is alert enough in dealing with it. I am relieved that a finding of racial profiling was made but I think I may have been more comfortable if Kiteley J. had made findings of perjury and fabrication as requested by defence counsel. It is really unclear from the case whether the officers will be disciplined accordingly, or at the very least...whether they will be required to attend racial sensitivity training.

  2. I echo the sentiments of Lily. I'm not sure what we are waiting for? I was only 13 years old when the OHRC Report found that racial profiling practices existed in Ontario was published. It has been well-documented that the practice of racial profiling exists; however, the federal and provincial governments are yet to pass anti-profiling legislation. Until then, I hope that counsel continue to engage in 'race talk' in the courtrooms and the judiciary continue to adopt critical race standards in the courtroom.

  3. What was the consequence of the officer who, upon direction of the court to no communicate with the other police officer, violated the judge's non-communication order when he spoke to his partner about the case after he had finished testifying.