Two victims of what one judge described as racial profiling are relieved that the Ottawa Crown Attorney’s Office exercised its discretion in withdrawing all charges during a preliminary hearing on June 23.
Jordan Noel, 22, and Loik St-Louis, 24, were stopped on Rideau and Waller streets in August 2010 while driving Noel’s mother’s Cadillac. According to St-Louis, the officer in charge, Constable Robin Ferrie, never advised the pair why they were being stopped or detained.
Provincial Court Judge Dianne Nicholas heard from Cst. Ferrie that the Cadillac was part of a random spot check under the Highway Traffic Act, but, when pressed by Justice Nicholas why he called for backup, Ferrie noted that the men were in a high drug area and alerted the officer’s suspicion because they did not make eye contact with him as Ferrie drove by. Yet later in cross-examination Ferrie conceded that his investigation notes made no mention that not looking at him is what raised the officer’s suspicion. Instead, the notes indicated that “suspicious males in a vehicle in a high drug area” and “two young males driving a Cadillac” were the reason for the stop.
Ferrie went on to testify that Noel nervously explained the vehicle belonged to his mother and, according to Ferrie, too promptly handed over his license and registration, casting further suspicion in the officer’s mind that the vehicle might be stolen.
However, Justice Nicholas was quick to question that line of reasoning asking, “how many white women do you stop in the market just because they’re driving a car? How many in the last month?” Ferrie was unable to provide the court with any estimate or example.
Moreover, “Because two black guys in a car don’t look at you, you’re calling for backup? […]You’re going to check whether he has permission from his mother to drive a car and two other police cars show up, like come on?”, asked Justice Nicholas. Ferrie noted that it turned out Noel’s mother had not known her son had taken the vehicle.
While the two continued to be detained and Ferrie conversed with Noel’s mother using the number Noel provided the officer, the two backup officers arrived on scene. One discovered five grams of crack cocaine, thirteen grams of marijuana, a drug scale and approximately $1,685 in cash during a search of the vehicle. All items were seized and taken into property. The two were arrested, taken into police custody and formally charged. The cash would later go missing in the police evidence room, though Noel and St-Louis were repaid earlier this week.
In the landmark decision in R. v. Brown, Morden J.A., for the Ontario Court of Appeal, critically observed at paras. 8 and 44 that:
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. […] A racial profiling claim could rarely be proven by direct evidence. […] Accordingly, racial profiling […] must be done by inference drawn from circumstantial evidence.
The court went on to accept that a finding of racial profiling is capable of being supported where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why she or he singled out the accused person for attention.
With the charges facing Noel and St-Louis, although Justice Nicholas heard no direct evidence of racism on the part of Constable Ferrie, she inferred from the evidence before the court that it sounded like the two had been racially profiled.
Following the lunch recess when both parties returned to court, the prosecutor announced the Crown would be withdrawing all charges. “I think that’s an appropriate use of your discretion”, replied Justice Nicholas.
Of note, the Crown Policy Manual requires that when considering whether or not to continue the prosecution of a charge, Crown counsel must determine if there is a reasonable prospect of conviction and, if so, whether it is in the public interest to continue or discontinue the prosecution
It would seem that having been alerted to some of the same concerns expressed by the court, Crown counsel was alive to his or her duty as a Minister of Justice to ensure that the criminal justice system operates fairly to all, including the accused, victims of crime and the public. (R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.); R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.))
Posted by Jeremy Tatum (Windsor Law III)