Entrapment made out where police engaged in racial profiling

In R. v. Faqi (Alta. P.C.), the trial judge concluded that the police targeted the accused for an opportunity drug buy not on the basis of reasonably suspicious behaviour but rather because of the fact that he was Black and wearing baggy clothing. Based on her finding of racial profiling, the trial judge concluded that Faqi had been entrapped and stayed his drug charge.

In another recent case, a trial judge concluded that a stop of a vehicle was arbitrary, in part, because the officer relied on the fact that the vehicle occupants were Hispanic. The officer had been investigating an assault where the three assailants were described as Hispanic. The problem was that there were no other descriptive features of the assailants and the stop of the accused was not proximate in distance or time to the assault. See R. v. Moran, [2010] O.J. No. 1356 (S.C.J.). Unfortunately, while the trial judge was satisfied that the stop was racially influenced, he did not provide a remedy under section 24(2) notwithstanding that it was not a serious case. The accused was charged with breach of recognizance and possession of a prohibited weapon (i.e. brass knuckles).

Once these cases are available, they will be posted on the LEAP website under Research -- Important Cases.

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)

Globe and Mail carrier's encounter with police was impacted by race and gender rules Human Rights Tribunal

On March 26, 2007, the applicant, a Black woman, was delivering newspapers along her route in the early hours of the morning when she was stopped by a police officer for what he described as erratic driving. As the officer approached, she pulled out her cell phone and began trying to call her husband. The applicant stated that she was fearful of stories she had heard of women being assaulted by men posing as police officers and she wanted her husband on the phone as a “witness”. The officer testified that he repeatedly asked her to put down the cell phone and produce identification documents, which he alleges that she refused to do. The officer stated that he warned the applicant that she would be placed under arrest if she failed to do so. The applicant denied ever receiving such a warning.

The officer then proceeded to place the applicant under arrest and a struggle ensued. They both fell to the ground. The applicant testified that she was thrown to the ground while the officer testified that they both lost their balance and fell. There is no dispute that the officer pinned the applicant to the ground to handcuff her and then grabbed her by the belt and put her in his patrol car. The applicant suffered an abrasion over her left eye, cuts on the inside of her lip and bruising from the handcuffs as a result of the struggle. The applicant was acquitted of all of the charges.

In Abbott v. Toronto Police Services Board, the Ontario Human Rights Tribunal was faced with competing versions of the incident and decided that “[i]n the instant case … the determination comes down to whether an inference of racial and/or gender discrimination is more probable than the respondents’ explanation for Sergeant Ruffino’s conduct.” The Tribunal explained that it is not necessary to show that the officer intended to discriminate against the applicant as racial discrimination and bias often operates at a subconscious level. Instead, it would have to examine whether the applicant’s race and/or gender was a factor in the events that unfolded.

In order to decide the case, the Tribunal hypothesized whether the same events would have unfolded had the woman been White. In this instance, the Tribunal found it “hard to imagine that Sergeant Ruffino would not have made different choices if the applicant had been white.” In particular, the Tribunal was of the view that the officer could have done a lot more to effectively defuse the situation before it escalated to the level it reached:

"In saying this, I am not at all suggesting that Sergeant Ruffino made the choices that he did on the conscious basis that the applicant is a Black woman. As stated above, and as confirmed by the Supreme Court of Canada in R. v. S. (R.D.), supra, that is not how racial discrimination most often operates. Most often, racial discrimination emanates from unconscious attitudes and belief systems. In a historical context, some of these attitudes and belief systems include that Black persons (and other groups) are expected to “know their place” and that any Black person who talks back or refuses to comply is to be regarded as “uppity” and needs to be dealt with harshly. There is no evidence before me that Sergeant Ruffino consciously subscribes to any such attitudes or belief systems. But these kinds of attitudes and belief systems are part of our historical and social fabric, and are imbued in all of us through social interactions, the education system, the media and entertainment industries, and other means."

Mark Hart, the adjudicator, then concluded:

"On the basis of my consideration of the totality of the evidence, I draw the
inference that the applicant experienced discrimination because of her race and gender in relation to her encounter with Sergeant Ruffino on the basis of the following findings:

a) I find that Sergeant Ruffino’s approach and tone when he initially spoke to the applicant was unnecessarily brusque and commanding;

b) I find that when Sergeant Ruffino got out of the patrol car and went to speak with the applicant, her attention was focused on calling someone on her cellphone and she was distracted from hearing and responding to Sergeant Ruffino, and this was apparent to him at the time;

c) I find that the applicant, as a woman of relatively small stature and as a Black woman being approached by Sergeant Ruffino in the wee hours of the morning, was fearful and confused, and this ought reasonably to have been apparent to Sergeant Ruffino;

d) I find that, on Sergeant Ruffino’s evidence, he was aware that the applicant wanted to have a witness on the phone before she would speak with him, and Sergeant Ruffino ought reasonably to have appreciated that the applicant’s desire was related to her confusion and fearfulness and was linked to issues of distrust between the Black community and the police;

e) I find that, notwithstanding the presence of these factors, Sergeant Ruffino unreasonably persisted in making demands for the applicant’s documents and name, without taking any steps to try to defuse or deescalate the situation;

f) I find that Sergeant Ruffino’s actions in this regard are consistent with a manifestation of racism whereby a White person in a position of authority has an expectation of docility and compliance from a racialized person, and imposes harsh consequences if that docility and compliance is not provided;

g) I find that Sergeant Ruffino’s actions led directly to his decision to place the applicant under arrest, which I find was unjustified and unnecessary in the circumstances;

h) I find that a White woman would not have been treated in the same manner in similar circumstances;

i) I find that the harsh consequences imposed upon the applicant by Sergeant Ruffino include not only his decision to arrest the applicant, but also his decision to lay the number of charges he did against the applicant, and particularly the charges for failure to identify herself or provide her documents when he had the applicant’s name and documents at the time the charges were laid and was aware or ought to have been aware of the applicant’s state of distraction, confusion and fearfulness at the time he was demanding this information from her."

The Tribunal also found, that based on past precedents, the Toronto Police Services Board and Chief of Police Bill Blair were also to be held liable for the actions of Sergeant Ruffino. The applicant was $5000 in damages.

Posted by Martin Mendelzon (Law II)

Racial profiling in Toronto's Bridle Path

Phipps v. Toronto Police Services Board released last week marks the second positive finding of racial profiling by the Ontario Human Rights Tribunal.

Phipps, a Canada Post mail carrier, was delivering mail on March 9, 2005 in the Bridle Path neighbourhood in Toronto. It is Toronto's most affluent neighbourhood. It was only his second day on the route. He was wearing his Canada Post uniform. Michael Shaw, a police constable who had patrolled the area for years, and Diane Noto had been asked to patrol the area for suspects described as Male, White and Eastern European, who were using a vehicle.

Shaw noticed that Phipps was engaged in what he believed to be “unusual activity,” namely, travelling back and forth across the street. Shaw also noticed that he was not the usual postal worker and was not delivering mail at every house. The officers observed Phipps knocking on a door, speaking with the woman that answered, but apparently not delivering anything. After inquiring with the resident, the officers learned that Phipps had advised her that he had misdelivered something, which Shaw found suspicious. The officers subsequently stopped Phipps who provided identification which, after a check, revealed nothing. They released him. Soon after, the officers encountered another mail carrier and inquired about Phipps, and the carrier confirmed that Phipps was a temporary carrier in the area.

And so, because of stereotypical assumptions about African Canadians, Phipps was not only constructed as a suspect but his explanation and official uniform did not satisfy the police that he was not a criminal.

Phipps later hailed the police officers and asked why they had stopped him. Phipps believed that the officers stopped him because of his skin colour, and noted that a white male delivering water in the area had not been stopped, nor were any white construction workers questioned.

In her reasoning, the adjudicator noted 5 principles that that apply in cases where racial profiling is alleged:

"1. The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
2. There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
3. The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
4. There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
5. Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices."

Based on these factors and the circumstantial evidence, Joachim found that on a balance of probabilities, he was the victim of racial profiling. Her reasons include the following observations:
"[23] In my view, the above chronology, as described by the respondent Shaw is more consistent with a finding that the applicant’s skin colour played a role in his actions than the applicant’s alleged unusual activity.
[24] First, the fact that the applicant was not the usual letter White male letter carrier is surely not a suspicious circumstance. Letter carriers take vacation, retire, and/or switch routes, so the fact that another letter carrier was delivering the mail on that particular day cannot explain Constable Shaw’s heightened alertness. I find significant that he did not respond in a similar way to an unfamiliar White male delivering water in the area.
[25] Second, Constable Noto testified that immediately upon turning onto Vernham Avenue, Constable Shaw pointed out the applicant as a person of note. It is not likely that Constable Shaw had already noticed the applicant’s alleged crossing back and forth across the street in an unusual manner as soon as they turned the corner. Whether or not Constables Shaw and Noto noticed a figure in the distance when they turned onto Vernham Avenue, I do not accept their evidence that the figure was crossing back and forth across the street in an unusual manner.
[26] Third, it is not in keeping with the preponderance of probabilities that the applicant was constantly crossing back and forth across the street. The applicant could not recall whether or how often he crossed the street that day. However, he testified and his evidence is in keeping with the preponderance of probabilities that while letter carriers usually deliver their mail on one side of the street and then the other, if they make a mistake in preparing their mail they might cross the street mid-street, occasionally. Since there is no dispute that the applicant was, in fact, a legitimate letter carrier, either he made an unusual number of mistakes and crossed the street an extraordinary number of times on that day, or in the usual manner of letter carriers, he may have crossed the street once or at most twice. I do not accept Constable Shaw’s evidence as in keeping with the preponderance of probabilities that the applicant was crossing the street back and forth in an unusual fashion.
[27] Fourth, Constable Shaw in his original response to the complaint, his will say statement and his evidence at the hearing, noted the fact that the applicant did not stop at every house as an unusual circumstance. However, the evidence of the applicant and Mr. Finlay was that it is not unusual for a letter carrier to skip houses if there is no mail to be delivered and the householder has asked not to have flyers delivered. Indeed, Constable Shaw conceded in cross examination by the applicant that he had in the past seen letter carriers skip houses. In my view, it is in keeping with the preponderance of probabilities that Constable Shaw was well aware that letter carriers do not stop at every house.
[28] Accordingly, I conclude that it was not unusual behaviour on the applicant’s part that caused Constable Shaw to decide to place the applicant under surveillance but rather the fact that he was an African Canadian male in an affluent neighbourhood. His suspicions were not alleviated by the Canada Post uniform, mailbag or mail delivery. It is also noteworthy that the Directed Patrol Assignment related to suspicious persons in the neighbourhood with entirely different characteristics: White, Eastern European, using a vehicle. The fact that it was an African Canadian male without a vehicle that attracted Constable Shaw’s attention is what is unusual."

This case comes more than two years after a finding a racial profiling by the same adjudicator in the case of Nassiah v. Peel (Regional Municipality) Services Board. In that case, the applicant was accused of stealing a bra from Sears. Joachim concluded that Officer Elkington of Peel Regional Police Services consciously or unconsciously discriminated against Ms. Nassiah on the basis of race. Ms. Nassiah was detained for almost 2 hours based on shaky video footage, verbally abused by the officer with regards to her race, prohibited from calling anyone but a lawyer, and humiliated when she actually committed no crime at all.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Marijuana grow-op charges in Toronto thrown out because of racial profiling

In R. v. Nguyen (2009), Justice William Bassel of the Ontario Court of Justice threw out evidence obtained by the Toronto police because their search warrant was tainted by racialized stereotypes. According to a report of the case in the Toronto Star, the police targeted Mr. Nguyen following a tip from an anonymous source that "the front yard is looked after enough to avoid suspicion" and "two years ago Asian people bought the house." In finding a section 8 Charter breach, Justice Bassel observed "what possible relevance can the fact that the supposed owners are Asian have, other than to subtly mark this fact as an improper stereotypical message ... that here goes again yet another Asian grow operation?"

Nguyen is now the fourth recent case involving direct evidence of racial profiling. In R. v. Nguyen, [2006] O.J. No. 1221 (Ont. C.J.), the Information to Obtain a Search Warrant included a statement from a police officer that all of the marijuana grow operations he had investigated involved individuals of Asian descent. As the trial judge put it, "the information as presented, suggests that since all previous cases involved Asians, all Asians or Vietnamese are involved in this care, and, therefore, the home in question must contain a marijuana grow operation. This suggestion is erroneous and offensive." In R. v. Mac, [2005] O.J. No. 267 (S.C.J.), the Information to Obtain a Search Warrant included a statement from a police officer that "through my experience I have found that most of these operations are being run by East Asian organizations." And, finally, in R. v. Van Trong Nguyen, [2006] O.J. No. 272 (S.C.J.), the lead investigator attended the local registry office and searched for homes in Barrie, Ontario owned by individuals with Vietnamese names.

What makes these cases so troubling is that the officers admitted that they took into account the racialized background of the individual in their investigation. It reveals how stereotypes often become so normalized that they appear to be reasonable and cause us to fail to critically step back and think about the fallacious reasoning upon which the observation is grounded. The vast majority of marijuana is grown in Canada by Whites as they make up the majority of the population and the majority of users and traffickers. Consider, for example, that Corrections Canada reported that in 2004, 75% of drug offenders in federal institutions were White. Click here for the report. If the police focus all of their attention on one particular group, they will, because crime is widespread in all segments of our society, find some cases of criminality. But they will have done so at considerable cost. Their conduct will perpetuate stereotypes that will further marginalize already vulnerable groups. It will have subjected countless individuals to unwarranted harassment and psychological harm and it will waste valuable resources preventing the police from detecting even more illegal activity.

Another reason that police officers do not realize that their conduct is problematic is as a result of training and how racial profiling is defined by many police forces. Many police agencies use a definition of racial profiling set out by CALEA (Commission on Accreditation for Law Enforcement Agencies). CALEA Standard 1.2.9 prohibits profiling where race is the only factor used in the exercise of discretion. In fact, CALEA uses a Canadian case out of Brantford as part of their training materials. In that case, the officer admitted that one of the factors he took into consideration was that "the owners were of the same race as in similar, illegal grow house arrests." CALEA argues that the arrest was the result of good unbiased policing because other factors were taken into account including high electricity consumption and large heat loss. See Case Number 48.

Posted by Professor Tanovich