This article originally appeared in the May 23, 2003, issue of The Lawyers Weekly
On April 16, 2003, the Ontario Court of Appeal released its decision in R v. Brown,  O.J. No. 1251, which deals with the occurrence of racial profiling by the police during investigation, detention and arrest. It also addresses the trial judges handling of the Charter application based on the allegation of racial profiling raised by the accused.
On November 1, 1999, Constable Olson, a Metro Toronto police officer, stopped Decovan “Dee” Brown, a young man of African-American descent and a former professional basketball player for the Toronto Raptors, as he was driving down the Don Valley Parkway. The officers reason was that Mr. Brown was driving in excess of the speed limit and, on two occasions, his car had crossed out of and back into the lane in which he was traveling.
Brown was administered a roadside screening device test, which he failed. As a result, he was taken to the police station and administered a breath test. Browns blood-alcohol concentration registered at 140 mg per 100 ml of blood. He was charged with driving over the legal limit (more that 80 mg of alcohol in 100 ml of blood).
At trial, it was argued that the only reason Mr. Brown was stopped was because he was a young black man driving an expensive car (i.e. racial profiling). As a result, said the defence, the arrest was contrary to section 9 of the Charter and the results of the breath tests should be excluded.
The trial judge dismissed the defendants application and convicted him. Brown was fined $2000.00.
Brown appealed to the Superior Court of Justice. The conviction was overturned and a new trial ordered. The appeal judge, Justice Brian Trafford, ruled that there was a reasonable apprehension of bias created by the trial judges handling of the racial profiling issue and ordered a new trial. The Crown appealed to the Ontario Court of Appeal.
The court of appeal concluded that, indeed, there was a reasonable apprehension of bias. It came to this conclusion based on comments by the trial judge made during (a) the cross-examination of the arresting officer, (b) during defence counsels submissions on the Charter application and, (c) during the sentencing process.
At one point the trial judge characterized the Charter application as “serious allegations, really quite nasty, malicious, potentially, accusations based on, it seems to me, nothing ” During the sentencing process, the trial judge suggested that Mr. Brown apologize to the officer for raising the racial profiling issue, which he characterized as “distasteful”.
The Ontario Court of Appeal confirmed that the test for determining a reasonable apprehension of bias was whether an informed person, viewing the matter realistically and practically and having thought the matter through would conclude that it was more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly. In relation to a racial profiling case, it confirmed that the reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society protected by the Charters equality provisions and that these were matters of which judicial notice could be taken.
On the issue of racial profiling, the Ontario Court of Appeal made the following pronouncements:
1. Definition of racial profiling: 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.
2. Proof of racial profiling: A racial profiling claim can rarely be proven by direct evidence since an officer is not likely to admit that he has been influenced by racial stereotypes in the exercise of his discretion. Therefore, racial profiling must be proven by inference drawn from circumstantial evidence.
3. Generally persuasive evidence: Where the evidence shows that (a) the circumstances surrounding a police detention correspond to the phenomenon of racial profiling and (b) provide a basis to infer that the police officer is lying about the reason for singling out the accused; then the record is then capable of supporting a finding that the stop was based on racial profiling.
4. Motivation for racial profiling: Defence counsel should not be expected to provide a motivation for racial profiling since the phenomenon provides its own motivation a belief by a police officer that a persons colour, combined with other circumstances, make him more likely to be involved in criminal activity.
5. Likelihood of occurrence: Racial profiling is more likely to occur in areas where its victims look out of place than in areas where their skin colour is prominent.
6. Pattern of abusive conduct: The accused is not required to demonstrate that a particular instance of police conduct alleged to be racial profiling fits a wider pattern of abusive detention amounting to racial profiling.
In the present case, the Ontario Court of Appeal found that there was evidence capable of supporting a claim of racial profiling. This included evidence that 1) the accused was a young black man wearing a baseball hat and jogging clothes driving an expensive car; 2) evidence that the officer looked into the accuseds car before stopping him; 3) evidence of a second set of notes prepared by the officer to firm up his reasons to justify the stop once he realized that the accused was a person of considerable means capable of defending th charge; 4) evidence of a licence check that the officer made before the stop; 5) evidence of discrepancies between the times recorded in the officers notebook and those, which he gave to the breathalyzer technician.
The Court of Appeal confirmed Justice Traffords decision and dismissed the appeal.