Evidence suggested officer made mistake untainted by racial profiling

Criminal Law - Charter of Rights and Freedoms - Arbitrary detention or imprisonment [s. 9]

Accused was stopped for talking on cell phone while driving. When accused was stopped he had cell phone in his lap and police officer observed accused had been drinking alcohol . Accused eventually provided two breathalyser samples that exceeded legal limit. Auxiliary officer in passenger seat of police cruiser did not see cell phone. Cell phone was not investigated after stop and there was nothing in officer’s notes about cell phone. At trial, accused denied he had been talking on cell phone and alleged he was stopped because he was black. Trial judge found officer was mistaken in her belief she had seen cell phone, that this was instance of racial profiling and that accused was arbitrarily detained in violation of his rights under s. 9 of Charter of Rights and Freedoms. Trial judge excluded breathalyzer results from evidence and acquitted accused. Crown appealed. Appeal allowed and new trial ordered. Trial judge’s finding that officer was honest witness, but nonetheless engaged in racial profiling, was not irreconcilable, but was a stretch. There was persuasive evidence suggesting that officer made mistake untainted by racial profiling. Trial judge erred in using failure to investigate cell phone as evidence supporting racial profiling given police had no authority to examine or seize cell phone, accused, who had burden of proving Charter violation, failed to produce phone records and there was no logical connection between failure to search cell phone and conclusion that officer engaged in unconscious racial profiling. Trial judge misapprehended auxiliary officer’s evidence. Trial judge’s misapprehensions of evidence were vital to his conclusion of racial profiling. Even if there was breach of Charter s. 9, without racial profiling there was probability evidence would not have been excluded.

R v. Byrnes (2019), 2019 CarswellOnt 2724, 2019 ONSC 1287, D.E. Harris J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 6888, 2018 ONCJ 278, D.F. McLeod J. (Ont. C.J.).

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