Ruling affirms racial profiling can be result of a police officer's unconscious bias: lawyers

In split decision, majority of Court of Appeal finds stop and arrest was racially motivated

Ruling affirms racial profiling can be result of a police officer's unconscious bias: lawyers
Joshua Sealy-Harrington, James Miglin

In a split decision, a majority of the Ontario Court of Appeal has found that it is not necessary to prove the police lied about their reasons for a stop and arrest, or have the police admit to racist motivations, for a court to make a finding of racial profiling.

The appellant was convicted in November 2017 of possession of a firearm, after being pulled over due to the police’s alleged suspicion that he was impaired. On appeal, he argued that racial profiling had led to his stop and arrest and the firearm should be excluded from evidence under s. 24(2) of the Charter. The Court’s majority agreed and ordered a new trial, without the gun.

“The case’s significance is a clear reaffirmation from a majority of the Ontario Court of Appeal that racial profiling is not limited to intentional and conscious racism in policing,” says Joshua Sealy-Harrington, a lawyer at Power Law and doctoral candidate at Columbia Law School. 

“Rather, it extends to unconscious racism as well. Though, I would note that this is hardly novel—as the majority points out, this is how racial profiling has long been conceptualized by Canadian courts, including by the Supreme Court in 2019.”

The “primary issue” before Court of Appeal Justices Kathryn Feldman, Eileen Gillese and Bradley Miller was whether the trial judge had misapplied the test for racial profiling by requiring a finding that the police were dishonest about their reasons for the stop and search. This standard would not capture profiling which is the result of unconscious bias.

Justices Feldman and Gillese agreed with the appellant that the trial judge had misapplied the test.

In dissent, Justice Miller found the trial judge was “well aware” that racial profiling was commonly derived out of unconscious bias. Justice Miller and his colleagues had “a deeper disagreement” over what is required to establish a claim of racial profiling, he said.

The decision represents how the courts are progressing on the issue of racial profiling and will provide greater assistance for trial judges on how to “operationalize the test” and assess claims, says James Miglin, who acted for the appellant and is a partner at Edward H. Royle and Partners LLP.

“It is a difficult area of the law. It’s not an easy test for judges to apply. But racial profiling is a well-known phenomenon. It’s abhorrent and contrary to our fundamental rights as Canadians. And we, as a society, must work tirelessly to eliminate it,” says Miglin.

“It is extrinsically bound to other issues regarding the increased militarization of police forces and the disproportionate use of the police on racialized people and communities. The criminal justice system must be able to identify such cases, call them out and provide a meaningful remedy for accused persons.”

In Justice Miller’s dissent, he referenced an article submitted at trial by the defence: “Applying the Racial Profiling Correspondence Test,” by University of Windsor Faculty of Law Professor David Tanovich. Justice Miller said that the use of “advocacy” scholarship in litigation is problematic. Sealy-Harrington analysed and responded to this section of Justice Miller’s reason in a Twitter thread.

The case arose from an incident on March 5, 2017. The appellant, Damaine Sitladeen, was driving on Derry Road near Pearson International Airport. Two Peel Regional Police Officers were in a car behind him. One saw Sitladeen signal right, enter the turning lane and, instead of turning right, swerve back into the through lane without signalling. The officer said he signalled right again without turning and swerved within the lane. He concluded Sitladeen might be impaired.

The officers pulled up beside Sitladeen and shone their flashlight into his car, before dropping back behind him and activating their emergency lights to pull him over. The officers called this a “combination stop,” in which they get a view of the driver, so they can identify him if he flees.

Once stopped, the police had trouble confirming Sitladeen’s identity. He could not produce his license, registration or insurance, and gave his brother’s name. The officer also misspelled his last name when checking the police database. The database could only return a “partial score,” said the decision. The system indicated there was a possibility – a 13/26 accuracy score – that the appellant was Donovan Sitladeen, a suspended driver with a weapons prohibition, “known to be armed and dangerous and of interest to the Toronto Police.”

The police also spotted a pill bottle in the vehicle, which had Sitladeen’s real name on it. But because he continued to misspell the last name, the officer’s database search was inconclusive.

More police had arrived on the scene and they decided to arrest Sitladeen for driving while suspended. There was a “struggle,” as the decision states he was “reluctant to exit the car.” When the officers managed to take him to the ground and handcuff him, they found a gun in his waistband.

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