Appeals

Appeal Court Confirms that Racial Profiling Can Stem from Police’s Unconscious Bias

Written on behalf of Affleck & Barrison LLP

In a recent decision, the majority of the Ontario Court of Appeal agreed with Damaine Sitladeen (“Sitladeen” ) that he was racially profiled when he was pulled over while driving and arrested. The court agreed that the trial judge misapplied the test for racial profiling and therefore the firearm found during Sitladeen’s encounter with police should be excluded as evidence at his new trial.

SITLADEEN’S ARREST

At 2:46 a.m. on March 5, 2017, Sitladeen, 27 years old at the time, was driving on Derry Road near Pearson International Airport. He was witnessed by two Peel Regional Police Officers signaling to turn right, entering the turning lane and then swerving back into the through lane without signaling. He was then witnessed signaling to turn right again without turning and swerving within his lane. Police suspected that he was impaired and pulled up beside his vehicle, shone a flashlight into his car, then pulled up behind his vehicle and turned on their emergency lights to pull him over.

At Sitladeen’s trial, officers described this practice as a “combination stop”. This procedure is used to obtain information about the driver to identify him/her before stopping the vehicle, in case the driver flees the scene. Interestingly, the officers notes did not include any information regarding making a decision to stop Sitladeen before they saw that he was a young Black man. The officers did provide will-stay statements, made in preparation for the Charter challenge regarding racial profiling, stating that they made the decision to stop Sitladeen’s vehicle based on his driving before performing the combination stop and observing his identity.

During Sitladeen’s encounter with officers on the side of the road, he could not produce his driver’s license, ownership and insurance when asked and instead provided his brother’s name, Donovan Sitladeen. When PC Delmar incorrectly spelled his last name in the police database, they received a “partial score”, which revealed that Donovan Sitladeen was a suspended driver known to be armed and dangerous and of interest to Toronto Police.

Another officer arrived at the scene and the decision was made to arrest Sitladeen for driving while suspended because they were not able to confirm his identity. Sitladeen was reluctant to exit his vehicle. In an attempt to handcuff Sitladeen, a struggle ensued with three officers at which point it was revealed that Sitladeen had a gun in his waistband. It was found to be a loaded, semi-automatic .40 caliber Glock pistol with an over-sized and prohibited magazine. Sitladeen was not authorized to possess firearms. Sitladeen was handcuffed and arrested.

SITLADEEN’S APPEAL

Sitladeen appealed his conviction and argued that racial profiling led to his stop and arrest and therefore the loaded firearm that was found in his vehicle should be excluded from evidence under section 24(2) of the Charter of Rights and Freedoms.

The majority of the appeal court agreed with Sitaldeen’s appeal arguments and therefore granted his appeal and ordered a new trial without the evidence of the gun.

The central issue on appeal was whether the trial judge had incorrectly applied the test for racial profiling by requiring a finding that the police were dishonest about their reasons for pulling over Sitladeen and searching his vehicle. It was determined by the majority of the court that this narrow application of the test for racial profiling would not encompass “unconscious bias”.

Justice Miller provided a dissenting opinion on the appeal. He found that the trial judge was “well aware” that racial profiling generally stemmed from unconscious bias.

 THE TEST FOR RACIAL PROFILING

The test for racial profiling is set out in the Ontario Court of Appeal case of R. v. Brown and includes the following key principles:

  • The attitude that underlies racial profiling may be consciously or unconsciously held;
  • Racial profiling is rarely able to be proven with direct evidence (ie. an admission by an officer that racial stereotypes influenced the decision to stop the accused);
  • To prove racial profiling it “must be done by inference drawn from circumstantial evidence”.

Writing for the majority of the court, Justice J.A. Feldman stated:

[I]n cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias. … The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling. … [T]o reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying.

The court of appeal found that the trial judge’s approach to assessing whether the officers were racial profiling “did not allow him to assess the reliability of the officers’ testimony about their own motivation in the context of all the circumstances”.

As a result of the trial judge’s failure to apply the correct test regarding racial profiling, the appeal court allowed the appeal and ordered a new trial excluding the evidence of the gun.

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