‘anti-black bias’ — judge slams police ‘racial profiling,' tosses leamington drug trafficking case
in a rare move by an ontario court, the local crown’s d...
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'police can't break the law to enforce it.' defence lawyer patricia brown is shown in front of the superior court building in chatham in this sept. 17, 2020, photo. a judge in windsor tossed out a drug trafficking case stemming from a 2020 arrest in leamington.
doug schmidt
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windsor star
in a rare move by an ontario court, the local crown’s drug trafficking case against a toronto man was tossed out, with the judge who heard the case in windsor using strong language to slam police for “racial profiling.”
“anti-black bias, whether implicit or otherwise, must be denounced as anathema to the rule of law and the integrity of our justice system,” superior court justice martha cook said in her ruling ordering a stay of the charges.
in november, “as a remedy for breaches of the accused’s charter rights,” cook made an order to exclude evidence seized — including cocaine — from the accused by leamington opp after a traffic stop on the night of dec. 8, 2020.
in an 18-page detailed explanation released more than a month after that initial ruling, the judge said excluding “evidence essential to the crown’s prosecution” meant there was no case left against the accused.
“you know how rare it is to get charges stayed? but this was so egregious,” defence lawyer patricia brown told the star.
the case goes back more than four years, when a motorist from the greater toronto area, steve-ray brown, was pulled over in leamington by two opp officers on general patrol in the early morning hours of dec. 9, 2020. observing that a black bmw was driving slow for no apparent reason (although they never recorded the actual speed), the officers testified later they initiated a “sobriety check” under the highway traffic act.
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what was unacceptable on the part of the officers, brown told the star, “wasn’t the stopping — it was all their conduct after the stop.”
in her carefully worded ruling, justice cook concluded that “mr. brown has not established that his race factored into the officers’ decision to stop the bmw, but has established that racial profiling tainted the manner in which he was detained, searched and ultimately arrested.”
while suspected impaired driving was the reason police gave at brown’s trial for the stop, when it came to conducting a sobriety check, the judge wrote, “for reasons unexplained, they did not do so.”
nevertheless, “despite these troubling facts, i am not satisfied that the traffic stop was motivated by racial stereotypes or profiling,” the judge wrote. she said she was “not persuaded” that either officer knew the driver was black until he exited the bmw.
what happened next, however, is that, “what was intended to be a statutory sobriety check shifted almost immediately into a broad and groundless criminal investigation which i find was informed by anti-black bias,” the judge concluded.
brown exited the vehicle and was “cooperative and compliant” and, more importantly perhaps, showed no signs of impairment, nor did he exhibit any “dangerousness.” given the stated reasons for the stop, the judge said “one would expect (the officer) to ask mr. brown whether he had been drinking. she did not.”
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patricia brown (no relation to the accused) told the star the officers’ “fixation on my client” and their different treatment of the passenger, a white woman, was telling. unlike the driver, the passenger — who was asked by an officer “whether she was being trafficked” — had a pending drug possession charge and was out on bail.
despite the officers’ “stated concerns about officer safety,” neither of those who testified knew where that woman was “for most of the time” they were at the 7-11 parking lot where brown’s bmw had pulled over, according to the judge.
the way the white woman was treated by officers compared to the black man “throughout the interaction supports an inference (of) racial profiling,” justice cook wrote.
“if she’d been a black woman, she would have been handcuffed and arrested like he was,” his lawyer patricia brown told the star.
the case against steve-ray brown was heard in the superior court of justice building in downtown windsor.
nick brancaccio
/
windsor star
the officers who conducted the highway traffic act stop searched the driver and discovered a baggie containing 41.6 grams of crack cocaine. smelling cannabis in the bmw, they searched the vehicle, discovering baggies containing 5.4 g of powdered cocaine and 4.4 g of crack cocaine, respectively.
steve-ray brown went on trial for two counts of possession of cocaine for the purpose of trafficking. the defence argued brown’s charter rights had been violated in the way the evidence against him was obtained and in the manner of his treatment.
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“this is not a close case,” justice cook’s decision concluded. “the case law is consistent and clear. a finding of racial profiling will result in the exclusion of evidence.”
asked whether the crown considered appealing the judge’s ruling to toss the case, local federal drug prosecutor richard pollock told the star: “the crown always considers whether the public interest is achieved by launching an appeal.”
while “it was clear, from the crown’s position, there was no racial profiling,” pollock pointed to portions of justice cook’s written decision to further explain the prosecution’s position.
“the crown denies that any of the stop, detention or search were tainted by racial profiling or infringed mr. brown’s charter rights,” cook wrote.
“the crown submits that the officers exercised valid common law powers of investigative detention, based on reasonable suspicion, that mr. brown was an impaired driver … the lawful detention led to a valid and reasonable search of mr. brown’s person and vehicle.”
justice cook concluded: “i cannot accept the crown’s submission.”
the judge added that the crown conceded that, “if this court finds that racial profiling tainted the traffic stop … the evidence seized … should be excluded.”
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steve-ray brown (an out-of-town motorist during a period of covid-19 shutdowns) was not impaired that night, but what about the drugs the patrol officers found?
“police can’t break the law to enforce it,” patricia brown told the star.
“when is it ok? it’s never ok — this is what justice cook said. we all have the same rights.”
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