Judge’s racial profiling finding took courage: Gadhia

By AdvocateDaily.com Staff

It’s shocking that there have been so few judicial findings of racial profiling by police which undersells the long-argued problem, says Toronto criminal lawyer Roots Gadhia.

“The fact that so few of these cases have been explicitly argued is astounding and it’s troubling that so few have been successful,” Gadhia tells AdvocateDaily.com.

The Toronto Star recently reported on the acquittal of a young black man after a judge found racial profiling was the likely reason the police officer made the traffic stop that precipitated his arrest.

The article quoted a criminal law professor who said the decision was just the 41st recorded case in more than a decade in which the defendant alleged racial profiling in their defence. Of those cases argued since 2006, just seven have resulted in a judge concluding there had been a breach of the person’s Charter rights.

Those numbers came as a shock to Gadhia, principal of R. Roots Gadhia Criminal Defence Law.

“It takes courage to make a finding of racial profiling and it’s clear that many jurists don’t have the courage to do it,” she says.

“If they did, a much larger percentage of cases would have to be dismissed which I think could lead to a breakdown of the criminal courts. I believe the practical truth is judges can’t have the taint of such inherent racial bias in the system be so blatantly obvious,” Gadhia adds.

Even when the reason for a traffic stop is implicitly based on race, Gadhia says police are often able to pass them off as legitimate, making criminal defence lawyers’ lives more difficult.

In the seminal case on the issue, then-Appeal Court Justice J. A. Morden expressed the central challenge for defendants who want to allege their arrest was tainted by racism.

“A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist,” the judge wrote in the 2003 judgment. “Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.”

As a result, Gadhia says many defence lawyers will take a tactical decision to stop short of alleging racism.

“When officers create these ‘articulable causes’ for their stop and investigate, then from a practical perspective defence counsel in many cases raise Charter defences rather than the additional claim of racial profiling simply because the hurdle of a racial profiling application is much steeper,” she explains.

However, Gadhia says the most recent case shows the value of pursuing the issue, despite it following a familiar pattern.

According to the decision, the defendant fled from the backseat of the car during the traffic stop, leaving behind a jacket containing less than 30 grams of marijuana. After his arrest later that day by another officer, the man was charged with possession of marijuana, as well as assault of a peace officer arising from a struggle between the two, and two counts of failure to comply with a recognizance.

The officer involved claimed to have noticed that the defendant was not wearing a seatbelt, and testified that the car had turned without signalling.

However, key elements of his evidence were contradicted by dashcam video from his car, and the judge concluded that the officer’s testimony was “replete with inconsistencies.”

His actions and demeanour “were those of an officer who clearly thought he was investigating more than possible minor traffic violations,” despite the lack of evidence for any criminal activity he could have witnessed to that point, the judge continued in her decision.

After excluding the marijuana evidence obtained in the stop, the judge acquitted the defendant of all charges.

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