Saturday, March 14, 2015

R. v. Steele, 2015 ONCA 169 - Driving While Black - Racial Profiling case

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on March 14, 2015
Updated August 09, 2015

"Racial profiling is one of the significant issues that continue to weigh us down and hinder us from  arriving at our many destinations on time." Valerie Steele

On March 16, 2015 the Court of Appeal decision in the long-standing racial profiling case of R. v.Steele, 2010 ONSC 5397 released by Justice Kathryn Feldman, Justice Janet Simmons and Justice Gladys Pardu: C53511 - R. v. Steele, 2015 CarswellOnt 3334, 2015 ONCA 169, [2015] O.J. No. 1253 (Ont. C.A.). Leave to the Supreme Court of Canada denied:  R. v. Steele, 2015 CanLII 43092 (SCC).

The introduction in R. v. Steele, 2010 ONSC 233 provides useful information as to who was in the vehicle and the circumstances of the stop, at the material time:
[1]             This application arises out of an encounter between the applicant, Richard Steele, co-accused with Fazal Mohammed, Akili White and Nickon Griffiths, and City of Hamilton police officers.  The police were on patrol at 2:00 a.m. in the morning on November 25, 2007, when they stopped a vehicle for a routine traffic stop at 138 King Street East, in the City of Hamilton.  The driver of the vehicle was Mr. White.  Also present in the vehicle were three other individuals including the applicant, Mr. Steele.  During a search incident to this stop in a brief roadside detention, the police recovered a loaded semi-automatic handgun and a quantity of crack cocaine.  The four occupants were arrested and charged accordingly with various firearms-related offences.  Mr. Steele was also charged with two counts of failure to comply with probation. 
[2]             Mr. Steele alleges that his rights to a fair trial, to be secure against unreasonable search, and not to be arbitrarily detained pursuant to sections 7, 8, 9, 10(b) and 15(1) of the Charter of Rights and Freedoms were violated.  The onus is on the applicant to establish on a balance of probabilities that the infringement of his Charter rights occurred.  Further, the applicant seeks the exclusion of any observations made by, evidence seized from, and statements made by the applicant to the officers pursuant to section 24(2) of the Charter.  The gravitas of the applicant’s claim is his allegation that the stop of the vehicle was entirely racially motivated.  Mr. Steele is a black African Canadian male.  The other occupants were two black African Canadian males and a South Asian male.
This is a case where four Black men were driving in the City of Hamilton, Ontario, in Richard mother’s car when they were stopped by Hamilton Police Officer Yvonne Stephens.  Richard Steele was a passenger
Valerie Steele, Richard Steele and  Selwyn Pieters
in the vehicle.  The officer followed the vehicle for at least three minutes. Ran the licence plates. There was no evidence provided that there was any traffic violation or reasonable grounds to stop the vehicle other than it was occupied by four black men. The officer testified that Max Sterling removed Steele from the vehicle. By the time Officer Sterling arrived – there are at least 6 other officers on the scene including three tactical officers. This cannot be characterized as simply a traffic stop. Why Tactical Officers for routine traffic offence?

Judge Flynn dismissed a Charter application in  R. v.Steele, 2010 ONSC 5397 because of a Black officer’s opinion about whether the arresting officer was racially biased.  Flynn J. wrote "[45] But on the evidence before me, there are no grounds to find racial profiling on the part of P.C. Stephens. There is simply no evidence of it and none from which I can infer it.The evidence of P.C. Sterling, a black man, that P.C. Stephens never exhibited racial bias in the 10 years he knew her, gives me comfort for my conclusion."

The arguments at the Ontario Court of Appeal were on standing of Richard Steele to challenge the search on the basis of a reasonable expectation of privacy and racial profiling: "[3] As the appellant lacked a reasonable expectation of privacy in the car, his right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was not infringed. Furthermore, there is no basis to interfere with the trial judge’s factual conclusion that the stop and search were not racially motivated. Finally, the convictions were supported by the evidence and were not unreasonable."

On the issue of a reasonable expectation of privacy of a passenger travelling in a family owned vehicle, the Court held that Richard should have articulated that it was his mother's vehicle:

 [16]      As indicated in R. v. Cole, 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34, at para. 40:
The “totality of the circumstances” test is one of substance, not of form. Four lines of inquiry guide the application of the test: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.
[17]      The court indicated in Cole, at para. 35, that “[p]rivacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy”.
[19]       In the circumstances of the present case, the appellant did not have a reasonable expectation of privacy in the car. The appellant was a passenger in the vehicle at the time of the search, and he was authorized by his mother, at the very least, to be a passenger in the vehicle. However, the appellant’s degree of possession or control, historical use, or ability to regulate access to the vehicle is unknown.
[20]       In general, it would be objectively reasonable for an individual using a family member’s car to have a reasonable expectation of privacy in that vehicle. Here though, the appellant did not identify himself as a person to whom the car had been loaned, and he did not indicate his connection to the vehicle’s owner. He was only a passenger in a vehicle driven by another person who claimed to have borrowed the car. Further, the police had no reason to believe that the appellant had any connection to the vehicle other than as a passenger. Moreover, the driver was attempting to produce required documentation to police, and had apparent control of the vehicle. Under these circumstances, there is no basis for a person in the appellant’s position to have subjectively expected privacy in the vehicle.
[21]       As the appellant had no reasonable expectation of privacy in the car, it is unnecessary to address the effect of the driver’s apparent consent to the search. 
It is unclear why Richard Steele had to identify as the son's of the owner of the vehicle to benefit from a reasonable expectation of privacy. Whether or not he so identify, it does not change the fact that in fact he was the son of the owner.

The Court also dismissed the arguments of racial profiling reasoning as follows:
[24]       A stop or search motivated by racial bias or racial profiling violates the Charter rights of the person stopped or searched. The appellant submits that the trial judge ought to have concluded on the following grounds that the reason the vehicle was stopped and searched was because one or more of the occupants was black:
1)   This was a random stop without any apparent driving misconduct;
2)   The four occupants of the vehicle were black;
3)   The inconsistencies between the officer’s trial evidence and her notes and previous testimony lend credence to the submission that the stop was racially motivated.
[25]       In R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.), at para. 45, this court noted, “where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention”, it could be open to a court to infer that the stop was racially motivated.
[26]       In this case, the officer gave evidence at length about the car’s location when she first saw it, and when she first realized that one or more of the occupants was black. The appellant argues that her observations that White and the appellant were nervous and that the appellant appeared to be hiding something at his feet reflected stereotypical thinking.
[27]       However, the trial judge found that:
1)   P.C. Stephens was credible, “steadfast and uncontradicted”;
2)   She first saw the vehicle when it passed her going from the east to the west on Jackson Street at 2:00 a.m.;
3)   She could not determine the race or gender of the driver;
4)   She could not see any other occupants of the vehicle;
5)   She only determined the number of occupants after she stopped the vehicle;
6)   It was only after stopping the vehicle that she saw that the occupants were black; and
7)   When P.C. Stephens went to the front passenger side of the car and looked into the glove box, she was “intent on finding that valid insurance slip”.
[28]       The trial judge made no palpable and overriding error in his evaluation of the uncontradicted evidence before him on the Charter application. There is no basis to interfere with his findings of fact.
The Court's inability to wrestle in this case with the unsonscious or subconscious nature of racism and racial profiling is troubling. The question the Court of Appeal asked is "Was the finding that conscious or unconscious racial bias did not motivate the stop or search unreasonable?" That "the stop and search were not racially motivated" focuses on intent. And, indeed, intent to discriminate and direct discrimination is no longer required. Racial profiling is subconscious, indirect and systemic and no intent is necessary. All that is required is a link between the stop, search, or arrest and the claimant's race.

The client is obviously disappointed with the outcome of this appeal.

Selwyn Pieters appeared with Anthony Moustacalis on the Appeal.


Racial profiling argued in gun conviction appeal, CHCH TV January 13, 2015

Bill Dunphy, Racial profiling behind Richard Steele's Hamilton bust, say lawyers
Hamilton Spectator‎, January 13, 2015

Colin Perkel, Hamilton police accused of racial profiling in conviction appeal Canadian Press, January 12, 2015

Holly Hayes, Toronto man says he was racially profiled by a Hamilton police officer, Hamilton Spectator 28, 2014

Racial bias runs surprisingly deep, Toronto Star, June 27, 2009

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20  and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (Ont. C.A.);  the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.).

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

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