Judge cites racial profiling by police officers as grounds for acquitting drug suspect
By Shannon Kari
The Lawyers Weekly, Vol. 24, No. 20,
October 1, 2004
An Ontario Superior Court judge
who made what is believed to be the first explicit finding by a court of police
engaging in racial profiling has acquitted a
Justice Anne Molloy ruled that
A kilogram of cocaine was
eventually discovered by the officers, wrapped inside three plastic bags inside
the silver Mercedes owned by Khan, 29, a real estate broker and university
graduate without a criminal record.
The two officers testified at a
six-day hearing earlier this year that they became suspicious of Khan because he
let police turn first at a three-way stop, even though he had the right of way.
They said they believed Khan did not want to go ahead because it would be easier
for police to run a check on his licence plate.
“Even if there had been some
minor thing about his driving, I do not believe that was the real reason he was
stopped,” the judge said. “The police stopped him for an improper purpose.
Mr. Khan was targeted for this stop because of racial profiling; because he was
a black man with an expensive car.”
Finding the conduct of the
officers “reprehensible,” Justice Molloy said they “fabricated significant
aspects of their evidence,” to justify the stop.
She said cell phone and
computer records of the Canadian Police Information Centre (CPIC) back up the
chronology of events in the defendant’s testimony.
“The Crown fairly conceded
that if there was a finding of racial profiling, it would not be appropriate to
admit the evidence of the cocaine under s. 24(2) of the Charter. I agree
entirely,” said Justice Molloy.
The judge added that while it
was not necessary for her to consider whether the charge could be proven if the
evidence were not excluded, “in fairness to Mr. Khan and in recognition of
what he has been through, I think it appropriate to clear his name
Khan testified that the
Mercedes was not in his possession for two days prior to the incident and he had
been in the car for about half an hour before he was stopped by police. “I
find as a fact that the cocaine was not his and he did not know it was in the
car,” said Justice Molloy.
“It takes great courage for a
judge to say police are not telling the truth,” said John Struthers, who
represented Khan. The
“There are hundreds, if not
thousands of black men, who you don’t meet [because they were not charged],
who have been stopped unfairly by Toronto police,” he said, adding that he
could not find any other reported case where a judge ruled that police had
engaged in racial profiling. “This the first ‘driving while black’ finding
in Canadian history.”
At the same time, he stressed
that Justice Molloy’s ruling “is not radical at all,” but an application
of principles set out by the Ontario Court of Appeal in R v. Brown, 64 O.R. (3d)
Justice Molloy referred to the
racial-profiling test set out in Brown and noted that the appeal court explained
that the phenomenon will “rarely be proven by direct evidence.”
Instead, it could be proven by
circumstantial evidence where “the circumstances relating to the detention
correspond to the phenomenon of racial profiling (as is the case here),” wrote
She added that racial profiling
may also be proven if it can be shown that “the officer in question had acted
in a similar manner in the past or on evidence of bias.”
Toronto Police chief Julian
Fantino has repeatedly denied that his officers engage in racial profiling.
However, he ordered the Toronto Police professional standards unit to
investigate the conduct of the two officers as a result of the findings of
Reasons: R. v. Khan,  O.J.