A Durham Regional Police officer had no lawful authority to stop a vehicle and search it, a judge ruled in a Whitby drug case on Tuesday. (Ron Pietroniro / Toronto Star file photo)
Drug-trafficking charges against two people in Whitby, Ont., have been dismissed after a judge ruled that a Durham Regional police officer stopped them based on racial profiling.
Beverly Ann O’Grady and Jeffrey Ferguson-Cadore were jointly charged with four counts of possessing controlled substances for the purposes of trafficking in September 2014 after police searched the car O’Grady was driving and said they found marijuana, crack cocaine, powder cocaine and Oxycocet tabs.
O’Grady and Ferguson-Cadore’s lawyers applied to have the evidence excluded because they said stopping and searching the vehicle represented several violations of the Charter of Rights and Freedoms.
According to the background facts laid out in Justice Robert Charney’s written decision, Const. John MacKinnon started following the car after he saw a “young looking white female” in the driver’s seat with a black man in the passenger seat leaving a motel parking lot, and became suspicious that the woman was a prostitute accompanied by a pimp.
Charney ruled the officer had no lawful authority to stop the vehicle. He wrote that the officer “took advantage of the arbitrary detention to unlawfully search the vehicle” and ruled that the stop represented “very serious” violations of the charter.
MacKinnon said he saw the car leaving a motel that was known as a hotbed of prostitution and drug activity, and he was concerned for the woman’s safety. He pulled the car over after running the licence plate, noting that neither person in the car appeared to match the description of the vehicle’s listed owner, who was born in 1965.
“The police officer’s initial suspicions and concerns for the safety of the young white female were based on the fact that she was seen in the company of a black male,” Charney said in his written decision. “There was really nothing more to it than that.”
When MacKinnon pulled over the car, O’Grady asked why she had been stopped and the officer told her she didn’t look like she was born in 1965.
The officer said he smelled a strong odour of marijuana in the car, and noticed ash on the console and gearshift. He then called for backup and searched the car, finding marijuana, the ruling said. The couple was then arrested, and when the officers continued to search the car, the decision said they found other drugs as well.
The officer’s arrest report stated that his primary reason for stopping the car was the fact that the driver and passenger didn’t match the registered owner.
Charney ruled that this was a pretext for the stop, and there was no road safety justification behind it.
“In the first place, there is nothing illegal, unusual or suspicious about a driver not matching the description of the registered owner. Family members frequently share the same car. The registered owner may be a different gender or a different age than the driver. This is commonplace and innocent conduct,” his decision reads.
He added that the constable “was aware that this was not a sufficient basis to stop the vehicle at 3:30 p.m. on a Sunday afternoon. That is why he ran the plate through the PARIS system — to see if he could find some legitimate basis to stop the car.”
O’Grady’s lawyer, Jonathan Pyzer, said the Crown called no evidence in the case after Charney ruled the evidence obtained from the search should be excluded, and the charges were dismissed.