R v. Palmer, 2025 ONSC 7078
Background
In September 2023, two officers were on patrol in what they described as a high crime area. The officers ran the license plate of the accused’s vehicle and learned it was registered to a numbered company. They decided to conduct a traffic stop to ensure the driver was properly licensed.
On approaching the vehicle, the officers observed an open can of beer and immediately ordered the accused to step out in order to conduct a search pursuant to the Ontario Liquor License and Control Act. A full search of the vehicle revealed 36.5 grams of fentanyl, 18.4 grams of cocaine, and $1,245 in Canadian currency. The accused was charged with drug trafficking offences, among others.
The accused, a black man, sought exclusion of evidence arguing that the decision to conduct the traffic stop was a pretext to a criminal investigation influenced by racial profiling. On balance, the Court found that exclusion of evidence was appropriate in the circumstances, entering acquittals on all counts.
Facts
The time between the traffic stop and arrest in this case was less than two minutes. Once the vehicle had come to a stop, the officers approached the vehicle from the driver and passenger side.
One officer saw an open can of Corona in the cupholder but could not tell whether there was any liquid in the can. At that point, they testified that sobriety was an issue and a decision was made to search the vehicle for liquor. The officer later confirmed that there were no signs of impairment and that he did not assess the driver’s sobriety before asking him to step outside of the vehicle. Further, no notes were made with respect to whether there was any liquid in the Corona can, which police later agreed appeared to be empty.
There was conflicting testimony as to what occurred during the stop. The officer on the driver’s side testified that the accused refused to exit the vehicle, so he opened the door out of concern that the accused would drive away without having his sobriety checked. The accused allegedly tried to close the door as it was opened, but the officer caught a glimpse of clear plastic bags between the driver’s seat and the door. The two officers proceeded to then pull the accused out of the vehicle, who was compliant once out of the vehicle.
The accused testified that one of the arresting officers yelled “beer can” and pulled out his gun before telling the accused to “get the fuck out of the car”. The accused stated that he was thrown to the ground, handcuffed, and one of the officers had a knee of his neck. Both officers denied any of this occurred.
The accused testified that the vehicle was a rental and he was in the area to sell drugs. He testified to forgetting the can in the cupholder, which was empty. The accused maintained that an officer shouted “beer can”, pulled his gun, and opened the vehicle door without asking him to exit.
Racial Profiling
At trial, the accused argued that the traffic stop was an arbitrary detention, that the opening of the vehicle door was an unreasonable search, and that the officers’ use of force in removing him from his vehicle was excessive, all of which were Charter breaches motivated by racial profiling. The Crown argued that the officers were engaged in proactive policing and were entitled to conduct a highway traffic stop to ensure the driver was properly licensed, were entitled to remove the accused when he did not comply, that the force used was not excessive, and that there was no evidence that police were influenced by race based stereotypes.
The Ontario Highway Traffic Act provides police the power to briefly detain a driver to require them to produce required documents such as a driver’s license, registration, and insurance. The issue was whether the officers had a road safety purpose in mind to justify the stop and detention, or whether the traffic stop was a ruse to conduct a criminal investigation, which involves an examination of all the circumstances of the case.
Racial profiling is recognized as having an attitudinal component (race stereotypes being relevant in identifying a propensity to offend) and a causation component (race-based thinking “consciously or unconsciously” motivating decisions regarding suspect selection or treatment). Racial profiling is often inferred from the circumstances of the case as opposed to direct evidence.
Notably, policing decisions based on race or racial stereotypes are not objectively reasonable, and racial profiling can vitiate reasonable suspicion or reasonable grounds if it factors into subject selection or treatment.
Decision
In its analysis, the Court found that the police had a criminal investigation purpose in mind when conducting the stop, as mere presence in a high-crime area is not an objectively reasonably indicia of involvement in criminal activity. In this case, neither officer saw any suspicious activity or bad driving prior to the stop.
Further, while the Court criticized the officers’ weak recollection of events, the testimonies of the police and accused converged on one point: that the accused did not have time to comply with any demand for documentation before he was ordered out of the vehicle, and there was no road safety investigation.
While the officers vehemently denied race being a part of their decision making, expressing offence at the suggestion, the Court found that, in the absence of any other explanation, it was more likely than not that race influenced the officers’ decision to detain the accused. For the Court, it was “hard to understand” how the officers could be sure they made no observations of the driver when the vehicle came to their attention and neither officer could answer why they ran the license plate. The Court preferred the accused’s version of events – that they made eye contact at a stop sign prior to the stop. Whether or not it was unconscious bias, a detention based on racial profiling is unreasonable. The Court ruled that the stop was unlawful, and the detention was arbitrary, in breach of the accused’s s. 9 Charter rights.
Similarly, the Court found that the decision to order the accused out of the vehicle immediately on observing the can, without any investigation as to impairment or bad driving, was in part influenced by race. In all the circumstances, the officers’ belief that the can contained beer was not reasonable and opening the vehicle door was considered an unreasonable search.
Finally, there was no evidence that a firearm was used, that the accused was put to the ground, or that the accused suffered any serious injury, and the allegation of excessive force was dismissed.
On the test for exclusive of evidence, the Court found that race-based decision-making is on the “most serious” end of the spectrum, that the conduct constituted a significant impact on the accused’s Charter rights, and that there was a significant public interest in the adjudication of drug trafficking offences on its merits. On balance, the Court found that admitting the evidence would put the administration of justice into disrepute, excluding all evidence and entering acquittals on all counts.
R. v. Singh, 2025 ONSC 7173
Background
In August 2023, police obtained search warrants to seize firearms and ammunition from the accused’s apartment and motor vehicle. The warrants were based, in part, on information from a confidential source, and as such, the affidavit in support was heavily redacted to protect informer privilege.
The accused was at a Tim Hortons in the early afternoon of August 13, 2023 when officers executed the search warrant, and seized a loaded firearm, as well as cocaine, fentanyl, and other drugs. The accused was charged with various firearms and drug related offences and brought an application challenging the validity of the search on the basis that there were insufficient grounds to justify the issuance of the warrant.
Confidential Sources
When information is relied upon by a confidential source, the Court must consider the factors set out in R v. Debot: i) the credibility or reliability of the confidential source; ii) whether the information is compelling or cogent; and iii) the degree to which the information provided by the confidential source is corroborated or confirmed by credible independent information.
The Court ultimately ruled that there was sufficient information to issue the warrant, as the issuing justice had the following before her:
(a) the informant was a carded source with the police who had provided reliable information on multiple occasions in the past;
(b) the informant provided sufficient details regarding the accused and his possession of a firearm for the information to be ‘highly compelling’; and
(c) police were able to corroborate details about the accused’s address, girlfriend, prior arrest, physical description, and that he operated rental vehicles.
The Court also considered the test for exclusion of evidence, finding that evidence would be admitted in any event. In its analysis, the Court considered that the officers executed their duties in good faith, a motor vehicle has a reduced expectation of privacy, and that controlled substances were located as a result of the search.
Conclusion
In Palmer, officers located and seized cogent evidence on shaky grounds, resulting in an acquittal on serious charges that may have been avoided if additional investigation was conducted to form the requisite grounds before performing the vehicle search. In Singh, the search warrant and subsequent search was upheld due to the quality of the information provided by the confidential informant and corroborating investigation by police. These cases are a reminder for officers to ensure they have completed all requisite investigation for reasonable and probable grounds before conducting a search, or risk exclusion of evidence.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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