R v. Gala-Nyam 2023 ONSC 2241
On November 29, 2020, Mr. Gala-Nyam, a young black male, was arrested after a number of drugs and identity documents were found in his possession following a traffic stop. Mr. Gala-Nyam alleged that the Peel Regional Police officers who conducted the traffic stop racially profiled him and sought to exclude the evidence seized on that basis.
On the morning of November 29th, Det. Statham was working as a uniformed patrol officer assigned to a familiar Brampton area. He noticed Mr. Gala-Nyam travelling in an orange Hyundai and decided to “run the plate” on the Canadian Police Information Centre (“CPIC”) and the Police Query Tool (“PQT”). The searches came back negative.
Mr. Gala-Nyam made a rolling stop at an intersection. Det. Statham testified he decided to initiate the traffic stop at that moment, as the failure to come to a complete stop at a red light is an offence under the Ontario Highway Traffic Act. Mr. Gala-Nyam then made a left turn into an area of a small residential pocket with high-end homes.
Det. Statham agreed there was nothing remarkable about the left turn and that Mr. Gala-Nyam slowed, signalled, and made the turn safely and lawfully, but it had “crossed [his] mind” that Mr. Gaya-Nyam made the left turn as a countersurveillance measure to avoid police detection. This was later described by Det. Statham as a “low suspicion”, and that the left turn itself made him suspicious, not how it was conducted. Mr. Gala-Nyam then stopped briefly on the right side of the road for about 5-10 seconds and drove off. Det. Statham did not observe Mr. Gala-Nyam do anything during this brief stop.
Det. Staham followed Mr. Gala-Nyam for two more turns and activated his emergency lights and siren to conduct the traffic stop. During the traffic stop, Det. Staham saw a stack of various Ontario and Quebec driver’s licenses that were not in Mr. Gala-Nyam’s name, which changed the nature of the stop into an investigation into unlawful identification documents. A seizure incident to arrest was conducted, and Det. Staham found a small plastic baggie with a small amount of white powder in Mr. Gala-Nyam’s pocket.
Racial profiling occurs whenever “race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment”: R. v. Le, 2019 SCC 34 at para 76.
In most circumstances, racial profiling is proven on a balance of probabilities with inferences drawn from circumstantial evidence. Even if there is a legitimate purpose for police conduct, the conduct will be constitutionally tainted if there is any racial profiling involved.
Det. Staham denied that the decision to follow the car, run the plate, stop the car, and arrest Mr. Gala-Nyam was because he was a Black male. The Court was clear in finding that Det. Statham was not engaged in any conscious racial profiling: his decision to stop the vehicle was not impacted by race.
Det. Statham also had an objective basis to stop the vehicle as Mr. Gala-Nyam did not bring his vehicle to a complete stop at a red traffic light, but this was the only unlawful activity observed during the five minutes that Det. Statham followed the vehicle. The Court found that there was no basis to be suspicious of the left turn or the vehicle’s brief stop on that street.
The Court clarified that the decision to run the license plate, in and of itself, would not have risen to the level of a finding of racial profiling, but that it is “illogical that the failure to bring a car to a complete stop at a red light, in the absence of any other unlawful or concerning behaviour, could lay the foundation for the officer to become suspicious about a subsequent lawful left turn unless race, subconsciously, played a role in reaching that conclusion”
The Court ultimately excluded the seized identity documents and drugs, making an inference of racial profiling from the following circumstantial evidence:
- the decision to run the license plate;
- the suspicion that Mr. Gala-Nyam was engaged in countersurveillance based on a lawful left turn into a high-end neighbourhood;
- the suspicion that Mr. Gala-Nyam was discarding something from his car when he saw the vehicle briefly stop;
- the activation of both emergency lights and sirens for a standard traffic stop in the absence of evidence that the vehicle did not respond to emergency lights.
R. v. El Khiraoui Chaki 2023 ONSC 1517
On July 18, 2020, uniformed Csts. McLean and Gillespie (the “Officers”) of the Peel Regional Police (“PRP”) attended a motel in the City of Mississauga to engage in proactive policing. The motel was a known “trouble spot” with a standing invitation to the PRP to enforce the Ontario Trespass to Property Act.
Mr. El Khiraoui Chaki was arrested for possession for the purpose of trafficking and possessing a firearm during the early morning interaction and claimed the PRP breached his section 8, 9, 10(a) and 10(b) Charter rights during the brief investigation that culminated in his arrest. He sought to exclude the firearm that was seized during the investigation.
The Officers noticed a red Nissan Murano SUV backed into a parking spot just after 4:00 am with two males inside the vehicle. As it was dark out, the Officers could not discern any distinguishing features, but could see the driver’s seat partially reclined and observed that the driver was not seated upright. The Officers stopped their cruiser in front of the SUV perpendicular to its left bumper, maintaining that they did not block in the SUV for safety reasons.
The Officers approached the driver’s open vehicle and testified they could see the driver was a “black male” and that the passenger was an “Arab male”, later identified as Mr. El Khiraoui Chaki. Both passengers were wearing satchels. The driver, identified as Jamil Jean Louis, produced his driver’s license unprompted. Cst. Gillespie recalled that Mr. Jean Louis told the Officers he had a warrant for his arrest in Quebec but could not remember any specifics of their conversation with the occupants. Cst. McLean stated that there was nothing concerning about their behaviour and that they were cooperative, as Cst. Gillespie went to conduct record checks.
After conducting the CPIC check on Mr. Jean Louis, the Officers made a joint decision to arrest him based on an outstanding Quebec warrant for possession of a controlled substance. The Officers did not recall a radius limitation on the warrant but read an entry that stated: “RADIUS: QUEBEC, AILLEURS AVISER” (translated: elsewhere notify).
Mr. Jean Louis was handcuffed and searched. He was cooperative throughout the arrest. Cst. McLean conducted a search incident to arrest to look for weapons and other documents that might assist in identifying Mr. Jean Louis but emphasized that this was not a search for evidence and was an arrest based on the authority of a warrant.
After the arrest, Mr. El Khiraoui Chaki was asked to step out of the vehicle, which he complied with. Cst. McLean maintained that Mr. El Khiraoui Chaki was not detained at this point because there was no basis for a detention, but acknowledged he did not tell Mr. El Khiraoui Chaki he could leave. Mr. El Khiraoui Chaki then sat down on a nearby lawn and asked to retrieve his belongings from the vehicle. The Officers told him to remain seated while the search of the vehicle was conducted.
On search incident to arrest, Cst. McLean located Ziplock bags with what was believed to be a large amount of cocaine in Mr. Jean Louis’s satchel, along with a scale. Upon discovering these items, Cst. McLean arrested both men for possessing cocaine for the purpose of trafficking.
After arresting Mr. El Khiraoui Chaki, the search of the vehicle continued and a Ziplock bag containing marijuana was located in the front passenger compartment. Cst. McLean then searched Mr. El Khiraoui Chaki’s satchel where a loaded handgun was found. Mr. El Khiraoui Chaki was advised he was also in custody for possessing a firearm.
After the search and arrests were made, the Officers received a message on their in-car computer which advised the Officers, among other things, to not detain the subject as the warrant was for a Quebec radius only.
The Court clarified that there is nothing inappropriate from a constitutional standpoint about proactive, or “community”, policing. The key issues were:
- whether PRP detained Mr. El Khiraoui Chaki before formally arresting him;
- whether Cst. McLean had lawful authority to seize Mr. El Khiraoui Chaki’s satchel to later search it; and
- whether Mr. El Khiraoui Chaki’s race influenced, at least in part, how the investigation unfolded.
Was Mr. El Khiraoui Chaki Detained?
The Court found that the PRP detained Mr. El Khiraoui Chaki before his formal arrest resulting in a breach of his sections 9, 10(a) and 10(b) Charter rights. The Court found that during the circumstances of the encounter, Mr. El Khiraoui Chaki would have reasonably perceived that PRP was singling out him and Mr. Jean Louis for a focused investigation and would have perceived Cst. McLean’s direction to exit the vehicle and leave his satchel as a command. Further, it was “especially noteworthy” that Mr. El Khiraoui Chaki immediately objected to the search of his property, asked for a return of his satchel, and requested that a sergeant attend the location.
The Court was also mindful of Mr. El Khiraoui Chaki’s characteristics and circumstances, as a 19-year-old racialized person, a context that “would undoubtedly affect the perceptions of a reasonable person…and only magnify the power imbalance between such a person and police”.
Was the Search of the Satchel unconstitutional?
The Court found that a seizure was effected when Cst. McLean directed Mr. El Khiraoui Chaki to exit the SUV, leave his satchel in his bag, and refused to return it when requested. Further, as Mr. Jean Louis’s arrest was found to be unlawful, by implication, the seizure of Mr. El Khiraoui Chaki’s satchel to facilitate its subsequent search was also unlawful.
Before commencing the search of the vehicle, the PRP did not have any reason to believe there could be anything that could endanger him or the public. By that point, Mr. Jean Louis had been searched, hand-cuffed, and confined in the back of the police cruiser. There was nothing to suggest that Mr. El Khiraoui Chaki was acting in a manner that raised any safety concerns to justify the search.
Did Mr. El Khiraoui Chaki’s race influence, at least in part, how the investigation unfolded?
As mentioned above, racial profiling arises when race improperly motivates or influences decisions by persons in authority regarding suspect selection or subject treatment. When police actions are infected by racial profiling and implicate constitutionally protected interests, like a reasonable expectation of privacy or liberty, those rights are necessarily violated.
The Court stated that the circumstances of this investigation had “concerning hallmarks of racial profiling”, as officers were proactively policing a known trouble spot and their investigation into the two young men quickly transcended concerns about trespassing. As the court stated, “they almost immediately began exploring the possibility of criminal wrongdoing”. The Officers also decided to arrest Mr. Jean Louis based on a warrant that did not provide them sufficient authority to effect an arrest and further used the “thinnest of pretexts” to justify the seizure and search of the vehicle and satchels.
The Court declined to make a finding of racial profiling on a balance of probabilities, despite having “suspicions” that race may have improperly tainted the officer’s actions. Justice Stribopulous reasoned generally that the evidence pointed to Cst. McLean taking a more “overzealous approach when engaged in proactive policing”.
Ultimately, the Court excluded the evidence under section 24(2) of the Charter, stating “what primarily drove this unjustified instruction on the Charter-protected interests of the two racialized young men, in this case, was that they were sitting in a rental vehicle shortly after 4:00 am in the morning in the parking lot of a motel. For these officers, their experience with criminals using rental cars to conceal their identities from police was enough to ignore the constitutional limits on their investigative powers to explore their unsubstantiated suspicions. That is very troubling.”
Both the initial investigations in R. v. Gala-Nyam and R. v. El Khiraoui Chaki began from unsubstantiated suspicions: a motor vehicle infraction into an inconspicuous left turn in Gala-Nyam and a car being parked in a motel parking lot.
While only the Court in Gala-Nyam made a finding of racial profiling, the courts concluded that none of the officers in these cases were consciously impacted by the race of those they were investigating. These decisions reiterate that officers must ensure there is objectively reasonable suspicion of a potential offence before taking further investigative steps.