On August 21, 2008, Nosakhare Ohenhen, a black man from Nigeria, was stopped by three police officers on bicycle patrol near the Parkdale Collegiate Institute in Toronto, Ontario. He was driving a Jaguar sedan. On September 16, 2016, after an eight year legal harangue, he was finally acquitted of drug and firearm charges when Justice M.G.J. Quigley of the Ontario Superior Court of Justice granted an evidence exclusion motion in a ruling reported as R v Ohenhen, 2016 ONSC 5782. It was his second trial. Here’s the story.

The first question in a case like this is: Why did the police stop the Jaguar? That question received two different answers in the testimony of the officers. Cst. Kyle Mildenberger claimed that he pulled the Jaguar over when saw that Ohenhen wasn’t wearing a seatbelt. The Jaguar was fifty metres away and his vision was obstructed by a passenger in the front seat. In cross-examination, he conceded that he was not sure that Ohenhen was not wearing the seatbelt. Cst. Adam Landry testified that he and Cst. Mildenberger decided together to stop the vehicle for making excessive noise because of loud music. However, Cst. Mildenberger didn’t know that loud music was an offence under the Ontario Highway Traffic Act until years later.

Ohenhen parked and got out of the car. He walked toward the officers. Cst. Mildenberger testified that he saw a “large bulge” under Ohenhen’s basketball jersey and was suddenly concerned it might be a gun. He reached out and touched the bulge. Ohenhen slapped his hand away. “Don’t touch me,” he said. Cst. Mildenberger lifted up the jersey. The bulge was the protruding buckle of Ohenhen’s belt. Ohenhen then pushed the constable away and bolted. He didn’t get far when he was tackled by Cst. Landry on a pathway.

Two other officers, Cst. Scott Tait and Cst. Craig Westell, were involved in an unrelated incident where Cst. Westell seized a baggie of crack cocaine from a young person on Close Avenue and put it in the left breast pocket of his service vest. They heard the commotion and went to the scene of Ohenhen’s detention. Ohenhen was lying face down when they arrived. A “baggy [sic] of drugs” and a “wad of money” had been found during a pat down search. Cst. Tait then searched the Jaguar without a warrant and located a loaded handgun under the backseat. Ohenhen was arrested and transported to 14 Division for booking. It would be five hours before he was allowed to call a lawyer. Justice Quigley described what happened after a strip search at the police station this way, at para. 24:

“…[T]he officers came back before the Sergeant with Mr. Ohenhen and claimed to have found another baggie of cocaine and a baggie of marijuana located in a secret pocket behind the zipper of his jeans. The booking videos, which were made exhibits on the voir dire, show P.C. Westell and P.C. Beckwith bringing Mr. Ohenhen back before the Booking Sergeant, and P.C. Westell pulling a baggy [sic] that he told the sergeant they had found on Mr. Ohenhen’s person out of his left breast pocket. As noted, that was the same pocket where he had put the drugs seized …just before the events transpired with Mr. Ohenhen…”.

Ohenhen, who sold narcotics for a living, told a different version of events. It was argued that the vehicle stop was “racially motivated” and that the police planted the drugs on him in an attempt to justify the search of the Jaguar. I will not, however, review all his testimony because Justice Quigley held, at paras. 96 and 100, that the evidence of the police officers “individually and collectively” was neither credible nor reliable. There were “deeply troubling aspects of the testimony and conduct of these officers” that was sufficient to inform the ruling.

First, the conflict in the testimony of the two police officers about the reason for the vehicle stop was irreconcilable. Justice Quigley found, at paras. 101-3, that the evidentiary conflict alone was sufficient to conclude that the officers did not have articulable cause to stop the Jaguar. Nor was there any basis to later arrest Ohenhen after he ran away. There was therefore no legal basis for the searches of his person or the Jaguar. Second, the officers recalled very little about what happened apart from what was in their notes. “There were quite literally,” Justice Quigley found at para. 89, “at least one hundred…questions asked of the officers, about their own actions or those of the other officers who all came to be standing together around Mr. Ohenhen, to which the answer was ‘I don’t recall’ or ‘I don’t remember’.” Third, Justice Quigley held, at paras. 9, 110 and 114, that it was plain on the evidence of the police officers that Ohenhen’s right to counsel was “shockingly ignored” and repeatedly violated which demonstrated a “callous disinterest and disregard for the breach of constitutional rights”. The detention and arrest were therefore arbitrary, the searches were unreasonable and the violation of Ohenhen’s right to counsel over five hours was inexplicable.

But, let’s get back to racial profiling. That’s the reason I’m writing about this ruling. There is an argument here that racial profiling and the planting of drugs on Okenhen by the police were linked – although Justice Quigley treated them separately. Here are the key passages of Justice Quigley’s reasons, at paras. 105 and 108-9:

“The officers’ evidence about carding practices in Toronto and the plain and legitimate concerns about racial stereotyping raises the concern that Mr. Ohenhen was pulled over at least in part because he was a black man driving an expensive car. P.C. Landry called in the marker for the green Jaguar to dispatch for identification, prompted by P.C. Beckwith who was beside him at the time, given that P.C. Beckwith had previously arrested Mr. Ohenhen, four years earlier, and yet had a crystal clear recollection of that arrest, unlike this arrest.

The final very troubling aspect to the police conduct in these searches relates to the breaches of police policy relative to the deposit and registration of seized drugs, and the real possibility that the police did actually plant drugs on Mr. Ohenhen. P.C. Westell said he did not see the drugs seized at the scene from Mr. Ohenhen but was contradicted by P.C. Landry. He was standing right beside him. P.C. Landry, when he had the previous transcripts put to him, acknowledged that it was P.C. Westell who took the drugs from Mr. Ohenhen at the scene – he was 100% sure. But it was also P.C. Westell who took the drugs from Mr. Ohenhen during the level three search at 14 Division, and he puts the drugs in the same pocket where he had placed the drugs seized from the young person on Close Avenue, and then produces drugs from that pocket as allegedly seized from Mr. Ohenhen. This highly improper conduct completely contaminates any ability of the police in this case to maintain certainty of continuity between Mr. Ohenhen and the drugs allegedly seized from him. More importantly, it also raises at least a strong suspicion, if not compelling evidence, that Mr. Ohenhen’s claims that the police planted drugs on his person are true.

These are deeply troubling examples of police conduct dedicated to the ‘ends justifies the means principle’. All of this conduct colours the assessment of the detention and arrest and its legality. Mr. Ohenhen paid serious consequences for that conduct, having been sentenced and only released in 2014. That calls for strong judicial sanction.”

What, then, is racial profiling? The main principles in Canadian law may be summarized this way:

• Racial profiling involves the targeting of individual members of a particular racial group on the basis of the supposed criminal propensity of the entire group. (See: R v Brown (2003), 173 CCC (3d) 23 (Ont CA) per Morden JA, at para. 7)

• Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group. (See: R v Richards (1999), 26 CR (5th) 286 (Ont CA) per Rosenberg JA, at para. 24; In Brown, at para. 7)

• The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. (Brown, at para. 8)

• It is unlawful if the police stop a car because of the racial origins of the driver even if there were other valid highway safety concerns that justified the stop. The classic shakedown is the targeting of a black man driving an expensive car. (See: R v Khan (2004), 189 CCC (3d) 49 (Ont SCJ) per Molloy J., at para. 68; and, Ohenhen, at para. 71)

What is clear from the evidence in Ohenhen is this. The police had no articulable cause to stop the Jaguar. The stop was groundless. The only rational explanation is that the police officers relied on racial profiling. Because that was the real reason – it was immaterial whether Ohenhen was wearing a seatbelt or whether the music from the vehicle was loud. Ohenhen testified that he was out of breath when he was tackled on the pathway. He was face down but could see the feet of the officers around him. Then, one of them said: “We’ll think of something.”