R v Ali, 2023 SKCA 127

Court of Appeal for Saskatchewan Docket: CACR3573 Citation: R v Ali, 2023 SKCA 127 Date: 2023-11-23 Between: Mohammad Omar Ali Appellant And His Majesty the King Respondent Before: Leurer C.J.S., Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Leurer and The Honourable Mr. Justice Caldwell In dissent: The Honourable Madam Justice Schwann On appeal from: Provincial Court (Sask), Saskatoon Appeal heard: March 21, 2023 Counsel: Brian Pfefferle, K.C., and Thomas Hynes for the Appellant Wade McBride, K.C., for the Respondent Leurer C.J.S. and Caldwell J.A. I.

INTRODUCTION [ 1 ] Mohammad Omar Ali appeals against his convictions for serious firearms, drug and proceeds-of-crime offences. The critical evidence against him was obtained because of a search that was incidental to his arrest following a stop for a minor traffic offence. Mr. Ali, who is Black, alleges that he was a victim of racial profiling and makes several other arguments. [ 2 ] We wholly agree with Mr. Ali that racism has no proper place in the enforcement or administration of justice.

We also agree that there are occasions where subconscious bias can insidiously affect the actions of police officers and other justice-system officials. Nonetheless, the trial judge found there to be “no evidence of racial profiling in this case”. On this basis, he dismissed Mr. Ali’s submission in this regard. [ 3 ] We have carefully examined the evidence as well as the trial judge’s reasons for judgment. We find no sustainable grounds to interfere with the trial judge’s rejection of Mr. Ali’s argument that he was treated differently because of his race.

While racism cannot be tolerated in the justice system, this is not an occasion where it found root. We also see no merit in Mr. Ali’s other arguments as to why his convictions should be set aside. Mr. Ali’s appeal must therefore be dismissed. II. BACKGROUND [ 4 ] On the afternoon of May 2, 2021, Sergeant Dean Hoover and Constables Tara Cummine and Lincoln Nedjelski of the Saskatoon Police Service, operating as a team, were engaged in a traffic-safety initiative.

They were targeting persons committing the offence of using a mobile device while driving, contrary to s. 241.1 of The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ]. Constable Cummine located herself at the northwest embankment of the Circle Drive overpass on 8th Street East in Saskatoon. This vantage point allowed her to observe whether drivers in passing cars were using mobile devices. Sergeant Hoover, who was the head of the traffic unit of the Saskatoon Police Service, and Cst. Nedjelski were stationed a short distance away so that they could stop any of the vehicles that Cst.

Cummine identified as having been operated by a driver using a mobile device. They would do this by directing any drivers found to be committing offences off 8th Street onto an adjoining avenue. [ 5 ] During this operation, the driver of a sport utility vehicle [SUV] was seen to be handling his mobile device at a traffic light. The driver, who turned out to be Mr. Ali, was flagged to the side of the road by Cst. Nedjelski, who asked Mr. Ali for his driver’s licence. The driver’s licence recorded the licensee’s birth date as January 1, 1998. After Cst.

Nedjelski discovered discrepancies between, on the one hand, the birth date recorded on the driver’s licence, and, on the other hand, information recorded on a police database, Sgt. Hoover became involved. The sergeant asked Mr. Ali to leave his vehicle. At the point Mr. Ali was out of the vehicle, Sgt. Hoover gave Cst. Nedjelski information that led Cst. Nedjelski to believe that he had been handed a false driver’s licence. Based on this belief, Cst. Nedjelski arrested Mr.

Ali for the wilful obstruction of a police officer in the execution of the officer’s duty ( Criminal Code , s. 129 (a)). [ 6 ] The officers removed from Mr. Ali’s person a satchel in which they found a loaded handgun. It was later determined to be a stolen .45 calibre, semi-automatic handgun with a seven-round magazine. The handgun had a live round chambered, was cocked, and the safety was off. In their further search incident to Mr. Ali’s arrest, the police located $1,565 in cash, 11 baggies containing 20.75 grams of cocaine, 18 baggies containing 23.87 grams of crack-cocaine and a mobile phone.

The seizure of these items led the officers to charge Mr. Ali with the following offences: (

a) careless use of a firearm contrary to s. 86(1) of the Criminal Code ; (

b) possession of a weapon for a dangerous purpose contrary to s. 88 of the Criminal Code ; (

c) carrying a concealed weapon contrary to s. 90 of the Criminal Code ;

(

d) possession of a firearm without a licence contrary to s. 92(1) of the Criminal Code; (

e) unauthorized possession of a firearm while occupying a motor vehicle contrary to s. 94(1)(a)(

i) of the Criminal Code; (

f) possession of a restricted firearm with ammunition contrary to s. 95(1) of the Criminal Code; (

g) possession of a firearm obtained by the commission of an offence contrary to s. 96(1) of the Criminal Code; (

h) possession of a firearm while prohibited pursuant to s. 117.01(1) of the Criminal Code; (

i) possession of a controlled substance, to wit, cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugsand Substances Act, SC 1996, c 19 [CDSA]; and (

j) possession of property or proceeds under $5,000 obtained from the commission of an indictable offence contrary to s. 5(1) ofthe CDSA, and ss. 354(1) and 355(

b) of the Criminal Code. [7] In advance of the trial, Mr. Ali filed an application asserting that the police had violated his rights under ss. 7, 8, 9 and 10 ofthe Charter when detaining and arresting him. He sought an order pursuant to s. 24(2) of the Charter excluding the items they had seized. [8] At the trial, counsel advised the trial judge that they agreed that the matter should proceed as a blended voir dire wherein theevidence led in it would be applied to the trial proper. Mr.

Ali’s counsel told the trial judge that “the focus will be on the Constitutionalissues related to a stop and arrest at the roadside”. Each of the three officers testified, as did an expert witness in respect of the CDSAcharges. Mr. Ali did not. In addition, the parties filed an agreed statement of facts that established that Mr.

Ali’s driver’s licence wasindeed valid, that he was born on a date other than that set out in it, and that, when he immigrated to Canada, he was given the birth dateof January 1, 1998, which is his “legal birth date”. [9] The trial judge dismissed the Charter application and admitted the gun, drugs and other items into evidence. In his voir direruling, the trial judge held that Mr. Ali “was detained at the point that he was pulled over and stopped at the direction of ConstableNedjelski”. He found this detention to be authorized by the TSA and that Mr.

Ali “was still being detained pursuant to the cell phoneinfraction when the officer asked him to step [out of] the vehicle”. The trial judge also determined that Cst. Nedjelski had a reasonablebelief that he had been handed a false driver’s licence. This meant that it was lawful for Mr. Ali to be arrested at that point. Finally, thetrial judge found there to be “no evidence of racial profiling in this case”. [10] At the conclusion of the trial, the trial judge convicted Mr.

Ali on seven firearms offences, stayed two of those convictionsunder the principle in R v Kienapple (1974), (SCC), [1975] 1 SCR 729, and acquitted him on two other Criminal Codeoffences. The trial judge also convicted Mr. Ali of possession of cocaine for the purposes of trafficking and of possession of the proceedsof crime under the CDSA. All told, the trial judge sentenced Mr. Ali to 6.5 years of imprisonment, after credit for 18 months of remandtime, with the usual ancillary orders. III. ISSUES [11] Mr. Ali appeals against his convictions only.

He restricts his appeal to the issue of whether his rights under s. 9 of the Charterwere violated in the circumstances of this case.

Section 9 guarantees to everyone “the right not to be arbitrarily detained or imprisoned”.His arguments require us to address three issues: (

a) Did the trial judge err in finding that the police acted reasonably in asking Mr. Ali to leave the SUV? (

b) Did the trial judge err in finding that Mr. Ali’s arrest was lawful? (

c) Did the trial judge err in rejecting Mr. Ali’s contention that he was the victim of racial profiling? IV. ANALYSIS A. The request to leave the SUV 1. Framing the issue [12] In his oral decision, the trial judge found that Mr. Ali had been lawfully detained and arrested. With regard to the traffic stopand initial detention, the trial judge concluded that the police had not violated Mr. Ali’s Charter rights because: Constable Nedjelski was in uniform and in the lawful execution of his duty enforcing

Section 241.1 of The Traffic Safety Act in relation tothe use of an electronic communications device. He testified he was acting on the information provided to him to – by ConstableCummine and that Mr. Omar Ali was in violation of

Section 241.1. I accept the evidence of Constable Cummine and Constable Nedjelski on this point and that I find that he was acting in a reasonablemanner. I find that the initial detention was lawful. [13] In pursuing this appeal, Mr. Ali does not take issue with the trial judge’s findings and conclusion that the traffic stop wasauthorized under the TSA and for that reason did not violate his rights under s. 9 of the Charter. Mr. Ali submits, however, that Sgt.Hoover breached s. 9 when he asked him to leave the SUV. His argument is built on the direction given in the following passage from R v

Aucoin, 2012 SCC 66 , 2021 SCC 66, [2012] 3 SCR 408: [35] To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of hispolice cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it ashe did in the circumstances of this case. [36] The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances wassettled in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725.

That case moved our jurisprudence from debating the existence of such apower to considering whether its exercise was reasonably necessary in the circumstances of a particular case. As Abella J., for themajority, observed: The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information knownto the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to thesecircumstances, including its geographic and temporal scope.

This means balancing the seriousness of the risk to public or individual safetywith the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no moreintrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added; para. 31.] (Emphasis in original) Relying on this passage, Mr. Ali says that the police had the information that they required to issue him a ticket and therefore went too farwhen they asked him to leave the SUV.

He says that if there were “other less intrusive means, apart from separating [him] from hisvehicle, that were reasonably available in the circumstances, then the police actions cannot be said to be reasonably necessary”. [14] In our consideration of Mr. Ali’s arguments under this head, we will first review the evidence given by the officers in relationto the stop and subsequent arrest. We will then summarize the trial judge’s reasons for rejecting this argument. Finally, we will considerthese reasons against the applicable standards of appellate review. 2.

The evidence [15] Constable Cummine explained that, at about 3:45 p.m. on the date in question, she saw the driver and lone occupant of anidentifiable SUV stopped at a red light in the westbound centre lane of 8th Street East. She watched while the driver picked up a black cellphone with his right hand and manipulated the screen with his right thumb for approximately two seconds. The driver then put the phonedown either in the centre console or on the passenger seat. Constable Cummine relayed what she had seen to Cst. Nedjelski. ConstableCummine saw Cst.

Nedjelski step into the lanes of traffic on 8th Street and flag the SUV to turn to the right onto Arlington Avenue, which runs perpendicular to 8th Street. The driver of the SUV turned as directed. [16] Constable Nedjelski testified that he received the radio call from Cst. Cummine. He stepped out into the roadway to direct theSUV onto Arlington Avenue. The vehicle turned right onto that street as directed near to Sgt. Hoover, who was occupied with anothervehicle. The SUV slowed, pulled off to the curb lane and came to a “rolling stop”.

The vehicle then “began to pull back out into the left-hand [driving] lane, as if to drive away”. Constable Nedjelski then called out to Sgt. Hoover, who waved the vehicle over to the side of theroad. The vehicle came to a stop. [17] Constable Nedjelski explained that he then approached the now-stopped vehicle. He advised the driver, who at the timeremained seated in the SUV, that he had been observed by another officer committing a cell-phone offence. Constable Nedjelski asked thedriver for his licence so that a ticket could be issued.

As part of the standard procedure he always followed, he compared the picture on thelicence to the driver to make sure it was the same person. Constable Nedjelski observed what he described as a “bag” across the driver’schest. Constable Nedjelski told the driver that he would be back in a few minutes with his ticket. [18] Constable Nedjelski returned to his own police vehicle to issue the ticket. The licence identified the driver as Mohammad OmarAli and stated that the licensee resided in Edmonton, Alberta, and had been born on January 1, 1998.

While entering this information intothe electronic ticketing system, Cst. Nedjelski recalled that earlier that day he had seen a bulletin from the Edmonton Police Serviceconcerning an individual named Mohammed Omar Ali.

The constable retrieved the bulletin and noted that, while the name of theindividual referred to in the bulletin was a close match to the name on the driver’s licence he had been handed, and the photograph in thebulletin looked like the picture on the driver’s licence and like the driver of the SUV, the recorded birth date of the person identified onthe bulletin was different than the birth date recorded on the driver’s licence. [19] Constable Nedjelski testified that his concern at this point was to ensure that he issued a valid ticket. He decided to consult withSgt.

Hoover, the senior officer on hand, and who had finished dealing with the other vehicle. Sergeant Hoover advised him to check theCanadian Police Information Centre [CPIC] database to see if the individual described in the bulletin was otherwise identifiable by scars,marks or tattoos. When Cst. Nedjelski did this, he found that there was a Mohammad Omar Ali – not Mohammed Omar Ali – with a dateof birth that matched that on the Edmonton police bulletin and that that person had scars on his left hand and under his right eye. With thisinformation in hand, both Cst. Nedjelski and Sgt. Hoover returned to the SUV.

Sergeant Hoover took over the role of the primary contactperson and Cst. Nedjelski assumed the role of cover officer. [20] Constable Nedjelski testified that Sgt. Hoover walked up to the driver’s side of the SUV and asked the driver to step out of thevehicle, which the driver did. Constable Nedjelski explained that, for safety reasons, the driver was asked to move to the front of thevehicle. In cross-examination, Cst. Nedjelski agreed that the reason the driver was asked to step out of the vehicle was “to deal with anidentity issue”. He added, in reference to Sgt.

Hoover and himself, that “we’re still -- we’re now using physical marks to try to -- toconfirm who -- who he is … and confirm his date of birth”. He also agreed that it was only after Mr. Ali had left the SUV that he wasarrested. [21] At this point, Sgt. Hoover confirmed to Cst. Nedjelski that the driver had scars on his hand and face.

Constable Nedjelski, whoin the past had been provided driver’s licences with false information, formed the belief that the driver had provided him a false document.He did so because he thought that the information retrieved from the CPIC database as to the date of birth was reliable, and, therefore, it

was likely that the date of birth on the driver’s licence was false. Constable Nedjelski told the driver that he was under arrest for obstruction of justice, and he advised the driver that he would be handcuffed and taken to the police vehicle. [ 22 ] The bag that had been over the driver’s shoulder and across his chest was taken off his person and put on the hood of Sgt. Hoover’s unmarked police vehicle. This caused a very loud “clunk”, which Cst. Nedjelski took to be indicative of it containing a heavy object. Constable Nedjelski had just arrived at his own vehicle with the driver when Sgt.

Hoover, who had opened the satchel, called out a “10-40G” warning. This, Cst. Nedjelski understood, was Sgt. Hoover “telling me that he’s located a firearm inside that bag”. Constable Nedjelski then arrested Mr. Ali for a weapons offence. [ 23 ] For his part, Sgt. Hoover recalled that he was called over by Cst. Nedjelski to discuss an issue regarding the date of birth of an individual. He said that Cst. Nedjelski explained to him that he believed that the driver and person on the bulletin were the same person with different birth dates listed. Sergeant Hoover suggested that Cst.

Nedjelski check the CPIC database to see if the person named Mohammed Omar Ali, with the birth date as set out in the driver’s licence, had any scars, marks or tattoos. The rationale for this was for the purpose of “making sure it’s the right person, and that they’re going to attend court”. The check of the CPIC database provided information that a person named Mohammad Omar Ali had a scar on his right cheek and on his left hand. [ 24 ] At this point, Sgt. Hoover said that he would go try to identify the driver. He walked to the window of the SUV.

He observed the driver’s hands on the steering wheel and could see a scar on his left hand. The driver had also turned his head, and Sgt. Hoover could see a scar under his right eye. Sergeant Hoover testified that he then told the driver that “there seems to be a discrepancy with your date of birth on your driver’s licence. I’d like to ask you to step over to the sidewalk here so we can figure this out”. After this, Cst. Nedjelski took Mr. Ali to the front passenger side of the SUV and arrested him for obstruction. The satchel that the driver was wearing was taken off and set on the hood by Cst. Nedjelski.

When he did this, Sgt. Hoover heard a heavy metal-upon-metal sound and formed the conclusion that there was a gun involved. He “told Nedjelski 10-40, and opened the zipper” and saw “a silver handgun with magazine”. 3. The trial judge’s reasons [ 25 ] As part of his careful review of the officers’ testimony, the trial judge determined that he could rely on the evidence given by all three officers. In this regard, he stated that he “accepted [Cst. Cummine’s] testimony as being truthful and accurate”. He found Cst. Nedjelski and Sgt. Hoover each “to be a credible witness”.

He gave reasons for these conclusions. [ 26 ] The trial judge also carefully analyzed whether it was reasonably necessary for the police to have required Mr. Ali to exit his vehicle to sort out a birth-date discrepancy or identity issue. In his oral ruling on the s. 9 Charter application, the trial judge said the following, as it pertained to the period after the traffic-stop to the point prior to Mr. Ali’s arrest. We find it helpful to an understanding of our own reasons to reproduce all of what the trial judge said on this topic: The detention continued. Did it remain lawful is the question asked by Mr.

Omar Ali.

Section 39 of The Traffic Safety Act requires the driver of a motor vehicle to provide their driver’s licence upon demand of a peace officer. According to Constable Nedjelski, he obtained the licence of the accused in order to write out the summons. He proceeded back to his vehicle to use the electronic equipment in the vehicle to create the e-ticket. When he got back to his vehicle he found reliable information that caused him to have concerns that he was issuing a ticket with the proper information on it. That information was an Edmonton Police Service bulletin with a photo that appeared to be Mr.

Omar – that appeared to be Mohammad Omar Ali and a date of birth with a different date than the date on the licence given to him by the driver. Constable Nedjelski then called Sergeant Hoover over to assist in his investigation. Based on his observations, Sergeant Hoover concluded that the person who was in the vehicle was the person identified on CPIC as Mohammad Omar Ali with a birth date of [omitted]. He told Mr. Omar Ali that there was a discrepancy with his date of birth and asked him to step from the vehicle. Mr. Omar Ali submits that having him step from the vehicle was a separate detention. I disagree.

There was only one detention. It extends from the time of the stop up and to this date, as he has been remained in custody since the incident. When, at any time, the reason for the detention changes, the Court must, again, assess whether detention is based on law, that the law is not arbitrary, and that it was conducted in a reasonable manner. I find that he was still being detained pursuant to the cell phone infraction when the officer asked him to step from the vehicle to – to straighten out his identity.

I find that all of the above actions by the police were in relation to issuing an accurate ticket to the driver of the motor vehicle. The reason for the detention was always to issue a ticket. The fact that it took longer than expected was because of the discrepancy in the birth dates between the driver’s licence and CPIC. I find that asking him to get out of the vehicle was not an unreasonable request. Mr.

Omar Ali further suggests that the officers did not keep him informed of why he was being detained, and the officers were required to inform him that they were checking other sources of information in order to confirm his identity and date of birth. I disagree. He was informed that the officer was going to write him a ticket, as I had found that the search of CPIC was to determine his proper identity. The reason for his detention remained the same.

When he was approached by Sergeant Hoover, he was told that there was a discrepancy with his date of birth and he was asked to exit the vehicle to, in the words of Sergeant Hoover, “See if we can sort this out.” As previously stated throughout this period, the reason for his detention was to issue a proper ticket for the cell phone offence. He was informed that a ticket was going to be issued and that he was informed – and he was informed by Sergeant Hoover that there was an issue with the date of birth on his licence. He was kept fully informed of the reason for his detention. 4.

Discussion [ 27 ] The applicable standard of review for Charter decisions depends on the issue. The underlying factual findings and determinations about witness credibility made by a trial judge are reviewable on the standard of palpable and overriding error: R v Côté ,

2011 SCC 46 at para 44 , [2011] 3 SCR 215 . Questions of law, including their application to the facts as found, are reviewable on the standard of correctness: R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527 ; and R v Le , 2019 SCC 34 at para 23 , [2019] 2 SCR 692 . [ 28 ] Notwithstanding that Mr.

Ali has pinpointed his s. 9 concerns to a single police action, in R v Nolet , 2010 SCC 24 , [2010] 1 SCR 851, the Supreme Court of Canada recognized that it is necessary for a court “to proceed step by step through the interactions of the police and [a private citizen] from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry” (at para 4).

Underpinning that approach is an understanding that a detention is authorized, and therefore not arbitrary, if the police are acting within the powers conferred upon them by statute or the common law (see para 22). [ 29 ] Stepping through the interactions in this case, it was uncontested at trial that Cst. Cummine had witnessed Mr. Ali handling a mobile communication device while he was driving a vehicle down 8th Street East in Saskatoon, which is a public highway.

Section 241.1 of the TSA prohibits drivers from viewing, holding, using or manipulating hand-held electronic communication devices while they are driving a motor vehicle on a public highway. Constable Nedjelski and Sgt. Hoover, who had been advised of Cst. Cummine’s observations, were therefore authorized to stop Mr. Ali and to detain him for limited traffic-safety purposes pursuant to the TSA ( s. 209.1(1) ). The trial judge correctly concluded that Mr. Ali’s roadside detention was not arbitrary. Mr. Ali does not contest this finding. [ 30 ] At the next step, Cst. Nedjelski directed Mr.

Ali to produce his driver’s licence, and he did so. Under the TSA , a person who operates a motor vehicle in Saskatchewan must have a driver’s licence (s. 32). When stopped by the police pursuant to s. 209.1(1), the driver of a motor vehicle must, if requested to do so, “give his or her name, date of birth and address” to the police (ss. 209.1(2)(

a) and (4)). Therefore, Cst. Nedjelski’s instructions to Mr. Ali in this regard were lawful. We do not understand Mr. Ali to dispute this either. [ 31 ] In this case, the trial judge found, as fact, that, up to the point that Mr. Ali was arrested, there was but one detention – the purpose of which was to assist in the traffic offence investigation. This means that the request made to Mr. Ali that he leave the SUV was to assist in that investigation and not for some other purpose.

The trial judge reached this conclusion after undertaking a careful review of all of the evidence and an assessment of the credibility of the witnesses who testified on this subject. [ 32 ] The trial judge’s factual findings relating to the purpose for the request that Mr. Ali leave the SUV must stand unless they are the product of palpable and overriding error. In his appeal, Mr. Ali does not allege factual error.

Indeed, he relies on the trial judge’s findings of fact to ground what he asserts to be an error of law, namely, that the judge erred in concluding that the officer’s request was not unreasonable in the circumstances of this case. We turn now to consider this argument. [ 33 ] We accept, for the purposes of deciding Mr. Ali’s appeal, that R v Aucoin stands for the proposition that if there were other less intrusive means for the police to continue with their investigation, other than asking Mr.

Ali to leave his vehicle, that were reasonably available in the circumstances, then the police actions cannot be said to be reasonably necessary and a breach of s. 9 may have occurred. However, we disagree with Mr. Ali that, in this case at least, it was unreasonable for Sgt. Hoover to have made this request. [ 34 ] We begin our explanation for this conclusion by observing that, by the point Mr. Ali was asked to leave the SUV, the situation, while still a traffic stop, had evolved from that of being routine. The identity of the driver remained up in the air.

The name of the driver as recorded on the licence handed to Cst. Nedjelski differed slightly from the name associated with the driver as recorded in the CPIC database and as found on the Edmonton Police Service bulletin. Although the officer had confirmed that the driver bore scars that matched the information that was recorded on the CPIC database, this was based on the officer’s view from the outside of the vehicle. The trial judge accepted the officer’s testimony that the driver’s identity had not been conclusively established, notwithstanding that Sgt.

Hoover had taken note that the driver bore scars consistent with those described on the Edmonton Police Service bulletin. It must also not be forgotten that, up to this point, the driver of the SUV had not been fully compliant with the officers’ directions. In this regard, as has been noted, after Cst. Nedjelski flagged the vehicle down, Mr. Ali at first pulled into the curb side lane, failed to come to a stop, and then began to pull back out into the driving lane, as if to drive away.

Standing on their own, these latter facts might give rise to the spectre of flight and a heightened concern for officer safety. [ 35 ] We are satisfied that when all these circumstances are taken together, they justified the request made by Sgt. Hoover that Mr. Ali remove himself from the SUV. We do not need to decide whether, in other circumstances, it would be reasonable for a police officer who has lawfully stopped a motor vehicle to ask the operator to leave it. It is enough for us to determine that, on these facts, Sgt.

Hoover’s request was reasonable. [ 36 ] It is our conclusion that the trial judge did not err by finding that Mr. Ali’s s. 9 Charter rights were not violated when he was asked to leave his vehicle. B. The arrest [ 37 ] As his second ground of appeal, Mr. Ali submits that the trial judge erred in law by finding that Cst. Nedjelski had objectively reasonable grounds to arrest him for obstruction. The following are the relevant parts of the trial judge’s reasons on this point: The reason for the detention changed when Mr. Omar Ali was arrested.

Therefore, the further detention must be assessed to see if the detention became arbitrary at that point.

Section 495 of the Criminal Code allows for an arrest where a police officer believes, on reasonable grounds, that the person has committed or is committing an offence. As Constable Nedjelski’s concern was establishing the property identity – proper identity of the driver, Section 495(2) did not apply because of the legitimate concern regarding Mr. Omar Ali’s correct identity.

In the Saskatchewan Court of Appeal cases of [ R v Gunn , 2012 SKCA 80 , 291 CCC (3d) 265] and [ R v Chapman , 2020 SKCA 11 , 386 CCC (3d) 24] these [ sic ] Saskatchewan Court of Appeal has set out the law relating to reasonable grounds in the – in Saskatchewan. Reasonable grounds means that the officer must subjectively or honestly believe that the person has or is committing an offence and that the belief must be rationally sustainable on an objective basis. It does not rise to the level of proof. Any inferences drawn by the officer

need not be the only inferences that may be drawn from the available information, or even the most compelling one, as long as it is reasonable inference. The presence of other plausible innocent explanations for the police-observed behaviour, does not automatically negate reasonable grounds to believe. This belief must be based on the facts known to the police at the time of forming their opinion. In the case – in this case, Constable Nedjelski concluded that the Mohammad Omar Ali that he had stopped was the Mohammad Omar Ali with the birth date of [omitted].

This was based on the information that he had received from his CPIC check. That information included a name, photographic likeness, and confirmation of matching scars. In fact, he later issued him two tickets with the [omitted] birth date. That Mohammad Omar Ali had given him a driver’s licence that had a different date of birth. He believed that he had been given a false document and arrested him for the – the offence of obstruction. Mr.

Omar Ali submits that the officer should’ve checked the Alberta licencing database or asked him about the discrepancy, and also submits that the officer put in his notes that he told him he was being arrested for discrepancy in his identification, and so, he should not be believed that the charge was obstruction. The officer testified that he had received false driver’s licences in the past and I find that he was entitled to rely on CPIC, a national police database, which he believed to be correct.

The Supreme Court in Moore , 1978 Supreme Court case at – at 1978, SCC 160, in CanLII, determined that failure to provide information that can identify oneself when being issued a ticket did amount to an obstruction. The Court stated: (as read) The officer was under a duty to attempt to identify this wrongdoer – And this was in relation to [a] cyclist proceeding against a red light. And I return to the quote: (as read) -- and the failure to identify himself by the wrongdoer did constitute an obstruction of the police officer in the execution of his duty.

I accept the evidence of Constable Nedjelski that his purpose was to ensure that the ticket was written properly and to the correct person. With respect to the suggestion that the more experienced officer did not arrest the accused, his evidence that Constable Nedjelski did not have the grounds to arrest him, Sergeant Hoover, in his evidence, indicated he did not arrest Mr. Omar Ali, as Sergeant Hoover stated, “He didn’t provide false identification to me.” Was Constable Nedjelski’s conclusion rationally sustainable on an objective basis? I find that it was.

The officer was entitled to rely on the information that he received from [the] police database. On acceptance of that, it was reasonably probable that the accused had provided him with a false document regarding his identity. I find that the arrest was based on a law. The law was not arbitrary and was carried out in a reasonable manner. The continued – the continued detention of the accused remained lawful. [ 38 ] The trial judge found, at bottom, that the inference of criminal activity (i.e., obstruction) drawn by Cst.

Nedjelski was objectively reasonable given the factors he had articulated as supporting his decision to arrest Mr. Ali without a warrant. [ 39 ] The trial judge’s reasons establish that he identified and applied the correct legal standard and considered the constellation of factors Cst. Nedjelski had relied upon when he arrested Mr. Ali for obstruction. In this appeal, Mr. Ali says the trial judge erred in his assessment of the reasonableness of the grounds for arrest by failing to consider whether there was an objectively reasonable basis for Cst. Nedjelski to conclude that Mr.

Ali had intended to obstruct the police. That is, the alleged error is a failure to consider whether the objective factors supported the inference that Mr. Ali had the mens rea necessary to commit the offence of obstruction – i.e., to “ wilfully obstruct[] a … peace officer in the execution of his duty” ( Criminal Code , s. 129 (a), emphasis added). [ 40 ] To be clear about this, Mr. Ali suggests that, to ground a reasonable belief authorizing his arrest, the Crown had to prove that Mr. Ali knew that Cst. Nedjelski was a peace officer and that Cst. Nedjelski was going about the execution of his duty, and that Mr.

Ali either had an intention to obstruct, or foresaw with certainty or substantial certainty that doing the act in question would obstruct, Cst. Nedjelski. The first two elements were covered by the trial judge and were indirectly addressed earlier in these reasons. In focusing on the third element under this ground, Mr. Ali points to the lack of direct evidence of subjective intention on his part to obstruct the police when he handed over his driver’s licence. [ 41 ] We see no error in the trial judge’s approach to determining the reasonableness of the grounds for arrest. We agree that the factors Cst.

Nedjelski identified were rationally capable of supporting the logical inference that Mr. Ali was obstructing Cst. Nedjelski in the execution of his duty, which authorized him to arrest Mr. Ali without a warrant. [ 42 ] In saying this, we accept that there was no direct evidence of mens rea in what Cst. Nedjelski articulated. We also agree that the general rule that a person is responsible for the natural consequences of their acts does not apply to specific intent offences such as obstruction. This means that Cst. Nedjelski could not presume Mr. Ali’s intention as a matter of law.

However, when the standard to be met is reasonable grounds to believe , a police officer may draw an inference of subjective intention from the totality of the circumstances and information available, and it need not be the only inference or the most compelling inference presented by the available information: R v Santos , 2022 SKCA 50 at para 29 (d), 413 CCC (3d) 229; and R v Gunn , 2012 SKCA 80 at paras 15 and 22 , 291 CCC (3d) 265.

Albeit with respect to the lower, reasonable-suspicion standard, the Supreme Court wrote in R v MacKenzie , 2013 SCC 50 , [2013] 3 SCR 250, that, “Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer” (at para 73). [ 43 ] In this case, there was a basis for Cst.

Nedjelski to reasonably believe that the date of birth on Mr. Ali’s driver’s licence was inaccurate. It is a logical, common-sense deduction that a person would know when their own birth date is inaccurately recorded on their driver’s licence. There was, therefore, evidence upon which Cst. Nedjelski could have reasonably inferred that Mr. Ali knew that he had handed over an inaccurate driver’s licence. This means that, although Cst.

Nedjelski did not testify that he had subjectively turned his mind to the issue of mens rea , he did have reasonable grounds to believe that all the elements of the offence of obstruction, including the

actus reus and the mens rea , were present. Importantly, there was evidence upon which the trial judge could sustain the objective reasonableness of Cst. Nedjelski’s belief that Mr. Ali had committed the offence of obstruction, including the mens rea element. This is embedded in the grounds for the arrest. Constable Nedjelski believed that Mr. Ali was obstructing him because there was, what he believed to be, a false date of birth recorded on Mr. Ali’s driver’s licence.

As a matter of common sense and practical everyday experience, the actus reus of obstruction in this context could not have resulted from negligence, inadvertence or accident – it had to be wilful. [ 44 ] The fact that the driver’s licence ultimately proved to be accurate is not part of the constellation of relevant factors: R v Chehil , 2013 SCC 49 at para 34 , [2013] 3 SCR 220; and R v Kang-Brown , 2008 SCC 18 at para 92 , [2008] 1 SCR 456. Constable Nedjelski was not required to determine whether the charge would succeed at trial.

He was under no obligation to evaluate the evidence to the criminal standard of proof beyond a reasonable doubt. Nor was he required to investigate further or to determine whether Mr. Ali had a valid defence to the charge prior to arrest. As the trial judge concluded, on the constellation of relevant factors identified by Cst. Nedjelski, he had reasonable grounds to believe that Mr. Ali had obstructed him at the time when he arrested Mr. Ali. [ 45 ] In sum, we are not persuaded that the trial judge erred in the way Mr. Ali suggests. We therefore dismiss this ground of appeal. C.

Alleged racial profiling [ 46 ] We come now to Mr. Ali’s argument on which he placed the most stress in this appeal. He contends that, even if legal authority can be found for their conduct, the police acted as they did because he is Black. In more direct terms, Mr. Ali says that he was the victim of racial profiling. [ 47 ] Mr. Ali made this argument to the trial judge, who rejected it, stating as follows: Mr. Omar Ali submits that he was racially profiled.

He relies on the fact that he was arrested notwithstanding that he had a valid licence, the differences between the evidence of the two police officers in relation to the timing of the arrest, and the prolonged detention before being formally arrested. There’s no evidence of racial profiling in this case, in my opinion. He was seen manually manipulating his cell phone. He was stopped for that reason. I found Constable Nedjelski to be a credible witness and I accept his evidence that he remembered the name from the police bulletin.

His evidence that he remembered it rings true, given the fame attached to the name of Mohammad Ali. He checked the bulletin and found a different date of birth. He then checked the police information system, CPIC, and found that the date of birth on CPIC coincided with the date of birth on the bulletin and that they were at odds with the date of birth on [Mr. Ali’s] licence. He believed that he’d been given false information and arrested him. Unknown to the officer, both dates of births were correct. One in fact, the other in law.

However, I accept that the officer was simply doing his job and accept that his intention was to simply write up the ticket and send [Mr. Ali] on his way. Sergeant Hoover testified in the same manner. He stated that, in his mind, he was trying to identify who this was, as this – as they were required to give the ticket to the proper driver. (Emphasis added.) [ 48 ] In his appeal, Mr. Ali challenges the trial judge’s finding that there was “no evidence of racial profiling in this case”. This is, at its core, a finding of fact. It must stand unless Mr.

Ali can establish palpable and overriding error or the finding is the product of legal error. [ 49 ] It is important to understand that an otherwise lawful detention or arrest is rendered arbitrary whenever police conduct is “tainted by any degree of racial profiling” ( R v Sitladeen , 2021 ONCA 303 at para 52 , 405 CCC (3d) 346. See also R v Dudhi , 2019 ONCA 665 at paras 62–63 , 379 CCC (3d) 334; and Le at para 78).

For this reason, it will be helpful to begin with what is meant by racial profiling under the criminal law in the context of s. 9 of the Charter . [ 50 ] In Le (at para 77), Brown and Martin JJ., writing for the majority of the Supreme Court, adopted the following definition of racial profiling from Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at para 33 , [2015] 2 SCR 789: Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.

Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. (Emphasis deleted by Brown and Martin JJ.) [ 51 ] We observe that the reasons in Le allow that racial profiling may be unconscious , meaning implicit attitudes or stereotypes that affect decisions without awareness.

The jurisprudence in this area also refers to racial profiling that is subconscious , which we understand to mean that it involves processes beneath the level of conscious awareness that influence perceptions and judgments. Although there is significant overlap between the two terms, we prefer to use the broader, subconscious racial profiling, to describe biases operating outside conscious control. [ 52 ] Importantly, in Le Brown and Martin JJ. distinguished between racial profiling, which concerns the motivation of the police,

and “the place and purpose of race as a consideration in the detention analysis” under s. 9 of the Charter, which calls for an analysis of theinteraction from the contextualised perspective of the private citizen (at para 74). The majority described the detention-stage analysis as awide-ranging inquiry involving factors drawn from outside the objective interaction between the police and a private citizen: [75] At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive theinteraction with the police.

The focus is on how the combination of a racialized context and minority status would affect the perception ofa reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis isthus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of racerelations between the police and the various racial groups and individuals in our society. The reasonable person in Mr.

Le’s shoes ispresumed to be aware of this broader racial context. [76] In contrast, the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racialstereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subjecttreatment (Ottawa Police Service, Racial Profiling (June 27, 2011), Policy No. 5.39 (online), at p. 2). [53] In this appeal, the distinction drawn in Le is of consequence because Mr.

Ali alleges that the police officers in question engagedin racial profiling after lawfully detaining him. He does not invoke the detention-stage considerations described in Le about how areasonable person of his race, colour, ethnic or national origin or religion would perceive the police actions that led to his detention. Aspreviously noted, Mr. Ali accepts the trial judge’s finding that his initial roadside detention for a traffic offence was untainted by racialprofiling.

In addition, there was no evidence at trial of the sort referred to and considered in Peart v Peel Regional Police Services (2006), (ON CA), 43 CR (6th) 175 (Ont CA) [Peart], about negative cross-racial interactions with police. [54] It is also important to keep front of mind that the onus in a Charter application such as this is on the applicant, who mustestablish, on a balance of probabilities, that racial profiling occurred in their interaction with the police: R v Collins, (SCC), [1987] 1 SCR 265 at 277–278.

In Peart, Doherty J.A. explained that an applicant seeking to meet this onus may be assisted by“social” facts alongside the evidence of the police interaction: [95] Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding thepolice action that is said to be the product of racial profiling.

The courts, assisted by various studies, academic writings, and expertevidence have come to recognize a variety of factual indicators that can support the inference that the police conduct was raciallymotivated, despite the existence of an apparent justification for that conduct: [R v Brown (2003), (ON CA), 173 CCC(3d) 23 (Ont CA)], at paras. 44-46. [96] The indicators of racial profiling recognized in the literature by experts and in the caselaw can assist a trier of fact in deciding whatinferences should or should not be drawn and what testimony should or should not be accepted in a particular case.

Those indicators,sometimes referred to as “social” facts, however, cannot dictate the findings that a trier of fact will make in any given case. Findings ofadjudicative facts, that is the “who”, “what”, “why”, “when”, and “where” of any given case, grow out of the trier of fact’s assessment ofthe evidence adduced in the particular case. Findings of adjudicative facts cannot be preordained by evidence that is intended to providethe appropriate social context in which to assess the evidence and make findings of the relevant adjudicative facts: see R. v.

Spence (2005),2005 SCC 71 , 202 C.C.C. (3d) 1 at paras. 56-58 (S.C.C.). [55] Therefore, Mr. Ali bore the onus of establishing, on a balance of probabilities, that the police had either consciously orsubconsciously used race as an indicator of potential unlawful conduct on his part by attributing a propensity for criminality to him due tohis race. The fact that proof of racial profiling will rarely come from direct evidence does not mean that an inference of racial profiling canbe drawn from the bare evidence that an interaction between the police and a private citizen was cross-racial.

The fact an interaction wascross-racial does not satisfy the evidential burden of proof on a balance of probabilities that racial profiling occurred. If the law wereotherwise, a presumption of racial profiling would automatically arise whenever a police officer of one race, colour, ethnic or nationalorigin or religion interacted with a person of another.

To draw the inference, the trial court must be persuaded that the evidence of thepolice action that is said to be the product of racial profiling, and the evidence of the circumstances surrounding it, establish that it is moreprobable than not that that action was racially motivated in some way. [56] Because Mr. Ali does not challenge the trial judge’s finding that the traffic stop and his detention therein were authorized underthe TSA, he must be taken as agreeing that there was “no evidence of racial profiling” at that stage of the detention.

In terms of specifics,he does not allege that any police conduct up to the point when he was directed to exit his vehicle was racially motivated. Mr. Ali is left toallege that the police would not have asked him to exit his vehicle if he had been of different ancestry or had had the same visible physicalcharacteristics as the police officers. In this regard, Mr. Ali advances two arguments. First, he says that the trial judge applied the wrongtest for racial profiling by requiring there to be direct evidence of subconscious bias on the part of the officers.

Second, he says that thetrial judge conflated the issue of racial profiling with the question of Charter compliance. We can accept neither proposition. [57] Mr. Ali’s submission that the trial judge applied the wrong legal test is based on the statement in the judge’s reasons that hefound there to be “no evidence of racial profiling”. Mr. Ali invites this Court to conclude that this amounts to an implicit statement by thetrial judge that he required direct evidence of racial profiling, since, according to Mr. Ali, there were circumstances from which it could beconcluded that racial profiling had occurred.

In this regard, Mr. Ali further submits that, when the trial judge came to address his racialprofiling argument, he “erred by failing to properly assess the totality of the circumstances of his detention and arrest”. While we agreethat the trial judge was required to consider the entirety of the circumstances, we conclude that he did so. [58] We begin our consideration of Mr. Ali’s argument that the trial judge erred by requiring direct evidence of racial profiling withthe observation that Mr.

Ali points to nothing in the record that supports his allegation that racial profiling occurred in this case, other thanthe fact that he is Black and was asked to leave his vehicle. This is a critical failure because the trial judge’s statement that there was “noevidence of racial profiling in this case” can only be taken to mean that he found that there was no direct or circumstantial evidence thatcould have led him to conclude that racial profiling might have occurred. It was therefore incumbent on Mr.

Ali in appealing against thatfinding to point to some evidence, whether overlooked or misapprehended by the trial judge, that supports the inference that he asks thisCourt to draw. With due respect to our colleague, Schwann J.A.’s, comments on this issue, we see no such evidence in the record.

[59] We acknowledge Mr. Ali’s argument that the birth date discrepancy issue, which the trial judge accepted as the reason forSgt. Hoover’s direction and for Cst. Nedjelski’s subjective belief that Mr. Ali had provided a false driver’s licence, was a simple pretextfor justifying his removal from the vehicle. However, the trial judge did not overlook this evidence, nor did he deal with it in aninappropriate manner.

As Strathy J.A. (as he then was) remarked when addressing whether a detention was arbitrary in R vSafarzadeh-Markhali, 2014 ONCA 627, 141 OR (3d) 35, aff’d on other grounds, 2016 SCC 14, [2016] 1 SCR 180, “The absence ofobjective grounds for detention, or the fabrication of grounds, can lead to an inference that the detention was racially motivated” (atpara 20). In his decision, however, the trial judge found that the police officers were credible, and he accepted their evidence. In thisappeal, the truthfulness of the reasons given by Sgt. Hoover for issuing an instruction to Mr.

Ali to exit the SUV turns solely onSgt. Hoover’s credibility. This is because, as noted, Mr.

Ali has not pointed to any circumstantial evidence to support his submission thatracial profiling occurred, whether consciously or subconsciously. [60] It is well understood that a credibility assessment is a finding of fact that is subject to the palpable and overriding error standardof review on appeal (see Schwartz v Canada, (SCC), [1996] 1 SCR 254 at paras 32–33; R v Gagnon, 2006 SCC 17 atpara 10, [2006] 1 SCR 621; R v W.H., 2013 SCC 22 at paras 33–34, [2013] 2 SCR 180; and R v Thompson, 2023 SKCA 66 at para 11,426 CCC (3d) 534), and is not to be disturbed unless the trier of fact relied on irrelevant or inappropriate considerations or on a wrongprinciple of law (see R v J.M.H., 2011 SCC 45 at para 36, [2011] 3 SCR 197; and R v R.I.G., 2020 SKCA 26 at para 27).

We are notpersuaded, on the basis of the record and the oral reasons in this matter, that the trial judge erred in his credibility assessments. [61] It is a fact that the Edmonton Police Service bulletin and Mr. Ali’s driver’s licence displayed the same full name (although thebulletin had the first name as Mohammed instead of Mohammad) and similar pictures, but different birth dates. While the reason for thebirth date discrepancy came to light subsequently, it was unknown to the officers at the time when Sgt. Hoover directed Mr. Ali to exit hisvehicle. The driver’s licence also showed that Mr.

Ali resided in Edmonton. On this basis, both police officers were concerned aboutconfirming Mr. Ali’s identity. In his testimony, Cst. Nedjelski explained that he required a correct name, address and birth date to preparea valid traffic ticket. After he had queried the CPIC database for more information, Cst. Nedjelski confirmed that it contained the samebirth date as the bulletin. Further, Sgt. Hoover observed that Mr. Ali bore the scars that were described in the CPIC database as appearingon the Mohammed Omar Ali of interest to the Edmonton Police Service. None of this evidence was contradicted.

Importantly, the trialjudge concluded that the police were entitled to rely on the information in the bulletin and the CPIC database. This information formedthe basis for Cst. Nedjelski’s subjective belief that Mr. Ali had presented him with a driver’s licence bearing a false birth date. As to thevariance between the two officers’ accounts, it was the trial judge’s responsibility to assess the significance of any inconsistency in theirevidence and he did so, finding that any differences in their testimony did not affect his assessment of their credibility. We see no palpableerror in that. [62] Mr.

Ali has not offered any cogent basis upon which to censure the trial judge’s acceptance of the police officers’ evidenceabout why he was directed to exit his vehicle. In R v Sitladeen, the Ontario Court of Appeal remarked, “It is the role of the trial judge insuch cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond tothe phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police,and the case law.

The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record iscapable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer” (at para 54, footnotesomitted).

The trial judge did just that in this case, ultimately concluding that there was no evidence upon which to reach a conclusion thatracial profiling had occurred. [63] In short, the trial judge found there was “no evidence of racial profiling in this case”, which must be taken as expressing hisconclusion that he found nothing in the direct or circumstantial evidence from which he could infer, as an adjudicative fact, that the policewere motivated by notions of a propensity for criminality attributable to persons of Mr. Ali’s race. In the end, Mr.

Ali does not claim thatthe trial judge overlooked or misapprehended any relevant evidence in reaching this conclusion. Rather, as we have noted, his submissionis that the trial judge “erred by failing to properly assess the totality of the circumstances of his detention and arrest” (emphasis added).Said another way, Mr. Ali’s ultimate invitation is that this Court sidestep the standard of review in relation to what is, at bottom, a findingof fact. [64] On the facts the trial judge found, the direction to exit the vehicle rationally progressed through the obtaining of Mr.

Ali’sdriver’s licence, the knowledge of the contents of the Edmonton Police Service bulletin, the police officers’ concerns about the birth datediscrepancy, the bulletin corresponding to the CPIC database and its description of scarring on the Mohammed Omar Ali of interest, thevisual confirmation that the driver bore the same scars, and the development throughout on the part of Cst. Nedjelski of a reasonable beliefthat Mr. Ali had provided false documentation to him, thereby committing the offence of obstruction contrary to s. 129 of the CriminalCode.

In these circumstances, we can see no error in the trial judge’s conclusion that there was “no evidence” upon which to ground theinference that racial profiling had occurred.

As noted, a presumption of racial profiling in a police interaction with a private citizen doesnot arise merely because a police officer and the citizen have different ancestries or dissimilar visible physical characteristics.Furthermore, when the racial-profiling argument is considered under the palpable and overriding error standard of review, there is simplyno basis upon which this Court could conclude that the trial judge erred by rejecting it. [65] In

summary, we do not agree with Mr. Ali’s contention that the trial judge applied the wrong legal standard when he assessedwhether racial profiling had occurred in this case. Contrary to the submissions made to us, the trial judge did not focus his attention onwhether there was any direct evidence of racial profiling. His full reasons can only be understood as expressing his conclusion that therewas nothing in the whole of the evidence, including the circumstances of the detention and arrest as they were described in the testimonybefore him, from which he was prepared to draw an inference of racial profiling.

Simply put, there is no basis to the suggestion that thetrial judge required there to be direct evidence to contradict the officers’ testimony before he could find it to be other than credible andreliable. [66] We similarly reject Mr. Ali’s submission that the trial judge conflated the issue of racial profiling with the question of Chartercompliance. The trial judge’s reasons were brief, but he considered the two issues separately. This aspect of Mr.

Ali’s overall argumentmust be rejected because it reduces to an attack on the sufficiency of the trial judge’s reasons without attempting to engage with theanalysis necessary to make out that type of error. [67] We therefore dismiss this ground of appeal.

V. CONCLUSION [ 68 ] The trial judge gave comprehensive and cogent reasons for finding that Mr. Ali’s detention and arrest were lawful. Mr. Ali has not shown that the police unreasonably exercised their authority when detaining him. He has failed to establish an error of law in the trial judge’s assessment of the grounds for arrest, and the trial judge’s findings of fact support the existence of reasonable grounds to arrest. Lastly, Mr.

Ali has demonstrated no palpable and overriding error in the trial judge’s finding of fact that there was no evidence of racial profiling in the circumstances of this case. [ 69 ] For the foregoing reasons, we dismiss the appeal against the convictions. “Leurer C.J.S.” Leurer C.J.S. “Caldwell J.A.” Caldwell J.A. Schwann J.A. (dissenting) I.

INTRODUCTION [ 70 ] I have had the opportunity to read the reasons of my colleagues, Leurer C.J.S. and Caldwell J.A., and while I agree with their analysis and conclusions with respect to the first two grounds of appeal, I respectfully disagree with their conclusion on the racial profiling issue. In my view, the trial judge erred by failing to grasp the applicable test to determine whether the officers’ actions were affected or motivated by racial profiling. That error caused him to view Mr. Ali’s argument through the lens of a conventional Charter and credibility analysis.

He had to do more. [ 71 ] For the reasons expressed below, I would allow Mr. Ali’s appeal and order a new trial. II. BACKGROUND [ 72 ] I largely accept the statement of facts as set out in the majority decision but would add or emphasize the following. [ 73 ] On receiving Constable Tara Cummine’s communication, Constable Lincoln Nedjelski stepped into the lane of oncoming traffic to flag down the SUV. Once the SUV came to a stop, Cst. Nedjelski approached the driver’s side window and told the driver and sole occupant – who turned out to be Mr.

Ali – that another police officer had witnessed him using a mobile device while operating a motor vehicle. Constable Nedjelski testified that he had observed the occupant to be an African Canadian male who was wearing a bag slung across his chest. He also noticed that Mr. Ali had a scar on his face. [ 74 ] Constable Nedjelski harbored concern about the different dates of birth that were shown on Mr. Ali’s Alberta driver’s licence and the bulletin, and sought advice from his partner, Sergeant Dean Hoover, on how to handle this discrepancy.

Sergeant Hoover suggested that he query the CPIC database to determine if the individual was identified by any scars or tattoos. The search results indicated that the individual named in the bulletin – Mohammed Omar Ali – had a scar on his left hand and one on the right side of his face. Both officers returned to the SUV to compare and confirm their findings. [ 75 ] Sergeant Hoover testified that, after discussing the CPIC results with Cst. Nedjelski, he approached the SUV. From Sgt. Hoover’s vantage point, he was able to confirm the presence of a scar on Mr.

Ali’s left hand, which was positioned on the steering wheel. When the driver turned his face to speak to him, Sgt. Hoover also confirmed that the driver had a scar on his right cheek. Sergeant Hoover informed Mr. Ali that there seemed to be a discrepancy with his date of birth and asked him to exit the vehicle, “so we can figure this out”. Mr. Ali was cooperative and complied with that request. [ 76 ] Because Sgt. Hoover had confirmed that Mr. Ali bore the scars noted in the CPIC search, Cst. Nedjelski formed the belief that Mr. Ali had provided him with a false document: i.e., the Alberta driver’s licence.

As soon as Mr. Ali exited the SUV, Cst. Nedjelski immediately arrested him for obstruction and told him that he was going to be handcuffed and taken to the police cruiser for processing. Constable Nedjelski testified that apart from the birth date discrepancy, he would have provided Mr. Ali with a traffic ticket and sent him on his way. He also confirmed that there was nothing in the bulletin requiring Mr. Ali to be arrested on other charges. Constable Nedjelski also agreed that the Alberta licence appeared valid on its face and that he did not question Mr.

Ali about his date of birth nor ask him to explain the discrepancy in the documents. [ 77 ] Under cross-examination, Cst. Nedjelski confirmed that he was familiar with Greek immigrants being given a nominal birthdate in their government issued documents (in that case July 1st) but denied knowing that the same treatment was accorded to Somalian refugees. The officer’s notes indicated that Mr.

Ali was arrested for “issues with identity” but made no mention of any concern that the driver’s licence might be a fake. [ 78 ] The officers conducted a search incident to arrest that led to the discovery of a handgun, cash and drugs. Mr. Ali was charged with possession of a controlled substance for purposes of trafficking and several firearms offences.

[79] The trial judge rejected Mr. Ali’s assertion that he was the victim of racial profiling. His conclusion was grounded in aconventional s. 9 Charter analysis, which, says Mr. Ali, precluded the trial judge from considering whether, based on both the direct andcircumstantial evidence, it could be inferred that the officers’ actions were motivated by racial profiling. [80] The trial judge found Cst. Nedjelski to be a credible witness and accepted his explanation for why he remembered seeingMr. Ali’s name earlier that day in the bulletin.

Even though there was (eventually) an explanation for the discrepancy in the various dates– which was unknown to the officer at the time of the arrest – the trial judge commented that the officer “was simply doing his job” andthat his intention was to “simply write up the ticket and send [Mr. Ali] on his way”. III. ANALYSIS A. Mr. Ali’s argument [81] Mr. Ali asserts that, in asking him to step out of his vehicle to address a simple traffic infraction, followed by the precipitouswarrantless arrest, the police engaged in actions that were triggered by racial profiling.

Undertaking a traditional s. 9 Charter analysis inresponse to this argument, he says, reveals how the trial judge failed to grasp his submission, much less resolve whether an inference ofsubconscious bias could be drawn from the totality of the evidence. While acknowledging that claims of racial profiling are notoriouslydifficult to prove, Mr.

Ali’s root argument is that the trial judge erred in law by failing to properly examine the totality of thecircumstances surrounding his detention and subsequent arrest, and then consider whether they knitted together in a way that could haveled the trial judge to conclude that the police action was motivated by race and, therefore, was arbitrary and unlawful. [82] As I will discuss, there is merit to this ground of appeal. 1.

Racial profiling: The law [83] Racial profiling in policing, and its implications in a Charter analysis, has been the subject of study and comment on severaloccasions: see, for instance, Margaret Gittens & David Cole, co-chairs, Report of the Commission on Systemic Racism in the OntarioCriminal Justice System (Toronto: Queen’s Printer, 1995), and A.C. Hamilton & C.M. Sinclair, Report of the Aboriginal Justice Inquiry ofManitoba: The Justice System and Aboriginal People, vol 1 (Winnipeg: Queen’s Printer, 1991).

The former recognized that “racializedcharacteristics, especially those of black people, in combination with other factors, provoke police suspicion, at least in Metro Toronto”(at 358).

Various reports, issued or created by the Truth and Reconciliation Commission of Canada in 2015, provide more recent attentionto this issue. [84] As early as R v Grant, 2009 SCC 32, [2009] 2 SCR 353, a s. 9 Charter detention case, the Supreme Court has recognized thatthe legal standard on which detention is measured must account for the diverse realities of those who are subject to police actions: “Agrowing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified‘low visibility’ police interventions in their lives” (at para 154, citing R v Golden, 2001 SCC 83 at para 83, [2001] 3 SCR 679).

Similarly,in Peart v Peel Regional Police Services (2006), (ON CA), 43 CR (6th) 175 (Ont CA), leave to appeal toSCC refused, , Doherty J.A. commented on “an acceptance by the courts that racial profiling occurs and is aday-to-day reality in the lives of those minorities affected by it” (at para 94). [85] The decision in R v Brown (2003), (ON CA), 173 CCC (3d) 23 (Ont CA), adopts the general findings ofvarious reports and studies about the issue of racial profiling.

Although a new trial was ordered in Brown based on a finding that the trialjudge’s conduct of the trial gave rise to a reasonable apprehension of bias, the Court of Appeal went on to observe as follows: (a) “[a] racial profiling claim could rarely be proven by direct evidence” (at para 44); (b) “if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence” (at para 44); and (c) “[t]he attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer neednot be an overt racist.

His or her conduct may be based on subconscious racial stereotyping” (at para 8). [86] The Court in Brown settled on the following test: “to succeed on the application before the trial judge, the [accused] had toprove that it was more probable than not that there was no articulable cause for the stop, specifically, on the evidence in this case, that thereal reason for the stop was the fact that he was black” (at para 11). [87] More recently in R v Le, 2019 SCC 34, [2019] 2 SCR 692, although not a racial profiling case per se, the Supreme Courtcommented on how race can play a role in policing actions and how, where appropriate, it is a consideration that must be contemplated bytrial judges.

In its decision, the Court differentiated between the concept of “race” and “racial profiling” (see paras 74–79). [88] In a s. 9 detention-stage analysis, the Supreme Court said the question is “how a reasonable person of a similar racialbackground would perceive the interaction with the police”. As the Court went on to observe, the focus must be “on how the combinationof a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whetherthey were free to leave or compelled to remain”.

In considering whether they are free to leave, the attention is on the accused who is“presumed to be aware of this broader racial context” (Le at para 75). [89] The concept of racial profiling, in the larger sense of the word, has two prongs: an attitudinal component and a causationcomponent. It is concerned with the motivation of the police and when “race or racial stereotypes about offending or dangerousness areused, consciously or unconsciously, to any degree in suspect selection or subject treatment” (at para 76, emphasis added).

The majority inLe adopted the following definition of racial profiling from its earlier decision in Quebec (Commission des droits de la personne et desdroits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para 33, [2015] 2 SCR 789:

[77] … Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.

Racial profiling [also] includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [ 90 ] Finally, the majority in Le noted that racial profiling impacts the analysis in both a detention context and in a s. 24(2) analysis: [78] Thus, racial profiling is anchored to an internal mental process that is held by a person in authority — in this case, the police.

This means that racial profiling is primarily relevant under s. 9 when addressing whether the detention was arbitrary because a detention based on racial profiling is one that is, by definition, not based on reasonable suspicion.

Racial profiling is also relevant under s. 24(2) when assessing whether the police conduct was so serious and lacking in good faith that admitting the evidence at hand under s. 24(2) would bring the administration of justice into disrepute. [ 91 ] Courts have repeatedly underscored how proof of racial profiling presents a challenge for an accused person because it can seldom be established by direct evidence.

Moreover, demonstrating that the impugned police contact was motivated by subconscious racism – especially where the officer is unaware that they were influenced in that way – compounds the challenge faced by an accused who makes this type of argument: see Brown and R v Sitladeen , 2021 ONCA 303 , 405 CCC (3d) 346.

Anecdotally speaking, “the officer is unlikely to admit [their] bias” or provide direct evidence of discriminatory attitudes towards people of other races or of any conscious or unconscious bias ( Sitladeen at para 54 ). [ 92 ] That said, to succeed with this argument, an accused does not need to establish that the officer (

a) was a racist, (

b) knowingly acted pursuant to a racial motivation, or (

c) was lying about their motivation for detaining the accused: see Sitladeen at paras 43, 48, 49 and 54, and R v Dudhi , 2019 ONCA 665 , 379 CCC (3d) 334. As the majority in Sitladeen noted, the focus is not on “whether the circumstances demonstrate that the officer was lying, i.e., deliberately misleading the court, but rather, whether the circumstances give the court a basis to reject the officer’s evidence as untrue because they are indicative of racial profiling” (at para 48). Proof of racial profiling can be drawn from established primary facts.

The decision in R v Gala-Nyam , 2023 ONSC 2241 , 87 CR (7th) 433, provides a helpful illustration for how a court should analyze the totality of the circumstances to determine if the officer’s actions were tainted by racial profiling. [ 93 ] A synopsis of the law, and the preferred approach that trial judges should take when faced with the issue of racial profiling, is found in Sitladeen : [54] To summarize, the case law from Brown onward recognizes that in cases where an officer had objective grounds to detain a person or stop a vehicle but was also subjectively motivated by racial stereotypes, the officer is unlikely to admit his bias.

The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused’s detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law.

The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer.

Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying. (Footnotes omitted) [ 94 ] What this means for trial judges is that the surrounding circumstances that are suggested to be the product of racial profiling must be scrupulously examined.

It is for the trial judge to determine “whether it can be inferred from all the evidence that one of the premises in the police officer’s chain of reasoning was that, because of the suspect’s racial characteristics, the suspect is more likely to have engaged in criminal activity. The burden of proof is on the accused” ( Sitladeen at para 80 , emphasis added). [ 95 ] There is one final point to be made.

Cases like Sitladeen and Dudhi are largely about what a trial judge is to make of an officer’s direct testimony that race played no role in their decision to detain or arrest an accused and whether a trial judge has to go so far as to make a finding that the officer was lying. Given that racial profiling is more commonly the offshoot of a subconscious bias than a conscious one, an argument about racial profiling should not be rejected simply because an officer does not specifically dispute the suggestion that their actions were motivated by race.

Again, the question is whether an inference can be drawn from the whole of the evidence at trial. 2. Application to the case at hand [ 96 ] At trial Mr. Ali argued that the police had violated his rights under ss. 7, 8, 9, 10(

a) and 10(

b) of the Charter , and that their actions were tainted by racial profiling. In his oral submissions made at the conclusion of the trial, Mr. Ali’s legal counsel acknowledged that racial profiling is difficult to prove because it can be both conscious and subconscious. For that reason, he implored the trial judge to ask himself this question, “Would a non-racialized Canadian have been treated like Mr. Ali was treated?”, and for him to “look at the entirety of the circumstances”. On appeal, Mr.

Ali repeats the need to focus on those questions. [ 97 ] The Crown responds to this ground of appeal by suggesting that Mr. Ali’s argument is based on nothing more than unsubstantiated speculation about the officers’ motivation, and that it is meritless given the trial judge’s findings of fact and the absence of any evidence to suggest otherwise. At most, the Crown says, Mr. Ali can be taken to suggest that the trial judge should have drawn a

different inference but contends that it is hard to see how the trial judge erred by not doing so given the evidentiary record. [ 98 ] To be clear, Mr. Ali never alleged that the initial traffic safety stop corresponded to the phenomenon of racial profiling, nor did he suggest on appeal that Cst. Nedjelski was motivated by race when he refreshed himself on the content of the bulletin and made a CPIC database inquiry. Instead, Mr. Ali argues that Cst. Nedjelski and Sgt. Hoover were driven to act in the way that they did because of racial profiling when they (

a) asked him to step out of the SUV to resolve the identity issue, and (

b) immediately arrested him after he stepped out the vehic

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