R v Brown

Her Majesty the Queen v. Brown

[2003] O.J. No. 1251 (64 O.R. (3d) 161)
Court of Appeal for Ontario — Morden, Laskin and Feldman JJ.A. | April 16, 2003

Background

Decovan Brown, a professional basketball player for the Toronto Raptors, was driving his brand new Ford Expedition south on the Don Valley Parkway at 12:55 AM on November 1, 1999, when Acting Sergeant Olson pulled him over. The officer claimed Brown was speeding at 120 km/h in a 90 km/h zone and had crossed lane markers twice. Brown, an African-American wearing a baseball cap and jogging suit, was ultimately charged with driving over 80 after failing a roadside breath test.

At trial, defence counsel argued the stop was arbitrary detention under s. 9 of the Charter because it was based on racial profiling, not legitimate traffic violations. The defence pointed to inconsistencies in the officer's evidence, including discrepancies between his notebook entries and testimony to the breath technician, plus evidence of undisclosed notes prepared after the stop. The trial judge dismissed the application and convicted Brown, but his conduct during the trial became the central issue on appeal.

Issues

1. Did the trial judge's conduct during the racial profiling application create a reasonable apprehension of bias?
2. Was there sufficient evidence to support a finding of racial profiling?

The Reasonable Apprehension of Bias

The Court of Appeal found that the trial judge's conduct throughout the proceedings gave rise to a reasonable apprehension of bias. During cross-examination of the officer, the judge repeatedly interrupted to express concern about the "serious allegations" being made, stating he found the racial profiling claim "a little troubling." He assisted the officer with speculative answers and criticized defence counsel's tone.

More damaging were the judge's comments during submissions, where he called the allegations "really quite nasty, malicious... based on, it seems to me, nothing." He questioned what motive the officer could have for racial profiling and suggested it would only be different if the case occurred "in an area of the city with a large black population." The Court found this demonstrated a fundamental misunderstanding of how racial profiling works.

The final straw came during sentencing, when the judge suggested Brown should "extend an apology to the officer" for the "completely unwarranted" allegations. The Court held this was "utterly inconsistent with the duty of a judge to listen dispassionately with an open mind."

Racial Profiling Evidence

The Court confirmed there was evidence capable of supporting a racial profiling finding. Racial profiling claims rarely involve direct evidence (officers don't usually admit bias), so they must be proven through circumstantial evidence. Here, the evidence included: a young black man in expensive clothing driving a luxury vehicle late at night; the officer looking into the vehicle before following; inconsistencies in the officer's evidence; undisclosed notes; and a licence plate check conducted before the stop.

Key Takeaway

Judges must remain impartial when hearing Charter applications, especially those involving allegations of discrimination.

Even when facing serious allegations against police officers, trial judges cannot show distaste for the defence case or suggest defendants should apologize for raising Charter issues. The appearance of bias can be just as damaging as actual bias, and defendants have the right to raise arguable Charter defences without judicial hostility.