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KEEPING THE COURTS PUBLIC

By: Geoffrey Read

The principle of public courts is a constitutional principle that has been expressed and recognized in many ways.  One is that it is enshrined in the written part of our constitution as s. 11(d) of the Canadian Charter of Rights and Freedoms which provides that any person charged with an offence has the right to a public hearing.  Another one is the fundamental freedom of the press and other media of communication stipulated in s. 2(b) of the Charter insofar as it protects the right to report on the activities of our courts.  See, for example, R. v. Canadian Broadcasting Corp. (2010), 262 C.C.C. (3d) 455 (Ont. C.A.).  We rely on openness – the disinfecting effect of sunlight on the things kept in the dark – to protect against the abuses that occur in secrecy without accountability.

There’s plenty of law expressing the open-courts principle, particularly in the area of exclusion of the public and freedom of the press: for example, see Criminal Code s. 486 and Canadian Broadcasting Corp v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480).

So, where’s this going?  Well, it seems that in some courts - not, apparently in Hamilton - there’s a practice of keeping participants – especially accused and counsel – in so-called virtual waiting rooms while other proceedings occur.  One stuck in this virtual limbo has no idea of what is happening in the courtroom, the progress of the proceedings, or whether one is even in the right place.  This is so plainly an infringement of the open-courts principle that one wonders how it’s ever been allowed to occur in the first place.  As long ago as 1983, the Ontario Court of Appeal held that public accessibility to the courts is an integral and implicit part of the guarantee to everyone of freedom of opinion and expression including freedom of the press: R. v. Southam Inc. (No.1), 3 C.C.C. (3d) 515.  

The open-courts principle has once again been stoutly reiterated by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 where the trustees of the estate of a murdered couple sought to stem the intense press scrutiny prompted by the notorious case by seeking sealing orders of the probate files.  The court upheld the order of the Ontario Court of Appeal (2019 ONCA 376) reversing the initial sealing orders made by the application judge.  The top court observed that open courts can be a source of inconvenience and embarrassment, but this discomfort is not, as a general matter, enough to overturn the strong presumption of openness.   

Whatever the bureaucratic mindset that imposes it in the name of some kind of administrative convenience, it must be denounced by the Bar every time any one of us encounter it.  Otherwise, and hopefully, a declaratory action will put an end to it if it persists.  CLA, are you listening?  

RACIAL PROFILING

Two independent notions that sadly intersect in, amongst others, cases of so-called racial profiling, that is, the targeting of persons for illicit racial reasons.  Out in the street it’s often called the offence of Driving While Black.  It’s a challenge for the Defence to prove but it seems to be gaining some traction in the courts, as demonstrated by some recent cases.  

One has already received some well-deserved local publicity, both within the criminal Bar and more widely in the public media, but it’s an important enough issue and decision that it bears another look here.  Justice Gage released a Charter ruling on May 18, 2021 in the case of Her Majesty The Queen v. Monroe Blackwood and Trevon Bryan in which he found that a midday police traffic stop of a BMW occupied by two young black males in the City of Hamilton was actuated by the conscious or unconscious application of racial stereotypes in violation of their section 9 Charter right not to be arbitrarily detained or imprisoned and that the resulting searches incidental to the unlawful arrest violated their section 8 Charter rights [ref. para. 113].  He went on to exclude the evidence [ref. para. 138].

The decision is instructive in several aspects.  First, the extensive review of the evidence demonstrates the importance of thoroughly investigating what happened and building a complete record upon which to argue the case.  The police followed the car until eventually deciding to stop it, at which time the driver Bryan was interrogated by the police, but Blackwood, the passenger, made a run for it.  He was caught and a gun was discovered in his clothing [ref. para.7].  A subsequent strip-search of Bryan revealed a quantity of fentanyl hidden in his underwear [ref. para. 8].  They both applied under section 24(2) of the Charter to exclude the evidence obtained because of their detention, arrest and search [ref. para. 9], arguing that racial profiling was implicated in their detention and that their detention and the resulting arrests and searches were arbitrary and unconstitutional [ref. para. 10].  Bryan also argued that his right to be informed of his right to counsel was breached [ref. para. 11], both argued that that they were subjected to a strip search that was unreasonably conducted and for which Bryan also argued that the police lacked reasonable grounds [para. 12]. 

Justice Gage devoted paras. 14 through 99 to describing the evidence.  As he noted at para. 104, “Context is crucial to the assessment of the bona fides of the stated reason for initiating the investigation”.

Second, the relevant law is reviewed with respect to vehicle stops [ref. para. 100] and racial profiling [ref. paras. 101-102].  Readers seeking for a quick primer on these subjects could do worse than look at these paragraphs.

Third, the detailed analysis of the facts at paras. 103 through 123 (and para. 128) methodically revealed that the various reasons claimed by the police for stopping the car were unwarranted.  Justice Gage stated [at para. 124] that: 
“For these reasons, I find it more probable than not that the detention of Trevor Bryan and Monroe Blackwood on February 11, 2020, was based on a belief, held by one or more of the officers, that was based on the assumption that two young black males driving a BMW were likely up to no good. I accept that this bias may have been unconscious, but I find that it is demonstrated on a balance of probabilities to be present nonetheless.”

However, he also added [at para. 126] that: 
“Even without the element of racial profiling, for the reasons identified by Justice Leach in Kerr, I find that the stopping of the vehicle and the resulting detention of Bryan and Blackwood was not constitutionally justified on the ground asserted by the officers.”

His conclusion was [at para. 127] that:
“… the applicants have demonstrated that their detention was arbitrary and in breach of section 9 of the Charter. The evidence that they seek to exclude was obtained as a direct result of the arbitrary detention. The searches that followed, being based on the unlawful detention, are likewise unlawful and a constitute a breach of section 8.”
Justice Gage also found at para. 129 that the accused’s’ rights to counsel were infringed and, at para. 130, the strip searches infringed Bryan’s s. 8 rights.

Justice Gage made this comment, at para. 132, in the course of his reasons for excluding the evidence: 
“It is self evident that state conduct that arises from the application of racial stereotyping represents a serious infringement of the right of all citizens to be free from arbitrary and discriminatory detention and arrest. It is conduct that the justice system cannot condone.”

TESTILYING

“Testilying” is a sardonic label for false police testimony. Perjury is like Kryptonite to the courts, for it corrodes confidence in the administration of justice, and so it is one of the more serious criminal offences, but it’s particularly challenging to prove.  It is particularly corrosive and hard to prove when it is committed by police officers, for they carry a practical – albeit not legal – presumption of credibility due to the generally high regard the public has for them and their comfort as professionals in testifying in court.  

Juvenal’s question quis custodiet ipsos custodes – who guards the guardians? – is apposite to the insidious problem of testilying.  In the court system, the answer is found in the efforts of defence counsel and the independence of mind of judges.  There is no joy in knowing it sometimes occurs, but there is satisfaction when it is discovered.  One of the most recent cases where it was exposed and called-out is R. v. Hamid, 2021 ONSC 3227.  Justice Spies explained the case this way (at paras. 1 & 2):
[1] The defendant Sami Hamid is charged with possession of a loaded prohibited firearm – a handgun and one related offence. Following what the Crown alleges was an investigative detention of Mr. Hamid, which occurred during the course of police executing a search warrant at Unit 3008 (the “Unit”) at 181 Wynford Drive, Toronto (the “Building”), police found a handgun in a satchel Mr. Hamid was carrying and arrested him as a result.

[2] In advance of his trial Mr. Hamid brought this application to exclude all the seized evidence, alleging breaches of his rights under ss. 8, 9, and 10 of the Charter of Rights and Freedoms...

Incidentally, and apposite to the previously discussed issue of racial profiling, that was also raised in this case but Her Honour found (at paras.90-91) was unable to find there was sufficient evidence:
Were the officers motivated to detain Mr. Hamid because he is black?

[90] With respect to the Defence assertion that the officers were motivated to detain Mr. Hamid because he is black, I did find it strange that the officers tended to avoid giving evidence that the majority of their arrests for firearms are of black or brown men as that certainly seems to be the case in my experience based on the cases coming to this Court. For example, when DC Miller was asked about the type of people he arrests for firearms found in satchels, he said “all kinds” and gave an example of seizing a firearm from women, and different races of people. However, when pressed, he testified that most firearms in satchels are seized from “African” men. DC Miller testified that he would not categorize Mr. Hamid as black but rather as brown – of middle eastern descent, when he was being accused of stopping the men because they were black, but he did describe him as a male black or brown in his notes. DC McKnight did not even put in his notes that Mr. Hamid and Mr. Abdi were black/brown males in his initial description.

[91] However, I do not have evidence upon which I could reliably rely to find that the officers and in particular DC Miller were motivated in detaining Messrs. Hamid and Abdi because they were black or brown.

On the point of credibility, however, she made these critical observations (at the indicated paragraphs):
[66] The position of the Defence is that the four police officers concocted a narrative in order to build investigative detention grounds to cover their true racial profiling motivation....

[67] I agree that the demeanor of the officers was professional and certainly based on their demeanour, there is no basis to suggest that they were fabricating their evidence. Demeanor, however, particularly of a witness accustomed to giving evidence in court is not that helpful in assessing whether the evidence given by the witness is true.

[136] For the reasons I have given, I have found that DC Miller was not being truthful with this Court. The inescapable conclusion, given the evidence of the other three officers who testified, is that they also mislead this Court in order to support DC Miller’s decision to immediately detain Mr. Hamid without formulating grounds and for DC McKnight to do the same with Mr. Abdi. Clearly, the four officers who testified before me made a joint decision to fabricate the story that Mr. Abdillahi began to yell, and Mr. Abdi responded, knowing that without this fabrication that officers Miller and McKnight did not have grounds to lawfully detain Messrs. Hamid and Abdi.

[137] The Courts cannot be seen as condoning or supporting police officers who are prepared to ignore their obligations under the Charter and then fabricate a basis for unlawfully detaining and searching individuals and then come to Court, take an oath and mislead the Court about what happened. The conduct of these officers seriously undermines the administration of justice and this Court must distance itself from that conduct and condemn that conduct. There is no doubt that in these circumstances, the evidence must be excluded.

[138] Having come to this conclusion is disturbing enough, but what is even more troubling to me is that had a handgun not been found and Mr. Hamid had simply been released, like Mr. Abdi was, the fact that he had been unlawfully detained would likely never become known. I do not find that he was detained simply because of the colour of his skin, but even if it was just the fact that he and Mr. Abdi were going to the Unit, that clearly is not enough. I have no doubt that if a woman with a child or elderly couple had exited the elevator and turned towards the Unit, that they would not have been detained, let alone handcuffed and searched.

[139] I appreciate that as a result of this ruling a loaded handgun that was being carried in public in a busy high-rise building, in the afternoon of a Saturday, will not be evidence in this case and that it is very likely the Crown will have to withdraw the charges against Mr. Hamid. That is unfortunate as we see every day the serious injuries and deaths caused by the proliferation of firearms in this city. However, Charter rights must have meaning and the fact that a loaded firearm was found in Mr. Hamid’s possession does not justify what the police did in this case to detain and search him and then mislead this Court in an effort to have this matter proceed to trial, with the evidence they unlawfully obtained, resulting in the inevitable conviction of Mr. Hamid. The ends do not justify the means. n

Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.

He can be reached at:
20 Hughson Street South, Suite 612
Hamilton, Ontario
L8N 2A1