ONTARIO  COURT  OF  JUSTICE

CITATION: R. v. Khan, 2016 ONCJ 739

Date: 2016-11-24

COURT FILE No.:  Brampton Information No. 13-2577

BETWEEN:

HER  MAJESTY  THE  QUEEN

—  AND  —

SHAAZAD  KHAN

Before Justice David A. Fairgrieve

Reasons for Judgment released on November 14, 2016

R. Rota  ……………………………………………………………………………………………………….   for the Crown

Anser Farooq  …………………………………………………………………………   for the accused Shaazad Khan

FAIRGRIEVE  J.:

[1]                       Shaazad Khan was convicted on April 8, 2015, of the two criminal offences that, the Crown proved, he had committed in Mississauga on February 14, 2013. The first count charged him with having driven a motor vehicle while he had an excessive blood alcohol level, contrary to s. 253(1)(b) of the Criminal Code. The second count alleged that at the same time, he had possession of a prohibited weapon, specified as a knife that could be opened by centrifugal force, contrary to s. 91(2) of the Code.

[2]                       I indicated at the time the convictions were entered that supplementary written reasons for judgment would be provided to explain the findings of credibility I had made and the conclusions I had reached concerning the Charter application and whether the Crown had proved all of the essential elements of the possession of a prohibited weapon offence. These are intended to be those reasons.

The Charter application

[3]                       Before the trial commenced, Mr. Farooq, on behalf of the defendant, filed a Charter application seeking, in essence, the exclusion of all of the evidence to be led by the Crown at trial. Mr. Farooq, defence counsel, filed a written application stating that he was “seeking to contest the admissibility of certain evidence related to the arrest, breath demand, observations, reading [sic], etc., on the grounds [that] to admit such evidence would violate the applicant’s right to a fair hearing on the charges before the Court, as guaranteed by sections 8, 9 and 10 of the Charter of Rights and Freedoms” and seeking “an order under s. 24(1) of the Charter precluding the Crown from adducing such evidence at the trial.”

[4]                       It became apparent at trial, however, that what was really intended was an application under s. 24(2) to exclude all of the evidence obtained after Mr. Khan was allegedly arbitrarily detained, in violation of s. 9 of the Charter, because, the applicant claimed, he had been the victim of racial profiling by the officer who arrested him on the night in question.

[5]                       It was agreed that the Charter motion, as reframed, should be decided on its merits, with both parties also agreeing that the case should proceed as a “blended” hearing, with the evidence relating to both the voir dire concerning the Charter application and the trial proper being called at the same time.

[6]                       It was important, however, to keep the two aspects of the case separate. Mr. Khan clearly had the burden of establishing on a balance of probabilities the alleged Charter breach and that the exclusion of evidence would be warranted under s. 24(2): see R. v. Collins (1983), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.); R. v. Grant (2009), 2009 SCC 32 (CanLII), 245 C.C.C. (3d) 1 (S.C.C.) . At the same time, it was, of course, accepted that it was the Crown that had the ultimate burden of proving beyond a reasonable doubt, based on the evidence actually admitted and accepted as reliable and truthful, that Mr. Khan was guilty of either or both of the offences. There was no dispute that the defendant remained entitled to rely on the presumption of innocence throughout, and that any reasonable doubt concerning any essential element of either offence would have resulted in the dismissal of that charge: see, for example, R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v. Wadforth (2009), 2009 ONCA 716 (CanLII), 247 C.C.C. (3d) 466 (Ont. C.A.). 

[7]                       With respect to the Charter application, as already stated, Mr. Farooq identified the sole question to be whether Mr. Khan was stopped by the detaining officer, P.C. Kosher, because he was the victim of racial profiling, consciously or subconsciously, on the officer’s part. To borrow defence counsel’s words in the Notice of Application, “the applicant believes he was singled out because he is a black male with two passengers while operating a vehicle at approximately 3:30 a.m.” Mr. Rota, on behalf of the Crown, conceded that if the defendant established that that was probably the case, then the evidence obtained after Mr. Khan was stopped by the officer – the Crown’s entire case, in effect – should be excluded under s. 24(2), and the charges should be dismissed.

Principles applicable to the racial profiling allegation

[8]                       The leading authority in Ontario concerning an allegation of racial profiling is undoubtedly the Court of Appeal’s judgment in R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251. At paras. 7 to 9 of his reasons, Morden A.C.J.O. stated the following:

[7] There is no dispute about what racial profiling means. In its factum, the appellant defined it compendiously: “Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group” and then quoted a longer definition offered by the African Canadian Legal Clinic in an earlier case, R. v. Richards (1999), 1999 CanLII 1602 (ON CA), 26 C.R. (5^th) 286, 42 M.V.R. (3d) 70 (Ont. C.A., as set forth in the reasons of Rosenberg J.A. at p. 295 C.R.:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

[8] That attitude underlying racial profiling is one that may be consciously or subconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping

[9] In the opening part of his submission before this court, counsel for the appellant said that he did not challenge the fact that the phenomenon of racial profiling by the police existed. This was a responsible position to take because, as counsel said, this conclusion is supported by significant social science research. I quote from the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer for Ontario, 1995) (Co-Chairs: M. Gittens and DD. Cole) at p. 358:

The Commission’s findings suggest that racialized characteristics, especially those of black people, in combination with other factors, provoke police suspicion, at least in Metro Toronto. Other factors that may attract police attention include sex (male), youth, make and condition of car (if any), location, dress, and perceived lifestyle. Black persons perceived to have many of these attributes are at high risk of being stopped on foot or in cars. This explanation is consistent with our findings that, overall, black people are more likely than others to experience the unwelcome intrusion of being stopped by the police, but black people are not equally vulnerable to such stops.

Morden A.C.J.O. continued, at paras. 10 to 11, to state that in order to succeed on a s. 9 Charter application of this kind, an applicant must prove that it was more probable than not that there was no articulable cause (to use the phrase commonly used before R. v. Mann (2004), 2004 SCC 52 (CanLII), 185 C.C.C. (3d) 308 (S.C.C.)) for the stop and that the real reason was the race of the defendant.

[9]                       With respect to proving a racial profiling allegation, Morden O.C.J.O. stated at paras. 44 to 45:

[44] A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven, it must be done by inference drawn from circumstantial evidence.

[45] The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under s. 9 of the Charter).

[10]                  In a more recent case involving an allegation of racial profiling, R. v. Thompson, 2014 ONSC 4749 (CanLII), Goldstein J. explained, in very instructive reasons, that it is clearly incumbent on a trial judge dealing with such a s.9 Charter application to analyze the evidence in order to make explicit findings of fact concerning the racial profiling allegation and to draw an express legal conclusion as to whether the alleged arbitrary detention had been proved on a balance of probabilities. Merely canvassing potential suspicions or possibilities is insufficient. Mr. Justice Goldstein stated the following at paras. 42 to 45:

[42] Constable Crawford squarely denied that there had been racial profiling. There was no question that the officer had articulable cause for the traffic stop based on observed traffic violations if the trial judge accepted his evidence. The trial judge did not say whether he accepted or rejected the officer’s evidence on this crucial point. If the trial judge accepted that there was a basis to pull over the Plymouth based on the traffic violation, then it undermined the claim of racial profiling. If the trial judge rejected the officer’s evidence that there was a basis to pull over the Plymouth, then a finding of racial profiling may well have flowed. The question of racial profiling could likely only have been resolved by addressing the officer’s credibility [citations omitted].

[43] There were legitimate questions about Constable Crawford’s credibility. The issue of precisely why Constable Crawford pulled over the purple Plymouth, the sequence of events during the arrest, and who punched whom first were all issues upon which defence counsel cross-examined the officer. Defence counsel put his theory to the officer in the usual manner. The officer provided explanations in the usual manner. The trial judge, however, failed to resolve those credibility issues.

[44] Mr. Thompson’s counsel argued in this Court that a reader [of the trial judge’s reasons] would infer that the trial judge made an adverse finding of credibility by implication. That may be so, but if the trial judge was going to say that there was racial profiling and that he did not believe Constable Crawford, he needed to explain why not. In fairness, the judge did ultimately conclude that the officer did not act in good faith. The problem is that the path to that conclusion is unclear, thus rendering meaningful appellate review difficult.

[45] The issue of racial profiling is controversial and sensitive. A trial judge should not shrink from making such a finding if the evidence demands it; nor should a trial judge shrink from rejecting an allegation of racial profiling if the evidence demands it. If a judge finds that a police officer has engaged in racial profiling, that is a matter of great concern for the community. Trial judges do not do not do their work in a vacuum, in splendid isolation from the rest of society. It is true that it is Mr. Thompson who was on trial and his rights were at issue, but a trial judge’s work engages issues of concern to the wider public. The community, the police and the officer himself had a right to know why the trial judge did what he did.

[11]                  In this case, it was apparent that Mr. Khan has a dark complexion and was a member of a visible minority. There was no dispute that Mr. Khan was detained by P.C. Kosher, a white police officer. Given the systemic nature of racism in the criminal justice system accepted by the Court of Appeal in Brown, when a claim of racial profiling is made at trial, its validity must be fairly considered and assessed on the basis of the evidence accepted by the court.

[12]                   The issue in this case, then, was whether the stop of Mr. Khan made by P.C. Kosher, was motivated, consciously or subconsciously, by the improper consideration by the officer of Mr. Khan’s race. P.C. Kosher testified that he had been conducting “a static R.I.D.E. spot- check,” stopping every southbound motorist on Hurontario Street that night in order to confirm the driver’s sobriety and that Mr. Khan’s race played no role in his detention. Mr. Khan’s Charter application claimed otherwise. What was required, therefore, was a fair and unbiased assessment of the evidence to determine whether the claim of racial profiling was likely a valid one.

The evidence

[13]                  P.C. Kosher testified that he had been a police officer for 21 years at the time and was also a qualified Intoxilyzer technician. As a member of the regional “breath unit” enforcing drinking and driving laws the early morning of February 14, 2013, the officer testified that he had set up what he described as a “static R.I.D.E. spot-check” on Hurontario St. at John St. in Mississauga. He explained that this meant that, acting on his own initiative, he parked his cruiser on an angle to block two southbound lanes and directed traffic into the remaining passing lane. P.C. Kosher testified that he stopped every vehicle and had a conversation with every driver to see if he or she had consumed alcohol that night. He testified that he conducted such checks during almost every shift he worked, and that it was a common practice for him to do so at that particular location, which was near two bars.

[14]                  According to P.C. Kosher’s testimony, while he tried to stop every driver, if traffic backed up because he was dealing with someone, cars would not be stopped. The officer testified that it was generally not a problem, since traffic tended to be light to moderate at that time of night, so a backlog seldom developed. From his perspective, he said, it was not a successful R.I.D.E. if cars had to wait longer than about 45 seconds, because people would see the spot check ahead of them and take steps to avoid it. He testified that he had no way of “picking” a car; indeed, he testified in cross-examination, in the dark, with a car’s headlights facing him, he was unable to see the driver or occupants inside a car until the driver stopped within a couple of feet beside him. His purpose at the time, he testified, was to check all the drivers who came along.

[15]                  At 3:04 a.m., according to P.C. Kosher’s evidence, which seemed not to be disputed, he stopped the car being driven by Mr. Khan. The officer asked the defendant if he had been drinking. When the defendant admitted that he had been drinking earlier at a pub in Brampton, the officer stated that he detected the odour of alcohol on his breath, observed that his eyes were bloodshot and watery, and noticed that his speech was slightly slurred. P.C. Kosher testified that he formed a reasonable suspicion that the defendant had alcohol in his body, so he asked him to pull over to the right so other traffic could move through, and asked him to exit his vehicle. P.C. Kosher then made the demand for a breath sample to be analyzed by the approved screening device he had in his cruiser.

[16]                  The officer testified that at that point the defendant “glared” at him in a “confrontational” manner, so he asked him not to stare at him that way, saying “I’m not the one who drank alcohol and then drove.”

[17]                  At the police cruiser, where the ASD test would be conducted, P.C. Kosher testified that he asked Mr. Khan, “Do you have anything in your pockets that’s sharp or that I should know about?” At that point, according to the officer’s evidence, with what he described as a single motion, Mr. Khan took his hand out of his right pocket and raised his arm up towards the officer’s chin, holding a knife. P.C. Kosher testified that although the knife was closed at the time Mr. Khan produced it, he “perceived” the knife to be “travelling in the direction of underneath [his] throat,” so that it was his “perception” that it was about 8 inches from him when he used his flashlight to push the defendant’s arm back and cause the knife to move up towards the defendant’s chest. The officer testified that he then ordered Mr. Khan more than once to drop the knife. Mr. Khan complied and dropped the knife but “when it landed on the ground, it popped open.” The officer testified that he thought it was unusual for a pocket knife to open that way, but that the knife was then lying on the ground with the blade open. The knife was seized and eventually filed as an exhibit at trial.

[18]                  In evidence that appeared not to be controversial, P.C. Kosher testified that when Mr. Khan provided a proper breath sample into the ASD, it registered a “fail,” connoting a blood alcohol concentration over 100 milligrams of alcohol per 100 millilitres of blood. The officer accordingly believed the defendant had committed the “over 80” offence, arrested him and made the approved instrument breath demand. Mr. Khan was then taken to the police station where Intoxilyzer tests were conducted, at 4:06 a.m. and 4:29 a.m., both producing truncated readings of 140. Mr. Farooq indicated that he was not challenging the breath test results and that it was unnecessary for the Crown to go through the testing process.

[19]                  Most of the interaction between P.C. Kosher and Mr. Khan at the police station was recorded on DVD and was not the subject of any dispute. The video was played in court, and the defence filed a transcript of the audio portion of the recording. The Crown did not challenge its accuracy, and Mr. Farooq admitted the voluntariness of anything said by his client. The transcript includes the following exchanges between P.C. Kosher and Mr. Khan concerning the alleged manner in which the defendant had produced the knife:

[p. 2, upon the defendant’s entering the 11 Division “breath room”]

Kosher: … Have a seat in the chair there.

Khan:   Come on, I didn’t pull it out on you like that.

Kosher: Okay, well, we’ll talk in a sec. If it was a mistake, then we’ll talk about that…

Khan:   You asked me if I had a knife or anything that I should be worried about.

Kosher: Okay, before we do that, though, just hang on here for a sec. …

…

[p.6, after P.C. Kosher asked Mr. Khan if he wanted to say anything about the knife]

Khan:   I had no knowledge of it being illegal. As far as I was concerned, it’s a legal thing once I had it visible. When you asked me, did I have anything in my possession sharp or anything like that, immediately I gave it up to you. I’m sorry if you thought I was being aggressive, but that’s the furthest thing from the truth. I have no prior record of anything. Like I said, oh, this is my first experience entirely, so I do apologize fully if you thought that that was something that was aggressive, by any nature.

Kosher: Okay. Well, you’re not charged with any aggressive behaviour. You’re just charged with the fact that it’s illegal to have.

Kahn:   Right, I had no knowledge of that.

Kosher: Okay. Why do you carry it?

Khan:   I’ve been moving… I recently moved and, um, it was somewhat handy.

Kosher: … You’re not scared that that thing’s gonna open up in your pocket and stick you in the side?

Khan: Never.

Kosher: No?

Khan:   It was never a problem. I didn’t even know that it was spring-loaded.

Kosher: Oh, okay. So you don’t usually open it that way?

Khan:   No, not at all.

[20]                  The conversation between the two men continued at some length in the interval between the two breath tests, with Mr. Khan’s exculpatory explanation concerning the knife, repeating that he had not done anything aggressive when he took it out of his pocket, and the officer stating (at p. 10), “Okay. Well, that’s how it felt to me, that’s all. But you’re only being charged with being in possession of it, not for that, all right?” At pp. 17-18 of the transcript, P.C. Kosher elicited personal information from Mr. Khan, as follows:

Kosher: How old are you now?

Khan:   37.

Kosher: 37? And your first name is…

Khan:   Shaazad.

Kosher: Shaazad and the last name is Kahn?

Khan:   Correct.

Kosher: And how tall are you now?

Khan:   Five seven.

Kosher: Five seven, and what do you weigh?

Kahn:   About 220, 230.

Kosher: And where were you born?

Kahn:   1976, January 1^st.

Kosher: Were you born in Toronto or…

Kahn:   I was born in South America, Guyana.

Kosher: Guyana? Are you a Canadian citizen now?

Kahn:   Yes.

Kosher: And when did you come into Canada?

Kahn:   Mm, I think I was four years old.

. . .

[21]                  After discussing the back injury Mr. Khan had suffered in a car accident and Mr. Khan’s consumption of alcohol on the night in question, after the defendant returned to the breath room after using the washroom, the following exchange occurred(at p. 24):

Khan:   I always wanted to be a police officer, but I didn’t have the courage to carry the badge.

Kosher: Well, that’s…

Khan:   You g-, you guys are brave, I’ll given-, I’ll give you that.

Kosher: Or crazy.

Khan:   Well, that’s why I don’t take offence when you feel threatened. I mean the shit you guys gotta deal with, it takes a brave man.

Kosher: Yeah, we just don’t know who’s-, we don’t know the people that…

Khan:   Yeah, and if you look at the States and the State Troopers, those fuckers, I mean, sorry, those guys are paranoid, but rightfully so.

Kosher: Yeah, everybody down there carries guns.

Khan:   Oh, you don’t ask fucking questions, you just fucking pull it out and say, hey.

Kosher: Did you ever live in the States?

Kahn:   No, no, no, I just seen a lot of TV man. I mean in Canada, it’s kind of a…

Kosher: Nicer?

Kahn:   It’s a little nicer, you know.

The second breath test was then administered.

[22]                  In cross-examination of the officer, Mr. Farooq challenged P.C. Kosher’s evidence in a number of different ways and confronted him with his client’s racial profiling allegation. For example, P.C. Kosher agreed that he could not say exactly how many vehicles he had stopped during the impugned R.I.D.E. spot-check. The officer agreed that, as apparently recorded on a Ministry of Transportation record, he had issued three 3-day licence suspensions, as a result of an “Alert” reading (i.e., a blood alcohol concentration between 50 and 100) on ASD breath tests he conducted at that location at 2:08, 2:40 and 2:53 a.m., respectively. P.C. Kosher testified that he was “clear” and checking drivers again as of 2:58 a.m., but agreed that the car whose driver had been issued a licence suspension at 2:53 a.m. could have still been parked at the side of the road, waiting for another driver or some other reason, when Mr. Khan was stopped at 3:04 a.m.. When asked if the driver of that earlier vehicle had been black, P.C. Kosher replied, “I have no idea,” explaining that the information recorded on the M.T.O. system recording a 3-day licence suspension would include the name, driver’s licence number and vehicle licence plate, but not the race of the driver.

[23]                  P.C. Kosher conceded that the Peel Regional Police “unit history” for the time in question, which the defence filed as an exhibit, did not provide independent confirmation of the “static R.I.D.E. spot-check” the officer had described, but he stated that it was quite common to set up such an operation without booking the location with the dispatcher. He also testified that he did not “start the visual,” meaning pay particular attention to a driver, until he detected an odour of alcohol, as was the case, he testified, with Mr. Kahn.

[24]                  The officer also testified that he did not makes notes of his questions to Mr. Khan and the defendant’s answers during their conversation in the breathalyzer room, since he was aware that it would all be accurately captured on the video recording. The centre portion of the “alcohol influence” report, he testified, was filled in back at the station, and he explained that he asked about Mr. Khan’s place of birth (Guyana, which the officer misspelled) and nationality (which was recorded as “CND” [sic]) because it was information he required for the record of arrest. Mr. Farooq’s cross-examination was as follows:

Q.: … What I’m suggesting to you, Officer Kosher, is this, that subconsciously for you, the identification of my client was not that as a Canadian, but rather, you identified him as a Guyanese-Candaian?

A.: No. I think that’s ridiculous. I don’t think of anyone as other than Canadian, American, whatever you’re you’re born and your citizenship is. I know Trinidadians who are Asian. It makes no difference to me. Those are just boxes I have to fill.

Q.: And I say that, sir, because my client never told you nor did he ever identify himself as a Guyanese-Canadian?

A.: And neither did I. I never identified him as that either. I told you I made those notations so I could fill in the boxes, and when you listen to my conversation, my questions and answers, that should be pretty clear to you that I asked those direct questions. I made notes. I make notes the way I make them and they’re to refresh my memory. They are somewhat for you, for your disclosure purposes, but the way I make my notes has nothing to do with anything I’m thinking. That was made to satisfy the need for my recollection for my report when I did it later that evening.

[25]                   P.C. Kosher admitted in cross-examination as well that in a police disciplinary hearing in 1992, he had accepted responsibility for “discreditable conduct” and received an “8-hour penalty” because he had placed his initials on a P.O.A. Part III summons that he had not personally served.

[26]                  In addition to asking the officer about question marks he included in his notes, which P.C. Kosher admitted referred to details he was not sure of, Mr. Farooq also elicited an admission from him that he had not filed a “use of force” report or a call to the dispatcher, nor did he tell any other officer about the “knife incident.” He testified, in reference to the video recording of Mr. Khan’s denial that he had been aggressive towards him, that he (P.C. Kosher) was just trying to tell the defendant how he had perceived their interaction at the scene.

[27]                  Finally, in cross-examination, P.C. Kosher testified that he had never been informed previously that racial profiling was being alleged by the defendant in this case. Instead, he said, all he had known was that there was a Charter application that included ss. 7, 8, 9 and 10, “like all the other impaired trials I have.”

[28]                  With respect to the knife, P.C. Kosher tendered it while testifying. Labelled “Kershaw” and also “Speedsafe U.S.A.,” the officer described it as a folding knife that had a handle three and a half to four inches long, and a blade that was about three inches long when opened. He pointed out that it had a locking mechanism that could lock the blade closed, but it was also a “torsion assisted” knife with a small piece protruding on its side with a small spring which, if touched gently, allowed the knife to snap open very easily. Attempting to provide a demonstration, P.C. Kosher made a downward flicking motion twice, with the knife opening the second time, but when he flicked the knife sideways, it failed to open. The officer added that he was not a “knife expert,” but had seen it open with a flick of the wrist.

[29]                  Mr. Khan testified himself, both with respect to the Charter application and in his own defence on the trial proper. He testified that he was then 38, and had been unable to work since 2010 when he was rear-ended at a red light and suffered serious injuries to his back, neck, right shoulder, leg and fractured right elbow.

[30]                  Mr. Khan testified that he had bought the knife, as he had explained to P.C. Kosher in the video statement at the police station, at a store at Orfus Road and Dufferin Street. He testified that it was similar to other makes and models of knives on display, and that he had bought it the last Saturday in December [2012] to use when he was moving. Mr. Khan testified that he always used two hands to open the knife and that he pressed the “button” (or “lever” or “stub”) on the handle to allow him to close the knife. He agreed that after he dropped it, as P.C. Kosher demanded, he could see the knife lying opened on the ground, but he testified that he had not opened the knife himself. Mr. Khan testified that the knife, which had been even stiffer when new, could not just be flicked open, but, as P.C. Kosher had demonstrated in the witness box, it could only be opened by centrifugal force after the nub of the blade that protruded on one side of the handle had been pressed.

[31]                  With respect to the circumstances surrounding the traffic stop, Mr. Khan testified that the officer made eye contact with him and motioned him to stop. P.C. Kosher did not have a flashlight in his right hand, as the officer stated in his evidence, but told him he was doing a R.I.D.E. program. After he admitted he had been drinking earlier, telling the officer his last drink had been at about 11:00 p.m., the officer directed him to pull over in front of a car already stopped at the side of the road. The driver of this vehicle, Mr. Khan said he observed, was a black man, and he inferred from later having seen the police “unit history” that he must have been the previous driver to whom P.C. Kosher had issued a 3-day licence suspension.

[32]                  Mr. Khan testified that he did not “glare” at the officer, nor was there any discussion between them about any such concern. At the back of the police cruiser, on their way to have the ASD test administered, the officer asked him if he had anything, and he replied, “Yes, I have a knife.” Mr. Khan testified that he took the closed knife out and raised his hand to about the level of his waist in order to hand the knife to P.C. Kosher. According to Mr. Khan’s evidence, there was no altercation involving any movement of the knife towards the officer’s throat, nor did the officer use his flashlight to disarm him. Mr. Khan testified that at the police station, P.C. Kosher fabricated the whole story, and that he thought he would be charged with a serious crime, but that the officer’s lie made no sense to him.

[33]                  Mr. Khan admitted in his testimony that he had consumed beer and then driven that night, stating, in cross-examination, that he had had three Heinekens at a pub in Brampton between about 10:00 p.m. and 2:15 or 2:20 a.m., before he left with his two passengers, who were just people he had seen before, to look for a restaurant in Mississauga.

[34]                  Mr. Khan testified that he had recently moved and that he had just gone out for entertainment that night. He also testified that it was a lightweight, thin knife in his jeans pocket, and that he was not really aware that he had it on his person at the time. He explained that he also liked to fish, one of the recreational activities he could enjoy in his condition. According to Mr. Khan, the knife had cost $150 and was made of high-quality steel. He agreed that the knife had opened when he dropped it on the ground, and also agreed that he was able to open the knife with one hand if he applied pressure on the knob as it was flicked, as the officer had demonstrated in court. Mr. Khan testified, however, that the officer was doing “a trick” when he opened it with one hand in the witness stand, stating that he must have been touching the knob on the handle with his palm as he flicked it.

The credibility of the witnesses

[35]                  I was satisfied that P.C. Kosher was an essentially credible witness who provided truthful evidence concerning his dealings with Mr. Khan on the night in question. My sole concern relating to his credibility arose from his testimony describing the defendant’s motion with the knife when he removed it from his pocket. I suspected that the officer’s version of what occurred at the time was likely based on a misperception or misinterpretation of events by him, made in the heat of the moment, when Mr. Khan’s sudden, unanticipated movement with a weapon caused him to be in a state of some fear. Nonetheless, my concern that P.C. Kosher might initially have failed in his testimony to acknowledge a possible over-reaction on his part to what he might then have mistakenly believed was a dangerous or threatening gesture by Mr. Khan (who, after all, was a person he did not know and with whom he was dealing while alone in the dark at the roadside) did not, ultimately, undermine my conclusion that the officer provided honest and reliable evidence concerning the material facts in dispute.

[36]                  In my view, while it would have been less troubling if P.C. Kosher had been as candid in his evidence-in-chief as he appeared to be in his conversation with the defendant in the breath room on the night in question, or even when cross-examined by Mr. Farooq at trial, simply by acknowledging that he might have over-reacted based on his perception at the time, I still accepted the officer’s evidence concerning the facts in dispute. Having heard Mr. Khan’s testimony, I was quite certain that he did not lunge toward the officer’s neck with the closed knife or intend to attack an armed police officer or cause the officer to fear for his safety. Apart from this one aspect of the officer’s evidence, however, I believed that he testified truthfully.

[37]                  Mr. Farooq did not appear to challenge the officer’s evidence that the R.I.D.E. spot-check had been set up in the way the officer described it. Indeed, Mr. Khan’s own description of how he came to P.C. Kosher’s attention did not contradict the officer’s evidence. There is no reason in those circumstances, in my view, not to accept this part of P.C. Kosher’s uncontroverted testimony. It was given in an entirely straightforward and unexceptional manner and accords with everyday experience of how R.I.D.E. stops are conducted. Similarly, the Peel Regional Police document used by defence counsel in his cross-examination, the so-called “Unit History” filed as Exhibit 3, seemed to confirm, rather than contradict, the officer’s testimony concerning the relevant chronology, suggesting that the R.I.D.E. spot-check was likely set up at the location around 2:00 a.m.. While the officer agreed that the document did not provide independent confirmation that he was conducting a “static R.I.D.E.” there, not an event that needed to be booked with the dispatcher, Mr. Khan’s testimony did not seem to dispute that that was the case, in any event.

[38]                  P.C. Kosher agreed that the car that had been driven by the person issued with a licence suspension at 2:53 a.m. could indeed still have been parked at the side of the road, waiting for another driver or for any other reason, when Mr. Khan was stopped. When Mr. Farooqasked if that suspended driver had been black, the officer replied, “I have no idea.” P.C. Kosher explained that MTO suspension records include the driver’s name, driver’s licence number and licence plate number, but would not record the driver’s race. He gave his evidence a year and a half after the event; indeed, it would have struck me as strange if the officer had purported to recall such a detail. Even if Mr. Khan’s testimony that he saw that person and that he was black was accurate, which it could very well have been, I did not think that it had the effect of undermining P.C. Kosher’s testimony concerning the random nature of the R.I.D.E. stops or his efforts to stop every driver. Common sense, as well as common experience, even in the absence of any statistical data, did not suggest anything remarkable in a black driver being at that location at the same time that Mr. Khan arrived. Neither did it, in my opinion, lend any support for an argument that racial profiling on the officer’s part could reasonably be inferred.

[39]                  P.C. Kosher’s reasonable suspicion justifying the ASD demand and his subsequent reasonable and probable grounds for making the approved instrument breath demand were not challenged. Whether the defendant glared or not at the officer, or whether the officer said exactly what he testified he said in terms of advising Mr. Khan not to look at him that way, did not have a material impact on the credibility assessment. I appreciated that Mr. Khan’s evidence contradicted the officer’s testimony on the point. Obviously, any misleading or self-serving assertion found to be false could affect the assessment of a witness’s credibility and result in skepticism or perhaps even rejection of his evidence concerning other matters. That, however, did not happen in this case. I accepted the honesty of P.C. Kosher’s purported observation of Mr. Khan’s facial expression, subjective though it was, and despite the subsequent videotaped conversation at the police station which recorded the officer’s similar assertion and the defendant’s lack of a specific response to it, I did not find this aspect of the evidence helpful to one side or the other with respect to the credibility issue.

[40]                  My conclusion that P.C. Kosher testified truthfully concerning the relevant facts was based primarily on the inherent probability of events having occurred as he described them, as well as its consistency with the other evidence led in the case. Practically all of his testimony concerning the chronology was not challenged, in any event.

[41]                  While a witness’s demeanour can be misleading and not of particular significance, I thought it fair to observe that P.C. Kosher testified in a confident, straightforward, matter-of-fact, somewhat stoical, manner, apart from the slightly defensive tone he adopted when asked about Mr. Khan’s initial motion with the knife. The reference to his disciplinary record from 20 years ago did not, in my view, cast any doubt on his good character or his credibility as a witness. Despite Mr. Farooq’s vigorous cross-examination, there was, in my view, nothing that led to any reason to doubt the reliability of the officer’s evidence.

[42]                  In fairness, I should state as well, I concluded that in many ways Mr. Khan presented as a sympathetic and pleasant person. Some aspects of his evidence, however, seemed inherently implausible, self-serving and incapable of belief. Mr. Khan admitted in his evidence that he had been drinking on the night in question. His admission in cross-examination, however, that he had had three beers from 10:00 p.m. until after 2:00 a.m. was inconsistent both with his earlier statement at the roadside that his last drink had been around 11:00 p.m. and his statement during the recorded conversation at the police station when he said he could not remember how many beers he had had, but that the last one was “probably before 12:00.” Neither of the earlier statements seemed to provide a believable account of what he did at the pub for multiple hours before he decided to drive to Mississauga. The internal inconsistencies in the positions taken by him naturally affected adversely the assessment of the reliability of his evidence at trial.

[43]                  While there was no apparent reason not to accept Mr. Khan’s evidence as to how he acquired the knife from a military surplus store near Yorkdale in late December 2012, it seemed to make little sense that an unemployed person would spend $150 to buy what he implied was essentially a box-cutter for moving purposes or, as he later suggested in cross-examination, a fishing knife. Moreover, his explanation for having taken the knife to the bar that night, a month and a half after he bought it, defied belief. Mr. Khan’s testimony that the knife was so thin and light that he forgot he had had it in his pocket was inconsistent both with common sense and with the uncontroverted evidence that he produced it immediately when P.C. Kosher asked him if he had anything sharp, just before he was to perform the ASD breath test in the police cruiser. One might perhaps understand why a disabled person might take a knife to a bar before an evening of drinking, but Mr. Khan’s refusal to acknowledge that he had the knife in his possession as a weapon seemed not only absurd, but contributed to a finding that his testimony as it related to the essential issues was unworthy of belief and should be rejected.

 Conclusion with respect to the racial profiling claim

[44]                  In my view, apart from the fact that Mr. Khan was a person of colour and P.C. Kosher was a Caucasian police officer, and acknowledging that systemic racism remains, regrettably, a feature of the criminal justice system, I was satisfied that there was no credible evidence to support the allegation of racial profiling in this case. Since the burden was on the defendant to establish a s. 9 Charter breach on a balance of probabilities and he failed to discharge that burden, I was required to dismiss the application.

[45]                  I concluded, on a much higher standard than a balance of probabilities, I might add, that the officer lawfully stopped Mr. Khan for a valid reason, namely, as part of a legitimate spot-check to investigate the sobriety of motorists driving on the roadway: see R. v. Ladouceur(1990), 1990 CanLII 108 (SCC), 56 C.C.C. (3d) 22 (S.C.C.). Moreover, I was satisfied that Mr. Khan’s race or ethnicity played no role in the officer’s decision to detain him, and that P.C. Kosher was, to use Morden’s A.C.J.O.’s language in Brown, an honest police officer performing his duties on this occasion in a professional and unbiased manner. I regarded Mr. Khan’s claim that he perceived a racial motivation on the officer’s part to be insincere, but more to the point, I was satisfied that even if the defendant had such a misperception, which I do not believe, it was an unreasonable one without any credible foundation.

[46]                  As already stated, this was fundamentally a case that turned on the credibility of the witnesses and the reliability of their evidence. Apart from the evidence of   P.C. Kosher and Mr. Khan, one of the defendant’s passengers at the time, Melissa Eldridge, was called in support of his Charter application, giving evidence as to what she said she observed at the location where Mr. Khan was initially detained. She turned out to be, in my opinion, a less than observant or reliable witness, and I did not regard her evidence as being of any assistance in determining the s. 9 issue.

[47]                  There clearly was no direct evidence of racial profiling in this case, as Morden A.C.J.O. predicted would normally be the case. More to the point, however, there was also no circumstantial evidence capable of giving rise to such an inference.

[48]                  I accepted P.C. Kosher’s evidence that he was stopping all of the southbound drivers at that location at the R.I.D.E. stop he set up there. There was no evidence to contradict the officer’s evidence that such was the case, and indeed, Mr. Kahn did not suggest otherwise in his description of how he was stopped. As already stated, it could very well be that the driver who was issued a 3-day licence suspension at 2:53 a.m. was black, and that he was still at the side of the road when Mr. Khan was stopped. In my view, however, that could hardly give rise to any concern that the officer might have been motivated by racial considerations in stopping Mr. Khan. At the risk of repetition, I did not find it surprising that P.C. Kosher had been unable to say whether that suspended driver was black, given that the event had occurred a year and a half before the trial proceeded, that the race of a motorist was apparently not recorded on any MTO document or police record in such circumstances (for good reason, since it would have been totally irrelevant), and that there would have been nothing at all remarkable about such an occurrence, i.e., one “black” driver having been stopped at the same R.I.D.E. spot-check on the same busy highway in Mississauga in the same timeframe as Mr. Khan had been stopped.

[49]                  I accepted P.C. Kosher’s evidence that when conducting such a R.I.D.E. spot-check at night in the circumstances he described, it would have been impossible to discern a driver’s race before he or she stopped, and even then, that there would be no reason to notice a driver’s appearance in the absence of some reason to be concerned about that person’s recent alcohol consumption that would have justified further investigation.

[50]                  I rejected Mr. Farooq’s submission that there was anything suspicious in the officer’s notation referring to “Guyana” and “Canadian,” since it became apparent during the video-recorded interview of Mr. Khan between the two breath tests that he was simply gathering the information he was required to include in the Peel Regional Police record of arrest that he would have to prepare. There was no reason I could see to think that the officer was any more concerned with Mr. Khan’s ethnicity or race than he was about his age, birthdate, height or weight. It did not strike me as unusual or improper that a police officer, with law enforcements responsibilities extending to other federal statutes apart from the Criminal Code, would make neutral inquiries concerning a detained person’s citizenship or immigration status. The fact that such inquiries were made did not imply or give rise to any concern that the officer was engaging in racial profiling, I am sure.

[51]                  As Morden A.C.J.O. held, racist stereotyping or profiling can be subconscious, as well as conscious and concealed. I also appreciate that Brown recognized that the mere absence of anything overt in the interaction between a police officer and a member of a visible minority that suggested any hostility or incivility did not necessarily mean that the officer could not have been harbouring subconscious racist feelings or unintentionally engaging in improper racial profiling. In this case, however, there was, I concluded, simply no evidence capable of supporting such an inference. That Mr. Khan conversed at some length with P.C. Kosher expressing, among other things, his respect, admiration and sympathy for the police, did not mean, of course, that Mr. Khan was not the victim of racial profiling on this occasion or that his claim at trial was necessarily disingenuous. On the other hand, however, I did not regard the tone and content of the conversation as providing any evidentiary support for such a claim either.

[52]                  In the end, I completely rejected Mr. Farooq’s submission that the defence had established that racial profiling had probably played some role in his client’s detention. The Charter application to exclude evidence based on a s. 9 violation was according dismissed.

[53]                  Given the concession by the defence that the Crown had proved the commission of the “over 80” offence, a conviction was entered on that count

The possession of a prohibited weapon charge

[54]                  Mr. Farooq made basically two arguments why Count 2 should be dismissed. First, he argued, the Crown had failed to prove that the knife in question was a “prohibited weapon,” within the meaning of the definition of that term in s. 84(1), since it had not been proved beyond a reasonable doubt that it that it had a blade that opened automatically by centrifugal force. Second, he submitted, even if the actus reus of the offence had been made out, there should still be a reasonable doubt that Mr. Khan was aware that he knew that the blade could be opened in that way, i.e., by centrifugal force, the mens rea of the offence.

[55]                  The essential elements of the s. 91(2) offence were authoritatively decided by the Ontario Court of Appeal decades ago. In R. v. Phillips (1978), 44 C.C.C. (2d) 548, the knife was described in terms similar to those applicable to Mr. Khan’s knife. Martin J.A. stated, at para. 4 of his oral reasons, that there was evidence that “as a result of practice, [the officer] was able to cause the blade of the knife to open by making a throwing motion and snapping his wrist and, indeed demonstrated his ability to cause the blade of the knife to open in that manner on five consecutive occasions during the trial.” The accused in that case testified that he had been given the knife as a gift from a friend who purchased it at a well-known sporting goods store, that he had always opened the knife manually and that he had never opened it in the way (i.e., by centrifugal force) that the officer had shown. While finding that the knife in that case could properly be found to be a prohibited weapon, Martin J.A., at para. 7, stated that an essential ingredient of the offence was mens rea:

… in the sense that ignorance of the fact that the knife in question opened automatically… by centrifugal force is a good defence to a charge of being in possession of a prohibited weapon. The necessary guilty knowledge required to constitute the offence may, however, be inferred from the possession of a knife which is, in fact, a prohibited weapon within the [statutory] definition.

The jury in Phillips, however, had not been instructed that “if they had a reasonable doubt whether the appellant had the requisite knowledge of the characteristics required to constitute the knife a prohibited weapon, they should acquit.” For that reason, the appeal was allowed and the conviction set aside.

[56]                  Similarly, in R. v. Archer (1983), 6 C.C.C. (3d) 129 (Ont. C.A.), Martin J.A. stated the following (at paras. 7 and 9):

We are of the view that the appellant’s possession of the knife in this case does not fall within the evil that the section of the Code was designed to prevent. It is not enough that by long use the knife has acquired characteristics which permit its handle to be opened by holding the blade and applying centrifugal force to the handle. In our view, the purpose of proscribing the possession of knives that have a blade that can be opened by centrifugal force was to suppress the possession of knives having a blade which, by pressure on a button or by a flicking of the knife, is immediately opened thereby making the knife available for use as a weapon.

. . .

The mens rea required to constitute the offence under [what was then] s. 81(1) consists in either knowledge or recklessness with respect to the characteristics of the knife in question which, in fact, make it a prohibited weapon.

[57]                  While Mr. Khan’s evidence on the point might have been somewhat confusing, he appeared to concede in the end that P.C. Kosher had in fact demonstrated in court that the knife could be opened with one hand by touching the knob on the handle and flicking his wrist. Mr. Khan also did not dispute that the knife had indeed opened on its own when he dropped it on the ground, at the roadside at the officer’s insistence, evidently at an angle without any particular degree of force. It was obvious, in my opinion, that since the blade could be opened automatically by centrifugal force, merely by flicking the handle once some pressure had been applied to the protruding piece on it, the knife came within the statutory definition of a “prohibited weapon” in s. 84(1). Mr. Khan conceded that he had it in his possession at the time in question.

[58]                  I was also not left in a state of reasonable doubt concerning Mr. Khan’s knowledge or recklessness concerning this characteristic of the knife that made it a prohibited weapon. Mr. Khan, I was sure, would not have paid $150 for it at a store advertising itself as “army surplus” on its sign merely to acquire a cutting implement for opening boxes or to use when fishing. Moreover, I was completely convinced that the only inference to be drawn from the evidence that Mr. Khan had concealed it in his pocket and taken it with him to the bar, particularly given his physical disability that could put him at a disadvantage if he found himself involved in any altercations, was that he would be able to use it as a weapon by opening it with one hand by applying pressure to the knob on the handle and flicking his wrist, causing the blade to open automatically. I was satisfied beyond a reasonable doubt that Mr. Khan knew that this was the case, or was at least reckless in that regard, and that is why he bought it, kept it and took it with him to the bar that night.

[59]                  I was accordingly required to make a finding of guilt on the second count as well.

Disposition

[60]                  For these reasons, Mr. Khan was convicted on both charges.