Brown, an African-American former professional basketball player, was stopped by police and subsequently arrested for driving with a blood alcohol level over 80 contrary to section 253(b) of the Criminal Code. At trial, Olson, the arresting officer, testified that he stopped respondent because he was speeding. However, Brown argued that he had been detained, not because he was speeding, but because he was a young black male driving an expensive car, which constituted an arbitrary detention under s.9 of the Charter as it was based, not on the fact that he was speeding, but rather on racial profiling. His application was dismissed, and he was subsequently convicted. On appeal, a new trial was ordered on the ground that the trial had been conducted in a manner that gave rise to a reasonable apprehension of bias.
- Was the police officer racially motivated in stopping the vehicle?
- Was the judge biased in his refusal to seriously consider the charge of racial motivation?
Appeal dismissed because he was not understood by the courts
Morden, writing for a unanimous court, held that though there was evidence before the trial judge which was capable of supporting a finding of racial profiling, the trial judge made interventions during the trial which demonstrated that he did not have an open mind to the possibility of the existence of racial profiling. His dialogue with counsel showed that he failed to understand that racial profiling could be a subconscious factor impacting on the exercise of discretionary power. If, as in this case, there is evidence that the officer is not being truthful about his real reasons for the stop, this is sufficient to support a finding that the stop was based on racial profiling, and not on articulable cause. Applying the test established in R v S. (R.D.), Morden held that an informed observer would have felt that the trial judge showed such an antipathy and resistance to the application that he was unable to hear and determine it with an open and dispassionate mind.