In R v. Kampe 2011 ONSC 5963 the trial judge after hearing viva voce testimony from the defendant that the police planted drugs on his person and a digital scale in his car to implicate him in a crime because of his race found the defendant guilty without any reference to R v. Brown 2003 Canli 52142 and most importantly without subjecting the whole of the trial evidence to the question of whether or not it raised an inference of racial profiling/denial of equality. The trial judge went on to make the following rulings:
 "The constitutionality of the conduct of the police was not challenged. No applications were brought by Mr. Kampe alleging the violation of his rights under the Charter or related to the non-disclosure of the name of the passenger";
 "The officers denied Mr. Kampe's allegation that they targeted him because he was a black man, fabricated the story that he had crack cocaine in his possession, and produced crack cocaine and a digital scale that was not found on Mr. Kampe or in the car in order to substantiate their allegations. Prior to November 16, 2009, the officers did not know Mr. Kampe."
 "I find the evidence of the police officers to be credible and reliable";
 "I do not believe the evidence of Mr. Kampe, nor does it leave me with a reasonable doubt. On the basis of the evidence I do accept as credible and reliable, I am satisfied beyond a reasonable doubt that Mr. Kampe was in possession of 5.06 grams of crack cocaine on November 16, 2009."
In this follow-up piece I wish to further analyze the learned trial judge's ruling on this point in an effort to demonstrate that in the context of a racial profiling defence alleging evidence planting by the police that it is not mandatory to bring a preliminary Charter application seeking to exclude the allegedly seized items or to obtain the European-Canadian passenger's identification particulars. The reason for this is simple. The constitutionality of the police conduct is not engaged by the alleged seizure or the faiure to produce the passenger's idetification particulars. Rather, the Charter is engaged by the defendant's testimony of the planting of evidence and the patently differential treatment between the African-Canadian driver and the European-Canadian passenger. In the circumstances of this case both the driver and the passenger are parties to the offence of possession of a controlled substance. The trial judge made the following finding of fact on possession:  "The substance of the officers' evidence is that Mr. Kampe was sitting in a car with a woman with the interior light on looking at a piece of crack cocaine."
Accordingly to charge the African-Canadian driver and not the European-Canadian passenger is a prima facie violation of section 15 of the Charter since this omission in charging and obtaining her particulars is on its face a differential application of the law. Clearly, no investigation was made into the crucial point - assuming the police theory to be correct - of whether the passenger was the seller of the substance and the defendant the buyer - both of which are serious crimes. There is no onus on Mr. Kampe to find and bring her to court.
By virtue of establishing this crucial differntial treatment in the application of the law the actions of the police were squarely under constituional scrutiny under section 15 of the Charter and the trial judge was duty bound to entertain the racial profiling/denial of equality defence in the manner mandated by R v. Brown supra. The learned trial judge was required to recognize that according to the Court of Appeal racial profiling will rarely be established by direct evidence since no officer will admit that they were motivated by a racial animus in the execution of their duty and to ask herself whether the whole of the evidence raises an inference of racial profiling/denial of equality. The trial judge's Reasons for Judgement are silent on this point. Indeed the following statement by the trial judge supports the reasonable conclusion that she failed to appreciate the racial profiling/denial of equality defence advanced by the defendant:
 "Mr. Guiste asks me to draw an adverse inference from the fact that the woman in the car with Mr. Kampe was not called as a witness. He asks me to infer that she would have confirmed Mr. Kampe's evidence about what happened that evening. I agree with Mr. Guiste that P.C. Lee's failure to make a note of the woman's name that evening or investigate her further is unusual."
Is Evidence Planting a Seizure
The assertion that the police have planted evidence on a citizen is a very serious allegation. The assertion that the police have so acted because they were motivated by a racial animus either intentional or systemic discrimination is even more serious. In reading the learned trial judge's reasons for judgement in R v. Kampe supra it is not clear on her reasons why and how she concluded that "The constitutionality of the conduct of the police was not challenged." I can only guess that the learned trial judge felt that I ought to have brought a preliminary Charter application seeking to exclude the evidence as an unlawful search and seizure under section 8 of the Charter and by not proceeding in that fashion Mr. Kampe's right to life, liberty and security of the person under section 7 was spent. Again, in light of the lack of particularity in the reasons for judgment I can only guess that the Crown's failure to ensure that the passenger's indentification particulars were disclosed to the defence was resolved in a similar fashion. That is - because I did not bring a preliminary motion seeking relief for this omission then consequently Mr. Kampe's rights under section 7 of the Charter are spent.
Some of my colleagues in the profession have suggested that a preliminary Charter application was necessary in this case. I love and respect my colleagues dearly but I have some serious difficulty with this position. Firstly, what would this application look like ? Let us assume I brought an application seeking to exclude the crack cocaine under section 8 of the Charter. Is the planting of evidence by the police a seizure ? What would my evidence on this application look like ? The only evidence I can call is my client's. The Crown would in turn call the three officers and my application would be denied. The same would be true if I brought the application alleging a section 7 breach. How about a preliminary section 15 application on the theory of differential treatment between Mr. Kampe and his passenger ? Secondly, the onus would be on the applicant to establish the violation on a balance of probabilities. I fail to see from a practical level how this could be done. The question I see flowing from the facts of R v. Kampe supra is did the trial judge err in law by not entertaining the section 15 Charter violation and in subjecting the whole of the evidence to R v. Brown scrutiny ?
What do you think ?