We have all heard it said that cases are won and lost on their facts. Nowhere is this statement more true than when it comes to advancing a racial profiling defence in a criminal case. When seeking to advance a racial profiling case you are seeking to establish facts that speak to what the Ontario Court of Appeal said about racial profiling and the difficulty of proof with direct evidence. Hence, you will want to do two things. Firstly, you will want to establish that one or more officers is simply not telling the truth on material points - like the reason for the referral to secondary or their observations of the subject. You will want to exploit any inconsistencies in their version of what happened. Secondly, you will want to bring out any overt acts of discriminatory conduct on the part of the officers towards your client. Sarcasm and even the manner of looking at someone can covey strong discriminatory vibes. I have reproduced below the supporting affidavit used in my recent case - which resulted in the Crown withdrawing importation charges involving some four kilograms of cocaine.
NOTE: This pieces is published here as a public service on an issue of public importance. It is not put here to give legal advice or to make any representation on the law. The message or lesson is simply to highlight how I obtained a successful result for my client through the law articulated by ONCA in R v. Brown. It can be done. It was done.
SUPERIOR COURT OF JUSTICE
(Brampton)
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
Applicant
SWORN
AFFIDAVIT OF
I, of the City of Toronto, MAKE OATH AND SAY AS
FOLLOWS.
1.
I
am the Applicant on this application and as such I have personal knowledge of
the matters hereinafter deposed to.
2. I swear this affidavit following my attendance for
trial on June 12th, 2017
before Justice Durno. At that time, the
Crown sough an adjournment asserting that they were caught by surprise by the
scope of my Charter application. The Crown indicated that they were not aware
that I was raising any issues other than that the decision to send me to be
searched was tainted by irrelevant considerations including racial profiling.
3. Following submissions by the parties, I
understood that Justice Durno directed my lawyer to prepare an affidavit
delineating my evidence and to prepare a factum – as Justice Durno determined
that the original factum was deficient.
Background:
4. I am a person of African descent from
Jamaica with noticeably dark skin.
5. I am forty-four years of age – having
been born January 6th, 1973 in St. Catherines, Jamaica.
6. I obtained my Landed Immigrant Status
in Canada on December 17th, 1987.
7. I am a mother with four children
ranging from nineteen to twenty-eight years of age, all of whom were born in
Canada. All but the eldest currently
reside with me.
8. My father and various relatives
continue to reside in Jamaica and consequently give me occasion to have to visit
there from time to time.
Trips to Jamaica
9. On or about August 22nd,
2014 I travelled to Jamaica from Toronto in order to care for my elderly father
who was hospitalized as a result of a severe stroke. He is paralized and unable to walk or to
independently conduct bathroom functions.
10. On that occasion, I stayed in Jamaica for
three weeks caring for my father. While
there, I made arrangements with my aunt, Ms. , for her to assist with his care
in my absence. Ms. is my father’s sister.
11. On or about October 14th, 2014
I received a call from Jamaica informing me of Ms. ’s passing.
12. I later received information regarding
the funeral plans. I decided to attend
the funeral and made arrangements with my mother, Ms. , to provide me with a
loan of $1,500 to enable me to travel to the funeral. I paid off my obligation to my mother in
December, 2016.
13. I personally purchased my ticket using
the funds loaned to me by my mother. I
paid $500 in cash and the balance of $273.46 by way of debit from my personal
bank account. Attached to this my
affidavit as Exhibit “A” is a true copy of the two page invoice statement from
Flight Centre with respect to my purchase of my ticket.
14. I did not at anytime inform Officer 1
that my mother purchased my ticket for me.
Officer 1 asked me – “if you are not employed, how could you afford to
buy your ticket” ? I responded “my
mother”. Officer 1 did not ask me about
my occupation.
15. I now understand that Officer 1 maintains
that a third party purchased my ticket. I did not tell her that. Exhibit “A” above
speaks clearly to that point. My mother was not even present when I purchased
my ticket.
Sarcasm From
Officer Tankus:
16. Officer Tankus looked me straight in the
eyes, smiled and said to me, “your mommy must really love you to buy you a
ticket to go to your aunt’s funeral” ?
17. I did not respond to Officer 1. Officer 1's sarcastic statement told me that
she had concluded that I was not worthy of belief or fairness.
Scanning Me
Up and Down
With Her Eyes:
18. Officer 1 scanned me up and down with her
eyes in a manner which conveyed to me a sense of contempt and intolerance. I had previously experienced this feeling and
knew right away that my race, place of origin and the fact that I mentioned to
Officer 1 that I was not working presently placed me in a category of persons
who are not deserving of her respect.
19. My voice was not trembling during my
interaction with Officer 1 and I consistently maintained proper eye contact
with her.
20. It was and remains my practice to place
all my relevant travel documents together for presentation to the officer. This was my practice on this occasion. I provided my passport, boarding pass, flight
centre invoice/statement, permanent resident card, and funeral program. I did not volunteer to show her a funeral
invitation.
21. The document pertaining to the funeral
which was among the documents I submitted to Officer 1 was a copy of the
funeral program and not an invitation.
Attached to this my affidavit and marked as Exhibit “B” is a true copy
of the funeral program which was among the documents submitted to Officer 1.
Referral to
Secondary Search:
22. I do verily believe that Officer 1's
decision to send me to secondary was tainted by irrelevant considerations and
the unconscious operation of racial profiling and that the narrative which she
has provided which is document 1 in my motion record is simply a pretext to
mask this unconstitutional conduct. This document when contrasted with the
under oath evidence of Officer 2 and Officer 3 on September 20th,
2016 – found at tab 3 of my Motion Record and Officer 2 on September 19th,
2016 – found at tab 2 of my Motion Record along with my own observations calls
into question and undermines her pretext evidence.
23. As a direct result of her actions, my
luggage was unreasonably searched. I was subjected to a humiliating
strip-search nothing like that described by the officers in my case
maintain. They did not do my strip
search in parts. I was stripped totally naked and they searched my vagina and
anal areas and had me squat and cough in order to expel anything which may have
been lodged in my vagina or anus. There
was nothing.
24. It was only after I was thoroughly
searched and humiliated was I provided any opportunity to speak to counsel.
25. I swear this affidavit in support of my
application seeking a remedy for the violation of my Charter rights and for no
other or improper purpose.
Sworn before me this
12th day of June, 2017
at the City of
Brampton, Ontario. ______________________________
____________________________________
Ernest J. Guiste, Trial &
Appeal Lawyer
A Commissioner of Oaths
(Ontario)NOTE: This pieces is published here as a public service on an issue of public importance. It is not put here to give legal advice or to make any representation on the law. The message or lesson is simply to highlight how I obtained a successful result for my client through the law articulated by ONCA in R v. Brown. It can be done. It was done.
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