Judge says racial profiling likely, tosses charges against man after Toronto road stop

Vince Talotta,Toronto Star

Const. Jason Crawford leaves Toronto police headquarters in 2013.

Hamilton Spectator

 

By Wendy Gillis

An Ontario judge has ruled that when a Toronto police officer pulled over a car with three young, black men inside, it was because he decided, despite any evidence, that "they were up to something" — and the probable reason was racial profiling. 

Toronto police Const. Jason Crawford was engaging in a kind of proactive policing that invites racial profiling, because it relies on a kind of sixth sense that uses "usual suspects" stereotypes, Ontario Court Justice Mary Hogan ruled in a decision handed down this week.

Hogan threw out four charges against Kyle Thompson, one of the passengers in the car, laid after Crawford pulled over the vehicle in September 2011 — including a charge of assaulting a peace officer, which Hogan tossed after viewing dashcam video she ruled showed Thompson was "not the aggressor." 

"I find that upon seeing this older vehicle being driven by three young, black males Constable Crawford's immediate conclusion despite the lack of any evidence, was that they were up to something," Hogan wrote. 

"It was more probable than not that there was no articulable cause for the stop but that the real reason for the stop was racial profiling." 

According to David Tanovich, a University of Windsor law professor who researches racial profiling, this is just the seventh reported decision where a Canadian criminal court has made a finding of racial profiling since 2006, out of 41 reported cases where it was explicitly argued. 

Crawford declined to comment to the Star through Mike McCormack, president of the Toronto Police Association. McCormack also would not comment on Hogan's decision, citing the possibility of appeal.

In an email, Toronto police spokesperson Mark Pugash said Hogan's comments are being investigated by Toronto police professional standards and did not comment further.

The vehicle stop occurred at Brimley Rd. and Lawrence Ave., while Crawford was on his way to the hospital as part of a different Highway Traffic Act investigation. 

The officer testified that he pulled the car over because he believed the driver of the motor vehicle had twice failed to signal while changing lanes, and because he believed Thompson, who was sitting in the back seat, was not wearing a seatbelt. 

After Crawford got out of his cruiser, Thompson opened the back door of the car and began to get out, prompting a physical confrontation, including an attempt by Crawford to get Thompson to remove his hands from his jacket pocket. A physical fight ensued and both Crawford and Thompson wound up on the ground.

At some point during the struggle, Thompson came out of his jacket and fled; Crawford searched the pockets and found marijuana wrapped in two separate plastic bags. Thompson was later arrested and charged with possession of marijuana, assault of a peace officer, and two counts of failure to comply with a recognizance.

Dashcam video from Crawford's cruiser captured part of the encounter, though there is no audio because the officer testified he forgot to take his police body microphone with him. 

In her April 20 judgment in the charges against Thompson, Hogan ruled that Thompson's charter rights were violated. As argued by Thompson's lawyer, Andrew Porter, Thompson was arbitrarily detained after a stop that was made either without the required grounds or for the "improper purpose of investigating the occupants for criminal activity based on a discriminatory hunch." 

Crawford's testimony, Hogan wrote, was "replete with inconsistencies," including giving information directly contradicted by the dashcam video. She noted that while Crawford had claimed Thompson was moving around the back seat of the car, and leaning forward in an unusual way, "I find the opposite," Hogan wrote, saying the movement was "fairly innocuous." 

After viewing the video, which shows Crawford "extremely focused" on getting to the rear door of the stopped car, Hogan ruled his "actions and demeanour were those of an officer who clearly thought he was investigating more than possible minor traffic violations." 

At that point, there was no evidence of any criminal activity Crawford could have witnessed, she wrote. 

Hogan also found that the force used by Crawford was unnecessary and excessive. Video of the fight makes it appear as though Crawford punched Thompson first, Hogan wrote, though she acknowledges that "is not entirely clear." She ruled that in any event, Thompson "was not the aggressor." 

To rule a police officer engaged in racial profiling, the judge had to find that it is more probable than not "that there was no articulable cause for the stop" and that the real reason for the stop was, in this case, the race of the occupants in the car. 

Thompson and his lawyer set out facts that suggested the vehicle would not have been pulled over but for the race of those inside, including that it was not plausible Crawford would interrupt his other investigation to investigate lane change and seatbelt infractions, that Crawford's testimony about when he became aware of the vehicle occupants' race was unlikely.

In Hogan's ruling he referenced research by Tanovich in finding that Crawford's stop was an example of the proactive policing that "invites racial profiling," where officers use their sixth sense to identify suspicious circumstances. 

In an interview, Tanovich said that sixth sense — when an officer says he or she has a feeling when criminal activity is afoot — is problematic because it can be discriminatory and transform innocent events into something suspicious. 

"The problem is, that lens that they're using is impacted by stereotypes," said Tanovich.