Concerns over racial profiling wins new trial for accused Hamilton drug trafficker

A man found with cocaine in his car had his trafficking conviction quashed on Thursday because the trial judge failed to properly consider his racial profiling claim.

In September 2014, police were looking for a white man in connection with a drug investigation

An Ontario Appeal Court judge said the trial judge was wrong to reject the accusation of racial profiling. (Laurie Fagan/CBC)

A man found with cocaine in his car had his trafficking conviction quashed on Thursday because the trial judge failed to properly consider his racial profiling claim.

In ordering a new trial for Rusheed Dudhi, the Ontario Court of Appeal said it was troubled by the judge's justification of the police search that led to the drug discovery.

"Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, there will be no reasonable suspicion or reasonable grounds," the Appeal Court said. "The decision will amount to racial profiling."

It's another brown guy who is a drug dealer.- Const. Jame Clayton, over police radio

In September 2014, police in Hamilton were looking for a white man driving a BMW in connection with a drug investigation. Const. James Clayton spotted a vehicle matching the description, began following, and asked a colleague, Const. Darryl Oosterhoff, to verify the licence plate of the original target.

Clayton soon noticed the vehicle he was following was being driven by a black man, telling Oosterhoff: "It's the wrong guy here." Seconds later, however, he asked Oosterhoff to check the licence plate of the BMW, which Dudhi had parked at a strip mall.

The officer would later testify Dudhi aroused suspicion because he was engaging in counter-surveillance.

Oosterhoff reported the car belonged to Dudhi, who was on bail. An original bail condition was that he have no cellphone. However, the condition had later been waived, but the officer made no attempt to verify the current situation.

Arrest violated suspect's rights against arbitrary detention, judge says

Police then gave chase, with Clayton saying over the radio: "It's another brown guy who is a drug dealer." Officers boxed him in and Clayton arrested him for having a cellphone, even though Dudhi told him — and showed the paperwork — that the condition had been lifted.

A search of Dudhi's car turned up about a half-kilo of cocaine. Police charged him with drug and other offences.

At trial in 2017, Dudhi argued police had arbitrarily arrested him because the officer had failed to review his release conditions, and the search was therefore unfair. He also argued he had been the victim of racial profiling, which Clayton denied.

Ontario court Judge George Gage rejected the racial-profiling argument even though he said Clayton's "brown guy" comment did not "reflect well" on the officer and indicated "racialized thinking."

Gage did find the arrest had violated Dudhi's rights against arbitrary detention because the officers had acted on information they knew was incomplete. Despite finding the arrest to have been arbitrary, Gage also rejected the argument that the subsequent search of the vehicle was unreasonable.

The violation, however, had been minor, Gage said in allowing the drugs as evidence — a finding the Appeal Court had difficulty with.

"To rely on the search-incident-to-arrest power requires a lawful arrest, and the trial judge found that Mr. Dudhi's arrest was arbitrary," the Appeal Court said. "The entire arrest was tainted, as was the search conducted incident to it."

On the racial profiling issue, the Appeal Court said Gage was wrong to reject Dudhi's accusation on the basis that Clayton made his comments only after making the arrest decision.

"Within roughly 60 seconds of recognizing that Mr. Dudhi was not the suspect who was to be put under surveillance, Const. Clayton communicated Mr. Dudhi's skin colour when describing his suspicious behaviour," the Appeal Court said.