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Police union head Craig Bromell called it “politically correct crap.”But after last week’s landmark Court of Appeal decision in the November 1, 1999, impaired driving arrest of former Toronto Raptor basketballer DeCovan “Dee” Brown, the days of police denial of the existence of racial profiling should be over.
Of course, they won’t be. The force’s corporate communications department was puttng its own spin on the proceedings mere hours after the decision. But for black males who happen to be young and driving expensive cars, racial profiling is all too real.
Just ask Brown, an African American who was pulled over at 12:55 am on the Don Valley Parkway on his way home from a Halloween party. His only crime seems to have been that he was black, wearing a baseball cap and jogging suit and driving a brand new Ford Expedition.
The officer who pulled him over, Constable Gary Olson, testified at Brown’s original trial that he was driving a marked supervisor’s vehicle in the slow lane when Brown whizzed by him at 120 kilometres. The speed limit on the DVP is 90 kilometres an hour.
Olson, who followed the b-baller for a time before pulling him over, testified that the wheels on the passenger side of Brown’s vehicle twice crossed over the lane dividing line.
Brown failed roadside screening for alcohol and was taken to a nearby station where he was given a Breathalyzer test and charged with driving with over 80 millilitres of alcohol in his blood.
The judge who presided over the original trial, Justice David Fairgrieve, dismissed Brown’s contention that racial profiling was at the root of the officer’s actions after stating that he did not have to hear from Crown counsel. Brown was convicted and fined him $2,000 — despite discrepancies and what appeal court judges would later term “frailties” in the police officer’s evidence.
That decision was overturned on appeal by Justice Brian Trafford, who ruled that remarks and interventions made by Fairgrieve — including repeated admonishings of Brown’s lawyer, Steven Skurka, and directing of Officer Olson’s testimony — gave rise to “a reasonable apprehension of bias” on Fairgrieve’s part. Fairgrieve at one point suggested Brown apologize to Olson for making “serious (and) quite nasty, malicious accusations based on, it seems to me, nothing.”
Last week’s Court of Appeal ruling found that Fairgrieve showed “a tendency to prejudge the merit of (Brown’s case) or an inclination to assist the officer at critical stages of the cross-examination.” The ruling also found that the officer “was not being truthful about the real reasons for the stop.”
The ruling cites as evidence of racial profiling the fact that Olson pulled up and looked into Brown’s car before following and stopping him that the officer prepared a second set of notes “to firm up his reasons justifying the stop after he became aware that the person under arrest was a well-known sports figure likely to undertake a defence of the charge against him” and that the officer conducted a licence check to determine if Brown’s vehicle was stolen.
Olson contended that Brown was driving 120 kilometres an hour, but his notebook entry suggested a number between 100 and 109 kilometres.
Fairgrieve, the Court of Appeal found, failed to “appreciate” the argument being advanced by Brown’s lawyers that racial profiling is not necessarily an overt act, that “it can be a subconscious factor impacting on the exercise of a discretionary power.”
Judging by the howls coming from police quarters, that concept seems to be lost on the force as a whole.
“There is no finding of racial profiling or misconduct (in reference to) the actions of the involved police officers,” says the four-sentence statement released by police corporate communications in response to the Appeal Court decision.
Nothing, of course, could be further from the truth.enzom@nowtoronto.com
