COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alipourobati, 2025 ONCA 64

DATE: 20250127

DOCKET: C70909

Nordheimer, Sossin and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Amirhosein Alipourobati

Appellant

Hedieh Kashani, for the appellant

Manasvin Goswami, for the respondent

Heard: January 13, 2025

On appeal from the convictions entered on April 28, 2022 by Justice David S. Rose of the Ontario Court of Justice.

REASONS FOR DECISION

[1]          The appellant appeals his convictions for numerous offences relating to the unlawful possession of a firearm that was discovered during the course of a traffic stop by police.

[2]          At trial, the parties filed an agreed statement of facts that made out all the elements of the charged firearms offences. However, the appellant alleged breaches across ss. 7, 8, 9, 10 (a) and (b) of the Charter in relation to the stop and search of the car in which he was the driver. He argued that the stop was a result of racial profiling, therefore lacking a lawful basis for the attending police officer to search the cabin of the car. The trial judge rejected all but two of the Charter breaches. While he found modest breaches of s. 7 for lost evidence and of s. 10(b) following a 26-minute delay in informing the appellant of his right to counsel, the trial judge concluded the firearm found during the search of the car should nevertheless be admitted under s. 24(2) of the Charter. The appellant argues that the trial judge erred in his findings on racial profiling and in the admission of the firearm.

[3]          At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

BACKGROUND

[4]          On Thursday, June 27, 2019, Police Constable (“PC”) Griffen of the South Simcoe Police Service was conducting traffic enforcement on Canal Road in Rural Bradford West Gwillimbury ahead of the Canada Day long weekend. This was part of a campaign in which various police forces combined efforts to publicize and then enforce four traffic concerns over the long weekend: Impaired Operation; Seatbelt Violations, Speed, and Distracted Driving. The particular location on Canal Road was chosen by PC Griffen, as it was the subject of community complaints in relation to speeding, mainly by drivers from the Greater Toronto Area seeking a shortcut when traveling between Lake Simcoe and Highway 400. Though the posted speed limit was 50 km/hr, drivers routinely drove around 70km/hr or more down the rural road.

[5]          Around 1 p.m., PC Griffen observed, from about 100-150 meters away, a white Mercedes Benz going 40-45 km/hr. He suspected the driver was driving cautiously and noticeably slower than the flow of traffic because he was either impaired or trying to avoid police detection for some other reason.

[6]          PC Griffen stopped the car, checked the licence plate on his police computer and discovered that it was registered to a female. PC Griffen could see the driver was male, as was the passenger. PC Griffen walked up to the driver and told him the reason for the stop. He quickly smelled marijuana. He observed flakes of what he believed to be marijuana in the car. He testified that he also could see a box of Molson beer that appeared to be open behind the front passenger seat. He asked the appellant for his driver documents and was told that he had none. The appellant did have his Ontario Health Card, which PC Griffen used to check the appellant’s status and found that he was a suspended driver. He was also a G1 driver, under 22 years of age, and therefore required to have zero alcohol and drugs in his system.

[7]          At 1:15 p.m., PC Griffen made a demand for a roadside drug screening device. He did not have an oral fluid screening device with him and told the appellant that a second officer was on his way with the device. PC Griffen then interacted with the passenger, who identified himself as Noel Bailey and gave his date of birth but had no identification. PC Griffen then returned to his car again and ran a check on Mr. Bailey, who was confirmed to be a G2 driver, which meant that he was not qualified to accompany the appellant as a driver.[1] At 1:19 p.m., another officer, Sgt. Phillips, arrived and did an oral fluid test of the appellant, which produced a fail, as the appellant was five times over the legal limit for THC.

[8]          Shortly after 1:35 p.m., Sgt. Phillips initiated a search of the car and quickly found a loaded handgun in a satchel between the passenger and driver seat. As the appellant and Mr. Bailey were being arrested, the appellant’s mother arrived in another car and parked nearby. As soon as she opened her car door, a dog left the car and started running around the arrest scene. This led to a delay in the police securing the scene.

Decision Below

[9]          The parties filed an agreed statement of facts that made out all the elements of the charged firearm offences. The appellant argued that the stop was a result of racial profiling, therefore Sgt. Phillips did not have a lawful basis to search the cabin of the Mercedes, violating ss. 8 and 9. He further argued that his right to be promptly informed of the reasons for arrest and to consult counsel under ss. 10(a) and (b) were violated by the delay in giving him the informational component. Finally, the appellant also made an evidentiary argument that the Crown’s failure to disclose the roadside communications and various specific entries of PC Griffen’s electronic queries at the roadside was a violation of his right to full disclosure of all relevant evidence under s. 7.

There was a failure to disclose roadside communications and the booking video in violation of s. 7

[10]       The appellant argued that the videos, radio communication and key stroke movements relating to his arrest should have been kept and disclosed to him. The record reflected that some evidence was lost since the policy of the South Simcoe Police was to retain such records for only one year before being erased. The appellant did not request disclosure until some 14 months after his arrest, so the booking video and radio communications had already been erased. Key stroke movements were not saved in the first place. The trial judge found that a retention policy that routinely erases electronic evidence prior to the expiration of Jordan timelines was unreasonable: see R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Nevertheless, he found that the lost evidence had “little if any relevance” to the trial, since the charges related to possession of a loaded handgun and the defence admitted the legal elements of the offences were made out before the appellant arrived at the station. Therefore, there was nothing either inculpatory or exculpatory that would have been revealed through the erased records. The trial judge nonetheless concluded that the failure to preserve records was a s. 7 violation that would invite an adverse inference against the Crown on the racial profiling allegation.

The traffic stop was not due to racial profiling

[11]       The appellant argued he was arbitrarily detained contrary to s. 9, citing the fact that his car was stopped, despite not having done anything illegal or operating it in a way that gave PC Griffen a lawful basis to stop it. He claimed that this was because he is a racialized man, as was his passenger. The trial judge acknowledged that racial profiling does not require that a police officer holds conscious or unconscious racist attitudes, rather “the focus is on evaluating the particular ‘internal mental process’ that led to the specific police action under investigation”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 78.

[12]       The trial judge accepted PC Griffen’s evidence that he did not see the occupants or know they were racialized when he decided to make the traffic stop. The trial judge accepted that the reason for the stop was because the appellant was travelling below the speed limit, which, while not a concern from a speed perspective, in PC Griffen’s experience, was a driving pattern that sometimes indicated impaired driving. The Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), permits roadside stops for sobriety checks without any HTA violation: s. 48. Consequently, the trial judge found that the circumstances of arrest did not support a finding of racial profiling.

There was a lawful basis to obtain the oral fluid and search the cabin of the car

[13]       The trial judge found that PC Griffen had a lawful basis under the Criminal Code, R.S.C. 1985, c. C-46, to make a demand for oral fluid since he smelled and observed marijuana in the cabin of the car, which was supported by his investigation notes and pictures taken of the car interior. Those observations provided reasonable grounds to suspect that the appellant had a drug in his body, meeting the threshold under s. 320.27(1)(c) of the Criminal Code. Similarly, s. 12(3) of the Cannabis and Control Act, S.O. 2017, c. 26, Sched. 1 (“CCA”), permits a warrantless search of a vehicle if a police officer has reasonable grounds to believe that open cannabis, readily available to any person in the vehicle, is being contained in the vehicle. The observations coupled with the results of the oral fluid test “easily gave Sgt. Phillips reasonable grounds to search the car”.

The appellant’s s. 10(b) rights were violated but this does not lead to the exclusion of evidence under s.24(2) of the Charter

[14]       The trial judge found that there was no s. 10(a) violation as the appellant was advised of the reason for his stop and the evolving investigative measures as they occurred. As for s. 10(b), the trial judge found the right to counsel was only engaged once Sgt. Phillips was in a position to arrest the appellant for the failure of the oral fluid test and he continued to be detained for purposes of searching the car under s. 12 of the CCA and ss. 44.1 and 47 of the Liquor Licence Act, R.S.O. 1990, c. L. 19. This would have been at 1:35 p.m., 32 minutes after his initial stop. By 1:46 p.m., once the handgun had been discovered, the appellant was entitled to be re-cautioned since the investigation surpassed impaired operation of a motor vehicle and the new development significantly increased his jeopardy. However, events outside of the police’s control, such as the appellant’s mother arriving and the dog running outside, turned the arrest into a dynamic situation that delayed giving the informational component until the situation was under control at 2:00 p.m. Instead, it was given after the complete search of the car incident to arrest at 2:15 p.m. While finding no s. 10(a) violation, the trial judge found the delay in re-cautioning amounted to a s. 10(b) violation from 1:35 p.m. until 1:46 p.m., and from 2:00 p.m. to 2:15 p.m. – a total of 26 minutes.

[15]       The trial judge held that the evidence should not be excluded under s. 24(2) of the Charter.

ISSUES

[16]       On appeal, the appellant raises two grounds of appeal.

1.    Did the trial judge err in his racial profiling analysis?

2.    Did the trial judge err by finding that there was no breach of s. 10(a) of the Charter?

[17]       The appellant argues that, due to these errors, the trial judge erred in not excluding the evidence.

[18]       Each ground of appeal is addressed below.

The trial judge did not err in rejecting the allegation of racial profiling

[19]       At the hearing, the appellant focused his submissions on the racial profiling ground of appeal. At trial, the appellant argued that the alleged racial profiling occurred in the decision to initiate the stop of the car.

[20]       On appeal, he contends that whether or not the stop was a product of racial profiling, the further investigative steps undertaken by the police officers were tainted by racial profiling, and the trial judge failed to assess those further investigative steps to determine if they were motivated by racial profiling. In both instances, he argues that the actions taken violated his right to be free from arbitrary detention under s. 9 of the Charter.

[21]       In Le, at para. 76, the Supreme Court states that racial profiling occurs “when race or racialized stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or suspect treatment”.

[22]       According to the appellant, the trial judge in this case applied the wrong test with respect to racial profiling. The appellant contends that the trial judge relied on the test as articulated by the dissent in R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241. At the outset of his analysis, the trial judge quoted from the dissenting reasons as to the characterization of racial profiling. That quote included the statement, “[t]he focus is on how this particular officer actually reasoned on this particular occasion. It is therefore a factual question: [Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA)], at paras. 6, 104, 131” (emphasis in original): Sitladeen, at para. 79.

[23]       We reject the argument that the trial judge applied the wrong test. The trial judge cited the dissent on a point he believed the majority not to have disagreed with, but in any event, in the very next paragraph of his reasons, at para. 52, the trial judge stated:

As the majority found, when racial profiling is alleged the trial judge must go beyond credibility findings and “…also consider whether the circumstances that could correspond to racial profiling could support the inference that unconscious racial profiling played a role.” Sitladeen (supra) at par. 63. The majority in Sitladeen compels trial judges to consider factors beyond the credibility of police officers and weigh circumstances known at the time of the detention, such as whether the officer who made the decision to arrest knew the arrestee’s skin colour at the time of the decision making. [Emphasis added.]

[24]       The trial judge accepted PC Griffen’s evidence that when he decided to make the traffic stop, he had not seen who the occupants were, and therefore did not know their appearance or racialized identity. Further, he accepted that PC Griffen pulled over the car because of his experience with traffic enforcement in the area where the car was travelling. These findings were open to the trial judge on the record and constitute factual findings entitled to deference.

[25]       We see no error in his finding that the circumstances of the traffic stop did not correspond to racial profiling.

[26]       With respect to the further investigative steps taken by the attending officers, the appellant specifically alleges the demand for Mr. Bailey’s identification and running a criminal check could have been motivated by racial profiling.

[27]       As the trial judge’s findings make clear, the additional investigative steps taken by the officers at the traffic stop all flowed from the information obtained following the stop. Each step followed from the new information the police discovered, including: the appellant’s status as a suspended novice driver, the smell of marijuana in the car, the flecks of suspected marijuana on the car floor, the open box of beer with missing cans, the appellant’s failure of the oral fluid test, and finally, the discovery of the handgun.

[28]       In our view, there is no basis on this record for the argument that any of the investigative steps undertaken following the traffic stop, including those relating to Mr. Bailey, disclose racial bias.

[29]       We reject this ground of appeal.

The trial judge did not err in his s.10 and s. 24(2) Charter analysis

[30]       The appellant argues that, in light of the findings of the trial judge, it is undisputed that PC Griffen did not advise the appellant of the shifting nature of the investigation once he detected the potential presence of marijuana in the car. Further, while the appellant was arrested at 1:46 p.m., he was not given his rights to counsel until 2:15 p.m. Based on these breaches of s. 10(a) and (b) of the Charter, the trial judge erred by not excluding the gun found in the car.

[31]       After reviewing the record, the trial judge concluded that there was no violation of the appellant’s s. 10(a) right to be informed promptly of the basis for his detention, as the appellant was advised of the reason for his detention at 1:03 p.m., given an oral fluid demand at 1:15 p.m., and told of the failed result at 1:35 p.m. However, the trial judge found a 26-minute delay in reading rights to counsel to the appellant at the roadside, and that his s.10(b) rights to retain and instruct counsel without delay and to be informed of that right, were violated to that extent. 

[32]       The trial judge applied the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and concluded that the s. 10(b) Charter breach was modest in this case, that the length of time of the delay was neither brief nor lengthy, and that the exclusion of the gun would bring the administration of justice into disrepute.

[33]       The appellant submits that the Grant analysis should be conducted afresh in light of the additional Charter breaches they argue occurred. Having rejected the appellant’s grounds of appeal in relation to those additional breaches, there is no need to undertake any further Grant analysis.

[34]       We see no error in the trial judge’s analysis of the Grant factors, nor in his conclusion under s. 24(2) of the Charter.

DISPOSITION

[35]       It is for these reasons that the appeal was dismissed.

“I.V.B. Nordheimer J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”