Credibility vs. Racial Profiling/Denial of Equality ?

   Yesterday the Court of Appeal for Ontario released its decision on an application under section 684 of the Criminal Code of Canada for funding in R  v.  Kampe 2012 ONCA 558 - a case in which my client Mr. Kampe testified in his own defence that members of the Toronto Police Service targetted him on account of his race and in fact planted cocaine on his person and a digital scale in his car to secure his conviction for possession of a controlled substance for the purpose of trafficking.  Justice of Appeal Jurianz heard the application on September 27th, 2012 and dismissed it on December 5th, 2012.

   In this post I wish to review and analyse the Court of Appeal's decision denying this needy man funding for what I consider to be a meritorious appeal on an issue of public importance not only to African-Canadians but all residents of Ontario.  My objective in doing so is to contribute to the jurisprudence and to stimulate public discourse on the evolving concept of racial profiling/denial of equality. Readers may recall that, contrary to the conventional wisdom on the subject, it is my thesis that inherent in any act or omission of racial profiling is a denial of equlity under section 15 of the Candian Charter of Rights and Freedoms.

  Appellant's Argument:

   The Appellant's argument is clearly stated at p.4 of the Applicant''s Factum in the following words:

 "IT IS RESPECTFULLY SUBMITTED THAT the record reveals the following fundamental errors with the decision of the learned trial judge:

1.   A failure to apprehend and apply the evidence before her to the law set out in R  v. Brown etc.; and

2.   A failure to appreciate that the police failure to obtain the passenger particulars and or her statement was highly relevant to the defence raised.

The Law:

   In R  v.  Brown 2003 Canli 52142 the Court of Appeal ruled that racial profiling can rarely, if ever, be established with direct evidence because police officers will rarely admit to racial bias and as a result a trial judge faced with such a defence must assesss all of the circumstantial evidence and ask themself whether it raises an inference of racial profiling.

   In R  v.  W.(D) [1991] the Supreme Court of Canada set out the test for the assessment of credibility where a defendant testifies.  This case confirms that the assessment of credibility should not be a contest between the prosecution evidence and the defence evidence.  A defendant can be acquitted even where his or her evidence is rejected provided the evidence nonetheless leaves the trier of fact with reasonable doubt of a defendant's guilt.

   The learned trial judge in R   v.  Kampe did not subject the whole of the evidence to the scrutiny mandated by R   v.  Brown supra but instead made credibility findings against the Appellant and rejected his evidence without  making mention of R  v. Brown, supra.  One crucial piece of evidence in the case involved the failure of the police to investigate, charge and secure the identification of a European-Canadian woman who was in Mr. Kampe's vehicle with him during the incident and whom police witneeses acknowledged was at the very least a material witness.  This evidence of differential treatment on the part of the police I contend is circumstantial evidence of racial profiling and ought to have been factored into a R   v.  Brown analysis by the learned trial judge - not for the purpose of bolstering his credibility but as circumstantial evidence of a racial animus capable of raising a reasonable doubt in the trier's mind.

Court of Appeal's
Reasons on funding

   The Court of Appeal ruled that there was no error on the part of the trial judge and hence no merit to the arguments raised above.  The court's representation of my arguement is not consistent with the very basic argument set out in my factum and recorded above.  I will copy them verbatim below and try to address them accordingly:

[14]   "He argues that, had the trial judge properly considered all the circumstantial evidence, she would have inferred that the applicant had been racially profiled and would have accepted his testimony."

[15]   "Counsel for the applicant also proposes to renew on appeal his argument that the trial judge should have drawn an adverse inference from the Crown's failure to call the passenger as a witness.  He submits that an important aspect of the circumstantial evidence is that, as the police witnesses acknowledged under cross examination, the passenger had material evidence to give.  The trial judge should have inferred that she would have corroborated the applicant's testimony."

[22]   "There is nothing in Brown that supports the contention that the trial judge erred in principle in failing to draw and adverse inference from the fact that the Crown did not call the passenger as a witness."

Analysis and Commentary:

   It is settled law that a trial judge can acquit even where they categorically reject a defendant's evidence.  The inquiry with respedt to reasonable doubt of a defendant's guilt is not whose evidence do I accept - prosecution or defence.  The Court of Appeal for Ontario held in  R   v.  Brown a defence of racial profiling will rarely be proven by direct evidence.  It must be proven by inference drawn from circumstantial evidence.  As this case illustrates there is a real danger that trial judges can circumvent the holding in R  v.  Brown supra on the point of racial profiling by merely rejecting a defendant's evidence.  Is the Court of Appeal suggesting that an R   v.  Brown analysis is not warranted where the defendant testifies to police planting evidence ?   or is the Court of Appeal suggesting that evidence showing a clearly differential application of the law as between an African-Canadian man and his European-Canadian female passenger is not evidence of racial profiling which trial judges ought to consider in a criminal trial ?  With the greatest of respect, this is bad law.  It brings us back in time to a place and time when "the black man had no rights that the white man had to respect."  Racial profiling is by its very nature a denial of the right to the equal protection and application of the law without discrimination based on race.  

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