TORONTO POLICE USED RACIAL PROFILING, JUDGE RULES

Drug Charges Quashed Over 'Reprehensible' Search Of Black Man's Car

TORONTO - An Ontario Superior Court judge dismissed drug trafficking
charges against a black real estate developer because Toronto police
engaged in racial profiling.

In a landmark judgment released yesterday, Justice Anne Molloy found
that two Toronto police officers stopped and then searched a silver
Mercedes sedan belonging to Kevin Khan for an "improper purpose."

"Mr. Khan was targeted for this stop because of racial profiling;
because he was a black man with an expensive car," wrote Judge Molloy
of the incident that took place Oct. 22, 2001.

"I accept the evidence of Mr. Khan as more credible than that of
either officer. I quite simply do not believe the evidence of the officers."

Mr. Khan's lawyer, John Struthers, said "this is the first finding of
'driving while black' in Canadian history."

Mr. Struthers stressed his client was not acquitted because of a legal
technicality. "This was not a close call. This was an absolute win,"
said Mr. Struthers, who was scathing in his description of the
testimony of the two officers during a six-day trial earlier this year.

In addition to the finding of racial profiling, Judge Molloy said that
"in fairness to Mr. Khan and in recognition of what he has been
through, I think it is necessary to clear his name
completely."

A kilogram of cocaine, with an estimated street value of $100,000, was
found during the search of Mr. Khan's automobile. However, Judge
Molloy noted that the Mercedes had been out of Mr. Khan's possession
for two days before he was stopped, and his fingerprints were not on
the bags containing the cocaine.

"I find as a fact that the cocaine was not his and he did not know it
was in the car," said Judge Molloy, who acquitted Mr. Khan in June,
but did not release her written reasons for the decision until yesterday.

Mr. Khan, a university graduate and former school teacher who
currently refurbishes and re-sells condominium units, spoke to
reporters via speaker phone during a news conference yesterday.

"I feel relieved. It has been nearly three years that I have been
going though this," said Mr. Khan, who was unable to live with his
fiancee for the past two years, a result of strict bail conditions
imposed after his arrest.

Mr. Khan said he has been stopped by Toronto police several times
while driving. "As a black man, there is always the feeling that this
can happen," he said.

Toronto police Chief Julian Fantino has repeatedly dismissed
suggestions that any of his officers engage in racial profiling. A
terse, two-sentence statement released on behalf of Chief Fantino
yesterday said the internal affairs unit will investigate the judge's
findings and he will take "whatever action is appropriate."

The Ontario Court of Appeal ruled last year, in the prosecution of
former Toronto Raptor Dee Brown, that racial profiling by police does
exist in the province. The court ordered a new trial for the former
NBA player who was convicted of impaired driving, after a provincial
court judge refused to hear allegations of racial profiling.

In its ruling, the Court of Appeal was not required to find if Mr.
Brown was the victim of racial profiling, but it set out a test for
judges to use in future cases to determine if there is evidence of
targeting based on race.

Judge Molloy found that the evidence in the Khan case met the test of
racial profiling and described the conduct of Toronto police officers
Glenn Asselin and Craig James as "reprehensible."

The judge said she had "significant difficulties" with the testimony
of the officers, including their suggestion that Mr. Khan appeared to
be driving suspiciously, because he let the police turn first at a
three-way stop, even though he had the right of way.

As well, she questioned the claim by Det. Asselin that he could detect
a strong odour of cocaine "flying out of the car." During the trial,
the judge unsealed the cocaine and said she could not smell anything
until she sniffed directly at the top of the open bag. "It certainly
did not come flying out and it is difficult to believe that even the
most sensitive of human noses would have smelled it to the extent
described by Officer Asselin, given that he was standing outside the
car and the cocaine was lying on the floor of the car inside three
plastic bags, two of which were zipped shut."

Both officers were involved in the arrest of another black man, who
has also alleged that he was a target of racial profiling, in a drug
trafficking trial scheduled to begin next week. The suspect was pulled
over because he gave a "bug-eyed" look to police who were driving in
the opposite direction, according to prior testimony of Asselin.

Morris Pistyner, acting director of the Department of Justice's
prosecution service (Ontario region) said yesterday he is reviewing
Judge Molloy's ruling and it is too early to decide if there will be
an appeal.

Despite Judge Molloy's conclusion that the two officers fabricated
evidence, Mr. Pistyner said "as a matter of principle, we wouldn't
drop other cases (involving the officers) because of a finding of a
lack of credibility in one case." Mr. Pistyner added however, that he
awaits the findings of an internal Toronto police investigation.