POLICE USED PROFILING, COURT RULES

'Driving While Black'

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

In a landmark judgment released yesterday, Justice Anne Molloy found
that two Toronto police officers stopped and 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 on 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 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 schoolteacher who
refurbishes and resells 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
fiance 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."

Judge Molloy found that the evidence of Mr. Khan 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 Mr. 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 he was a target of racial profiling, in a drug
trafficking trial scheduled to begin next week.