Ruling Curbs Police Profiling

SEARCH OF CAR CONTAINING 22 POUNDS OF POT VIOLATED CHARTER

Decision Reveals High Number of False-Positives in Practice

Police cannot detain someone simply because they fit the so-called
"profile" of a drug courier, the Ontario Court of Appeal has ruled.

In a 2-1 decision yesterday, the province's highest court acquitted
two men who were charged with possessing a narcotic for the purpose of
trafficking after Ontario Provincial Police officers stopped their car
and found more than 22 pounds of marijuana.

The officers, who relied on a drug courier "profile" as their reason
for searching the car, had no reasonable basis to suspect the men
might be involved in criminal activity and violated their Charter
right against arbitrary detention, the court said.

Ponce Calderon and Michael Stalas were pulled over on a lonely stretch
of the Trans Canada Highway, near Nipigon, Ont. at 3 a.m. on Sept 22,
2000. While ostensibly stopped for driving 10 kilometres over the
speed limit, they were quickly suspected of being drug couriers when
the officers compared what they saw inside the car with what they
learned on an "interdiction" course on how to spot someone running
drugs.

The so-called "indicators" included the presence of fast-food
wrappers, a big car with lots of trunk room and licence plates
indicating the vehicle is a rental, the court was told.

Calderon and Stalas were inside a Lincoln Town Car with British
Columbia plates. Police also found a road map, plane tickets and
duffel bag, with cell phones and pagers inside.

One officer testified that after seeing the items and forming the
conclusion the car seemed "too expensive" for the people inside to be
driving, he was led to "reasonably suspect" the two men were
transporting drugs.

But the same officer admitted the benchmarks he relied on were
"neutral" and might be found in any car, said Mr. Justice John Laskin,
who wrote yesterday's majority decision.

"In the world we now live in, that is not a surprising admission --
fast food, duffel bags, a road map, cell phones, even pagers now form
part of many people's lives," said Laskin, who was also writing on
behalf of Madam Justice Kathryn Feldman. What's more, he noted, the
officer conceded that since he came back from his training course, he
had used the indicators to stop as many as 20 cars and made no
arrests. His partner, who took the same course, used the profiling
technique to stop between 50 and 100 cars and also made no arrests.

The indicators amount to little more than "hunches" and the men's
entire detention was unjustified, Laskin said.

David Tanovich, a University of Windsor law professor, said
yesterday's decision is an important curb on police powers and also
provides "important protection against racial profiling in this country."

Police can use the drug courier "profile" as a shield to mask the fact
they are also relying on racial stereotypes to detain suspects, he
said.

The training program and profiling techniques were introduced to
Canada in 1994 by an RCMP officer, Tanovich said.

Yesterday's decision "is also important because it reveals how many
false positives are registered by profiling practices," Tanovich added.

A similar phenomenon is happening at Canadian airports, where customs
officials rely on drug importer profiles. The courts have not been as
critical about their use at airports, although the evidence indicates
they are just as unreliable, Tanovich added.

Customs data produced at a recent drug trial in Brampton showed that
in a 26-month period, from 2001-2003, 495 people were detained on
suspicion of smuggling drugs and forced into an airport area known as
the "super loo," to produce a bowel movement. Drugs were found in only
87 cases.

In a dissenting judgment yesterday, Madam Justice Karen Weiler said
the officers had reasonable grounds for detaining Calderon and Stalas,
but their detention became unconstitutional when police proceeded to
search the car without advising them of their right to counsel.

Besides the "indicators," police had reasonable grounds to arrest the
men after one officer smelled what he described as "fresh" marijuana,
Weiler said.

But Laskin called that evidence "unreliable."

The officer had "a mere one-hour course" in marijuana in 1994 and had
"neither expertise nor experience in detecting its odours, much less
in distinguishing between a substance recently removed from the car
and one still in the car," he said. Moreover, the officer's partner
reported no such smell, he added.

Weiler agreed with the trial judge, Mr. Justice Stanley Kurisko, that
the results of the search -- the marijuana -- shouldn't be excluded
from the evidence, even if the two men's rights were breached. But
Laskin said it was the only remedy, since police violated the men's
Charter rights in ways that were too serious to ignore.

During the appeal hearing, the crown admitted the officers violated
the men's Charter protections against unreasonable search and seizure
and their right to counsel.