Canada, Minority Issues, Racism

The View From Up North: Driving While Black

Does getting one gun off the street justify that police are three times more likely to stop blacks than whites in Toronto?

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Ontario’s highest court has agreed to hear the appeal of Richard Steele. He was convicted in 2010 of concealing a loaded weapon under the front seat of his mother’s car.

In the fall of 2007, Richard was driving around Hamilton in the middle of the night with a few friends. Three of the car’s occupants (including Richard) were black. The other gentleman was Asian. The car was pulled over by Officer Yvonne Stephens, a veteran of the Hamilton Police Service.

The driver of the car, Akili White, couldn’t find all the vehicle documents required by the officer. Stephens had backup officers remove Richard and the backseat passengers so she could assist Akili to find the insurance and ownership papers. While helping look for the papers, she spotted a gun in plain view under the front passenger seat — the seat Richard had been sitting in.

Stuff, as they say, got real in a hurry. All four occupants were arrested and charged with a variety of firearms offenses. Pat on the back for Officer Stephens. Routine traffic stop; gun off the street.

Richard brought an application during his trial to have the search deemed illegal and to have the gun evidence thrown out as a result. His defense? Driving While Black (DWB). He claimed the only reason Officer Stephens pulled them over was because they were minorities driving around in the middle of the night.

Officer Stephens denied the allegation. Justice Harris agreed. He found no evidence to support Richard’s argument that the traffic stop was racially motivated. Now the Court of Appeal will review the ruling to see if Justice Harris got it right.

Here’s the most interesting part of the whole story — it doesn’t matter (other than to Richard Steele). The Highway Traffic Act permits random stops to check the sobriety of any driver and to ensure valid licensing, registration, and proper mechanical fitness of the vehicle. The Supreme Court has ruled random stops are permissible even where the police do not suspect the driver is acting illegally.

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Here’s a story by the Toronto Star that says police are three times more likely to stop blacks than whites in Toronto. Not point-five times, not one-point-two times, but three times. This story highlights the practice of “carding,” which is the police practice of stopping a person, asking his/her name, and filling out information about him/her on a card. I’m no statistical genius, but it sounds to me like police are non-randomly targeting blacks.

Whether the Court of Appeal ultimately reverses Richard’s conviction or not won’t change the fact police lavish more attention on minorities than whites. With respect to DWB, Section 216(1) of the Highway Traffic Act is a get-out-of-jail-free card for police. Police can pull someone over for DWB anytime under the authority of that section. When challenged, no cop is ever going to say, “Yes, Your Honor, I pulled the driver over solely because he was a black man driving at night.”

Not going to happen.

The Supreme Court in Ladouceur affirmed the constitutionality of Section 216(1) of the HTA by noting random stops are the only effective method available to prevent suspended or unlicensed drivers from driving. Honestly, that’s the Supreme Court’s justification for allowing the police to stop any driver, at any time — the driver might be zipping to the Kwik-E-Mart with a suspended license.

The SCC says if police can’t randomly pull people over, there is no deterrent to driving while suspended. I didn’t realize driving while suspended is such an epidemic in Ontario, and so dangerous to the public, that police need the extraordinary power of being able to pull over any driver, any time, to check for a valid license.

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Of course, that means police have an excuse to pull over any black person, any time. Black university professor driving home from a late night course? “Good evening, sir, just checking to make sure you’re not a criminal your license is valid.”

The one thing that will make a dent in DWB is to rescind Section 216(1) of the HTA and require police to have an actual reason to pull someone over. Like you were speeding, or you rolled a stop sign.

Wait, is that crazy? Actually requiring the police to see you do something illegal or suspicious (like weaving) before flashing the red lights?

Yeah, but Officer Stephens got a gun off the street.

Yes, she did. I’m happy about that. But, at what cost? It would be really interesting to know how many times “random” stops of minorities result in gun charges versus how many times the person being detained is a university professor, or a mom, or a factory worker going about his/her lawful business?

Does getting one gun off the street justify that police are three times more likely to stop blacks than whites in Toronto? Does it justify making minorities feel like non-citizens because of the color of their skin? Is that what our society is about? Not in my mind. The last time I checked, the Charter of Rights and Freedoms protects Canadians even with non-lily skin tones.

Unfortunately, Section 216(1) does the opposite. It actually harms a significant section of our citizens.

If we desperately need to deter driving while suspended, dump Section 216(1) and create a RIDE-like program whereby officers set up a random blockade and check everybody’s license and registration as they go through the blockade. Because you can’t honestly tell me the fact police can randomly stop people is a real deterrent to suspended drivers. If you do, here’s the thing: I’m a lawyer and I didn’t even realize the police could pull me over at any time, without cause, until I started writing this column. If I don’t understand police powers, you can’t tell me the general population understands them and is, thus, deterred.

It’s a BS law that allows the police to overreach without any real benefit. If we rescind Section 216(1), Ontario society won’t descend into chaos. Human sacrifice. Dogs and cats living together. Mass hysteria. No, we’ll be just fine without Section 216(1). The police will be able to protect society just as well by dealing only with those people who are actually doing something wrong (other than DWB).

R. v. Steele might mean a lot to Richard Steele, but even if the Court of Appeal finds the traffic stop was racially motivated, it ain’t going to make one bit of difference to a black professor driving home late at night when a cop eases in behind him.

There’s the flashing lights.

Here we go again.

My advice, Professor — roll down the window, place your hands on the steering wheel, and don’t make any sudden moves.

That’s the View from Up North. Have a great week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Keybridge Legal Recruiting, a boutique recruitment firm that places lawyers in law firms and in-house roles throughout North America. You can contact Steve at steve@keybridgerecruiting.com. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@IMRecruitR), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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