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Judge raps police in profiling case

Throws out motorist's drug charge

Chief Fantino takes comments 'very seriously'

A judge has thrown out a drug charge against a young black motorist, finding that two Toronto police officers used racial profiling when they stopped him and later "fabricated" evidence.

"Conduct of this kind by the police is reprehensible. It cannot be condoned or excused," Madam Justice Anne Molloy of the Superior Court of Justice said in her written decision, released yesterday, in the case of Kevin Khan, 29.

"Mr. Khan was targeted for this stop because of racial profiling: because he was a black man with an expensive car."

Saying that Khan deserved to "have his name cleared completely," Molloy wrote that "the evidence is overpowering" that the officers' testimony was "untrue."

John Struthers, Khan's lawyer, called it the first "driving-while-black" case in Canadian history in which a judge has found a motorist was stopped solely because he fit a racial profile.

Khan, who was acquitted by the judge in June, told reporters that he's relieved by her comments.

"Their behaviour and what they did could have resulted with me being in jail," he told reporters via speakerphone, to protect his privacy.

His lawyer went further, saying Khan was worried that if news photographs made him "the face of racial profiling," then "every police officer in the city of Toronto will go, 'Hey, that's the guy.'"

Molloy found that Khan's constitutional rights against unreasonable search and arbitrary detention had been breached by the officers and thus ruled the drug evidence inadmissible.

More than that, Molloy wrote that "I quite simply do not believe the evidence of the officers."

"In fairness to Mr. Khan and in recognition of what he has been through, I think it appropriate to clear his name completely.... He testified he did not know the cocaine was in the car. I believe him."

Toronto police Chief Julian Fantino said in a news release that he has directed the force's professional standards unit to investigate.

"I will take whatever action is appropriate," he said. "I take the judge's findings and comments very seriously."

Glenn Asselin, then a uniformed sergeant, and Craig James, then a constable (but no longer with the force), stopped Khan as he drove along Marlee Ave., near Eglinton Ave. W. and the Allen Expressway, shortly after noon on Monday, Oct. 21, 2001, in his Mercedes-Benz.

Asselin, now a detective in drug enforcement, testified that he had earlier noticed Khan sitting with his hands fixed on the steering wheel, "kind of in a frozen state," staring at the police car.

Asselin testified they saw him nearly collide with parked cars and that, as he drove behind their cruiser, seemed to be looking down at his lap. They became suspicious and felt the need to investigate, they said.

After they stopped him, Asselin testified, Khan didn't comply with their requests to put his hands on the steering wheel and instead fumbled with his right hand in the glove box, while pushing what appeared to be a garbage bag under the driver's seat.

Asselin said he pulled Khan from the vehicle and then detected the obvious strong odour of cocaine coming from the car. He was charged with possession of cocaine for the purpose of trafficking.

Khan, a public schoolteacher, real-estate broker and father of a young girl, testified he had only just picked up the car from his brother, who had had it for the weekend, and that he didn't know the drugs were in the car when he drove off to show a condominium to a prospective buyer.

He later told the court he was driving normally and was pulled over for no reason. He said he was not trying to hide anything and was not fumbling with anything when police approached the vehicle, and that he complied with all of their requests.

"I found Kevin Khan to be a very credible witness," the judge ruled. "His story hangs together and makes sense."

This was in "stark contrast" with the police officers, whose testimony is both inconsistent with the documentary evidence and "defies common sense," the judge said.

"It follows from these conclusions that the officers involved in this case fabricated significant aspects of their evidence," the judge said.

"Why did they single out Mr. Khan on Marlee Ave. at about noon on a Monday in October and decide to search his car? Because he was a young black male driving an expensive Mercedes."

The judge herself had the cocaine brought to the courtroom during the trial, and placed the open bag at her feet. "I could smell nothing," she said.

Allegations of racial profiling by Toronto police were the subject of a series of articles published by the Star in 2002.

The Star obtained the police arrest database, listing more than 480,000 incidents in which an individual was arrested or ticketed, and almost 800,000 criminal and other charges.

The Star's analysis of the data found that blacks charged with simple drug possession were taken to a police station more often than whites facing the same charge.

Once at the station, black suspects were held overnight for a bail hearing at twice the rate of whites.

The data also showed a disproportionate number of black motorists in the database were ticketed for offences that routinely would come to light following a traffic stop. Civil libertarians and criminologists say this pattern points to racial profiling, whether conscious or not.

The Khan case is believed to be Canada's first judicial determination of racial profiling of a motorist - the classic "driving while black."

A 2001 decision by Mr. Justice Brian Trafford found that police had stopped a man who was walking near the Eaton Centre because of his race.

"Stereotypical assumptions, including those concerning young black men and narcotics, have no proper place in a properly conducted investigation," Trafford wrote in his decision. "The inherent worth and dignity of all people, regardless of their race or ethnic origin, must be respected by the police at all times during the investigation of even the most heinous crimes."

University of Windsor law professor David Tanovich, an authority on racial profiling, said he hopes yesterday's ruling will give courage to other judges to make similar findings and encourage lawyers to raise the argument every time they are representing a visible minority in a similar case.

A spokesperson for the federal justice department, which prosecuted the case against Khan, said it is still studying the ruling and has not made any decision on whether to appeal.

Native quality of life low priority: poll

REGINA -- Most Canadians do not consider improving the quality of life of aboriginal Canadians to be a high priority for the federal government, according to national opinion poll results released Monday in Regina.

Less than a third of Canadians (29 per cent) surveyed in the poll, which was conducted on behalf of the Centre for Research and Information on Canada (CRIC), a program of the Canadian Unity Council, thought that improving the quality of life for aboriginal people should be a high priority.

"We asked people to rate how strongly they feel about a number of items that should be a priority for the federal government, and improving the quality of life for aboriginal peoples came second last in a list of 14. The highest ones were the environment, federal-provincial relations and health care. Seeing it so low in the list tied with increasing military spending was a disappointing result for us," Leslie Seidle, senior researcher with CRIC, told reporters.

"It is hard to know why it is. Obviously, there are a lot of priorities for the government at the moment. Speaking for the council, I think it is partly based on a lack of information and understanding. People need to know more about some of the socio-economic indicators for aboriginal peoples that reveal significant gaps between many aboriginal people and other Canadians," he said.

Seidle, who was speaking at a Canadian Unity Council luncheon in Regina, released the aboriginal component of the Portraits of Canada 2004, a poll of 3,200 Canadians conducted by CROP and Environics Research Group on behalf of CRIC. The survey, which was conducted in September, has a margin of error of plus or minus 1.7 per cent, 19 times out of 20.

Younger people, aged 18 to 34, are least likely to rate improving the quality of life of aboriginal Canadians as a high priority, according to the poll results. And almost one out of two Canadians think that the situation of aboriginal Canadians is about the same or better than that of other Canadians, and there is a growing segment of the population that believe relations between aboriginal peoples and other Canadians are improving. In 2000, Seidle said, 31 per cent of Canadians thought relations were deteriorating, while this year that number has dropped to 19 per cent.

"As you go up the educational scale, people treat that issue (the need to improve the quality of life for aboriginals) as a higher priority. We were surprised and I would say disappointed about the result for the youngest age group -- 18 to 34 year-olds. In other surveys those Canadians are usually seen to be somewhat more tolerant and somewhat more supportive of diversity than other Canadians," Seidle said, explaining it shows a need for more education and more information.

"CRIC will continue its activities to broaden public understanding of aboriginal issues and to encourage dialogue between aboriginal and non-aboriginal Canadians," Seidle said.

Other findings in the survey, which were released earlier this month, include an increasing confidence levels in our political leaders, which is the highest point since 1998 and a 13 per cent increase from last year in the proportion of Canadians who think federal-provincial relations are functioning well.