OPP in Leamington racially profiled Black man facing drug offences, judge rules in acquitting him

A man arrested for drug offences was racially profiled by Ontario Provincial Police in Leamington, a Superior Court judge has ruled, deeming the evidence against him inadmissible as a result.

Justice Martha A. Cook acquitted the man on one of the charges after Crown prosecutors withdrew the second. 

“This is not a close case,” Cook wrote in the decision released in December.

“The case law is consistent and clear … Anti-Black bias, whether implicit or otherwise, must be denounced as anathema to the rule of law and the integrity of our justice system.”

The case dates back to December 2020, when OPP officers Melodie Gratton and Mitchell Smithson tailed a black BMW for several minutes and followed it into the parking lot of a 7-Eleven, according to court documents.

CBC is not naming the driver because there are no outstanding charges against him. 

No reasonable grounds to detain driver: ruling

The ruling noted that according to the officers, the driver got out of his car and started walking toward the store, and they stopped him so they could conduct a sobriety check under the Highway Traffic Act. 

While asking the driver for his licence, vehicle registration and proof of insurance, police said, they noticed what they believed to be cannabis in the car.

They then cited the Cannabis Control Act as grounds to search both the driver and the vehicle, ultimately discovering substances they believed to be crack cocaine, powdered cocaine and oxycodone. 

The driver and passenger were both charged with possession of a Schedule 1 substance for the purpose of trafficking.

But Cook said officers had no authority to detain the driver under the Highway Traffic Act because he was parked in a privately owned parking lot at the time.

What’s more, she said, they had no right to use their common-law powers to detain people suspected of crimes because they had no reason to suspect the driver was impaired. 

“PC Gratton did not observe any problems with how the driver was walking,” Cook wrote.

“She did not smell any alcohol on the driver’s breath while she was speaking to him. He did not have glassy eyes.”

The officers claimed they had followed the BMW because it was travelling slowly, but they did not document the car’s speed, the judge added. 

Without any reasonable basis for suspecting the driver had committed a crime, the OPP officers’ actions violated his constitutional rights to be free from arbitrary detention, Cook said.

She dismissed as uncredible one officer’s claim that she asked the driver for his licence in order to check his motor skills.

Cook outlined several differences between the treatment of the Black driver and the treatment of his white passenger to help reach her conclusion of racial prejudice, saying the officers:

• Prioritized searching the driver over the passenger.
• Did not know where the passenger was during much of the stop, despite their stated concern about safety.
• Requested assistance with a male in custody but never mentioned the female passenger.
• Only arrested the passenger after the officer who joined them at the scene told them to do so. 

“Having carefully considered all of the circumstances, I find that racial stereotypes about Black criminality and dangerousness informed how the officers treated [the driver] at each step of their interaction with him,” the judge wrote.

Police had no reasonable grounds to arrest the driver, she said, because the evidence used to justify the arrest was seized as a result of an unlawful detention.

OPP maintains ‘highest standard of professionalism’

The Crown denied that any of the stop, detention or search of the man were tainted by racial profiling or infringed on his Charter rights.

CBC attempted to get comment from the officers via OPP and did not receive a response. 

A spokesperson for the OPP told CBC it is reviewing the decision and “does not condone any form of profiling which contravenes the Ontario Human Rights Code or the Charter of Rights.”

“We remain committed to upholding the trust and confidence of the communities we serve,” the spokesperson said in a statement.

“We will continue to strive to maintain the highest standard of professionalism, compassion and respect serving the province of Ontario.”

The lawyer for the man in the Cook decision said it’s “the right ruling,” and praised the judgment as being well reasoned and factually driven. 

“What I hope is that this is a learning opportunity and that all of our law enforcement, not just the OPP, have an opportunity to really assess why they’re doing what they’re doing,” Patricia Brown said.

“You should not feel that you can’t drive down the street in a nice car … without being stopped by a police officer … It sounds like it’s something that we shouldn’t be having a conversation about in 2025, but unfortunately we still are.”

Brown’s client told CBC, via a text from the lawyer, that he is trying to get his life back together after being unfairly targeted by officers who were supposed to serve and protect him, and having to go into debt to pay for his defence. 

Expert says case an serve as learning opportunity

Danardo Jones, an associate professor of law at the University of Windsor, studies criminal procedure, and race and the law. 

He said it’s about time the courts held police accountable for racial profiling because too often, they rule in favour of the officers. 

“Where a judge says, ‘Hey, it’s not even close. This was clearly racial profiling,’ [that] tells you that this officer clearly did something that was very, very blatant,” Jones said. 

He said the case will likely garner a lot of interest from academics and could provide a teaching opportunity for police officers and those involved in the legal system.

“This case, on the facts, is pretty clear cut,” he said, “But I wonder how many clear-cut cases have been missed because perhaps there is a certain amount of grace that’s given to police officers, or maybe because defence counsel is ill equipped to make the arguments.”

There have been efforts to provide professional development for lawyers on topics such as cultural competency and institutional bias, which could help them defend clients facing these cases, Jones said, but it’s not clear whether they have been effective.

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.