Racial profiling argument fails to sway Ontario Court of Appeal

Law360 Canada (March 6, 2025, 10:57 AM EST) --

John L. Hill

The advice offered by Chicago poet and journalist Carl Sandburg to young lawyers is that if the facts are against you, argue the law. If the law is against you, argue the facts. Sandburg’s admonition seems to underlie the defence of Amirhosein Alipourobati who appealed his convictions for offences related to unlawful possession of firearms discovered during a traffic stop.

Facts surrounding Alipourobati’s arrest were not in dispute. An agreed statement of facts that substantiated all the elements of the firearms offences was filed at trial. It was admitted that on June 27, 2019, South Simcoe Police Service Officer Rob Griffen was conducting traffic enforcement before the Canada Day long weekend. The local citizenry was demanding action against drivers from Greater Toronto who sped through rural West Gwillimbury roads seeking a shortcut between Lake Simcoe and Highway 400.

The posted speed on the section of highway Officer Griffen observed was 50 kilometres per hour. It was unusual to spot a white Mercedes-Benz travelling at between 40 and 45 kilometres per hour. The police constable suspected the driver may be impaired or trying to conceal something. A male driver was pulled over. The vehicle licence registration was in the name of a female. As he approached the car, the officer smelled marijuana. While observing the interior, he spotted flakes of what he suspected was cannabis. An open case of Molson beer was in the back seat. The driver, Alipourobati, could not produce ownership and insurance but did have an Ontario Health card. The police found that the 22-year-old driver had been issued a G1 licence that required accompaniment by a qualified driver and did not allow him to drive when he had any drugs or alcohol in his system.

Officer Griffen sent for another cruiser to deliver an oral fluid screening device. Alipourobati’s passenger, Noel Bailey, had a G2 licence which meant he was not qualified to accompany Alipourobati as the driver.

Once the drug screening device arrived, a test resulted in Alipourobati being five times over the legal limit for THC. A search of the vehicle uncovered a loaded handgun in a satchel between the passenger and driver’s seat. Both Alipourobati and Bailey were arrested.

With those facts admitted at trial, what could stand as a defence? It was time to argue the law. Alipourobati claimed that the stop was illegal and the product of racial profiling. The police had no legal right to conduct the vehicle search or provide Alipourobati with the opportunity to consult with counsel without delay. He also objected that the videos, radio communication, and keystroke movements relating to his arrest should have been kept and disclosed.

This last point was successful at trial. The trial judge found that the South Simcoe Police's practice of erasing video and radio communications before the expiry of the Jordan timelines was unreasonable (R. v. Jordan, 2016 SCC 27).

However, he was unsuccessful in claiming that Charter s. 9 was violated in that the traffic stop was illegal and occurred only because Alipourobati and his passenger were racialized men. At trial it could not be proven that the police officer’s conscious or unconscious attitudes were racist as required by the Supreme Court ruling in R. v. Le, 2019 SCC 34. The trial court accepted the officer’s evidence that the stop was made because there is sometimes an illegal motive behind slow driving. The police also had a lawful basis to obtain the oral fluid and search the cabin of the car. Cannabis was readily observable, and s. 12(3) of the Cannabis Control Act permits a warrantless search.

On appeal of his conviction and sentence, the Ontario Court of Appeal found no fault in the trial judge’s decision (R. v. Alipourobati, 2025 ONCA 64). The Appeal Court held there was no basis on this record for the argument that any of the investigative steps undertaken following the traffic stop, including those relating to passenger Bailey, disclose racial bias.

Although there was a 26-minute delay in advising the detainee of his rights, the s. 10(b) Charter was modest. Following the guidance provided in R. v. Grant, 2009 SCC 32, the exclusion of the gun would bring the administration of justice into disrepute. The trial judge did not err in concluding under s. 24(2) of the Charter that the Crown would be permitted to enter the evidence found.

The appeal was dismissed. When you cannot argue either the facts or law, perhaps Sandburg was right. All that’s left to do is bang the table.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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