A Black man has been acquitted of drug and firearm-related charges after crucial evidence was thrown out as two Hamilton police officers were found to have racially profiled him and violated his Charter rights during a traffic stop in 2022.
The officers stopped Mustafa Elawad on July 5, 2022, testifying that it was because the plates on his Volkswagen (VW) were obstructed. According to the court, during the stop, the officers asked for Elawad’s keys, which prompted him to run away. Police later towed the vehicle and searched it, finding drugs and a loaded handgun.
Elawad was arrested and charged with drug and firearm-related offences as a result. He pleaded not guilty to the charges.
He asked the court to exclude the evidence taken during a search of his vehicle, claiming that he was stopped because he was a Black man and police did not properly inform him of the reason for the stop or the subsequent investigation. Elawad stated that he was also not provided his right to counsel.
On Tuesday, Justice Michael Bordin threw out the evidence, which he found was unlawfully obtained, and said admitting them would bring the administration of justice into disrepute.
“The justice system must dissociate itself from conscious racial profiling and cumulative breaches of Charter rights. Society’s interest in the adjudication on the merits of this case must yield to the important long-term interests served by excluding the evidence,” Bordin wrote in his decision.
The two officers, Constables Rennie and Raza, testified that they stopped Elawad due to the obstructed plates, a violation under the Highway Traffic Act, and claimed that they did not see the driver when it passed them.
“I do not accept that the officers observed the VW’s front plates to be obstructed and have very serious doubts that the officers observed the VW’s rear plates at all, or that they observed them to be obstructed when the VW drove past the cruiser,” Bordin stated in his judgment.
“Regardless of whether the officers saw the plates of the vehicle, I am persuaded that they engaged in racial profiling and that Mr. Elawad was stopped because of the colour of his skin.”
Bordin stated that the traffic stop violated Elawad’s right not to be arbitrarily detained.
After Elawad was stopped, the officers asked for his licence and inquired if he owned the Volkswagen. Elawad informed them that it was a rental.
Const. Rennie told the court that she asked for the rental agreement because she had concerns about who the vehicle belonged to. She testified that she thought the VW was stolen, which she did not tell Elawad.
Shortly after, the officers asked for the vehicle’s keys. Elawad said they told him that they were going to search the car, which the officers disputed.
Elawad testified that Const. Raza reached for or tried to grab his arm when he asked for the keys. The officer denied it.
Elawad then ran away, prompting the two officers to chase him. They were not able to catch him, so they returned to their cruiser. His vehicle was later towed, and the officers conducted a search, resulting in them finding a green rock substance and a loaded firearm. Elawad denied that the drugs and gun were his.
The officers later testified that they demanded the keys “for officer safety and to protect the public.”
“PC Rennie testified that she wanted to prevent Mr. Elawad from getting into the car and taking off, and striking the cruiser, or her partner, or other members of the public. She formed this belief because of Mr. Elawad’s behaviour. PC Raza gave similar evidence.”
Bordin found that the police did not meet the lower standard of reasonable suspicion.
“I find that in the totality of the circumstances, up until the time the officers requested the keys from Mr. Elawad, they could not have had a subjective reasonable suspicion of a threat to officer or police safety, and even if they did, it was informed by racial profiling,” Bordin wrote in his decision.
“There is no evidence that the police believed that there was a weapon in the car. The police had no objective evidence that Mr. Elawad was dangerous.”
The officers testified that because Elawad fled, they considered the vehicle abandoned and that they had authority to search it.
However, Bordin ruled that the Volkswagen was not abandoned.
“It was not until the unlawful demand was made for his keys that Mr. Elawad ran. Running from the police was a direct response to the unlawful demand by the police for his keys. In running from the police with the keys, Mr. Elawad asserted his privacy and control over the vehicle. The police cannot rely on Mr. Elawad’s flight to assert a basis for the vehicle being abandoned and searched given his flight was in response to an unlawful detention and seizure,” Bordin stated in his decision.
“I find that the vehicle was not abandoned by Mr. Elawad.”
Thus, Bordin ruled that the search of the vehicle was unlawful and breached Elawad’s Charter rights that protect the public from unreasonable searches and seizures.
“The Charter breaches were very serious. The police engaged in racial profiling,” Bordin stated, noting that Const. Rennie “consciously” did so.
“The discovery of the gun and the drugs flowed from an unlawful traffic stop informed by racial profiling. That stop lead to an ongoing detention of the accused in breach of (section 9 of the Charter). The police then relied on Mr. Elawad’s alleged behaviour during his unlawful detention to unlawfully demand his keys and control of the VW. This led to Mr. Elawad fleeing and the police asserting the vehicle was abandoned as a result, which led to its search and the discovery of the evidence.”
While the offences were serious given the nature of the drugs and firearm found, Bordin said admitting them as evidence “would send a message to the public that Charter rights are of little actual avail to the citizen.”
As a result, Bordin agreed to exclude the drugs and gun as evidence. And without the evidence, the case against Elawad collapsed, and he was cleared of the charges.
Hamilton police refers decision to Professional Standards for review
On Wednesday, Hamilton police released a statement acknowledging the court’s decision.
“We take this matter seriously and have referred the decision to our Professional Standards Branch for review,” the statement read.
Hamilton police noted that since the incident, it has implemented enhanced training on Charter rights and unconscious bias, launched a race and identity-based strategy and introduced in-car and body-worn cameras to strengthen public trust.
“We recognize the impact of these decisions on our community and remain committed to ensuring fair and impartial policing in Hamilton,” police said.
