An Ontario Superior Court judge who made what is believed to be the first explicit finding by a court of police engaging in racial profiling has acquitted a Toronto real estate broker of possession of cocaine for the purpose of trafficking.

Justice Anne Molloy ruled that two Toronto police officers violated the ss. 8 and 9 Charter rights of Kevin Khan when they stopped his car on a residential street on October 22, 2001 .

A kilogram of cocaine was eventually discovered by the officers, wrapped inside three plastic bags inside the silver Mercedes owned by Khan, 29, a real estate broker and university graduate without a criminal record.

The two officers testified at a six-day hearing earlier this year that they became suspicious of Khan because he let police turn first at a three-way stop, even though he had the right of way. They said they believed Khan did not want to go ahead because it would be easier for police to run a check on his licence plate.

“Even if there had been some minor thing about his driving, I do not believe that was the real reason he was stopped,” the judge said. “The police stopped him for an improper purpose. Mr. Khan was targeted for this stop because of racial profiling; because he was a black man with an expensive car.”

Finding the conduct of the officers “reprehensible,” Justice Molloy said they “fabricated significant aspects of their evidence,” to justify the stop.

She said cell phone and computer records of the Canadian Police Information Centre (CPIC) back up the chronology of events in the defendant’s testimony.

“The Crown fairly conceded that if there was a finding of racial profiling, it would not be appropriate to admit the evidence of the cocaine under s. 24(2) of the Charter. I agree entirely,” said Justice Molloy.

The judge added that while it was not necessary for her to consider whether the charge could be proven if the evidence were not excluded, “in fairness to Mr. Khan and in recognition of what he has been through, I think it appropriate to clear his name completely.”

Khan testified that the Mercedes was not in his possession for two days prior to the incident and he had been in the car for about half an hour before he was stopped by police. “I find as a fact that the cocaine was not his and he did not know it was in the car,” said Justice Molloy.

“It takes great courage for a judge to say police are not telling the truth,” said John Struthers, who represented Khan. The Toronto lawyer, who has successfully defended a number of other black defendants in high-profile cases, sees the potential impact of the ruling as “immense.”

“There are hundreds, if not thousands of black men, who you don’t meet [because they were not charged], who have been stopped unfairly by Toronto police,” he said, adding that he could not find any other reported case where a judge ruled that police had engaged in racial profiling. “This the first ‘driving while black’ finding in Canadian history.”

At the same time, he stressed that Justice Molloy’s ruling “is not radical at all,” but an application of principles set out by the Ontario Court of Appeal in R v. Brown, 64 O.R. (3d) 161.

Justice Molloy referred to the racial-profiling test set out in Brown and noted that the appeal court explained that the phenomenon will “rarely be proven by direct evidence.”

Instead, it could be proven by circumstantial evidence where “the circumstances relating to the detention correspond to the phenomenon of racial profiling (as is the case here),” wrote Justice Molloy.

She added that racial profiling may also be proven if it can be shown that “the officer in question had acted in a similar manner in the past or on evidence of bias.”

Toronto Police chief Julian Fantino has repeatedly denied that his officers engage in racial profiling. However, he ordered the Toronto Police professional standards unit to investigate the conduct of the two officers as a result of the findings of Justice Molloy.

Reasons: R. v. Khan, [2004] O.J. No. 3819.