A Black man driving a fancy car is pulled over for speeding on the Don Valley Parkway in the early morning hours after a Halloween party. The arresting officer runs a licence plate check to see if the car is stolen before pulling the driver over, and prepares a second set of notes about the stop. The man is charged with impaired driving after failing a breathalyzer test.
At a subsequent trial, the judge called the man’s racial-profiling claims “conversation stoppers” and suggests he apologize for such allegations against the officer. The man is convicted, fined $2,000 and banned from driving in Canada, a decision that is eventually overturned thanks to a “landmark” ruling by the Ontario Court of Appeal that acknowledges some police officers target racial minorities out of a belief that they are more likely to commit crimes.
Twenty years later, another Black man is making his way onto a basketball court in Oakland, Calif, where the team he runs is celebrating its first NBA championship. As he goes to pull out the credential that allows him access to the court, he is shoved twice by an on-duty sheriff’s officer. The man shoves back.
The sheriff’s office recommends criminal charges be laid. When the district attorney’s office decides against it, the officer files a federal lawsuit against the man, seeking damages. The man makes it clear he believes the incident occurred because he is Black. The sheriff’s deputy claims those are false allegations of “racial animus and prejudicial bias.”
Nearly two decades elapsed between the Nov. 1, 1999 night when a police officer stopped former Raptors guard Dee Brown in Toronto and the June 13, 2019 night when current Raptors president and CEO Masai Ujiri was involved in an altercation with Alameda County Sheriff’s deputy Alan Strickland. Local legal experts believe the similarities between the two cases, namely the allegations of racial profiling, highlight how little progress has been made in the fight against anti-Black racism.
“It does not appear much has changed,” said defence lawyer Emily Lam, co-founder of The Sentencing and Parole Project, which provides enhanced pre-sentence reports for Black people going through the criminal justice system to fight the overrepresentation of Black inmates in Canadian jails.
“In light of recent events in Canada and the United States, there clearly is still a need to radically transform policing in North America and to end violence by the police against (Black, Indigenous or people of colour’s) communities.”
Steven Skurka represented Brown in what he calls a “climb up an icy hill” after Brown was charged with impaired driving in 1999 in Toronto. Brown’s initial conviction was set aside in January 2002 by Justice Brian Trafford of the Superior Court of Justice, because he found the conduct of the trial judge, Justice David Fairgrieve, would leave a reasonable person with the impression he had closed his mind to Brown’s contention that he was pulled over simply for being a Black man driving an expensive car — in his case a new Ford Expedition.
The crown appealed that ruling, though Crown attorney James Stewart was lauded for conceding that racial profiling does exist when appealing the ruling. In April 2003, the Ontario Court of Appeal upheld the lower court’s decision to overturn Brown’s original conviction in a 3-0 ruling, saying there was “significant” evidence racial profiling happens and that it was potentially behind the police officer’s decision to pull Brown over. In doing so, the Court of Appeal became the first appellate court in Canada to tackle racial profiling head-on.
“The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping,” the decision, written by Justice John Morden, read in part.
The question in the Brown case was whether the police office had articulable cause for the stop, meaning the grounds for stopping Brown that were reasonable and could be clearly expressed, Morden wrote. Stopping a person based on the colour of his or her skin is improper, he wrote.
“A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.”
What is so crucial about that “groundbreaking” ruling, one advocates hoped was a “watershed moment,” is that is provides a “realistic road map to demonstrate racial profiling,” said Skurka, who sees a “direct trajectory” that goes from Brown’s to Ujiri’s situation.
“He was stopped. If he had proper ID, he was acting properly, and he’s a Black man, then we can infer it’s racial profiling,” Skurka said. “And Masai Ujiri can look to the Dee Brown case, to three-point Dee, to the former Toronto Raptor and say, ‘That’s the law in the highest court in the province of Ontario supporting my decision.’ ”
At the time, Brown, who is now the general manager for the Agua Caliente Clippers of Ontario, the NBA G League Affiliate of the Los Angeles Clippers, said he didn’t believe he was treated fairly during the trial but was glad the Canadian justice system recognized his concerns.
“We’re not judging the entire Toronto police force, but these incidents happen in Canada and people better wake up and realize it soon,” he said in April 2003.
Lam worries that hasn’t happened, pointing to a recent report by the Ontario Human Rights Commission that found Black people are more likely than others to be arrested, charged, overcharged, struck, shot or killed by Toronto Police.
“Black people are disproportionately targeted and subjected to, I would say, unconstitutional interactions with the police,” she said. “It has to change. The time is now. I think we all know the things, the question is what are we going to do about it?”
Lam commends Brown and Ujiri for using their resources to push back against racial profiling and holding police accountable. Oftentimes in criminal cases Black defendants don’t have the ability, especially if they don’t have the resources of a professional basketball player or executive, to pursue or leave every stone unturned. And marginalized communities likely experience negative interactions with police in much greater in numbers than Brown or Ujiri.
“(Ujiri) using his privilege to highlight that anti-Black racism, racism occurs to people regardless of status is important and using his position of power to hold police accountable is something that’s needed,” Lam said. “If we want change I think this is one step, and an important step, to try to get that change that we want.”
Lam said Strickland, who sued Ujiri after alleging he was thrown back “several feet” by the Raptors president’s blows and suffered serious injuries to his body and neck that resulted in “permanent disability,” may be thinking about a settlement, which she hopes vindicates Ujiri and “addresses the clear need, I think in this case, for change in the police department.”
The unfortunate reality is that as a Black man, Ujiri probably knew that a version of what happened to him that night could happen at any time in any interaction in any place, Lam said.
“It’s really a tragedy that it had to happen that night but I would imagine Masai has probably prepared his entire life that this may happen not once but a few times,” she said.
Skurka said both Brown and Ujiri acted with “dignified courage” by pursuing their cases. Brown, an American, didn’t need a driver’s licence in Canada, nor was $2,000 an insurmountable fine for a professional athlete. But after he was an innocent victim in a previous incident in a wealthy, mostly white suburb of Boston in 1990, when he was forced from a car by police and ordered to lie on the ground at gunpoint in a case of mistaken identity, he wasn’t going to just “move on” twice, Skurka said.
Ujiri and Brown stood up for important issues of principles, Skurka said, for themselves and for the other men and women who, then and now, face similar injustices.
“When I fought this fight, believe me, I thought of a parent in a car with two children, I didn’t think of an NBA player. I thought of the Black man being stopped with his two young children and being asked, ‘Daddy, why are we always being stopped by the police?’” Skurka said. “That’s what motivated me.”