Hamilton Chief of Police Frank Bergen has referred a Superior Court ruling to the police service’s professional standards branch following the Court ruling police racially profiled a Black man.
Justice Michael Bordin ruled that two Hamilton police officers racially profiled a Black man during a vehicle stop on July 5, 2022.
Justice Bordin found Constables Rennie and Raza radically profiled Mustafa Elawad when they decided to conduct a traffic stop and detained him.
The racial profiling, combined with further Charter breaches, means the “court must dissociate itself” from the conduct and exclude the evidence that resulted from the detention and eventual search of the vehicle Elawad’s was operating.
“Admitting evidence obtained as a result of racial profiling in these circumstances would bring the administration of justice into disrepute.”
“The police conduct falls at the very serious end of the continuum. The cumulative impact of the numerous Charter breaches pulls very strongly in favour of exclusion of the gun and drugs.”
Due to the exclusion of the seized drugs and loaded firearm, Elawad was acquitted of all charges.
Judge Rules No Grounds for Vehicle Stop
Justice Bordin ruled there were no legal grounds when police began the traffic stop, which began the chain of events leading to criminal charges against Elawad.
“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 wrote in his decision.
“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,” the ruling states.
“Mr. Elawad was stopped because of racial stereotypes related to propensity to offend.”
Police Officers Not Credible
Justice Bordin writes Constable “Rennie was not credible.”
“She gave evidence that was contrary to her notes and her evidence at the preliminary inquiry. She gave implausible and at times incredulous answers … PC Rennie was evasive, argumentative and combative. She repeatedly refused to answer questions directly. She had to be asked the same questions multiple times to elicit a direct answer. She repeatedly answered questions by giving the ambiguous answer ‘ok’ and had to be asked repeatedly to give the actual answer, which was ‘yes'”
The Justice also found Constable “Raza’s evidence was at times not credible, evasive, and internally inconsistent … PC Raza has a troubling lack of notes for important aspects of the interaction with Mr. Elawad. All of this undermined the reliability of his evidence.”
Justice Bordin noted that the constables, who were in the same police cruiser when they decided to conduct the stop, significantly differed in their accounts of events.
“PC Raza was driving the cruiser and PC Rennie was in the passenger seat. Their evidence was at odds with respect to the location and direction of travel of the cruiser and the VW when the two vehicles first encountered each other.”
Further Charter Breaches
Moments after passing the police cruiser, “Elawad pulled into a parking area … and backed into a parking spot.”
Elawad exited the vehicle and locked the doors.
During the interaction with police, PC Raza asked Elawad for the vehicle keys.
At this point, Elawad fled. Officers gave chase, lost sight of him, and returned to the cruiser. They then learned Elawad was wanted for firearms offences.
Police decided to tow the vehicle Elawad was driving.
The VW was towed to an approved tow compound where PC Rennie asked the tow operator to open the vehicle.
The warrantless search was ended when the drugs and a loaded firearm were found.
A warrant was sought to continue the search.
Justice Bordin ruled that the warrant application painted “a somewhat misleading picture of Mr. Elawad’s traffic stop.”
The Crown conceded that the demand for the keys was not legally authorized.
“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,” Justice Bordin wrote.
Police stated the vehicle was abandoned when Elawad ran.
“The Crown asserts the vehicle was abandoned and therefore the officers could tow the vehicle away and conduct an inventory search. In its factum, the Crown also relies on search incident to arrest. That argument was abandoned in submissions.”
The Crown submitted “once a vehicle is abandoned and taken into custody, the police are authorized to conduct an inventory search of the vehicle.”
Justice Bordin ruled the vehicle was not abandoned because it was secure and in a parking spot, not left on or at the side of a street.
Furthermore, “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.”
“As a result, there was no authority for the inventory search. The search of the vehicle was unlawful and a breach of Mr. Elawad’s s. 8 Charter rights.”
Hamilton Police Chief Bergen Refers Matter to Professional Standards
Hamilton Chief of Police Frank Bergen was sitting in the public gallery at Hamilton City Hall when the decision was posted on CanLII on Wednesday morning.
As he left City Hall during the City Council lunch break, he said he was reviewing the decision.
At 4:00 p.m., the Chief’s Office issued a public statement stating, “We take this matter seriously and have referred the decision to our Professional Standards Branch for review.”
“This case stems from a 2022 incident. Since then, we have implemented enhanced training on Charter rights and unconscious bias, launched a race and identity-based data strategy, and introduced in-car and body-worn cameras to strengthen public trust and enhance community safety. We are committed to a comprehensive approach that includes reviewing policies, practices, and decision-making processes to ensure they uphold human rights.
We recognize the impact of these decisions on our community and remain committed to ensuring fair and impartial policing in Hamilton.”
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Published: March 6, 2025
Last updated: March 6, 2025
Author: Joey Coleman
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