Bethany Lindsay, CTV (Scarborough, Ontario), December 24, 2010
A B.C. judge has thrown out all evidence against a Chinese-born man found with 57 marijuana plants in his truck, ruling that he was the victim of racial profiling by the RCMP.
Zai Chong Huang was pulled over by Mounties near 100 Mile House in January 2009, after Const. Berze said he noticed his pickup truck swerving in its lane. A searched of the truck turned up the pot plants, a timer, a bottle of liquid fertilizer and 150 empty plant pots.
Huang was charged with possession of marijuana for the purpose of trafficking, but in a ruling posted online Friday, provincial court Judge Elizabeth Bayliff said that none of the evidence against him was admissible in court.
That’s because the officer came up with a phony excuse to stop Huang, when he really was acting on a racially-motivated hunch, the judge ruled.
“It is more probable than not that he pulled the vehicle over because he had spotted Mr. Huang . . . and, noting he was of Asian extraction, assumed he was involved in organized crime including the production of marijuana. He followed the vehicle because of this, looking for a reason to pull it over,” Bayliff wrote.
Berze testified he was not aware the driver of the truck was Asian until he walked up to the window.
But Bayliff ruled that officer’s account of the night of the arrest contained just a few too many coincidences to be believable.
At almost the same time Huang was pulled over, his twin brother Zai Qing Huang was stopped just a few kilometres back on the same road by a second Mountie. Both officers gave the same story: They stopped the twins because their vehicles were swerving.
That story didn’t pass muster with the judge.
“I find it improbable that, of all the vehicles moving about the roadways of the 100 Mile House area that night, the two vehicles that these two officers should happen to stop would be connected to each other in this way,” Bayliff wrote.
The judge said she was also puzzled that both Mounties chose to patrol the relatively minor Canim Hendrix Road that night.
“I find myself questioning why, when they were the only two officers on duty in the large district served by the 100 Mile House detachment, they would both choose to patrol this secondary road rather than busier thoroughfares such as highway 97 or within the town itself,” she wrote, suggesting that the officers had noticed the twins together at a gas station earlier that night.
After the arrest, Berze’s behaviour back at the detachment suggested serious bias, according to the judge.
After Huang had been in custody for more than 18 hours, Berze tried to take a statement from him without the help of a translator. He thought that Huang was pretending not to speak English–a tactic he believed to be a hallmark of Asian gang members–and told him as much in an expletive-laced harangue.
“You must be guilty as sh**. You’re probably a gang member aren’t you? An Asian gang from Surrey, right? Is that right? Well you’re not saying anything so it must be right. It must be true,” the officer told Huang.
“You come into my country and you start trafficking dope around. That’s bullsh**. My wife and kids live here, in 100 Mile House, and pieces of sh** like you are going to come in. And if they are trafficking drugs in my hometown, I do not like it at all.”
In her decision, Bayliff wrote that the tirade was more than a professional tactic–it was an outlet for Berze’s personal anger about Asian gangs involved in the drug trade.
“It may be that there could be an evidentiary basis for linking race with a particular type of criminal conduct in the 100 Mile House area at this point in our history. However, Const. Berze denied that these considerations were present in his mind at the time he stopped Mr. Huang,” Bayliff wrote.
While the judge acknowledged that the evidence against Huang indeed suggests he was involved in an illegal drug operation, his personal freedom is too important to ignore.
“When I balance the public interest in seeing this prosecution proceed against the Charter value at issue, I conclude that to admit the evidence would bring the administration of justice into disrepute,” she wrote.
“He, like everyone else, has the right to move freely about this country free from improper police interference. This is an important liberty.”