Update: see previous posts – July 26, 2016 Lack of Interpreter Leads to Dismissal of Impaired Driving Charge
Drug charges dismissed against young white female driver and her black boyfriend, but woman calls experience depressing and says her boyfriend’s basketball career is ruined.
Pulled over by a Durham Regional Police officer on a September afternoon, her nearly 7-foot-tall boyfriend in the passenger seat, Beverly O’Grady instantly suspected the real reason for the traffic stop.
She wasn’t speeding, she wasn’t driving erratically, there were no road safety concerns that would justify a stop under the Highway Traffic Act — all of which the officer, Const. John MacKinnon, later acknowledged in court.
The reason for the traffic stop, O’Grady believed, was because she has light skin, and her boyfriend — Jeffrey Ferguson-Cadore, a past member of Canada’s national basketball team — is black.
“I knew right away,” said O’Grady, 32, in an exclusive interview Wednesday. “Right away.”
In a straight-shooting ruling tossing the drug charges laid against O’Grady and Ferguson-Cadore that resulted from the traffic stop, Ontario Superior Court Justice Robert Charney came to the same conclusion, finding MacKinnon had no legitimate reason to pull the car over and was instead racially profiling the occupants.
“The police officer’s initial suspicions and concerns for the safety of the young white female were based on the fact that she was seen in the company of a black male,” Charney wrote. “There was really nothing more to it than that.”
O’Grady is relieved after Charney’s ruling, but said it doesn’t take away the depressing result of the experience.
“Now, I don’t even feel comfortable driving with a black man in my car. It’s sad,” she said.
In an email Wednesday, Durham Regional Police spokesperson Dave Selby said the service is aware of Charney’s ruling and is reviewing it. MacKinnon could not immediately be reached for comment.
The ruling stems from a September 2014 traffic stop, when MacKinnon was nearing the end of his shift and noticed a silver sedan leaving the parking lot of a Whitby motel.
Formerly with the vice squad, MacKinnon later testified that he knew the motel was frequented by escorts and their pimps, and noted the “young-looking white female” in the front with a black male. He said he was concerned for her safety, believing it was possible she was a prostitute in the company of her pimp.
MacKinnon began following the car and ran the licence plate information, finding the car was registered to a woman born in 1965. He turned the sirens on and pulled over the vehicle.
In his arrest report, the officer provided two reasons for the stop: he was suspicious because the occupants of the car didn’t align with the age of the registered owner, and he had concerns for the young female driver exiting an area known for prostitution.
According to the judge’s version of events, after pulling over the car, MacKinnon asked O’Grady to step out of the car then asked her if she was an escort — and whether he would find her photo in “Backpage,” a website that has ads for escorts.
“I’m like, what? What is Backpage?” O’Grady told the Star Wednesday, recalling MacKinnon’s question. “I was shocked. I was confused.”
The officer asked her why she was coming out of the motel, and she explained that she and her boyfriend — her passenger — were planning a party and were checking out the motel as a place for out-of-town friends to stay. When asked whose car she was driving, O’Grady explained that it belonged to her mother.
According the judge’s summary of facts, MacKinnon commented that he could smell marijuana coming from the car, called for backup, then police searched the vehicle, ultimately finding a digital scale with white residue believed to be cocaine, 10 tabs of Oxycocet, seven grams of powder cocaine, 4.3 grams of crack cocaine and 25.2 grams of marijuana.
Both O’Grady and Ferguson-Cadore were arrested and jointly charged with four counts of possessing controlled substances for the purposes of trafficking.
The couple mounted a charter challenge to exclude the drug evidence found against them, arguing their rights were violated because they were arbitrarily detained and the officer did not have reasonable grounds to suspect that an offence was being committed.
Charney agreed, finding there were “serious” charter violations by police, with significant negative impacts on O’Grady and Ferguson-Cadore. Calling it a “selective” stop, Charney found there was no legitimate reason to stop the car.
The judge questioned why MacKinnon would have found it suspicious that the driver of the car was likely not the same person registered as the owner, since family members frequently share the same car.
“There is nothing illegal, unusual or suspicious about a driver not matching the description of a registered owner,” Charney wrote.
Charney excluded the drug evidence obtained from the search of the vehicle, and the charges against O’Grady and Ferguson-Cadore were dismissed.
In an email to the Star, Jonathan Pyzer, O’Grady’s lawyer, called the judge’s ruling significant, since court findings of racial profiling are historically rare — “despite our clients reporting them as commonplace.”
“It is also significant that as a white woman, Ms. O’Grady was found to be the victim of racial profiling as part of a biracial couple. It is an important statement that racial profiling very much exists in our society today, whether consciously or subconsciously, and that neither will be tolerated by our Courts.”
O’Grady said the case has negatively affected her boyfriend’s future in basketball. Once a player for professional teams in Japan and Iran, she said the charges against him prevented him from travelling. “This whole case ruined his career,” she said.
Ferguson-Cadore could not be reached for comment Wednesday. His lawyer, Paul Aubin, could also not be reached.