Steven Skurka was scrutinizing a police videotape for the umpteenth time when he suddenly noticed a detail that took his breath away.
The officer responsible for arresting his client -- Toronto Raptors basketball star Dee Brown -- was depicted on the videotape reading a chronology of the arrest.
Inexplicably, the phrases the officer was uttering didn't correspond with photocopies of his notebook Mr. Skurka had been given. It could mean only one thing. The officer had embellished a second set of notes to conceal the fact that he lacked sufficient grounds to pull Mr. Brown over for a breath test.
You might call it a eureka moment.
"It was the first time it really crystallized for me that the defence could succeed," recalls Mr. Skurka, a prominent Toronto criminal lawyer. "The officer understood that since it was a high-profile athlete he had arrested, there would be a vigorous defence. He would be challenged over making an indiscriminate stop. It created a need for him to embellish a second set of notes."
The rest is the stuff of legal folklore -- and casebooks. Mr. Brown's trial took place in July, 2001. For two days, Mr. Skurka maintained his client had been stopped simply because he was a young black man in a fancy car. He argued that the Breathalyzer evidence should be excluded on the ground that it was obtained during an unreasonable search and seizure.
Ontario Court Judge David Fairgrieve wasn't buying it. On appeal, Superior Court Judge Brian Trafford ruled that Judge Fairgrieve displayed a reasonable apprehension of bias. He ordered a new trial.
Two weeks ago, the Ontario Court of Appeal upheld that decision. In doing so, it became the first appellate court to acknowledge the existence of racial profiling by police.
Looking back, the timing of the case is fascinating. When it began, racial profiling was a non-issue. "I spoke to a number of lawyers I respected and got the sense this was going to be a bumpy ride," Mr. Skurka recalls. "Bumpy" was right. It would eventually combine two extraordinarily explosive issues -- racism and judicial bias.
Looking back, Mr. Skurka ranks his two-day trial before Judge Fairgrieve amongst his most distressing experiences as a lawyer. Early on in the proceeding, he resigned himself to absorbing a verbal bruising in order to create an appeal record. He knew it was vital not to lose his cool, lest it later cloud the issues.
Judge Fairgrieve cannot be dismissed out-of-hand as a crotchety judge with blinkers on. A former senior Crown counsel, he is known for a sharp mind and a keen grasp of the law.
While some observers have chosen to interpret his conduct in the Brown case as indicative of a pro-police bias, it is more likely that Judge Fairgrieve was simply unconvinced that the arresting officer had acted wrongly -- and was in no mood for what he perceived as a contrived defence. More's the pity, since it meant that Judge Fairgrieve missed the opportunity of a lifetime to move the law forward.
Whatever the case, Regina v. Decovan Brown is destined to become Exhibit A at future judicial seminars, illustrating the lesson that even good judges cannot afford to have a bad day. You never really know where a case may end up.
Soon after the Trafford ruling, a landmark series of racial profiling stories in the Toronto Star enraged police and forced people to take sides on the issue.
It all set the scene for the Ontario Court of Appeal to swoop down with a ruling that fits a compelling pattern of race-based jurisprudence.
For years, the court has been quietly leading the country on issues involving race. In its Regina v. Parks ruling several years ago, the court took challenge for cause into a whole new realm by allowing jurors to be questioned about their racial views.
More recently, in Regina v. Borde, the court stated that mitigating factors from the background of a black offender can potentially be taken into account on sentencing.
Its ruling in the Brown case vindicated not only the defendant and Mr. Skurka, but also Judge Trafford and prosecutor James Stewart, who conceded during the appeal that police do engage in racial profiling.
Mr. Stewart's concession had been both honourable and deft. By acknowledging the existence of racial profiling, he had enhanced his credibility prior to arguing the second pillar of his position -- that the facts of the Brown arrest just didn't support a finding of racial profiling.
The court did accept Mr. Stewart's concession. It never did have to decide whether the arrest was based on racial profiling, since it could order a retrial based solely on the apprehension-of-bias issue. However, its ruling nonetheless leaves an impression that it found the defence persuasive.
"The court seemed to decide independently to make this reverberating finding of racial profiling -- when it was certainly open to them to avoid the issue and decide the case on narrow issues," says Mr. Brown's appellate counsel, Phil Campbell.
"It's not easy for a court to ring the bias bell," Mr. Skurka said. "Any notion that they were being politically correct is absurd."
Mr. Skurka has been denounced in some quarters as being anti-police. It is a conclusion he feels is illogical and unfair. He was simply a lawyer doing his job -- defending the client to the best of his ability.
"I've defended about 25 police officers, and all of them successfully," Mr. Skurka said.
"I have a tremendous amount of respect for the challenges police face. This was never an attack on the police."
Meanwhile, the official police overreaction has been startling. Toronto Police Association president Craig Brommell exceeded even his own subterranean standards by referring to it as "crap."
However, the sky will not fall. It will be very difficult to prove racial profiling in future trials -- particularly after police officers inclined to carry out dubious stops learn new tactics to cover their tracks.
"At the threshold, counsel won't start hurling around allegations of racism unless there is an evidentiary foundation," Mr. Campbell added. "That should serve as a check on the alarmism about the reach of this case."
The Crown now has the option of either moving toward a retrial or quietly dropping the Brown matter, avoiding the deluge of media coverage it would provoke. Whatever the case, Mr. Brown has forever left a mark in Canadian jurisprudence.
"He was really the catalyst for this whole issue," Mr. Skurka said. "If Dee Brown hadn't stood on principle, we wouldn't be here talking about this. I was proud just to play a small role in it."