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Underground rapper was racially profiled by Toronto police, judge finds, tossing gun charge


A popular underground rapper was racially profiled when he and his friend were questioned and later arrested by Toronto police officers who claimed the pair had been loitering inside a downtown apartment building, a judge has found.

“By no definition could this be considered loitering or hovering,” Ontario Court Justice Lori-Anne Thomas wrote, describing how surveillance video from the lobby of 200 Wellesley St. showed rapper Noah Tesfai, who performs as LocoCity, and his friend leaving an elevator 20 seconds before two officers initially approached them. The video evidence from Oct. 5, 2018, showed the officers only had a few seconds to observe Tesfai and his friend before deciding to question them, Thomas noted in her written reasons for acquitting Tesfai on gun possession charges.

In court, Toronto police Consts. Andrew Mason and Jason Boag testified they believed the young men were suspicious because they were “just standing there,” prompting them to conduct a “premise check” authorized by a Toronto Community Housing memorandum and the Trespass to Property Act (TPA).

“In the few seconds that the officers observed the two men, they could only make the following observations: the two were young, Black, male and were not actively waiting for an elevator,” Thomas wrote in her written reasons, released this week.

“I find that race, along with age and gender, played a role in the officers’ notion that Mr. Tesfai and his friend were potential offenders, whether trespassing or criminally. I further find that race was part of the motivation to investigate and detain the men. As such, Mr. Tesfai and his friend were racially profiled when the officers approached them for a groundless TPA violation,” the judge wrote.

After the officers stopped the pair, Boag claimed Tesfai gave a false name, assaulted him and later fled, prompting a chase on foot after which a loaded Glock handgun was found discarded.

In her decision, Thomas threw out that evidence — accepting defence lawyer Kim Schofield’s arguments the arresting officers made numerous Charter breaches in the arrest.

Speaking to the Star, Schofield said the case shows there is a greater awareness and willingness among today’s judges to acknowledge that racial profiling exists, adding she’s recently won two other similar cases.

“The criminal justice system is no longer in such a state of denial. They’re more open to these arguments and aware of the challenges facing racialized Canadians,” she said Friday. The preponderance of video evidence also helps, as it did in this case.

In her reasons, Thomas noted that, based on the officers’ own evidence, they “routinely overstep their powers given under the TPA and Toronto Housing Memorandum to question persons they have a hunch may be trespassing without any grounds or absent a request from the property to investigate prohibited persons.” She also found the officers failed to give Tesfai his rights to counsel in a timely manner, violating another constitutional guarantee.

“The officers showed blatant disregard for Mr. Tesfai’s Charter rights and their own duties.”

She also found that Boag’s testimony he was assaulted during the arrest was groundless and contradicted by both the surveillance video and Const. Mason’s testimony the exchange was “not a violent struggle.”

“There was no assault or attempted assault,” Thomas wrote. (The Crown had previously elected not to proceed on the assault charge.)

The Toronto police did not immediately respond to a request for comment.

While Thomas acquitted Tesfai in the 2018 case last August, he remained in custody after a later arrest in the fall of 2021 for possessing a gun after he was shot near Parliament and Wellesley streets.

Last month, he pleaded guilty to possessing a loaded prohibited handgun, possessing two prohibited devices (overcapacity magazines) and possession of a firearm contrary to an order.

He was sentenced to two years less a day, and, after credit for presentence custody, was left with two months and 19 days to serve, followed by two years’ probation.

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