03/16/2015 12:54 EDT | Updated 05/16/2015 05:59 EDT

Ontario court dismisses claim that gun conviction resulted from racial profiling

TORONTO - Ontario's highest court dismissed an appeal Monday from a man who argued his gun offence convictions were the result of racial profiling.

Richard Steele had argued he was a victim of "driving while black."

He was convicted in October 2010 of concealing a loaded handgun under the front passenger seat of his mother's car after being pulled over in Hamilton.

His lawyers argued at the Ontario Court of Appeal that the judge at Steele's trial erred in failing to properly consider evidence of racial profiling.

The appeal court dismissed Steele's appeal, finding his charter rights were not infringed.

"There is no basis to interfere with the trial judge's factual conclusion that the stop and search were not racially motivated," the panel of three judges found. "The convictions were supported by the evidence and were not unreasonable."

Steele's lawyer expressed disappointment at the ruling.

"We were expecting a favourable decision," said Selwyn Pieters. "We will seek instruction as to whether to seek leave to appeal at the Supreme Court."

Pieters said he was concerned the court dismissed the racial profiling aspect of the case and also disagreed with the appeal court's finding that Steele had no reasonable expectation of privacy as a passenger in a vehicle that belonged to his mother.

The appeal court found Steele did not have a reasonable expectation of privacy in the car because he hadn't identified himself as the son of the vehicle's owner.

There were four young black men in the car Steele was travelling in when the vehicle was pulled over around 2 a.m. on Nov. 25, 2007. Steele was in the front passenger seat.

The trial judge found that Const. Yvonne Stephens stopped the car "with the intention of checking for proper documentation and driver sobriety."

Court heard that Stephens said she could not discern the sex or skin colour of the person driving the car when it went past her, nor could she see that there were three others in the vehicle.

"The trial judge found that it was only as P.C. Stephens approached the driver's door that she saw there were four black men in the car. When she saw the number of occupants in the vehicle, she called for assistance," the appeal court decision said.

The car's driver told police the vehicle was registered to a friend's mother, but the officer didn't know Steele was that friend as he remained silent throughout the exchange.

While helping the driver look for proof of insurance, the officer asked the vehicle's other occupants to get out of the vehicle. During the search of the car, the officer saw the gun partially under the front passenger seat.

The officer testified at Steele's trial that he seemed nervous when she stopped the vehicle and that he was hunched over with his hands under the passenger seat, "as if he were trying to hide something," the appeal court decision noted.

"The gun was found under the appellant's seat, where his hands had been," the decision said. "The appellant had possession of the gun and was exerting a measure of control over it."

Steele's lawyers argued the officer's observations reflected "stereotypical thinking."

They claimed the gun should have been excluded as evidence because the officer allegedly conducted an improper search of the vehicle.

They also maintained police pulled the vehicle over because of the driver's race and then violated Steele's right to privacy.

The Crown denied racial profiling had anything to do with the incident, and said the officer's behaviour was not unusual or racist.