judge, the appellant was hostile to the police. The appellant had
his hands in his pockets as it was cold outside, and he was not
 The officers got out of their car and asked the appellant to
take his hands out of his pockets. When he declined to do so,
they subdued him and, in the course of doing so, Constable Pak
punched the appellant twice in the face. The appellant was
knocked to the ground, handcuffed to his back and he was left
lying on wooden decking covered with ice, with his hands
exposed and against the ice, for 20 to 25 minutes. All of his pockets were searched and emptied of belongings, and Constable Pak
searched the contents of his wallet. During the interaction, the
police asked the appellant where he was from.
 The police gave the appellant no reason for his detention
and he was not advised of his right to counsel. During the incident, the police filled out a card, known as a 208 card or field
information report, for the appellant. Part of the information to
be included on the card was the appellant’s skin colour, which
was filled in as “black”, and his birth place, which was filled in
as “Sudan”. The police did not explain to the appellant that he
was being “carded”.
The trial judge’s finding with respect to racial profiling
 The trial judge’s finding with respect to racial profiling
appears at para. 4 of his decision and reads as follows:
I also do not make any finding that Mr. Elmardy was discriminated
against on the basis of his race or that he was the victim of “racial profiling”
as alleged. The police were entitled to try to chat with Mr. Elmardy. While it
is tempting to try to ascribe motives, there was no evidence that the decision
to stop him was based on his race. Mr. Elmardy did not prove on a balance
of probabilities that the actions of Constable Pak were racially motivated.
Nor was there a basis in the evidence to draw that inference.
 The trial judge found that there was no basis in the evidence to draw the inference that the officers’ conduct towards
the appellant was motivated by race. While there may have been
no direct evidence of racial profiling, there was circumstantial
evidence from which one could draw the inference that it was
more probable than not that the officers’ conduct towards the
appellant was motivated by the fact that he was black. The failure of the trial judge to consider this indirect evidence constitutes a palpable and overriding error.
 In R. v. Brown (2003), 64 O.R. (3d) 161,  O.J.
No. 1251, 173 C.C.C. (3d) 23 (C.A.), at para. 7 (quoting from