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TORONTO — A man convicted of a gun offence takes his case to Ontario’s top court on Tuesday to argue he was a victim of driving while black.

In a factum filed with court, lawyers for Richard Steele say his trial judge erred in failing to properly consider evidence of “racial profiling” in finding him guilty.

In 2010, an Ontario Superior Court justice convicted Steele of concealing a loaded handgun under the front passenger seat of his mother’s car after being pulled over in Hamilton. There were four black men in the car.

Court documents show his lawyer, Anthony Moustacalis, says the gun the officer found should have been excluded as evidence, because Const. Yvonne Stephens conducted an improper search of the vehicle.

Moustacalis also maintains police only pulled the vehicle over because of the driver’s race.

He says the officer’s request to help the driver find the vehicle’s insurance card — which led to the discovery of the gun under the seat — was “bizarre” and did not amount to obtaining informed consent for the search. In addition, Moustacalis says the officer violated Steele’s right to privacy.

The lawyer also argues the officer’s trial testimony showed inconsistencies, including where Steele’s hands were during the stop.

For its part, the Crown denies racial profiling had anything to do with the incident, and says the officer’s behaviour was not unusual or racist.

The officer couldn’t see the car’s occupants when she pulled it over, and Stephens was within her rights to check for valid driving documentation, according to the prosecution’s factum.

At trial, the judge relied in part on evidence from another Hamilton officer that Stephens had never exhibited racial bias in the 10 years he knew her.

“(That) gives me comfort for my conclusion,” the justice said.

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