minicounsel

DATE: 2024·10·01 COURT FILE No.: Information Number 4810-998-23-48108397-02 4810-998-23-48103490-02 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

NOAH SPENCER

Before Justice Peter Scrutton

Reasons for Judgment

Heard on August 19, 20, 21, 22 and 23, 2024 Released on October 01, 2024

Counsel: M. Bloch, for the Crown C. Claxton, for the Accused

Scrutton J.:

1Noah Spencer is charged with five firearms offences and three offences alleging that he possessed controlled substances for the purposes of trafficking. He brought an application pursuant to s. 24(2) of the Charter seeking exclusion of the evidence relating to these allegations on the basis of breaches of ss. 8, 9, and 10(b) of the Charter. The primary thrust of the Charter applications is that the police lacked grounds to detain and search him and only did so because he is a Black male.

2The evidence at trial is clear that the police interaction with Mr. Spencer began following a query of the license plate of the vehicle he occupied. The query revealed that the vehicle’s registered owner was the subject of an outstanding arrest warrant and cautioned that he may be armed and dangerous. The police witnesses who testified at trial explained that they conducted this query after observing two males walking in dark clothes wearing face-covering balaclavas in a part of the city that had been subject to a recent rash of pharmacy robberies. The men looked suspicious and the officers were concerned they may be connected to the robberies. The defence contends that this account is fabricated and that the officers’ only suspicions stemmed from the fact that the men they saw were Black. At the time of his arrest, Mr. Spencer and the man he was with were both wearing dark clothing and balaclavas.

3The determination of the key issues on this Charter application depends on the assessment of the police officers’ credibility with respect to their grounds for detaining and searching Mr. Spencer. These reasons explain why I am satisfied that Mr. Spencer’s race was irrelevant to the police interest in him; why his detention and search was lawful; why his s. 10(b) Charter rights were not breached; and why I am satisfied beyond a reasonable doubt that the Crown has proved his guilt on all counts.

Evidence at Trial

The leadup to police interaction with Mr. Spencer

4Four plainclothes members of the 12 Division Major Crime Unit of the Toronto Police Service – Detective Constables Sabino, George, Dhillon, and Keval – began their investigative duties on April 23, 2023 with an objective that did not relate to the defendant in any way: to follow up on a storage facility burglary from the day before and arrest two of the three suspects that D.C. George had identified. A briefing package relating to this investigation was disseminated to the detectives at the station at 4 p.m. After the briefing, they drove to the Weston and Lawrence area of Toronto, where two of the suspects were known to frequent, to see if they could locate them.

5Shortly after 5 p.m., D.C. Sabino, who was driving an unmarked police vehicle with D.C. Dhillon and D.C. Keval, saw two men leaving the driveway that separated two large apartment towers at 1765 and 1775 Weston Road. The men walked north on Weston Road as he drove by them to the south. D. C. Sabino described both men as wearing black balaclavas that covered their faces except for the area around the eyes and bridge of their nose. Both men had black skin and wore dark hoodies, black pants, and gloves. One man was taller and thinner than the other, carried a satchel, and appeared to be furtively looking around over his shoulder, frequently touching his waistband. D.C. Sabino was suspicious about the fact that both men were wearing all dark clothes and face-covering balaclavas; he thought about a recent string of pharmacy robberies that had occurred in the area. The men walked to a GO station parking lot not far from the apartment buildings.

6D.C. Keval testified that he made similar observations of the two men, and that their manner of dress (primarily the balaclavas and gloves in late April) made him suspicious that they may be involved in pharmacy robberies which he knew had been occurring in the area. He was also concerned that the taller male may be armed based on the way he kept touching his waistband and looking around.

7The officers made no attempt to stop the males or speak to them but simply continued to watch them. Each explained that he was suspicious of the males but lacked the requisite grounds to detain them or even to interact with them. Each resolutely denied that they were racially profiling the men or that the real reason for their suspicions was that the men were Black.

8The officers watched both men enter a black Kia sedan backed into a parking spot at the GO station; the car momentarily drove forward a short distance before reversing back into its spot. Shortly after, at approximately 5:15 p.m., the officers watched the men leave the parking lot on foot; this time, the shorter of the two men was wearing the satchel across the left side of his body.

9The two men walked south on Weston Road, still wearing balaclavas. D.C. Sabino pulled his car in near the Kia so that P.C. Keval could query its plate. This check revealed that the registered owner of the vehicle was Anathanel Haye, who was the subject of an outstanding Peel arrest warrant for assault with a weapon and other offences that he was “arrestable” for. CPIC also cautioned that Mr. Haye may be armed and dangerous, was subject to a firearms prohibition, and had convictions for unauthorized possession of a firearm and possession of a controlled substance. D.C. Sabino became concerned about what the satchel might contain and began to formulate a plan to investigate whether either of the males was the Kia’s registered owner. He was able to access an MTO driver’s license photo of the registered owner Mr. Haye, which he showed to Constables Dhillon and Keval.

10The officers watched the men enter the lobby of 1775 Weston Road. They could not identify either man because of their balaclavas. After a short time, the men left the building and walked back to the GO parking lot, where they entered the Kia and drove north out of the lot onto Weston Road. Sabino did not think it was sufficiently safe for the plainclothes officers to conduct a vehicle stop in their unmarked car. He radioed to request uniformed members in a marked police vehicle conduct a stop for the purpose of determining whether the registered owner Mr. Haye was in the vehicle, advising dispatch of the outstanding warrant. He did not ask for the car’s occupants to be searched or arrested.

11Sabino and his colleagues followed the Kia for a number of minutes, updating dispatch of its location. There was nothing unusual or illegal about its driving. Sabino was still not able to identify either of the occupants. He last saw the vehicle enter the Sheridan Mall parking lot and radioed that he had lost sight of it. A few minutes later, he heard that a police vehicle had boxed the car in at a Shell gas station in the plaza. When he arrived, he saw multiple officers dealing with the vehicle. He and Keval saw the taller male, whose balaclava was no longer covering his face, leaving the gas bar store. Recognizing him from the MTO photo as the registered owner Anathanel Haye, they arrested him.

Uniformed police interaction with Mr. Spencer

12P.C. Shane Beaudoin and P.C. Aaron Stoymenoff were 31 Division officers on general patrol who (among a number of other officers) responded to the MCU request for assistance. Beaudoin was advised that the registered owner of the Kia, Anathanael Haye, was the subject of an outstanding warrant and was asked to conduct a vehicle stop to determine whether the registered owner was in the vehicle. In addition to the information about the warrant, he was provided a description of the Kia, its approximate location, and its license plate number.

13P.C. Stoymenoff conducted his own CPIC query of Mr. Haye in their scout car. He learned that Mr. Haye was potentially armed and dangerous; that Haye was wanted for a March 12, 2023 warrant in the first; that he had been convicted of unauthorized possession of a firearm and possession of a controlled substance; and he was subject to a weapons prohibition. Both officers became much more concerned about officer safety after learning this information than they would have been for a vehicle stop conducted in the usual course of a traffic investigation. They heard that the plainclothes officers lost sight of the vehicle in the Sheridan Mall parking lot.

14Beaudoin and Stoymenoff were the first officers to locate the Kia at the gas station at approximately 5:55 p.m. The officers’ body-worn cameras and audio microphone captured much of their interaction with Mr. Spencer. Beaudoin stopped his scout car in front of the Kia. He could see that the driver’s seat was empty but the front passenger seat was occupied. Beaudoin approached the vehicle by the passenger door while Stoymenoff stood by the driver’s side front windshield. Audio from body-worn cameras captured Stoymenoff saying “he has a satchel on so be careful” and then motioning for the passenger to keep his hands up. Immediately after, P.C. Beaudoin opened the front passenger door. Mr. Spencer is visible in the vehicle, wearing a dark balaclava, cooperating with the direction to keep his hands up. P.C. Beaudoin asked if he was the owner of the vehicle, to which Mr. Spencer replied “he’s getting gas”. Beaudoin then asked Spencer if he had any weapons; Mr. Spencer responded by shaking his head. P.C. Beaudoin directed him to keep his hands where they were and reached in to touch the satchel that Mr. Spencer wore across his chest, asking “what’s this, bro?”. Spencer answered that it was an imitation firearm [1]; as soon as he did, he was removed from the car and arrested. P.C. Beaudoin advised that he was under arrest for possession of a prohibited weapon.

15P.C. Beaudoin testified that the presence of the satchel created a large “unknown” – it could contain sundry items but he knew from policing that some people carried firearms in satchels. Because of the other information he had about the vehicle’s owner, he was very concerned about officer safety. He did not know if the person he was interacting with was the registered owner or where the registered owner was. He reached in to touch the satchel out of concern for his safety, to make sure nothing dangerous was inside. When he touched it, he felt something firm and hard, consistent with the butt of a gun. P.C. Beaudoin’s physical interaction with the satchel was captured on P.C. Elena Luna’s body-worn camera. It shows Beaudoin touching the outside of the satchel for a couple of seconds and appearing to squeeze it near the top. [2] P.C. Luna’s camera footage also shows that the satchel worn by Mr. Spencer across his chest was open – its top half was completely unzipped.

16The length of time between the uniformed officers’ first interaction with Mr. Spencer as they walked up to the car (before speaking to him) and his arrest was less than one minute. Approximately 20 seconds passed between the time P.C. Beaudoin opened the passenger door to begin speaking with Mr. Spencer and the arrest.

Rights to counsel and access to counsel

17Mr. Spencer was given a pat down search and then taken to Beaudoin and Stoymenoff’s scout car. P.C. Stoymenoff cautioned him and read him rights to counsel at 6:01 p.m., four minutes after Mr. Spencer was removed from Mr. Haye’s vehicle. Mr. Spencer indicated that he understood his rights and asked to speak to a lawyer. P.C. Stoymenoff said that he could not afford him privacy at the roadside because the cameras were recording but that he could call Spencer’s lawyer for him, or alternatively, Mr. Spencer could wait until they got to the station. Mr. Spencer indicated that he was content to wait.

18Mr. Spencer and the officers engaged in small talk on the way to the station – largely about what he could expect to happen there. No attempt was made to question him about the drugs or firearm, Mr. Haye, or anything relating to his arrest. The officers recalled that Mr. Spencer was anxious; it is clear from the recording that their conversation in the car was a polite attempt to calm him down. P.C. Stoymenoff called Mr. Spencer’s counsel from the station at 6:55 p.m., after Mr. Spencer’s parade. He also facilitated Mr. Spencer’s calls to his girlfriend and mother.

Challenges to the Police Evidence

A. The investigating officers’ evidence

19Sabino and Keval were cross-examined at length on the similarities in their (and Dhillon’s) notes describing the men’s appearance, time stamps, and the fact that they had all mistakenly described the shorter man’s balaclava as “black” when it was actually green, something the uniformed officers who arrested Mr. Spencer accurately noted. Each denied the suggestion that they discussed the contents of their notes together or colluded in fabricating an account that justified their investigation of the two men on grounds unrelated to their race. They explained that they completed their notes independently at the station after the arrests but consulted with others about times. Keval testified that officers from the team wrote their notes in their team office, with other team members present. He acknowledged that the officers had discussed the men’s appearances in their vehicle as they were observing them. He explained that they had all noticed the men because of their manner of dress (“hey, look over there”) and discussed what they had seen in the context of local pharmacy robberies that they were all aware of.

20Sabino and Keval both disputed that they were aware, prior to the vehicle stop, that the car’s passenger was not the registered owner, given the lighter complexion of his skin compared to the MTO photo of the registered owner they had seen. D.C. Sabino could tell at some point that the shorter of the two men had a lighter complexion; he could not see either man’s hair because of their balaclavas – he could only see the bridge of their noses and eyes, not any facial features. He could not determine that the passenger was not the owner because of the balaclavas.

B. The arresting officers’ evidence

21P.C. Beaudoin similarly denied that he knew the passenger in the car was not the registered owner. He explained that did not have a chance to look at the MTO photo of the owner because he was focussed on driving safely to locate the Kia. He was not able to take the passenger’s answer that the owner was getting gas at face value – due diligence was required. He acknowledged that he did not inform Mr. Spencer of the reasons for his detention or provide him rights to counsel immediately upon interacting with him. He explained that this was because their initial interaction was so brief; he did not have an opportunity to do so because of his concerns about a firearm in the satchel. He found the firearm almost immediately, which changed the nature of the interaction from a detention (to investigate whether the registered owner was in the vehicle) to an arrest (for possession of a firearm).

22P.C. Beaudoin disputed that Mr. Spencer’s access to counsel could have been facilitated at the roadside. His view was that these calls must be made from the station, to ensure privacy and that the call was not recorded, and to make sure that the detainee was actually speaking with a lawyer. In 17 years, he had never provided access to counsel from a scout car. P.C. Stoymenoff explained that he was concerned that either the in-car cameras, or his or another officer’s body worn camera, would record any call to counsel, even if he tried to disable these devices. [3] He testified that, if Mr. Spencer had indicated he wanted to have him call counsel at the roadside rather than wait for privacy at the station, he would have facilitated this request.

Evidence uncovered from searches incident to the arrest

23A search of the satchel incident to Mr. Spencer’s arrest uncovered:

a loaded .45 calibre Glock 21 pistol
a magazine capable of holding 13 rounds loaded with 9 Winchester cartridges
3.52 grams of fentanyl in one plastic bag
6.02 grams of crack cocaine in one plastic bag
7.03 grams of methamphetamine in one plastic bag.

24The parties agree that the pistol was a restricted weapon and that the magazine was a prohibited device.

25Photographs of the open satchel taken at the scene establish that the pistol and drugs were the only contents of the main compartment and were readily visible.

26A search incident to the arrest of Mr. Haye uncovered:

27.87 grams of crack cocaine in one plastic bag
A small digital scale with a dragon logo
A small, sheathed paring knife.

27Anathanel Haye was not called as a witness by either party at trial. The defence called no evidence on the Charter voir dire or the trial proper.

The Charter Application

28The Defence submits that the evidence of Detective Constables Sabino and Keval, and the accounts of this investigation in their memo books, ought to be rejected as fabricated and unreliable. In support of the claim that their accounts were concocted to provide an ex post facto justification of their biased focus on two black males, counsel points to the absence of contemporaneous notes, the striking similarity between the MCU officers’ notes describing these events and the two males (including their consistent error describing the balaclavas as “black” rather than “green”), their admission that they discussed times together as they were making their notes, and the fact that they made their notes together at the station. Further, counsel disputes that any part of the behaviour they purported to observe was probative of criminal activity – the men were dressed appropriately for the weather, were not seen in or around any pharmacies or commercial buildings, and were law abiding for the entirety of the time they were being observed.

29Based on this view of the evidence, Mr. Spencer alleges violations of his s. 8, s. 9, and s. 10(b) Charter rights, seeking the exclusion of all the evidence uncovered during his arrest pursuant to s. 24(2) of the Charter. Specifically, he alleges that his detention was arbitrary and unlawful because the police lacked grounds to detain him and keyed on him simply because he is black rather than because he was connected to any criminal activity. Further, the police ought to have known from their observations of Mr. Spencer, as compared to Mr. Haye’s appearance in the MTO photo, and Mr. Spencer’s occupation of the passenger seat, that he was not the Kia’s registered owner, such that they lacked grounds to detain him at the gas station. The police consequently lacked grounds to search Mr. Spencer; further, because Mr. Spencer was so obviously cooperative and compliant during his interactions with the officers, no valid safety concerns justified P.C. Beaudoin’s probing of his satchel as he sat in the vehicle. Ms. Claxton submits that the police failed in their duty to immediately inform him of the reason for his detention and his rights to counsel. This failure was exacerbated by the delay in refusing to facilitate a call with counsel from the scene of his arrest. Ultimately, Ms. Claxton argues that the seriousness and flagrancy of these breaches requires exclusion of the evidence against him.

30The Crown disputes these Charter claims and credibility attacks in every respect. Mr. Bloch argues that Mr. Spencer was not arbitrarily detained but the subject of a lawful investigative detention. He was in a car whose registered owner was the subject of an outstanding arrest warrant; both the passenger and driver had their faces covered by balaclavas, such that they could not be identified; and the police had grounds to stop the car to investigate whether the owner was in the vehicle. The police had the requisite grounds to conduct a safety search of Mr. Spencer; the search was brief and reasonable and less invasive than a pat down. His s. 10(b) rights were not violated, as he was informed of the reason for arrest immediately following this search and provided rights to counsel minutes later; access to counsel was facilitated at the station rather than at the scene pursuant to his request. If there were any breaches, the officers’ actions fell just short of the requisite standards such that the evidence him ought to be admitted under s. 24(2). The police evidence is consistent, uncontradicted, and confirmed in material respects.

Factual Findings

31I reject the defence claims about the police witnesses and accept Sabino’s and Keval’s respective accounts of their involvement. It was not disputed that when the MCU officers left the station that afternoon, they had a specific purpose – to locate suspects from a burglary that had occurred the day before. Nor, with the exception of the colour of the balaclavas that they noted, were the descriptions of the men they observed disputed. I accept that two men walking on a late April afternoon, dressed in all dark clothing, wearing gloves, and dark balaclavas that covered most of their faces, would have stood out as suspicious to the officers, irrespective of their knowledge of recent robberies in the area. There is no reliable evidence about the temperature that afternoon. It is clear that it was not a warm spring day but it is equally clear that it was not frigidly cold. Video of people in the area captured varied attire – some officers and passersby wore heavier jackets; some officers wore vests and long sleeves; one officer is outside for a considerable period in only short sleeves; none wore toques. Mr. Spencer’s balaclava may not have looked as out of place in the dead of winter as it did on April 23 but I expect that absent frigid temperatures, two men walking in tandem wearing balaclavas and dark clothes would have stood out even then. The officers’ knowledge of recent pharmacy robberies in the area was unimpeached and uncontradicted at trial.

32I accept that the MCU officers sincerely believed and noted that the men they saw wore black balaclavas and that the common error in their notes is not indicative of concoction. They made their observations of the men from a distance, while driving. Mr. Spencer’s balaclava does, in fact, appear to be black in some of the body-worn camera footage. From other distances and angles, it cannot be described with any more specificity than “dark”; and only from close up does it appear to be green, which explains the variance between the plainclothes’ and arresting officers’ respective descriptions of it.

33In the circumstances, I am not troubled by the manner in which the plainclothes officers’ notes were completed after Mr. Spencer’s arrest. I accept their testimony that they discussed their observations and concerns about these men in real time as they sat in the unmarked police car after first noticing the two men – this would have been completely natural and unavoidable. It is understandable that the investigators did not make contemporaneous notes about what they were seeing, and when, because of the dynamic nature of the situation and the reality that, prior to the license plate check, they were clearly of the view that their suspicions did not rise to the level of grounds, were not actionable, and may well have ended without any police intervention whatsoever.

34While I cannot discount the possibility that the detectives’ accounts of this investigation were tainted by their discussion of time stamps and (perhaps) other aspects of their notes, I am satisfied that any tainting was unwitting and not the product of a coordinated fabrication. I accept the officers’ evidence that, notwithstanding their suspicions, they did not believe they had grounds to interact with these men until after the license plate query. It was accepted at trial that the officers conducted this query, that they received the information they did, and that they radioed for a vehicle stop after having learned about the outstanding warrant. It is clear that the detectives did not interact with either Mr. Spencer or Mr. Haye before they attended the gas station where the uniformed officers were present. The plainclothes officers were clearly of the view that the CPIC information afforded grounds to request a traffic stop. Prior to that, the detectives did nothing but make observations of the men as they walked in plain view on public streets and parking lots. There was simply no reason for the detectives to think, at the time they completed their notes, that there was anything problematic about their investigation that needed embellishing. Further, if, as defence counsel suggests, the purpose of the coordination was to insulate the investigation from a charge of racial profiling, it would be counterproductive for each officer to describe the men in the balaclavas as “black”, given the plausible deniability afforded by the men’s face-covering balaclavas and the officers’ distance from them.

35I understand that anti-Black racism can manifest itself in over-policing, [4] that there will rarely be direct evidence of racial profiling, which must often be inferred from conduct and circumstances, and that it is very difficult to establish unconscious bias. [5] I accept that antecedent racial profiling could taint a detention, search, or arrest that could otherwise be justified on lawful grounds. But here no evidence supports such a claim and, to the contrary, the detectives’ refusal to interact with Messrs. Spencer and Haye prior to learning about the outstanding warrant and firearms caution goes some way to refute it. I am satisfied that race was irrelevant to the police suspicion about the men.

36I accept the testimony of both the plainclothes and uniformed officers that the information they learned about the Kia’s owner – his outstanding warrant for a violent offence, the flag that he may be armed and dangerous, his previous convictions for possession of a firearm and a controlled substance – raised sincere and reasonable officer safety concerns. These concerns are evidenced by the plainclothes detectives’ determination that it was unsafe for them to attempt to stop the men though lawfully situated to do so, and the uniformed officers’ immediate focus on the passenger’s satchel from the moment they saw it while approaching the Kia at the gas bar.

37Notably, it does not appear that the plainclothes officers’ observations of the men’s attire or the presence of the satchel were communicated to dispatch or the uniformed officers. I accept P.C. Beaudoin’s evidence that the satchel, in easy reach of the passenger, was a “big unknown” which, when considered with the other information he had about the car’s registered owner, raised very real officer safety concerns. I accept that he touched the satchel strictly to assuage his own safety concerns, not as an attempt to search for contraband. His purpose in conducting the vehicle stop was simply to determine whether the car’s owner was present; he knew nothing about the plainclothes officers’ suspicions of the Kia’s occupants except the CPIC information about the Kia’s owner.

38Mr. Spencer was removed from the car and arrested at 5:57 p.m. He was informed of the reason for his arrest immediately, virtually simultaneously with the officers removing his satchel and handcuffing him, before they conducted a pat down search. After that search, he was taken directly to P.C. Stoymenoff’s cruiser where he was asked for his name and date of birth before being cautioned and provided rights to counsel. All of this was recorded by video and audio.

39I accept P.C. Beaudoin’s evidence that it was not possible to provide access to counsel at the scene in the scout car. Mr. Spencer was handcuffed in the secure back area of the cruiser. He was being recorded by the in-car camera and the officers’ body-worn cameras. Other uniformed officers with body worn cameras were proximate to the vehicle. Quite apart from the logistical issues associated with a call in this context (e.g., how could Mr. Spencer participate while handcuffed and whose phone would make the call), I accept P.C. Stoymenoff’s evidence that he could “not trust the camera” not to record, presumably because of the risk of operator or system error. I expect that, if a privileged communication with counsel were to have been inadvertently recorded by the police, a markedly different Charter claim would be advanced. I also accept P.C. Stoymenoff’s evidence that he would have called counsel himself if Mr. Spencer had not elected to wait for privacy at the station when given the option although I suspect that P.C. Beaudoin may have countermanded this.

40I do not accept counsel’s criticism of P.C. Beaudoin for muting his body-worn cameras briefly while speaking to other officers during a period in which he was not interacting with Mr. Spencer. He was unaware of what precipitated the call for a vehicle stop to investigate the registered owner. I accept that he was discussing the logistics of where Mr. Spencer should be transported, given that the call was initiated by 12 Division officers in 12 Division but the arrest took place some distance away, in 31 Division, and was conducted by 31 Division officers.

41In my view, these factual findings are determinative of the applicant’s Charter claims.

Application of Facts to Charter Claims

Section 9 was not breached

42Mr. Spencer’s detention was lawful. Section 495(1)(c) of the Criminal Code authorizes a peace officer to arrest a person for whom there are reasonable grounds to believe a warrant is in force in the jurisdiction. It was accepted at this trial that the police officers received information from CPIC that Anathanael Haye was the subject of an outstanding Peel arrest warrant and that he was the registered owner of the Kia that Mr. Spencer occupied while detained.

43Police have the common law power to detain a person for investigative purposes if they have reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and detention is reasonably necessary on an objective view of the circumstances. [6] A detention that meets these requirements is not arbitrary within the meaning of section 9 of the Charter. “Reasonable suspicion” means more than mere suspicion and less than reasonable and probable grounds. “Reasonable suspicion” must be grounded in objectively discernible facts. [7]

44It is obvious that Mr. Spencer was detained from the moment he became aware of the officers’ presence by the Kia at the gas bar. The officers’ approach impeded the path of the vehicle and the first thing they said to Mr. Spencer was a direction to keep his hands raised. I find that the reason for this detention was to investigate whether the owner of the vehicle was in the vehicle for the purpose of arresting him on the authority of the Peel arrest warrant. I accept that it was not possible to exclude Mr. Spencer as potentially being the registered owner at the beginning of this detention because of his balaclava. I reject the defence submission that the arresting officers were negligent in failing to study or even view the licensing photo of the car’s owner, given how the investigation unfolded. In my view, it was reasonable for the officers to suspect that the registered owner was in his vehicle and to detain the vehicle’s occupants for the purpose of investigating this. The fact that a specific person is the subject of an outstanding arrest warrant clearly satisfies the “particular crime” component of the test for investigative detention. Put differently, the warrant provided the officers reasonable grounds to arrest Mr. Haye and it was reasonable for them to suspect that he was in his own vehicle and to detain the occupants of the vehicle to investigate this.

The warrantless search of the satchel was lawful

45Warrantless searches and seizures are presumptively unreasonable and violate s. 8 of the Charter. Where a search is warrantless, the presumption that it violates s. 8 may be rebutted where the Crown establishes, on a balance of probabilities, that the search was authorized by law (either by statute or common law authority) and was done in a reasonable manner. [8]

46Police have common law powers to engage in protective pat-down searches of people detained incident to investigative detention provided they have reasonable grounds to believe that their safety is at risk. [9] To be authorized by law within the meaning of s. 8 of the Charter, the underlying investigative detention must be lawful; police must have grounds to believe that their safety is at risk based on “specific inferences drawn from the known facts of the situation”; the search must be objectively and reasonably necessary in all the circumstances; and the search must be carried out in a reasonable manner. [10] A search incident to an investigative detention is not necessarily limited to the subject’s person and can extend to places where the police reasonably believe that the subject could access a weapon that poses a risk. [11]

47As discussed above, I accept that P.C. Beaudoin had subjective concerns about his safety in these circumstances that were objectively reasonable. The satchel was on Mr. Spencer’s person, in easy reach. P.C. Beaudoin’s brief touching of its outside was necessary to assuage these concerns and carried out in a reasonable manner. The hard object that he felt, and Mr. Spencer’s utterance about it, justified the more thorough search of the satchel that followed.

Section 10(b) of the Charter was not breached

48The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention. [12] The “immediate” duty to inform a detainee of their rights to counsel, however, is qualified when specific, reasonable concerns for officer or public safety take precedence. [13] The duty to facilitate access to a lawyer arises “immediately” upon the detainee's request to speak to counsel. The Supreme Court has explained that police must facilitate the requested access to counsel “at the first reasonably available opportunity.” Police are not required to do so with their own cellular phones. [14]

49I accept that the brief delay in informing Mr. Spencer of the reasons for his detention or his rights to counsel was because of P.C. Beaudoin’s safety concerns, which were specific, objective, and reasonable. Mere seconds passed between the beginning of the police interaction with Mr. Spencer and P.C. Beaudoin’s touching of the outside of Mr. Spencer’s satchel. The delay in informing Mr. Spencer of his rights to counsel was justified in the circumstances. The fundamental character of this interaction changed from an investigation to an arrest almost immediately. Mr. Spencer was informed of the reason for his arrest right away and of his rights to counsel three minutes later.

50I am satisfied that the police decision to delay providing Mr. Spencer access to counsel until he was at the station was reasonable, given the lack of privacy and other logistical issues that would be present were access to counsel facilitated at the roadside. Notably, the police made no attempt to elicit incriminating evidence during Mr. Spencer’s drive to the station.

Section 24(2) of the Charter requires admission of the evidence

51I will consider s. 24(2) in case I have erred in my analysis in respect of the Charter claims on the facts that I have found. I will not conduct this analysis on the basis of police misconduct relating to racial profiling because in my view there is no evidence of it. If the officers lacked grounds to detain Mr. Spencer, they were “just short”, sincerely believed they had grounds, and their beliefs were not the product of any systemic failings or negligence. A s.9 breach here would be on the low end of the spectrum of state misconduct. The actual detention was brief and had little impact on Mr. Spencer’s Charter-protected interests. With respect to s. 8, the initial search was motivated by sincere safety concerns and was conducted only on the outside of the satchel. The search began as minimally invasive and only became more thorough once there was a real indication that the satchel contained a weapon. I find that the seriousness of any Charter breach here was low but acknowledge that its impact on Mr. Spencer’s Charter protected interests was not insignificant, as he had a high expectation of privacy in his satchel.

52Finally, with regard to s. 10(b), Mr. Spencer was only asked about the contents of the bag for safety reasons and his utterance was not tendered at trial. P.C. Stoymenoff, who was tasked with providing the informational and implementational components of s. 10(b), believed it was Mr. Spencer’s preference to wait to call counsel at the station. The police did not ask Mr. Spencer any questions before he was able to speak to a lawyer. Any breach here was inadvertent and had minimal impact.

53I am satisfied that society’s interest in the adjudication of this case on the merits warrants admission of the evidence notwithstanding any Charter breaches. The evidence is real, reliable, and was not conscripted. Its exclusion would end the prosecution. The truth-seeking function of the process would be better served by admission.

The Trial Proper

Analysis of the firearms charges

54Mr. Spencer faces five Criminal Code allegations: that he occupied a motor vehicle with a restricted firearm; possessed a restricted firearm without authorization to do so; possessed a loaded restricted or prohibited firearm; possessed a prohibited over-capacity magazine without authorization; and possessed a firearm while prohibited from doing so. It was conceded at trial that Mr. Spencer was bound by a s. 110 order that prohibited him from possessing a firearm on the date in question; that he was not the holder of a license or registration certificate for either the Glock 21 or the magazine; that the Glock 21 was a restricted firearm as defined by s. 84(1) of the Code; and that the magazine, which was capable of holding more than 10 cartridges, was a prohibited device as defined by s. 84(1) of the Code. Ultimately, the determination of Mr. Spencer’s guilt on these charges turns on proof of his knowledge that he possessed these items.

55Mr. Spencer is presumed innocent of these charges. The Crown must prove his guilt beyond a reasonable doubt, a burden which never shifts. Mr. Spencer can only be found guilty of an offence if, after considering all of the evidence, the Crown has proved each element of each offence beyond a reasonable doubt. If I am not sure, based on all of the evidence, or the lack of evidence, that Mr. Spencer committed an offence, I must find him not guilty of it.

56In order to prove Mr. Spencer’s guilt, the Crown must prove beyond a reasonable doubt that Mr. Spencer knew that he possessed these items. Contrary to the submissions of counsel, it is not necessary for the Crown to prove that Mr. Spencer knew these items met the legal definitions of “restricted” or “prohibited”. Knowledge that he possessed them is sufficient. [15] Because the only evidence relating to Mr. Spencer’s knowledge is circumstantial, he may only be found guilty of these possession offences if his guilt is the only reasonable inference that the evidence permits.

57Photos of the satchel taken at the Shell gas station establish that its only contents were the firearm and the three baggies of controlled substances, the latter of which are clearly visible with the firearm in the main compartment. The grip of the pistol is pointed up, at the top of the satchel, near the zippered opening. The magazine is clearly visible protruding beyond the heel/end of the butt of the gun. Notably, video from P.C. Luna’s body warn camera shows that the satchel was unzipped while it hung from Mr. Spencer’s chest as he was removed from the vehicle. As worn, the open top of the satchel was on Mr. Spencer’s chest, below his neck, such that he would have been able to look down into it. At the time of his arrest, Mr. Spencer was the vehicle’s lone occupant.

58I am satisfied beyond a reasonable doubt that Mr. Spencer was in actual, physical possession of the loaded firearm at the time of his arrest and that he knew what was in the satchel – the circumstantial evidence probative of knowledge admits of no other reasonable inference. I am equally satisfied that he was bound by a prohibition order from possessing this firearm and had no licence, registration certificate, or legal authorization to possess it or the prohibited magazine. Accordingly, Mr. Spencer is guilty of counts 1, 4, 5, 6, and 7.

Analysis of the CDSA charges

59Mr. Spencer faces three CDSA charges for possession of Schedule 1 substances for the purpose of trafficking, respectively, crack cocaine, fentanyl, and methamphetamine. It was conceded at trial that the drugs seized that day were the Schedule 1 substances charged in the counts.

60The three bags were readily visible in the open satchel Mr. Spencer wore across his person. For the reasons discussed above, I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Spencer was in possession of these items.

61The real factual question at this trial is whether Mr. Spencer possessed these drugs for the purpose of trafficking. No direct evidence establishes that Mr. Spencer trafficked any controlled substances in this case or intended to do so. Because the evidence capable of establishing this is circumstantial, he may only be found guilty of these offences if guilt is the only reasonable inference that the evidence permits.

62This trial was conducted as a blended voir dire where the parties agreed that the evidence the Crown called to respond to the Charter applications would also apply to the trial proper. The exception to this blending was the utterance Mr. Spencer made to P.C. Beaudoin, which was only tendered on the Charter application, and the evidence of Detective Matthew Serrano, whose evidence was not relevant to the Charter issues. He was called as an expert by the Crown at trial. The parties consented to his qualification to provide expert evidence on the distribution, use, pricing, packaging, paraphernalia related to use, and modus operandi of traffickers with respect to fentanyl, crack cocaine, and methamphetamine. I exercised my gate-keeping function to limit this testimony to his general knowledge of these areas; he was not permitted to provide an opinion on the facts of this case because in my view it was not necessary and was more prejudicial than probative. I accept, though, that Detective Serrano has acquired specialized knowledge from his work investigating the illicit drug trade that is relevant to the issue of possession vs. trafficking.

63Ultimately, Detective Serrano’s evidence was tendered to explain some common indicia of trafficking and personal consumption. To the extent that Detective Serrano did offer opinions in his testimony, and discussed his personal charging standard (or “threshold”, as he referred to it) vis a vis relative amounts of drugs, I do not rely on those parts of his evidence and give them no weight.

64Detective Serrano has spent the bulk of his 18 years with the Toronto Police Service investigating drug offences in some capacity, including conducting and supervising undercover investigations of drug traffickers. He testified that methamphetamine has a street value of between $50 and $80 a gram. Fentanyl has a street value of between $180 - $210 a gram. Crack cocaine has a street value of between $80-$110 a gram. He explained how these drugs are commonly consumed and how the presence of paraphernalia like needles or pipes that related to the manner of consumption could be an indication that drugs were for personal use rather than commercial use.

65In his view, the main indicator of trafficking vs. consumption is the amount of the drug that a person possesses. Scales can be an indicator of trafficking because traffickers use them to make accurate distributions. Packaging can also be an indicator of trafficking – a quantity of drugs could be divided into a number of smaller bags to make selling easier while, conversely, the presence of only one container might suggest personal use. The presence of cash (from sales), or firearms (for protection from the risks inherent in the drug trade), are also indicators of trafficking. In his experience, the presence of multiple different substances is an indication of trafficking, especially if the substances are not all from the same pharmacological families of uppers or downers because most users consistently prefer one to the other. Detective Serrano also explained that because of how hard fentanyl and crack cocaine are in rock form, dealers will often use hard or sharp objects to “chip off” the smaller amount a purchaser seeks to buy.

66Detective Serrano was fair and independent in his testimony. He acknowledged that people could possess relatively high amounts of drugs for strictly personal use. He acknowledged that some users could consume multiple substances or whatever drug was available. In his experience, a heavy methamphetamine user could use as much as 7 grams a day; a heavy fentanyl user could consume more than 1.5 grams per day; and a heavy crack cocaine user could consume 2 to 3 grams per day.

67The satchel contained 3.52 grams of fentanyl in one plastic bag, with an approximate value of $630 to $740; 7.03 grams of methamphetamine in one plastic bag, with an approximate value of $350 to $580; and 6.02 grams of crack cocaine in one plastic bag, with an approximate value of $480 to $650.

68I find that the respective weights and street values of each substance are probative of trafficking but not so high as to exclude the reasonable possibility that their possession was intended strictly for personal use. The fact that each substance is contained in one bag, without the presence of empty baggies into which it could be subdivided also suggests personal use. Conversely, the absence of any of the instruments commonly used to consume these substances militates against a finding of simple possession, especially when compared to the evidence of marijuana consumption that was visible in the Kia, including an ashtray full of marijuana cigarette butts. The presence of the firearm, located in the precise location as the bags of drugs, strongly suggests trafficking but I find that it is not so probative of trafficking as to be determinative of this factual question.

69Based solely on the evidence seized from the satchel incident to Mr. Spencer’s arrest, I would strongly suspect that he was guilty of possessing these substances for the purpose of trafficking but would not be satisfied of this beyond a reasonable doubt and would, as a consequence, find him guilty only of the included offences of possession. [16] But that is not the only evidence that is probative of his purpose in possessing these substances.

70The driver and owner of the Kia, Anathanael Haye, was found in possession of 27.87 grams of crack cocaine, in one plastic bag (with no empty baggies), worth between $2,000 to $3,000. He was also found with a small scale and a kitchen knife suitable for use in “chipping off” the crack cocaine into smaller amounts. I have no doubt that his purpose in possessing this substance was for trafficking given its quantity and the scale. The question is whether his possession of these items is probative of Mr. Spencer’s purpose and intention.

71The Crown alleges that Mr. Spencer and Mr. Haye were committing the offence of possession for the purpose of trafficking together and were in joint possession of the contraband.

72There is no evidence about the relationship between these two men or about any prior acquaintance. Mr. Spencer and Mr. Haye were together on April 23 from at least 5:12 p.m., when they were first observed by the plainclothes officers, until their respective arrests just before 6:00 p.m. During that time, they were observed walking together from a large apartment complex, both wearing dark, face-covering balaclavas. They walked some distance north together, got into Mr. Haye’s Kia together, briefly drove out of the parking spot before reversing right back into it, then left the vehicle together, walked south back to the apartment buildings where they went inside for a few minutes, walked back to the Kia together, still wearing balaclavas, and drove from the parking lot together, where they stopped at the gas station some distance away.

73For reasons discussed above about the officers’ credibility, I accept D.C. Sabino’s and Keval’s testimony that when they first noticed the two men, Mr. Haye, the taller of the two men who was furtively looking around, wore the satchel across his body. When he and Mr. Spencer left the Kia and walked back to the apartment building, they noticed that Mr. Spencer wore the satchel. Mr. Spencer continued to wear it until his arrest.

74Evidence that can be probative of a finding of joint possession of prohibited items is case and fact-specific. [17] Courts have recognized that, in order to constitute constructive possession pursuant to s. 4(3) of the Code, there must be knowledge extending beyond mere awareness and some measure of control. In addition to knowledge, some evidence of participation or concurrence is required (as compared to mere presence). Where more than one individual occupies a car with prohibited items, the relationship between the occupants, their mutual activities, and their relationship to the vehicle and its contents are all factors that can be probative of knowledge and consent. Evidence of a joint venture with respect to the prohibited items may be probative of knowledge and control on the part of those who are not in physical possession of the items.

75I am satisfied beyond a reasonable doubt that Mr. Spencer and Mr. Haye were co-principals to the offence of possession for the purpose of trafficking on April 23, 2023. They acted in tandem for the entirety of the time the police observed them. At the time of their arrest, Mr. Haye was in physical possession of a large quantity of crack cocaine, a scale, and a cutting instrument. Mr. Spencer was in physical possession of a firearm and smaller amounts of crack cocaine, methamphetamine, and fentanyl. Neither possessed any of the instruments via which any of these drugs would typically be consumed. In my view, it would be unbelievably coincidental for a balaclava-clad Mr. Spencer to be carrying a loaded firearm in the same bag that contained material quantities of crack cocaine, fentanyl, and methamphetamine for his own personal, non-commercial purposes at the exact time that he accompanied a similarly dressed man who was in physical possession of large quantities of crack cocaine and a scale that was obviously used for trafficking. The only reasonable inference, based on the totality of the evidence, is that the two were acting in concert, engaged in a joint venture. The fact that Mr. Spencer and Mr. Haye alternated possession of the satchel removes the already infinitesimal likelihood of coincidence referred to above. I am satisfied that the Crown has discharged its burden to prove these counts beyond a reasonable doubt.

76In conclusion, Mr. Spencer’s Charter application is dismissed. I find him guilty of all counts prosecuted in the Criminal Code and CDSA informations.

Date: October 1, 2024

Justice Peter Scrutton

Footnotes:

1The Crown did not tender this utterance on the trial proper but on the s. 8 and 9 voir dire to support the arresting officers’ grounds.

2Video of the arrest shows the butt of the pistol at the top of the satchel by the zippered opening with the barrel pointing at the bottom of the satchel.

3This conversation was recorded on his body-worn camera.

4 R. v. Theriault, 2021 ONCA 517 at para. 212.

5 R. v. Musara, 2022 ONSC 3190 at para. 352-361; R. v. Morgan, 2023 ONSC 6855 at paras. 70-72.

6 R. v. Mann, 2004 SCC 52; R. v. MacKenzie, 2013 SCC 50.

7 R. v. MacKenzie, 2013 SCC 50 at para. 72; R. v. Kang-Brown, 2008 SCC 18 at paras. 164-166; R. v. Noor, 2022 ONCA 338 at para. 9.

8 R. v. Caslake, [1998] S.C.J. No. 3, at paras. 10-11.

9 R. v. Mann, 2004 SCC 52 at para 45; R. v. MacDonald, 2014 SCC 3 , [2014] 1 S.C.R. 37.

10 R. v. Mann, 2004 SCC 52 at paras 39-45; R. v. Lee, 2017 ONCA 654 at para 30-32.

11 R. v. Griffith, 2023 ONCA 822 at paras. 23-24; R. v. Plummer, 2011 ONCA 350 at paras. 52-58.

12 R. v. Taylor, 2014 SCC 50 at para. 24; R. v. Suberu, 2009 SCC 33 at paras. 41-42.

13 R. v. Suberu, 2009 SCC 33 at para. 42.

14 R. v. Taylor, 2014 SCC 50 at para. 24.