Court File and Parties

Date: 2018-05-18

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Martin Grant

Before: Justice Sandra Bacchus

Ruling on the Charter Application

Reasons Released: May 18, 2018

Counsel:

• D. Wright, for the Crown
• S. Taraniuk, for M. Grant

Introduction

Overview

[1] Mr. Grant alleges violations of his section 8 and 9 Charter rights. Although the Crown is not relying on any statements or utterances made by Mr. Grant to the police, Mr. Grant submits that there are additional breaches of his section 10(a) and 10(b) Charter rights relevant to the issue of the appropriate remedy in this case.

[2] Mr. Grant applies to exclude the B.B. gun and TTC pass seized at the time of his arrest, and clothing seized by the police from his home.

Background

[3] In April and May 2016, a series of street robberies occurred in the neighbourhood south of York University known as the York Village. In each case the victims described being accosted by two men, one holding a gun and the other a knife, while walking in the area.

[4] There are discrepancies in the victims' descriptions of the perpetrators specifically with respect to their ages, whether they had facial hair, the nature of their clothing, and the type of gun that was used. However all these witnesses consistently describe the perpetrators as two black males, one who was taller and slimmer than the second male.

[5] Cesar Guerrero was robbed on May 12, 2016, in the area of 24 Haynes Avenue. The robbery itself is not caught on video. However, police obtained video surveillance of two individuals walking in the direction of the victims and shortly after the robbery moving quickly away. One of these individuals is wearing what is described by the police as a jacket with a distinctive Chevron, light and dark patterned design on the front of the jacket.

[6] Damien Patel and Milan Patel were robbed of their phones, TTC passes, and money in U.S. and Canadian currency between 10:00am and 10:30am on May 13, 2016. Within the same time frame on the same day, Daniel Wilson was robbed of his phone as he proceeded through the laneway on Delabo Drive. Officer Di Nino testified that these two robberies took place within 400 meters of each other.

[7] The police retrieved surveillance video from the laneway of 3 Delabo Drive which captured two individuals turning down the laneway seconds before Mr. Wilson was robbed. One of these individuals is wearing a jacket with a distinctive Chevron pattern on the front.

[8] On May 14, 2016, Officer Di Nino sent an email to the 31 division officers advising them of the gunpoint robberies in the York village area, and attaching the video footage from the Haynes avenue robbery.

[9] On May 15, 2016, Officer Nintin Sedhev also sent an email to the 31 division officers this time attaching the video footage of the two suspects from the 3 Delabo drive robbery.

[10] On May 16, 2016, at 12:27pm, Officer Di Nino resent Officer Sedhev's email to the divisions' officers advising them to: "pay attention to the distinctive clothing."

[11] At approximately 16:54pm, on May 16, 2016, Officers Gwillam and Nei observed two males enter the Subway sandwich shop at Weston Road and Finch Avenue. One of the individuals, subsequently identified as Casey Horne, was wearing a jacket that appeared to be the same Chevron type jacket worn by one of the perpetrators of the robberies.

[12] Officer Gwillam contacted Detective Di Nino who advised him to investigate this individual.

[13] Officers Gwillam and Nei, both working in a plainclothes capacity, entered the Subway restaurant and approached Mr. Horne and the second male, later identified as Mr. Grant. Officer Gwillam advised Mr. Horne that they were investigating a robbery and asked him to step outside. Officer Nei remained with Mr. Grant inside the restaurant posing questions of Mr. Grant.

[14] At 5:18pm, Mr. Horne was arrested and handcuffed by Officer Gwillam outside the Subway restaurant. Mr. Grant observed the arrest of Mr. Horne from his position inside the restaurant and asked Officer Nei what was going on. Officer Nei told Mr. Grant to "stay here" while he went to find out.

[15] Approximately five minutes later, Officers Willet, Sedhev and Di Nino arrived on scene and at approximately 5:31pm, Officers Willet and Sedhev entered the restaurant where Officer Nei was again present with Mr. Grant.

[16] Mr. Grant was searched by Officer Sedhev, a pellet gun was located, and Mr. Grant was arrested. The order of these events is in dispute, although there is no dispute that the arrest occurred approximately three minutes after officer Sedhev entered the restaurant at 5:34pm.

[17] Mr. Grant was read his rights to counsel, the timing of which is in dispute.

[18] There is no dispute however that Mr. Grant asked to speak to counsel and was not connected with duty counsel until approximately one and a half hours after his arrest.

[19] Having considered the submissions of counsel and the authorities provided and given my analysis of the evidence, I find that multiple violations of the defendant's Charter rights occurred and exclusion of the evidence obtained by the police is the only appropriate remedy.

Analysis

Section 8 & 9 Issues

A) Was Mr. Grant detained by Officer Nei in the Subway restaurant?

[20] Mr. Grant testified on the Charter voir dire. Generally his evidence was materially consistent with respect to the circumstances of his encounter in the Subway shop with the police.

[21] He testified that Officer Nei was taking notes and that Officer Nei asked him for personal information which included his name, his activities that day and the day before, where he was, and who he was with, consistent with Officer Nei's evidence.

[22] Mr. Grant did not attempt to embellish or exaggerate his account of Officer Nei's treatment of him.

[23] Mr. Grant testified that Officer Nei was physically blocking him because he was sitting across from him in the restaurant. There is no suggestion by Mr. Grant that Officer Nei ever touched him or threatened him.

[24] However, Mr. Grant testified that he was uncomfortable with the questioning but that he answered and complied with the officer's request to remain in the restaurant as he was told to, because Officer Nei was a police officer. I found his responses in this regard measured and logical.

[25] There is unchallenged evidence from Mr. Grant that Officer Nei directed him to come forward when Officer Sedhev arrived in the Subway shop, and Mr. Grant complied without question, consistent with a belief that he was detained.

[26] Further, Officer Di Nino testified that when he arrived on scene Officer Gwillam and Nei had Mr. Grant in custody, consistent with the outward impression that Mr. Grant was detained.

[27] At the end of cross examination Mr. Grant agreed with the suggestion put to him that he would not want to leave if Mr. Horne was in trouble with the police. I do not interpret Mr. Grant's evidence as a concession that he was content submitting to questioning by Officer Nei.

[28] In accepting the material aspects of Mr. Grant's account of his encounter with the police, I have considered that Mr. Grant lied to the police about his address and that his account to the police that he had been shopping for clothes with a BB gun down his pants, prior to his interaction with the police, is incredible.

[29] Officer Nei's evidence that Mr. Grant was not detained and that he was not investigating Mr. Grant, is inconsistent and does not accord with common sense.

[30] The nature of the questions posed by Officer Nei were not casual and were designed to illicit information helpful to an investigation of Mr. Grant and Mr. Horne. At no time did Officer Nei tell Mr. Grant that he was free to go. On the one occasion when Officer Nei left Mr. Grant alone he instructed him to stay where he was: "stay here".

[31] Mr. Grant complied.

[32] There is evidence that at 5:21pm a message was sent by Officer Willett to Officer Nei to hold the second male, that being Mr. Grant. Officer Nei initially admitted receiving this message but later denied doing so after reviewing the ICAD dispatch which identifies him as responding to this instruction. It is difficult to accept that the message to hold Mr. Grant was not communicated to Officer Nei in some manner.

[33] I find that Mr. Grant was detained by Officer Nei and was being investigated by him as soon as the questioning began in the Subway shop.

[34] Mr. Grant's circumstance is distinguishable from R. v. L.B., 2007 ONCA 596. In that case the young person cast aside a knapsack found to contain a gun and then without prompting approached the officers. The police evidence that they did not demand anything of the young person and did not direct him to do anything leading to the discovery of the gun was not contradicted. The Court of Appeal found that there was nothing to substantiate a finding of psychological detention.

[35] In this case the detention of Mr. Grant was initiated by Officer Nei and it continued when Officer Sedhev arrived and took control of Mr. Grant.

B) Was the detention of Mr. Grant lawful?

[36] The police have common law powers to detain individuals for investigative purposes. In order to be Charter compliant: "The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence." R. v. Mann, 2004 SCC 52, at para. 34.

[37] Officer Nei conceded that he had no grounds to detain Mr. Grant and refuted that his actions in 'standing by' with Mr. Grant amounted to a detention. Officer Gwillam testified that he did not even notice the second male and that he did not have grounds to detain that individual.

[38] The difficulty with the nature of the initial detention of Mr. Grant is that there was no basis articulated for it.

[39] The fact that Mr. Grant was present with Mr. Horne is not enough to raise a suspicion about him or justify his detention absent some nexus or reasonable suspicion linking Mr. Grant to the offence being investigated.

[40] Officer Nei when pressed on the issue of why he told Mr. Grant to remain in the Subway restaurant while he left to check on Mr. Horne, testified that he was concerned that if Mr. Grant left he might involve himself in Mr. Horne's arrest. The rationale for such a concern is not borne out anywhere.

[41] There is no evidence that Mr. Grant ever expressed any intention to interfere with Mr. Horne's arrest. Officer Nei's evidence is inconsistent with his account that Mr. Grant was friendly and cooperative throughout his dealings with him.

[42] Officer Gwillam testified that at 5:21pm there was an instruction to hold onto this male. Again, there is no explanation as to the basis for this instruction.

[43] Officer Di Nino testified that he advised Officer Willet to arrest Mr. Horne and arrest Mr. Grant if he was leaving the scene. There was no description of Mr. Grant ever broadcast or conveyed to Officer Di Nino and no suggestion or concern expressed or conveyed by Officers Nei or Gwillam to Officer Di Nino or any other officer regarding any similarity in Mr. Grant's appearance to that of the second suspect.

[44] There is no explanation why Officer Di Nino took the position that Mr. Grant should be arrested let alone detained.

[45] I find that Mr. Grant's detention by Officer Nei was not lawful and that it violated Mr. Grant's section 9 Charter right.

[46] The violation of his section 9 Charter right was amplified when the detention continued even after a police check had been run on Mr. Grant between 5:22pm and 5:23pm which came back negative, meaning there was nothing on file for him.

C) Was the search of Mr. Grant lawful?

[47] The police are entitled to search an individual pursuant to a lawful detention if there are legitimate concerns for public and officer safety. R. v. Clayton, 2007 SCC 32; R. v. Plummer, 2011 ONCA 350.

[48] The law recognizes that police officers who engage members of the public in investigative detention may take reasonable steps to protect their safety and the safety of the public. The search power pursuant to an investigative detention is more limited than a search incident to arrest and must be related to articulable safety concerns. Plummer, supra para. 76; R. v. Dunkley, 2016 ONCA 597, at para. 37.

[49] The police are also empowered to search incident to a lawful arrest. An arrest is lawful when a police officer has a subjective belief that there are grounds to arrest and those grounds are objectively reasonable. The totality of the circumstances relied upon by the arresting officer forms the basis to determine if the grounds relied upon are objectively reasonable. R. v. Golub.

[50] The power to search incident to arrest may be exercised prior to the arrest but the grounds for arrest must already exist at the time of the search. Dunkley, supra para. 35.

[51] Mr. Grant testified that when Officer Sedhev came into the Subway restaurant, Officer Sedhev asked Officer Nei if Mr. Grant had been patted down and Officer Nei said no. Mr. Grant testified that Officer Sedhev then conducted a pat down search on him in the area of his pants pockets, but missed the front of his pants where he had secreted the gun and it had slipped down. He testified that he then told Officer Sedhev about the gun and that Officer Sedhev retrieved it, held it up and then arrested him.

[52] Officer Sedhev testified that he arrested the defendant because he was standing face to face with him and he recognized him as the second perpetrator in the video. He testified that he arrested Mr. Grant first and then searched him incident to arrest and located the BB gun.

[53] I do not accept Officer Sedhev's account of the arrest and seizure of the gun.

[54] Firstly, his reason for the arrest is not objectively reasonable. It is inconsistent with the evidence of Officer Gwillam who testified that he did not recognize Mr. Grant and did not even had a description of the second male. It is also inconsistent with the evidence of Officer Nei who had a better opportunity than Officer Sedhev to observe Mr. Grant over the 30 minutes he was in direct contact with him and did not testify about any connection he saw between Mr. Grant and the second male. It is also inconsistent with the fact that Officer Di Nino who was intimately involved with the surveillance evidence never testified that he recognized Mr. Grant as the second perpetrator.

[55] Further, Mr. Grant was not said to be wearing clothing similar to the clothing worn by the second perpetrator at the time of the arrest.

[56] Officer Sedhev testified that he zoomed in on the perpetrators while watching the video(s) but did not elaborate on what he did, what he saw, or what features of Mr. Grant's face were so similar to the second perpetrator that allowed for the officer to identify him.

[57] Further, the faces of the males on the videos are not close up and parts of the faces are obscured. The video footage does not allow for a clear observation of the perpetrators' features.

[58] What makes more logical sense is that Officer Sedhev searched Mr. Grant first, discovered the gun, and then arrested him, and it was his discovery of the gun that lead to the arrest of Mr. Grant and to Officer Sedhev's belief that Mr. Grant is the second perpetrator.

[59] The search of Mr. Grant was unlawful as it occurred absent exigent circumstances and pursuant to an unlawful detention.

[60] Even if I were to accept Officer Sedhev's account that the arrest was made before the search, the Crown has not established on a balance of probabilities that reasonable and probable grounds existed for the arrest and the search incident to arrest is also unlawful. R. v. Caslake, at para. 10.

D) Was there a violation of Mr. Grant's s. 10(b) Charter rights?

[61] Mr. Grant testified that he was given his rights to counsel for the first time when he and the arresting officers were waiting in the sally port area to be booked into 31 division. I calculate this as approximately 25 minutes after his arrest.

[62] He testified that during the ride from the scene to the station he was asked further questions by Officer Sedhev about where he lives and that he was berated by Officer Willett for robbing people. His evidence was consistent and measured and has the ring of truth to it.

[63] In contrast I find that there are unexplained gaps in the police account of Mr. Grant's arrest and right to counsel. Officers Willett and Nei were present during the arrest yet testified that they did not hear the rights to counsel at scene and had no recall regarding the circumstances surrounding the discovery of the gun.

[64] Officer Willett was in the vehicle with Mr. Grant and Officer Sedhev waiting in the sally port area of 31 division for 20 minutes yet he testified that he had no notes and no recall of the conversations that occurred in the vehicle involving Mr. Grant. Officer Sedhev testified that he was not sure and could not recall if Officer Willet asked Mr. Grant where he got the gun and why he was robbing people.

[65] I find these inconsistencies and gaps highly problematic measured against the consistent, apparently uncontrived account of Mr. Grant on this issue.

[66] Mr. Grant is booked into the division between 6:04 pm and 6:08 pm. There is no dispute that he requests to speak to counsel and is advised that he will be provided with this opportunity. Officer Willett states on video that he will get Mr. Grant in touch with duty counsel.

[67] At 6:10pm, Officer Sedhev advises Mr. Grant that the police will be executing a search warrant on his residence and asked him for his key to obviate the need to damage his door to gain entry.

[68] The call to duty counsel appears to have been placed around 19:04pm.

[69] There was no explanation offered to Mr. Grant at the time or in evidence before this court that accounts for the delay in implementing Mr. Grant's right to counsel.

[70] The police were able to acquire the passcode to Mr. Grant's building. Surveillance footage of their entry into Mr. Grant's building and into Mr. Grant's room shows that the police knew where they were going.

[71] The nature of the questions Mr. Grant says he was asked during his transport from the Subway restaurant to the division is consistent with the inference that the police acquired the information they needed to enter his residence before he was permitted to exercise his right to counsel.

[72] I am satisfied that there was a clear violation of Mr. Grant's section 10(a) right to be advised of his right to counsel without delay and the implementation component of Mr. Grant's section 10(b) right.

Findings

[73] Mr. Grant was unlawfully detained.

[74] Mr. Grant was illegally searched.

[75] Mr. Grant was not informed of his right to counsel upon his arrest.

[76] The implementation of Mr. Grant's right to counsel was unjustifiably delayed.

Remedy

A) Is Exclusion of the evidence the appropriate remedy?

[77] In determining whether, in light of these violations, the administration of justice would be brought into disrepute by the admission of the evidence I am to consider the seriousness of the Charter infringing conduct, the impact of the breach on the Charter protected interests of the accused, and society's interest in the adjudication of the case on its merits. R. v. Grant, 2009 SCC 32.

Seriousness of the Violations

[78] The violations in this case were not trivial or technical but fall in my view closer to the category of a brazen and flagrant disregard of Mr. Grant's Charter rights.

[79] The collective lack of any significant recall by the officers who had custody of Mr. Grant regarding Mr. Grant's exercise of his rights to counsel, is troubling in particular as there is no issue that Mr. Grant asked for counsel.

[80] Officer Willett had no recall or note of Mr. Grant saying he wanted to speak to counsel; Officer Sedhev had no note of rights to counsel or Mr. Grant's response. Officer Di Nino testified that he did not know when Mr. Grant had the opportunity to speak to counsel even though he interacted with Mr. Grant at 6:10pm to obtain the keys for his home. There is no evidence that the booking sergeant followed up. There is no evidence that anyone ever explained to Mr. Grant why the implementation of his right to counsel was delayed and when he would get that opportunity.

[81] There was no basis to detain Mr. Grant at the scene and no basis to search and arrest him.

[82] I can only conclude that the police were ambivalent about insuring compliance with Mr. Grant's Charter rights.

[83] The number and nature of the Charter violations in this case are serious and favour exclusion of the evidence.

The Impact on the Charter Protected Interests

[84] I accept that Mr. Grant was answering questions and providing information because he felt compelled to do so. The impact on his Charter protected right not to be arbitrarily detained, his right to privacy and to be free from unreasonable search is high.

[85] The police elicited personal information from Mr. Grant including his address and passcode and acquired real evidence such as the BB gun and his house key to assist them in their investigation.

[86] In detaining and questioning Mr. Grant as they did, the police chose to run the risk of the consequences of trampling Mr. Grant's Charter rights in order to further their investigation.

[87] This is not a case where the causal connection between the section 8 and 9 Charter breaches is so weak as to favour inclusion of the evidence. Instead the nature of the violations are closely connected. It is not a case where the pat down search of Mr. Grant could be characterized as reasonable because it flowed from exigent circumstances. R. v. Fountain, 2015 ONCA 354.

[88] In my view this second ground of the analysis weighs in favour of exclusion of the evidence.

Adjudication on the Merits

[89] These are serious offences. If I were to consider the public interest alone this ground favours inclusion of the evidence.

[90] I am mindful that the BB gun seized is real evidence central to the robbery investigation and the issue of identification, as are some of the articles of clothing seized from Mr. Grant's residence.

[91] However, the test for admission of the BB gun is not less stringent simply because it is a BB gun and the victims testified that a firearm was used in the commission of the robberies. R. v. Fountain, 2015 ONCA 354.

[92] It is the longer term repute of the criminal justice system which is central to the consideration here: "…while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high." Grant, supra para. 84.

[93] In my view admission of the evidence seized in this case in relation to Mr. Grant would undermine public confidence in the rule of law.

Conclusion

[94] Applying the analysis in Grant supra to the facts, I find that the Charter violations were serious and that the impact on the defendant's Charter protected rights, significant. I find that the administration of justice would be brought into disrepute by the inclusion of the evidence sought admitted despite the compelling societal interest in adjudicating this case on its merits.

Date: May 18, 2018

Signed: Justice Sandra Bacchus