ONTARIO COURT OF JUSTICE

Date: 2023-12-01

Court File No.: Toronto 9982270006225 9982270006226

BETWEEN:

HIS MAJESTY THE KING

— AND —

OMARI RODNEY

Before: Justice David S. Rose

Heard on: November 6 - 9, 2023

Reasons for Judgment released on: December 1, 2023

Counsel: S. Duffey, counsel for the Crown M. Huberman, counsel for the accused Omari Rodney

David Rose J.:

[1] Mr. Rodney was arrested on Maitland Street in Toronto on the evening of September 18, 2022. At the time he had just fled 4 police officers. When he was arrested he had on his person 53.56 grams of Cocaine, 40.25 grams of Methamphetamine, and a quantity of cash. Seconds before he had thrown a loaded 9mm Taurus handgun to the street. He was therefore charged with 2 CDSA charges, 6 Criminal Code charges in relation to the gun and another Criminal Code charge in relation to the cash.

[2] The admissions by the defence include all legal elements of each offence, namely that the gun met the legal definition of a firearm, Mr. Rodney did not have a valid licence for a firearm and was under a s. 109 Criminal Code prohibition at the time. The defence also admits that the amount of each drug meets the legal definition of trafficking under the CDSA, and that the cash seized was property obtained by crime.

[3] With the admissions the question to be decided in this case is whether the evidence of drugs, the gun and cash ought to be excluded from this trial because Mr. Rodney’s Charter rights were violated. Mr. Rodney concedes that the Crown has proven all legal elements of each offence.

Evidence

[4] Det Malyk of Toronto Police Service was investigating a domestic violence charge on September 18. She had interviewed a victim that afternoon and from that received information about the suspect, Moses Gregory. Her investigation revealed that Mr. Gregory was considered violent. Apparently the victim had told Det. Malyk that Mr. Gregory had shown her a picture of a gun and said that he could get one.

[5] The victim told Det. Malyk that Mr. Gregory was a 25 year old male black, 5 foot 10, muscular, who wore Under Armour clothes, jeans, a white t-shirt and had “peach fuzz” facial hair that he would shave off. Det. Malyk found a dated mug shot of Mr. Gregory and had a search warrant application drafted by another police officer to search unit 204 – 320 Seaton Street Toronto for a firearm. At that point Mr. Gregory was arrestable for uttering threats. Det. Malyk had evidence that Mr. Gregory was a dangerous individual who had access to firearms.

[6] The search warrant was granted by J.P. Parker in short order. It permitted the search of 320 Seaton St. #204 from 8pm to 11:59 pm that night.

[7] Around 9:23 Toronto Police executed the warrant on 320 Seaton Street Unit 204 but Mr. Gregory was not there. Det. Malyk left 320 Seaton Street alone in an unmarked car at 10:10 pm and drove east on Carlton Street to go back to 51 Division. When she drove toward Berkeley street she saw a man walking west-bound on Carlton on the south side of Carlton Street. He was 15 meters away. That was only 2 minutes after she left 320 Seaton Street, and about 2 blocks away.

[8] Det. Malyk testified that the pedestrian initially matched the physical descriptors of Mr. Gregory. The man she saw on Carlton Street had the same braided hair and similar build, height and age. He was wearing grey track pants and carrying a satchel. The pedestrian was talking on a cell phone and walking briskly so Det. Malyk could not see his face. She thought that he was potentially Mr. Gregory. Det. Malyk testified that she never saw the pedestrian’s face until he was arrested later.

[9] With that observation Det. Malyk called one of her colleagues, Detective Constable Waugh and asked for a photograph of Mr. Gregory. She turned her car around to follow him with a view to confirming his identity. She had difficulty comparing the photograph because the pedestrian was on the phone. She asked DC Waugh for assistance because she suspected the pedestrian was Mr. Gregory who was arrestable for Uttering Threats and Criminal Harassment. She could not say with 100% certainty that it was Mr. Gregory but she wanted help stopping the pedestrian to confirm his identity.

[10] Det. Malyk followed the pedestrian west bound on Carlton to Homewood, north on Homewood and then west bound onto Maitland Place as he crossed Jarvis Street toward Yonge Street. The call to DC Waugh lead to 4 Community Response Unit (CRU) officers being deployed on an urgent basis from 51 Division at Parliament and Front Street.

[11] One of them, PC Tattersal called Det Malyk at 10:21. He was by then in a police van with thee other Community Response Unit (CRU) uniformed officers (PCs Alexander, Ko and Gallagher) on his way to her location to help. She told him that she suspected the pedestrian was the person she was looking for, and asked his team to stop and identify the pedestrian. She told the CRU team that she was following the person she wanted stopped and his physical descriptors. At trial the 4 CRU officers did not give the same evidence about their instructions. PC Alexander’s evidence was that if they saw the person he was to be arrested, which I took to mean arrest, not detention for purposes of confirming identity.

[12] At one point the pedestrian crossed from the south side of Maitland to the north side of the street continuing to walk west toward Yonge Street.

[13] The van with the CRU officers passed Det. Malyk on Maitland, and at that point stopped to investigate. The pedestrian was just ahead of her to the west. As the van approached the male she stopped her car and in that moment the pedestrian ran east bound toward her.

[14] PC Tattersal confirmed that his information from Det. Malyk was that she was not 100% certain that the pedestrian she was following was Mr. Gregory. He understood their role to be secure the pedestrian and confirm his identity. If it was Mr. Gregory then arrest him. In Tattersal’s evidence once the pedestrian ran it confirmed for him it was the person they were looking for.

[15] Det. Malyk got out of her car, and the pedestrian was arrested by PCs Alexander and Ko. She assisted them. She did not hear anything before he ran, and she did not say anything. As he was taken to the ground she heard PC Ko say that a gun was thrown and it was recovered, but she didn’t see a gun up to that point.

[16] Det. Alexander described that moment from his perspective. The van was going up Maitland not very quickly, as they approached the pedestrian in the grey sweat pants he ran away. The pedestrian was on the north side of Maitland approaching Yonge. As Alexander described it “he took off really fast” as soon as he opened the side door but the action of stopping the van shut the door. He had opened the door in anticipation of the stop but after it shut on its own he had to open it again. Everyone in the van jumped out. PC Ko was ahead of PC Alexander and a foot chase started with the pedestrian east on Maitland. He heard something hit the ground during the chase. It was a hard clanking sound like a heavy object. Alexander said it sounded like maybe a police radio, but he did not drop his radio.

[17] Ko was in the front passenger seat of the van and testified that he understood his instructions to arrest the person in the grey track suit if they saw him. That information came from Det. Malyk via PC Tattersal who was in the van. As Ko opened his door Mr. Rodney said “oh fuck” and ran east bound down Maitland. DC Gallagher also testified that he heard Mr. Rodney say “oh fuck” before running. The van was still moving when he opened his door. Ko saw Mr. Rodney’s arm swing and then heard something hit a parked car and then fall on the ground. When he heard that sound he believed it to be a firearm. It sounded like a heavy metal object. PC Ko testified that he had dropped his own gun before and it sounded like that. From PC Ko’s perspective the arrest was both for the domestic assault charge as well as the dropped firearm. After Mr. Rodney was handcuffed PC Ko found the gun behind him on the ground on roadway covered by the foot chase.

[18] The foot chase lasted about 10 seconds with PC Ko apprehending Mr. Rodney and handcuffing him. Alexander testified that he was arrested because he was the person wanted for the domestic violence charges based on information received from Det. Malyk.

[19] After PC Ko had walked back west on Maitland he said he had located a firearm on the street. PC Alexander then told Mr. Rodney he was under arrest for possession of a firearm. The video confirms that while Mr. Rodney was being arrested on the ground, Ko confirmed that he had indeed thrown a firearm seconds before. It all happened within seconds.

[20] Video from police body worn cameras was played during the trial. It shows the arrest of Mr. Rodney on Maitland Street and the location of the handgun in the middle of the road beside a parked silver SUV.

[21] Det. Malyk agreed that the police information on Mr. Gregory had him as 5’7 and 140 lbs but that she had information from the victim that day that Mr. Gregory was 5’10. In her evidence the police information was not always accurate and she was going with the description given by the complainant that day.

[22] She based her reason to have the pedestrian stopped based on the physical descriptors as well as the fact that the pedestrian walked past Seaton Street talking on a phone. In her experience people on the scene of a search warrant often tell the target of the search warrant of the police activity, and Mr. Gregory’s mother was at the apartment 204, free to move about. She could easily have called Mr. Gregory to tip him off.

[23] In her evidence she wanted the pedestrian stopped to confirm his identity and her basis for that was his similarity to the physical descriptors of Mr. Gregory. Ko testified that Mr. Rodney was not free to go because he was pretty sure a firearm had been thrown, but he was also arrestable because of the domestic assault charges.

[24] That it was Mr. Rodney, and not Mr. Gregory in police custody was not confirmed until Mr. Rodney was handcuffed and his satchel searched, which yielded identification along with drugs. The video from the scene shows exactly that, and the officers at scene confirming that this was not Det Malyk’s person, meaning Mr. Gregory. At one point one of the CRU officers is heard saying to her “Good work detective” in a humorous tone because they had not arrested Mr. Gregory.

[25] It was admitted by the Crown that Mr. Rodney was 6’0 on the night of September 18, 2022 and weighed approximately 190 pounds. PC Tattersal testified that Mr. Rodney was born on April 2, of 1997, making him 25 years old at the time of his arrest.

Issues

[26] Mr. Rodney alleges that the police violated his Charter rights. In his written Charter Application he claims that “There were insufficient grounds to initiate the detention of Mr. Rodney”. He alleges that his rights under ss. 8 and 9 were violated and that all evidence located was the result of Charter violations and should be excluded from the trial.

[27] In oral submissions Mr. Huberman claims that Mr. Rodney was psychologically detained at the point when the CRU van pulled up and that his arrest was in violation of s. 9. Mr. Huberman argues that the search of Mr. Rodney’s pockets which turned up 40.25 grams of methamphetamine and some cash by PC Tattersal was a violation of s. 8. It follows, in the defence argument, that the 53.56 grams of cocaine and remainder of cash found in his satchel was also a violation of s. 8. Mr. Huberman argues that Det. Malyk had a racial bias or stereotype.

[28] The Crown resists on the basis that the gun was discarded by Mr. Rodney and so he has no standing to claim a Charter violation in connection with that piece of evidence. The Crown argues Mr. Rodney abandoned the gun, and that the police had reasonable and probable grounds to arrest Mr. Rodney because they reasonably believed him to be Moses Gregory. Ms. Duffey argues that the firearm was not located as a result of any police conduct, and that the investigation on Maitland street was chaotic and fast moving. The Crown argues that the arrest was lawful and therefore the search incident to arrest was lawful.

Findings

i) Credibility findings

[29] Mr. Huberman alleges that Det. Malyk brought an agenda to her testimony. I disagree. Det. Malyk had been investigating Mr. Gregory nearby, at 320 Seaton Street, had obtained a search warrant for his residence and only minutes later saw someone which matched his description. To be fair to the defence her basis to conclude that Mr. Gregory knew about the search warrant was quite speculative. Her experience in such matters did not rise to the level of a discernable fact. But with that caveat there is no basis for me to diminish the weight of Det. Malyk’s testimony. I found her to give evidence in a straightforward manner.

ii) Was the arrest of Mr. Rodney in violation of his rights under s. 9 of the Charter?

ii.1 The Nature of Detention

[30] Much of the defence argument turns on whether Mr. Rodney was detained when the police CRU van pulled up beside him. The defence argues that this is when the detention of Mr. Rodney crystallized. Up to that point he was moving freely westward along Maitland Street with no overt police presence. Up to then there is no evidence of any constraint on Mr. Rodney. Indeed, Mr. Rodney was not physically detained until he was taken to the ground and handcuffed by PC Alexander, Ko and Tattersal after the foot chase. The question to be decided is whether Mr. Rodney was psychologically detained when the CRU van pulled up beside him, so as to make his discard of the handgun something taken during police detention.

[31] A detention for purposes of engaging Charter protection requires “significant physical or psychological restraint”, see R. v. Le 2019 SCC 34 at par. 27 quoting from R. v. Mann 2004 SCC 52 at par. 19, R. v. Grant 2009 SCC 32 at par. 19. A psychological detention arises when a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand that they are not free to leave even if there is no police demand or direction, see Le at par. 26. The question of what constitutes a psychological detention is not an easy one to answer, see R. v. Atkins 2013 ONCA 586. As the Court of Appeal recently reminded trial judges as regards detention in this context, “A failure to consider whether the police-citizen interaction involves a “significant deprivation of liberty” may result in overshooting the very purpose of the Charter provision and undervaluing the public’s interest in effective policing”, see R. v. Reid 2019 ONCA 674 at par. 26.

[32] In Le the Court was faced with a different fact pattern, namely the police had entered the backyard of a private residence unannounced where 4 persons were standing. The backyard was enclosed with a waist high fence. The police questioned the men, asking for identification and what they were doing. One was told to keep his hands exposed. Mr. Le was asked for his identity and what was in the satchel he had on him. At that point Mr. Le fled the scene. He was arrested after a chase with a gun, drugs and cash. Le turned very much on whether he was detained before he fled. In that limited sense it is similar factually to the case at bar. The Court outlined several factors which lead it to conclude that Mr. Le was psychologically detained: a) the circumstances giving rise to the encounter as they would reasonably be perceived; b) the nature of the police conduct, including; b.i) trespass by the officers; b.ii) the actions of the police and the language used; b.iii) the use of physical contact; b.iv) the place where the interaction occurred and the mode of entry; b.v) the presence of officers; b.vi) the duration of the encounter; c) the particular characteristics or circumstances of the accused including how a person with a similar racial background would perceive the interaction with the police, level of sophistication, the accused’s perceptions, his age and stature.

[33] I therefore take that, in law, when the claim is that the accused is psychologically detained as opposed to being generally questioned there are three broad factors to consider:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;

b) The nature of the police conduct;

c) The particular characteristics or circumstances of the individual;

See Le at par. 31, quoting from R. v. Grant 2009 SCC 32 at par. 31.

II.ii The Authority to Detain

[34] The police have a common law power to detain individuals for investigative purposes. It arises if the police have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that detention of the individual is necessary, see R. v. Mann 2004 SCC 52 at pars. 32 – 45. Following the Ontario Court of Appeal decision from R. v. Simpson (1993), 12 O.R. (3d) 182, in Mann at par. 27 Iacobucci J found that a lawful investigative detention requires a “…constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminal implicated in the activity under investigation”.

[35] The standard for a lawful detention is therefore reasonable grounds to suspect. It is a lower standard than the threshold required in order to affect a warrantless arrest, which is reasonable and probable grounds, see R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1166, R. v. Canary 2018 ONCA 304.

[36] When a trial court assesses whether a police officer had subjective belief to exercise a police power it must assess the facts through the lens of a person with the same knowledge and experience of the officer. It is not a scientific or metaphysical exercise, but rather one applying common sense, flexibility and practical everyday experience, see R. v. Chehil 2013 SCC 49, R. v. MacKenzie 2013 SCC 50, R. v. Canary (supra).

[37] Three further comments are necessary. The first is that reasonable grounds to suspect can be reinforced if the person walks away from the police, See R. v. Noor 2022 ONCA 338 at par. 12. The second is that the currency of the facts relied on by the police is important in determining whether the detention is justified in law. On this I can do no better than quote Doherty JA from Simpson (supra) at par. 66.

If articulable cause exists, the detention may or may not be justified. For example, a reasonably based suspicion that a person committed some property-related offence at a distant point in the past while an articulable cause, would not, standing alone, justify the detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute the suspicion. Similarly, the existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification, would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive interrogation.

[38] The third comment is that, beyond re-enforcing grounds, flight plays a factor when considering when a psychological detention crystallizes. When the accused chooses to flee at the beginning of his contact with the police there is no acquiescence or submission to any deprivation of liberty, see R. v. Atkins (supra) at par. 10, R. v. Nesbeth 2008 ONCA 579 at par. 10, R. v. Noor 2022 ONCA 338 at par. 12, R. v. Murray (1999), 136 C.C.C. (3d) 197 (Que.C.A.) The question is whether there was any detention before the accused fled the police.

II.iii Was Mr. Rodney detained before he fled from the CRU van?

[39] Against that legal backdrop I have no difficulty rejecting Mr. Rodney’s argument that he was detained when the van pulled up. I make that finding for the following reasons.

[40] Mr. Rodney’s initial interaction with the police was ever so brief. I agree with the Crown’s characterization of the initial interaction as “an instant”. The defence asks me to find that the police presence as 4 uniformed officers pulling up along-side of him in that very instant lead to a detention, but I am unable to find that. No words were spoken by the police, nor did they make any gestures. I give considerable weight to those facts. I also give real weight to the location of the alleged detention, which was a public area. There is nothing about a public, well used, sidewalk on Maitland Street which lends itself to an environment in which Mr. Rodney would think that he had nowhere to go.

[41] In short, there was insufficient time for a detention to crystallize.

[42] In making this finding I am mindful that Mr. Rodney is from a racialized minority. He is a young black man. I take as a social fact that young black men are all too often the subject of unconstitutional demands by the police. This is a social fact on which there is no need for evidence, see Le (supra) at par. 83. I give some weight to the fact that Mr. Rodney is a black man who, upon seeing a police van pull up filled with uniformed officers, may well have thought that he would rather run than be subjected to a detention or unlawful arrest. Toronto Police Service have a notorious history of carding, namely stopping racialized young men simply to acquire information about them, see Mr. Justice Tulloch’s 2021 Report on Independent Street Checks.

[43] With that said, there is some element of speculation to my finding about the racialized context of Mr. Rodney’s interaction with the police. This reduces its weight. I do not have any evidence about what precisely Mr. Rodney was thinking when he chose to run from the police. For these reasons, Mr. Rodney’s racialized character is insufficient to outweigh all of the other factors discussed above which support the finding that there was no detention at the time the van pulled up.

II.iv Did Det. Malyk have the authority to have Mr. Rodney detained?

[44] Even if Mr. Rodney was not detained with the police van pulled up, I have no difficulty finding that Det. Malyk had a reasonable suspicion that the pedestrian was Mr. Gregory, and that his detention was necessary in order to find out his identify one way or the other.

[45] Det. Malyk had information about Mr. Gregory. A police report put him at 5’7, but a witness had him as 5’10. She was entitled to rely on her experience with the vagaries of police information and so consider the witness’ information about his height. That would put the pedestrian, Mr. Rodney, as much as 5” and as little as 2” taller than Mr. Gregory. That is a difference to be sure, but not one which was so stark that the height of the pedestrian alone could rule him out from being Moses Gregory.

[46] Det. Malyk followed the pedestrian from behind while the pedestrian talked on the phone. I accept her evidence that she could not see his face in order to compare it to a picture of Moses Gregory. Given the currency of the search of Mr. Gregory’s residence, the pedestrian’s general physical description and where the pedestrian was initially located I have no difficulty finding that Det. Malyk had a reasonable suspicion which was sufficient to have the pedestrian stopped to see if it was in fact Moses Gregory. In making this finding I take into account Det. Malyk’s work that night, which took her from investigating a domestic violence incident, to getting a search warrant for Moses Gregory’s residence, having the warrant executed which did not turn up Mr. Gregory. It is an irresistible conclusion that Det. Malyk was looking for Mr. Gregory after 10pm on September 18, 2022 with a view to arresting him. Her evidence makes perfect sense. In the moments after leaving 320 Seaton Street she was still investigating Mr. Gregory. She was thinking about Mr. Gregory and looking for him in the area of his residence, even if she was on her way back to 51 Division. When Mr. Rodney walked into her view as someone who roughly resembled Mr. Gregory she was entitled to investigate him with a view to confirming his identity, which she did.

[47] The pictoral evidence at trial does establish that Mr. Gregory has many different facial features than Mr. Rodney. Mr. Gregory has a lighter complexion, different hairline and differently shaped nose. The two could not be confused in a side by side comparison, but Det. Malyk never testified that they could. Her evidence, which I accept is that she could not see the face of the pedestrian.

[48] I therefore reject the argument that Mr. Rodney was detained because of racial profiling. In this case on this evidence he was investigated because he bore a general resemblance to another black man who was wanted in the area. Det. Malyk’s instructions to detain for purposes of identification make this a case of mistaken identity and not of racial profiling.

[49] On the evidence before me two intervening events happened which prevented a simple pedestrian detention from happening. One was Mr. Rodney fleeing from the police van, and the second was his discard of the handgun during the chase.

[50] There was a divergence of evidence about what each CRU officer thought in terms of whether they were to arrest the pedestrian or arrest him because he was Moses Gregory. PC Alexander thought that Malyk said the pedestrian was arrestable. Tattersal said that the pedestrian was only detainable until the point where he fled and then dropped the gun, when he was arrestable. In Tattersal’s evidence once the pedestrian fled that confirmed that he was then arrestable. Ko testified that Det. Malyk gave grounds to arrest the pedestrian, and when he saw the pedestrian throw a firearm he had an additional basis to arrest him.

[51] In my analysis, the divergence of testimony about whether the CRU officers were to arrest or simply detain the pedestrian plays no factor because of intervening events, namely Mr. Rodney’s flight and discard of the handgun.

[52] Although it is a close call, I find that Mr. Rodney was not arrestable until he threw the gun, at which point he was arrestable for that. The addition of Mr. Rodney’s flight certainly added to grounds to detain him, I would not find a credibly based probability that this was Mr. Gregory. In making this finding I find that this was a stop for a specific person, and not a person who had committed an indictable offence whose identity was unknown. Det. Malyk had reasonable and probable grounds to arrest Mr. Gregory, and no one else. Until Mr. Rodney threw away the gun there is no evidence of him committing an indictable offence. The pedestrian’s arrestability turned on him being Moses Gregory until the point when he threw the gun in plain sight of PC Ko and the CRU team. From that point on he was arrestable for any number of offences under Part III of the Criminal Code. In making this finding I accept PC Ko’s evidence that the object he saw being thrown by Mr. Rodney had the same heft and sound of a handgun falling to the ground.

[53] There is no violation of Mr. Rodney’s rights under s. 9 of the Charter. He was lawfully arrested for possession of a firearm.

[54] Once Mr. Rodney threw the gun he abandoned his interest and therefore privacy interest in the item. See R. v. Patrick 2009 SCC 17 at par. 28, R. v. Lawson 2012 ONSC 1309 See Nesbeth (supra) at par. 22.

III Was the search of Mr. Rodney in violation of his rights under s. 8 of the Charter?

[55] With my finding that Mr. Rodney was arrestable once he discarded the handgun it follows that his arrest was a lawful one. He was in possession of a handgun in the presence of PC Ko and had thrown it away. It is a reasonable inference that persons in lawful possession of a handgun do not pitch them away when being pursued by the police and I find just that. The arrest happened within seconds of PC Ko confirming that the object he saw thrown was a handgun. This can be seen and heard on the video played at trial. Mr. Rodney’s arrest followed PC Ko seeing the handgun and at the same time that the gun was located. It all happened very quickly.

[56] I also find that the video footage shows that the police were searching Mr. Rodney with a view to confirming his identity qua Moses Gregory. That is a focus of the CRU officers in conjunction with Det. Malyk in the moments once Mr. Rodney was handcuffed. When Mr. Rodney is being taken into custody PC Alexander can be clearly heard telling him he is being arrested because of the gun.

[57] I therefore have no difficulty in finding that the search of Mr. Rodney and his satchel was connected logically with his arrest for possession of the gun at a minimum. One officer testified about the 1 plus 1 rule, namely that just because one gun is found illegally does not mean there is no other. This is a common sense observation, and permitted the officers to search Mr. Rodney’s person and belongings for evidence, including identity and other weapons. Once the police found drugs in Mr. Rodney’s pockets they had an additional indictable offence which permitted them to search not only for identification and other weapons but other drugs too.

[58] There is therefore no violation of Mr. Rodney’s s. 8 rights under the Charter.

IV s. 24(2) analysis

[59] If there was a Charter violation should evidence be excluded?

[60] If I am wrong that Mr. Rodney was lawfully arrested I would not exclude either the gun, drugs or cash. I make this finding for the following reasons.

[61] The three part test for exclusion of evidence from R. v. Grant 2009 SCC 32 asks three questions: what is the seriousness of the Charter violation(s); what is their effect on the accused’s Charter protected interests, and lastly what is the public interest in a trial on its merits. It is a wholistic assessment, not one of mathematical precision, see R. v. Tim 2022 SCC 12 at paras 98 - 99. For purposes of this portion of the ruling I consider whether the search of Mr. Rodney and seizure of the handgun involved a violation of s. 8, contrary to my ruling above.

[62] In considering the seriousness of the Charter violation I find that the police at a minimum had reasonable grounds to suspect that the pedestrian was Moses Gregory. There was a live investigation of Mr. Gregory. The miscommunication between Malyk and Tattersal, all took place before the foot chase. This was a quickly paced investigation into a person alleged to have committed violence within a domestic context. Mr. Gregory was arrestable, there is no question of that. This case involved mistaken identity. There is nothing on which I could find an ignorance of Charter standards. Miscommunication between Malyk, Tattersal and Alexander in the heat of the moment I would not find to be willful or negligent. I agree with Ms. Duffey that the police did not have the luxury of time in these circumstances. The video showed PC Alexander arresting Mr. Rodney for the hand gun and putting him into the police car upon his arrest. If there was a Charter violation I would place it at the lower end of the spectrum. The first prong of the Grant analysis modestly favours inclusion of the evidence.

[63] The arrest of Mr. Rodney did affect his Charter protected interests. He was arrested, taken into custody and had his body and belongings searched. With that said the firearm was otherwise discoverable because it was discarded. Once the gun was thrown away into the street the police were required to arrest him. That attenuates this factor. Nonetheless, if there was a Charter violation the second factor of Grant modestly favours exclusion.

[64] The third factor strongly favours admission of the evidence. The firearm, and drugs were tangible items for which there is no question about their evidential weight. Furthermore, there is a serious gun problem in the city of Toronto, and the public’s interest in a trial on charges of unlawful possession of a handgun thrown into a downtown street as well as two Schedule 1 substances. The public always has an interest in a trial on the merits, the question is always by how much? In this case the combination of a loaded handgun, two significant amounts of Schedule 1 substances in the downtown core lead me to find that the public’s interest in a trial on the merits is very great. The third prong of Grant strongly pulls in favour of admission of the evidence.

[65] If there was a Charter violation in Mr. Rodney’s arrest and the seizure of the drugs and gun I would not have excluded the evidence.

[66] For these reasons the evidence is not excluded and Mr. Rodney is found guilty of all charges.

[67] This case was well prepared and well argued by both Mr. Huberman and Ms. Duffey.

Released: December 1, 2023 Signed: Justice D. Rose