THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) No person shall publish by any means any report

a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Everyone who contravenes subsection (1)

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

b) is guilty of an offence punishable on summary conviction

DATE: 20030310

DOCKET: C35977

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) v. M.A. L. (a young person) (Respondent)

BEFORE: MCMURTRY C.J.O., CATZMAN and DOHERTY JJ.A.

COUNSEL: John McInnes and Kelly Slate

for the appellant

Howard Borenstein

for the respondent

HEARD: March 5, 2003

On appeal from the acquittals entered by Justice T. Cleary on January 25, 2001.

E N D O R S E M E N T

[1] This appeal turns on whether the trial judge erred in law in holding that the police did not have reasonable grounds to arrest the respondent.

[2] Seven “car jackings” occurred at various plazas within a small section of Scarborough between January 31 and June 3, 2000. All of the victims were Asian. The modus operendi and the description of the sole perpetrator strongly suggested that the same person had committed all seven robberies.

[3] On June 6, 2000, the police decided they had grounds to arrest the respondent and charge him with various offences arising out of the seven “car jackings”. The police had the following information:

♦ The respondent, who was only seventeen years old, had previously been convicted of a very similar “car jacking” involving an Asian victim. That robbery had occurred at a plaza where one of the seven “car jackings” had occurred.

♦ Only four of the cars were recovered by the police. Three of those cars were found a short distance from the residence of the respondent’s girlfriend. She lived in the same general area where the various plazas were located.

♦ The respondent and two companions were seen in the plaza where one of the robberies occurred about an hour and a half before the robbery. The owner of a small convenience store observed the respondent and described his conduct at the time as “suspicious”.

♦ In May, a police surveillance unit observed the respondent in the plaza where one of the robberies had taken place the previous February.

♦ In late May and early June, the respondent was seen in another one of the plazas where one of the robberies had occurred. That robbery took place in April. The respondent approached a vehicle in which a Dr. Kwong, a dentist, was seated. The manner in which he approached Dr. Kwong was sufficiently suspicious to cause Dr. Kwong to telephone 911. Dr. Kwong had seen the respondent approach his car in a similar manner on an earlier occasion. Dr. Kwong saw the respondent a third time on a subsequent occasion. This time he instructed his secretary to telephone the police.

♦ The respondent’s race, age and height were consistent with the very general descriptions given by most of the victims of the “car jackings”.

[4] The trial judge accepted that the police believed that they had reasonable grounds to arrest the respondent. He held, however, that the information available to the police at the time of the arrest did not satisfy the objective component of the reasonable grounds requirement.

[5] The determination of whether the police had proper grounds to arrest the respondent requires the application of a legal standard to a given set of facts. We accept the findings of fact made by the trial judge. Indeed, most of the facts were not in dispute. The trial judge’s determination that those facts did not, when viewed objectively, provide reasonable grounds for the arrest of the respondent raises a question of law alone: R. v. Storrey (1990), 53 C.C.C. (3d) 346 (S.C.C.). That decision must be reviewed on a correctness standard.

[6] The cumulative effect of the circumstances known to the police raises much more than a mere suspicion. While individual facts, considered in isolation, may have little force, considered in their totality these facts, when objectively viewed, compel the conclusion that there were reasonable grounds to believe that the respondent had committed the “car jackings”.

[7] The trial judge’s analysis which led to the opposite result reveals two errors. First, he failed to give any consideration to the evidence placing the respondent at the scene of one of the robberies about one and a half hours before that robbery took place. Second, the trial judge subjected the identification evidence given by Dr. Kwong and his secretary to a level of scrutiny which, while fully justified by a trier of fact at trial, had no place in the assessment of whether reasonable and probable grounds for an arrest existed. The police were entitled to include the identification of the respondent provided by Dr. Kwong’s secretary among the facts to be considered in deciding whether reasonable grounds existed for the arrest of the respondent. In doing so, they were not required to caution themselves against the frailties inherent in identification evidence, or to downgrade her evidence because Dr. Kwong was unable to make an identification. There was ample basis upon which the police could reasonably conclude that the respondent was the person who approached Dr. Kwong’s car.

[8] The trial judge erred in law in holding that the arrest was unlawful. There were reasonable grounds for the arrest and the police believed that they had those reasonable grounds. Section 494(1)(a) of the Criminal Code authorized the arrest.

[9] It flows from our holding that the arrest was lawful, that the search of the respondent and his vehicle incidental to that arrest was also lawful and did not violate s. 8 of the Charter. It also follows that the subsequent search of the respondent’s residence conducted under the authority of a search warrant obtained in part as a result of information gathered during the search of the respondent’s vehicle was not unreasonable or contrary to s. 8 of the Charter. The evidence obtained during those searches could not be excluded under s. 24(2) of the Charter.

[10] The appeal is allowed and a new trial is ordered.

“R.R. McMurtry C.J.O.”

“M.A. Catzman J.A.”

“Doherty J.A.”