COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Brown, 2012 ONCA 225
DATE: 20120411
DOCKET: C54072
Doherty, Lang and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Quincy Brown
Appellant
Zachary Kerbel, for the appellant
Cindy-Lynn Afonso, for the respondent
Heard: March 14, 2012
On appeal from the convictions entered on November 24, 2010 by Justice S. Ray of the Ontario Court of Justice, sitting without a jury.
By the Court:
I
[1] The appellant, Quincy Brown, appeals from his convictions for drug-related offences. Officer Manafo arrested the appellant on the corner of Church and Granby Streets in Toronto. The appellant was in possession of cocaine, marijuana and a considerable amount of cash. He was eventually convicted of possession of cocaine, possession of cocaine for the purpose of trafficking, and possession of marijuana. He appeals his convictions. We would allow the appeal, quash the convictions and enter acquittals.
II
[2] The trial proceeded as a blended voir dire. The appellant alleged that his arrest and subsequent search violated his s. 9 Charter rights and merited the exclusion of the drugs from evidence under s. 24(2) of the Charter. Officer Manafo testified that he believed he had reasonable and probable grounds to arrest the appellant based on his observations of the appellant from his position in the police car. The search of the appellant was an incident of that arrest. The Crown argued that if there was a s. 9 violation, the drugs should not be excluded from evidence under s. 24(2).
[3] The trial judge initially correctly identified the central issue as whether there was “a basis for [the officer’s conclusion] that he had reasonable and probable grounds to believe that a drug offence, a possession, had been committed.” She appreciated the defence contention that even if Officer Manafo’s evidence was accepted in its entirety, it did not reveal grounds for the arrest.
[4] Unfortunately, instead of deciding whether Officer Manafo had reasonable grounds for arrest as he alleged, the trial judge chose to decide whether there was “cause to detain” the appellant. On this issue, after considering the evidence of Officer Manafo and his partner, Officer Szarzec, the trial judge determined that if she believed their evidence, there were “reasonable and probable grounds for [the officer] to investigate and detain Mr. Brown, and to commence searching him in the manner that he did and then, given what he was finding [drugs], to arrest him.” After reviewing the evidence of Mr. Brown and deciding that the officer’s evidence was credible, the trial judge concluded that she was “satisfied that they [the officers] had reasonable and probable grounds to pursue their investigation and eventually arrest Mr. Brown”.
[5] The issue determined by the trial judge – that is, whether there were grounds to detain and eventually to arrest – was not the issue raised by the evidence. The officer purported to have reasonable and probable grounds to arrest and, on his evidence, did arrest the appellant and search him as an incident to that arrest. The trial judge had to decide not whether there was a basis to eventually search the appellant, but whether the officer had grounds to arrest the appellant when he left his cruiser and physically confronted the appellant on the street.
[6] It may be that the trial judge conflated the question of arrest with the question of detention because, in her view, any detention would inevitably have led to the discovery of the drugs. With respect, if she took that approach, it was not warranted on this record.
III
[7] The appellant’s claim that his s. 9 rights were breached was based on the contention that Officer Manafo did not have reasonable and probable grounds to arrest him. The trial judge erred in law in failing to determine that issue. In the absence of any determination by the trial judge, we propose to review the evidence, and assuming the credibility of the police evidence, to determine whether it provided the requisite reasonable and probable grounds.
[8] Officer Manafo and Officer Szarzec were in a police cruiser in the early evening on an April day. Officer Manafo was driving and Officer Szarzec was in the front passenger seat. The cruiser was proceeding north on Church Street approaching Granby Street.
[9] Officer Szarzec was looking at the sidewalk, but did not notice any unusual behaviour. Officer Manafo, the driver of the police vehicle, noticed a 6’7” “male black” who was wearing a distinctive green baseball cap. This was the appellant. The appellant had his back to the cruiser.
[10] Officer Manafo testified that he could see the appellant fully extend his right arm with a closed fist towards a second person. Officer Manafo could not tell whether the person was male or female. The second person was facing in the direction of the police car. This second person did not extend his or her hand towards the appellant or reciprocate in any way to the gesture made by the appellant.
[11] Officer Manafo then saw the second person turn around abruptly and walk north at a fast pace. The officer also watched the appellant cross Church Street moving westbound from the northeast corner to the northwest corner. As he moved, Officer Manafo noted that the appellant had his right hand by his side and that it remained closed.
[12] Officer Manafo testified that the way the appellant held his hand led him to believe that the appellant was concealing drugs in his hand. He also indicated that his belief that a drug transaction was ongoing was based in part on his “experience of seeing hand-to-hand transactions in the past and arresting people based on that”. Officer Manafo did not particularize how it was that his prior experience led to this conclusion.
[13] We accept that Officer Manafo honestly believed that the appellant was in possession of drugs and had attempted a hand-to-hand transaction. We also accept that his prior experience with drug dealing is properly taken into account in assessing whether he had reasonable and probable grounds.
[14] In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer’s belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be “reasonable”, meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.
[15] The appellant’s interaction with the person facing him on the city sidewalk does not, in our view, provide any objective basis upon which to believe that the two persons were engaged in a drug transaction. Nor does the fact that the two persons then walked away from each other make that interaction any more suspicious. Officer Manafo’s evidence that the second person may have walked away from the appellant because he or she caught sight of the police cruiser is speculation.
[16] Perhaps the best indication that there was nothing particularly suspicious in the conduct is the fact that Officer Szarzec, who was in a better position to see the conduct than Officer Manafo, did not notice anything about the appellant, let alone conduct that would cause him to be suspicious. It is also telling that Officer Szarzec indicated that even if he had witnessed the movements described by his partner, he would not have arrested the appellant based on those movements. Officer Szarzec testified that he would have spoken to the appellant or briefly detained him for investigative purposes.
[17] Officer Manafo put some emphasis on the way in which the appellant held his right hand both during and after the interaction with the other person. Without some explanation from Officer Manafo as to why these actions were of some particular significance in the drug world, they do not elevate the circumstances to reasonable and probable grounds to arrest the appellant: see, for example, R. v. Hanson, [2009] O.J. No. 4152, at para. 64 (S.C.).
[18] In forming his belief that he had grounds to arrest the appellant, Officer Manafo also indicated that the actions took place in a high crime area. The evidence supporting that contention was thin to say the least. Both police officers testified that they were assigned to patrol the area around Church and Wellesley Streets in Toronto as part of an anti-violence intervention strategy. Officer Manafo testified that the criminal activity, including drug activity, had apparently increased in that area. The area targeted by the police activity was broad and the concerns were not particularized to drug activity or the specific location where these events occurred. There was no evidence that the corner where the arrest occurred was considered to be a high drug activity area.
[19] In our view, despite the police officer’s honest belief that he had reasonable and probable grounds to arrest the appellant, the totality of the circumstances do not provide a basis upon which that belief could be said to be objectively reasonable. The arrest was unlawful and infringed the appellant’s right not to be arbitrarily detained.
IV
[20] Having found no Charter violation, the trial judge did not address s. 24(2) of the Charter. Given this court’s finding that the appellant was arbitrarily detained in violation of s. 9 of the Charter, it is necessary to determine whether the evidence of the appellant’s possession of the controlled substances should be excluded. While it may be appropriate in certain circumstances to order a new trial to determine the admissibility of impugned evidence, I am satisfied that in the circumstances of this case the record is adequate for this court to conduct the requisite s. 24(2) analysis.
[21] After R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the assessment under s. 24(2) requires a consideration of the seriousness of the police conduct, the impact of the breach on the Charter protected interests of the appellant, and society’s interest in an adjudication on the merits of the case.
[22] The Crown argues that Officer Manafo honestly believed that he had grounds for arrest and that his conduct in arresting the appellant should be regarded as a good faith error and not a deliberate violation of the appellant’s rights. We accept that Officer Manafo honestly believed he had grounds to arrest. Nonetheless, his actions demonstrate a significant disregard for the appellant’s right to be free from arbitrary detention.
[23] Officer Manafo did not turn his mind to the possibility of exercising police powers short of actual arrest. He would not agree that any further investigation was appropriate. On any reasonable view and, we add, the view of his partner, further investigation was entirely appropriate before resorting to the coercive actions of an arrest.
[24] Officer Manafo explained his perspective in these terms:
We’re able to effect an arrest and release unconditionally if need be. Worst case, scenario, if there is nothing further to investigate the individual can be released unconditionally. As in with this case, where there is further investigation warranted, it works out to a win-win situation.
[25] It is apparent that Officer Manafo sees arrest as the best tool when investigating crime. He arrested in this case, as he apparently routinely does, without considering other options because in his mind, if it turns out there are no grounds for the arrest, the individual will be released. To Officer Manafo, there is no harm in an arrest if it is brief. The officer does not appear to understand that arrest is a serious intrusion on the personal autonomy of the person arrested.
[26] Officer Manafo’s failure to consider less intrusive means of investigating and his somewhat cavalier attitude towards the exercise of his powers of arrest make this s. 9 violation a serious one: e.g. see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at paras. 59-60. The conduct of the officer points towards exclusion of the evidence.
[27] The impact of the breach on the appellant’s Charter-protected rights also supports exclusion of the evidence. The police interference caused by his arrest was neither fleeting nor technical. The officers each grabbed the appellant’s hand or arm and made an arrest on a busy public sidewalk. The police action was highly intrusive of the appellant’s liberty and privacy interests.
[28] The Crown argues that the impact of the officers’ conduct on the appellant’s rights is lessened because even if the Officer Manafo did not have grounds to arrest the appellant, he did have grounds to briefly detain him for investigative purposes. The trial judge found a basis for an investigative detention. While we doubt that the grounds existed even for an investigation detention, we are prepared to assume that the officer had those grounds for the purposes of a s. 24(2) analysis. The existence of a basis to detain does lessen the negative impact of the improper arrest on the appellants’ rights, however, it does not change the fact that he was physically restrained on a public thoroughfare by two police officers who had no grounds to do so. The interference remains significant even if some lesser interference was appropriate.
[29] Finally, the fact that the evidence of the seized narcotics was entirely reliable and essential to the Crown’s case, favours the admission of the evidence under the framework established in Grant.
[30] In our view, a balancing of these factors leads to the conclusion that a reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute. The police conduct was serious and there was a significant impact on the appellant’s liberty. Accordingly, the appellant’s application for exclusion of the evidence should have been granted.
V
[31] The appeal will be allowed and the appellant’s convictions quashed. In light of the absence of other incriminating evidence, an acquittal will be entered.
RELEASED: “DD” “APR 11 2012”
“Doherty J.A.”
“S.E. Lang J.A.”
“G.J. Epstein J.A.”