COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Carelse-Brown, 2016 ONCA 943
DATE: 20161215
DOCKET: C58539
Feldman, Gillese and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Marlon Carelse-Brown
Appellant
David Quayat, for the appellant
Nick Devlin, for the respondent
Heard: November 3, 2016
On appeal from the conviction entered on November 7, 2013 by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a jury.
Gillese J.A.:
[1] This appeal requires the court to determine whether, based on a 911 gun call, police officers had reasonable and probable grounds to stop a speeding car and arrest its two occupants or, instead, were limited to an investigative detention.
BACKGROUND
[2] On the evening of February 6, 2012, Constables Dickie and Verdoold (together, the “Officers”) were in uniform and on community response duty in Toronto. Const. Dickie was driving a marked police cruiser and Const. Verdoold, who had 22 years of experience on the police force, was in the passenger seat.
[3] Following a 911 call, dispatch radioed the Officers with information of “a person with a gun”. Based on information given by the 911 callers, dispatch alerted the Officers that the suspects had a firearm and were in a silver four-door Dodge sedan bearing licence plate BMMH719 that was driving southbound on Keele Street near Finch Avenue. According to the 911 callers, the two occupants of the vehicle were light-skinned black males who appeared to be under 24 years of age, were wearing dark baseball caps, and the driver was wearing reading glasses.
[4] Const. Verdoold entered the license plate number in his onboard computer and learned that the suspect vehicle, a silver four-door Dodge AXT, was registered to a car rental company and was not on file as a crime vehicle at the time. He broadcast that information.
[5] The Officers drove south on Jane Street, and then east on Wilson Avenue, in an attempt to intercept the Dodge. As they drove, they continued to receive updated locations for the Dodge sedan. Const. Verdoold learned from dispatch that the 911 callers were following the Dodge sedan after having had an encounter with the two occupants of the vehicle – whom they saw with handguns – at a Tim Hortons coffee shop in a gas station at Allen Road and Sheppard Avenue West.
[6] At one point, the 911 callers reported that the suspect vehicle was pulling into an underground parking area. Shortly after, the 911 callers indicated that they could see police officers and said they would wait for the police at Sentinel Road and Derry Down Road.
[7] At 7:03 p.m., the Officers saw a silver Dodge sedan driving southbound on Derry Down Road. Const. Dickie confirmed that the license plate matched the license plate number that dispatch had given. Const. Verdoold was able to confirm only the last three numbers.
[8] Const. Dickie turned the police car around and began to follow the Dodge sedan. He estimated that the Dodge was travelling at around 60 kph in a 40 kph zone. The Dodge turned west on Frankton Crescent. A second police vehicle took the first position behind it and activated its roof lights. The Dodge stopped.
[9] Based on a concern for the safety of the public, himself and the occupants of the Dodge, Const. Verdoold decided to initiate a “high risk takedown” (i.e. an arrest at gunpoint). Const. Verdoold testified that speaking to the 911 callers before intercepting the suspect vehicle was not an option because the two occupants of the car were understood to have firearms. He also testified that he had responded to well over 100 gun calls in his years on the police force and had been shot at twice. He formed the intention to arrest the occupants of the Dodge before he made observations about them.
[10] Const. Verdoold deployed a shotgun, exited his vehicle and took cover behind a telephone pole. He ordered the driver to exit the Dodge with his hands up. Other responding officers took the driver into custody. He noted that, consistent with the 911 callers’ description, the driver was a young black male with a medium to light complexion. Const. Verdoold then ordered the person in the front passenger seat of the Dodge to exit the car with his hands up and lie down on the ground, face down with his hands to his sides.
[11] The passenger was Mr. Carelse-Brown, the appellant in this matter. He is a black male, with a light to medium complexion, in his twenties.
[12] The appellant complied with Const. Verdoold’s orders.
[13] Const. Verdoold handcuffed the appellant and told him that he was under arrest for possession of a firearm.
[14] Const. Verdoold testified that he did not detain the appellant to further his investigation but, rather, placed the appellant under arrest knowing that allowed him to search the appellant’s pockets. He testified that he understood the difference between these two police powers – investigative detention and arrest – and the greater judicial scrutiny that the decision to arrest an individual entails.
[15] Const. Verdoold searched the right side of the appellant’s body for “anything in relation to firearms”, including ammunition. He testified that a pat-down would have been insufficient because the 911 callers had mentioned that the Dodge sedan had been seen to pull into an underground parking garage, and that the callers had lost sight of the vehicle, so the occupants of the Dodge could have discarded firearms while in the parking garage. As a result, Const. Verdoold was looking for ammunition or a magazine, as well as for handguns.
[16] Two other police officers searched the left side of the appellant’s body.
[17] Const. Verdoold found a small quantity of marijuana, in two baggies, in the appellant’s coin pocket and over one thousand dollars in cash, folded into bundles, in the appellant’s front right pocket. The two other officers found more cash and a cellphone in the appellant’s left front pocket.
[18] Police dog services searched the area afterwards and did not find any firearm-related evidence. Const. Verdoold then further arrested the appellant for possession of marijuana and read the appellant his rights to counsel. After that, Const. Verdoold learned that the appellant would be charged with threatening bodily harm, possession of marijuana for the purpose of trafficking, and possession of the proceeds of crime. The threatening charge related to the encounter between the 911 callers and the occupants of the vehicle at the Tim Hortons coffee shop earlier that evening.
[19] The appellant was taken to the police station where the police carried out a strip search for safety reasons because the appellant was to be held with other prisoners pending a show cause hearing. This search led to the discovery of just over 25 grams of cocaine in the appellant’s underwear.
[20] At trial, he was convicted of possession of cocaine for the purpose of trafficking.
THE APPLICATION TO EXCLUDE THE COCAINE
[21] The appellant brought an unsuccessful application to have the cocaine excluded from evidence on the basis of alleged Charter infringements.[^1] He acknowledged that the police made no error in a) stopping the Dodge; and b) not interviewing the 911 callers before acting. He conceded that the police were entitled to investigate the occupants of the Dodge and conduct a pat-down search. He also conceded that Const. Verdoold had subjective grounds to arrest him. However, he argued that the police did not have objectively reasonable and probable grounds for that arrest. If the arrest was unlawful, the appellant submitted that it violated his rights under s. 9 of the Charter.
[22] On an investigative detention, the appellant said that the police would not have had the right to go through his pockets. For that reason, the appellant contended that the search which led to the seizure of the marijuana and cash was unlawful, and hence violated s. 8 of the Charter. Those seizures led to the appellant’s subsequent strip search and the discovery of the cocaine in his underwear. In the result, the appellant argued, the police violated his ss. 8 and 9 Charter rights and the cocaine should be excluded from evidence.
[23] The application judge disagreed. He found that the police had reasonable and probable grounds to arrest the appellant.
[24] The application judge began by noting that s. 495(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, provides that a peace officer may arrest, without warrant, a person who has committed an indictable offence or who, on reasonable grounds, he or she believes has committed or is about to commit an indictable offence. He then referred to the requirements for a lawful arrest identified in R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241: (1) the arresting officer must personally believe that he or she has reasonable and probable grounds to make the arrest; and (2) it must be objectively established that those reasonable and probable grounds existed.
[25] The application judge noted the appellant’s concession that Const. Verdoold had subjective grounds to arrest the appellant and then turned to the question whether there were objectively established reasonable and probable grounds to arrest. In finding that there were, the application judge relied on this court’s decision in R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743, leave to appeal refused, [1998] 1 S.C.R. ix.
[26] In Golub, the complainant Mr. Hepworth was drinking with the respondent Mr. Golub at Rhinos bar. They left after the bar manager refused to serve Mr. Golub. After visiting various other bars, Mr. Golub became very upset and angry, recounting trouble with his ex-wife. At one point, he struck Mr. Hepworth. Mr. Golub told Mr. Hepworth that he would get even with the staff at Rhinos bar and showed him a rifle under his jacket. Mr. Hepworth warned the bar manager at Rhinos, who in turn called the police.
[27] After speaking with Mr. Hepworth at Rhinos, the police treated his complaint as a “gun call” requiring immediate action. They located Mr. Golub at his apartment and ordered him to come out. He did so and was arrested a short distance from his apartment door. Fearing that there might be someone else in the apartment with access to a dangerous weapon, the police entered the apartment without a warrant and found a rifle and ammunition underneath a mattress. The respondent was charged with several weapons offences but was acquitted of them, having had the rifle excluded from evidence under ss. 8 and 24(2) of the Charter.
[28] This court allowed the Crown’s appeal against the acquittals. Doherty J.A., writing for the court, rejected Mr. Golub’s argument that his arrest was unlawful because it was based on the uncorroborated information of Mr. Hepworth, a person of unknown reliability. The application judge set out paras. 17-19 of Golub, in which Doherty J.A. explained why that argument failed:
[17] Mr. Harris' proposition is a novel one. If correct, it would greatly restrict the police power of arrest. It would preclude the police from arresting a suspect based on information received from a witness to the crime even where the witness could have arrested the suspect pursuant to s. 494(1)(a). In addition, as pointed out by Mr. Hutchison for the Crown, in the course of oral argument, Mr. Harris' position would set the test for reasonable grounds for arrest higher than the eventual standard for conviction since the respondent could be convicted based on the evidence of Hepworth absent any confirmation of his version of events.
[18] Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and [an] arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[19] The justice asked to issue a search warrant based on information provided by a police source is in a very different position than the police officer who is face to face with the complainant. The justice asked to issue a search warrant based on information provided by a police source cannot assess the reliability of that secondhand information without additional information from the officer pertaining to the reliability of the officer's source. The police officer faced with a complaint from a witness to the relevant events is in a similar situation to a justice who acts on firsthand information provided by the police officer.
[29] The application judge also noted that a police officer is entitled to take into account information that he or she receives from a police dispatcher, even if he or she cannot independently confirm it. He found that just because the Officers could have conducted further investigation, it did not mean that they were required to do more before arresting the appellant, in a situation that required them to act.
[30] At paras. 30-31 of his reasons, the application judge concluded:
[30] Using a contextual analysis it is clear that the police had reasonable and probable grounds to arrest Mr. Carelse-Brown, and that there was an objective basis for those grounds, in particular:
• The complainants indicated that they had been threatened by two men;
• According to the complainants, each man was armed with a handgun;
• The complainants provided a location where the threats had taken place;
• The complainants gave a generic description of the suspects, but a very detailed description of the vehicle, including the make, the colour, and the licence plate number;
• The complainants were obviously in some form of contact with the suspect vehicle, as they relayed updated information from time to time as to the location;
• The complainants did provide at least their first names to the police dispatcher. Constable Verdoold could not recall whether or not he learned their names at the time of the gun call, but Constable Dickie did. It is likely that since both were privy to the same radio communications, Constable Verdoold learned the names of the complainants but did not recall at the time of the trial. In any event, even if Constable Verdoold did not know their names, certainly other police officers (or at least a police dispatcher) did.
[31] As in Golub and Bush,[^2] the police had a specific and detailed complaint from a witness to the events. That complaint was about individuals who were armed, had committed an offence, and were in a vehicle described with a high degree of specificity.
[31] The application judge then considered whether the coin pocket search would have been permitted incident to investigative detention. His reasons are not summarized here because that issue was not pursued on this appeal.
[32] The application judge found that because there was no Charter breach, it was not necessary for him to decide whether the evidence should be excluded pursuant to s. 24(2). Nonetheless, he considered the matter and determined that even if there had been a breach of the appellant’s Charter rights, he would not exclude the evidence. In his view, if the state conduct was Charter-infringing, it was not serious. He further found that the pocket search was minimally intrusive and relatively fleeting. Finally, he found that society had a strong interest in an adjudication of this case on the merits. He stated, at paras. 51-52 of his reasons:
[51] The possession of almost an ounce of cocaine must be viewed in light of a fairly minor Charter violation where the police were, without a doubt, required to act.
[52] In terms of the overall reputation of the administration of justice, in my view, a reasonable person, being well-informed and having thought the matter through, would have trouble understanding why the police were not entitled to respond as they did in reaction to a gun call. Still less would it be readily understandable why evidence should be excluded where the police engaged in behaviour that, if it fell below the standard, only did so minimally.
[33] The application judge dismissed the application. At trial, the cocaine was admitted into evidence and the appellant was convicted of possession of cocaine for the purpose of trafficking. The appellant was sentenced to 21 months’ imprisonment and three years’ probation.
THE ISSUES
[34] The appellant submits that the application judge erred in finding that Const. Verdoold had objectively reasonable and probable grounds to arrest him. This submission underpins the appellant’s contention that, when the police stopped the suspect car, they were limited to a pat-down search of its occupants, incident to an investigative detention.
[35] The appellant also submits that the application judge erred in his analysis under s. 24(2) of the Charter.
ANALYSIS
[36] I would not interfere with the application judge’s determination that the police had objectively reasonable and probable grounds to arrest the appellant for unlawful possession of a firearm.
[37] Before a search can be held to be incidental to an arrest, the lawfulness of the arrest must be established: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 27; and R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para. 13. The application judge set out and applied the correct legal principles in determining that matter. As he stated, for an arrest under s. 495(1)(a) of the Criminal Code to be lawful: (1) the arresting officer must personally believe that he or she has reasonable and probable grounds to make the arrest; and (2) it must be objectively established that those reasonable and probable grounds existed: Storrey, at p. 250.
[38] The appellant conceded, both below and before this court, that Const. Verdoold had subjective grounds to arrest the appellant. Consequently, the sole issue is whether the application judge erred in finding that objectively reasonable and probable grounds existed – that is, whether a reasonable person, standing in Const. Verdoold’s shoes, would have believed that reasonable and probable grounds existed to make the arrest: Storrey, at p. 250.
[39] In finding that Const. Verdoold objectively had reasonable and probable grounds to arrest, it will be recalled that the application judge relied on the following:
• The complainants indicated that they had been threatened by two men;
• According to the complainants, each man was armed with a handgun;
• The complainants provided a location where the threats had taken place;
• The complainants gave a generic description of the suspects, but a very detailed description of the vehicle, including the make, the colour, and the licence plate number;
• The complainants were obviously in some form of contact with the suspect vehicle, as they relayed updated information from time to time as to the location;
• The complainants did provide at least their first names to the police dispatcher. Constable Verdoold could not recall whether or not he learned their names at the time of the gun call, but Constable Dickie did. It is likely that since both were privy to the same radio communications, Constable Verdoold learned the names of the complainants but did not recall at the time of the trial. In any event, even if Constable Verdoold did not know their names, certainly other police officers (or at least a police dispatcher) did.
[40] The appellant says that the application judge’s first finding in this list is erroneous because there was no evidence that the 911 callers advised that they had been threatened by the two men in the suspect vehicle or that the Officers had received that information from dispatch.
[41] I agree that at the time of arrest, Const. Verdoold did not know that the 911 callers had told dispatch that the occupants of the Dodge threatened them during their encounter at the Tim Hortons coffee shop. Therefore, it was an error for the application judge to have relied on the complaint of threatening when assessing whether objectively reasonable and probable grounds to arrest existed.
[42] In my view, however, although Const. Verdoold had not learned of the threats to the 911 callers before he made the decision to arrest, there were objectively reasonable and probable grounds to arrest.
[43] Const. Verdoold knew that the 911 callers had recently encountered the occupants of the suspect vehicle at a nearby Tim Hortons coffee shop and that dispatch had reported that both of the occupants of the suspect vehicle had handguns.
[44] The 911 callers had identified themselves by giving their first names to the police dispatcher. The callers gave specific and detailed information about the vehicle and its occupants. They behaved in an open and helpful way, actively assisting the police in locating the suspect vehicle, by following it and reporting on its movements. The callers also offered to stop and meet the police at a specified intersection.
[45] When the Officers first encountered the suspect vehicle, it was being driven at a high rate of speed – 60 kph on a residential street with a speed limit of 40 kph. The information received by the dispatcher from the 911 callers, and relayed to the Officers, had been confirmed: the colour, make and type of the suspect vehicle; the vehicle’s licence plate; the vehicle’s location as it moved about; and the number and description of its occupants. Everything that the Officers saw was consistent with the information that the 911 callers had given. There was no reason to discount that information. Based on that information, the Officers had every reason to believe that the occupants of the suspect vehicle were in possession of handguns.
[46] The grounds to arrest depended on the plausibility of the 911 callers’ report of unlawful possession of a firearm. In these circumstances, the Officers had no reason to doubt the bona fides of the callers. In my view, not only were they justified in acting on that information, they would have been derelict in their duty had they not acted on it.
[47] I reject the appellant’s submission that the Officers were limited to an investigative detention because they had not taken steps to confirm the 911 callers’ information. In Golub, this court squarely rejected the proposition that an arrest could not be made based on information provided by an unknown source, absent confirmation of that information – information that may itself be less than exact and complete. In this regard, the words of Doherty J.A., at para. 18 of Golub, bear repeating:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[48] This was a dynamic, dangerous and rapidly changing situation involving a serious threat to public and officer safety. Only about ten minutes elapsed from the time that the 911 call was first made, in which the callers alerted the police to their encounter with two men bearing handguns, to the time of the appellant’s arrest – an arrest that took place next to the car in which he had been a passenger and which had been speeding through a residential area in Toronto. And, as I have already explained, Const. Verdoold made his decision to arrest after taking into account all of the available information. To this I would add that the court has not been pointed to any information which Const. Verdoold is said to have disregarded and I see none on my review of the record.
[49] Although the police in Golub interviewed the complainant prior to acting upon his information, that does not render such an interview a requirement in every case of a 911 call. See also R. v. Lowes, 2016 ONCA 519, at paras. 10-11, in which this court held that there is no obligation on the police to undertake additional investigative steps to test a 911 report of ongoing crime before they are entitled to take action in reliance on that call.
[50] In oral argument, the appellant asserted that finding the arrest to be lawful runs afoul of this court’s recent decision in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643.
[51] I do not agree.
[52] In McGuffie, the police responded to information from security personnel at a bar that a group of five men had been seen passing around a handgun. The doorman told Constable Greenwood that the appellant, who was quickly walking away from the bar, was a member of the suspect group. Const. Greenwood detained Mr. McGuffie for investigative purposes and conducted a protective pat-down search. This court held that the initial detention and search were lawful. However, the detention became arbitrary when Const. Greenwood confined the appellant in the back of a police cruiser.
[53] The facts in McGuffie are very different from those in this case. Const. Greenwood detained Mr. McGuffie, who had been one of a group of five men in which a handgun had been passed around. Mr. McGuffie was leaving the bar on foot. Here, both occupants of a speeding car had been very recently seen with handguns and there was every reason to believe, at the time the car was stopped, that both men in the car had handguns.
[54] The appellant also referred the court to R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, at para. 22, for the proposition that police action resulting from a 911 call must be minimally intrusive of liberty, as required in the circumstances.
[55] Again, I do not find that Godoy assists the appellant. In Godoy, the Supreme Court dealt with the reasonable limits on the common law police power to enter a dwelling to ascertain the health and safety of a 911 caller. The limits on the police powers to enter a dwelling are not at issue in this case.
[56] In the end, the appellant is inviting this court to ask why Const. Verdoold did not simply conduct an investigative detention. That is the wrong question. The correct question is: was the arrest lawful? The answer to that question is set out above. It leads me to conclude that Const. Verdoold’s decision to arrest was a good-faith choice, objectively supported by the facts available to him at the time of arrest.
[57] I would, therefore, not interfere with the application judge’s determination that reasonable and probable grounds for the arrest were objectively established.
[58] Accordingly, it is unnecessary to consider whether the application judge erred in his analysis under s. 24(2) of the Charter.
DISPOSITION
[59] For these reasons, I would dismiss the appeal.
Released: December 15, 2016 (“K.F.”)
“E.E. Gillese J.A.”
“I agree. K. Feldman J.A.”
“I agree. M.L. Benotto J.A.”
[^1]: Reasons reported at R. v. Carelse-Brown, 2013 ONSC 4287, 286 C.R.R. (2d) 360.
[^2]: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641.