WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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.

COURT FILE No.: Toronto Y120376

DATE: 2012·January·27

Citation: R. v. P.(A.), 2012 ONCJ 37

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A. P., a young person

Before Justice P. J. Jones

Heard on November 16, 2011 and December 14, 2011

Reasons for Judgment released on January 27, 2012

Mr. Scott Graham ...................................................................................................... for the Crown

Mr. Richard Redorowicz ....................................................................... counsel for the accused A.P.

JONES, P. J. J.:

INTRODUCTION

[1] A.P. is a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c.1 (the Act) who is charged with two offences which allegedly occurred in Toronto on June 11, 2011, namely:

1. that he did unlawfully possess a controlled substance, to wit: cocaine, contrary to Section 4(3) of the Controlled Drugs and Substances Act.

2. that, while being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance directed by the said justice fail without lawful excuse to comply with that condition to wit: Abstain absolutely from the purchase, possession or consumption of non-medically prescribed drugs prohibited by the Controlled Drugs and Substances Act, contrary to the Criminal Code.

[2] A.P. plead not guilty to both charges.

CONCESSIONS MADE BY THE DEFENCE

[3] Counsel for the young person conceded that neither continuity nor the nature of the substance (which was cocaine) is at issue.

[4] He also conceded, that at the time of his arrest, A.P. was subject to a bail condition that he not possess any non medically prescribed substances as defined by the Controlled Drugs and Substances Act.

[5] He agreed that if I were to find his client guilty of possession of a controlled substance, I should also find him guilty of fail to comply with a recognizance.

THE ISSUE

Section 8 and 9 Charter breaches

[6] In submissions, counsel for the defence restricted his submissions to breaches of section 8 and 9 of the Charter. He contends that his client was arbitrarily detained and, while detained, was subjected to an unreasonable search and seizure.

[7] It is his position that because of the Charter breaches the admission of the cocaine in evidence would bring the administration of justice into disrepute and should therefore be excluded under sec. 24(2) of the Charter of Rights.

[8] The Crown takes the position that there was no arbitrary detention or unreasonable search. However, he does concede that if the court decides that there was an unreasonable search as described by the young person, and a violation of his section 8 rights, the drug evidence should be excluded.

[9] On the consent of counsel, the matter proceeded as a blended voir dire and trial. A.P. testified on the voir dire but not on the trial. The two arresting police officers, Officers Shady Al-Khatib and Michael Skelhorne gave evidence to be applied both on the voir dire and trial.

THE HISTORY OF THE PROCEEDINGS AND FINDINGS OF FACTS

The Version of events Testified to by the Young Person

[10] For purposes of the voir dire, A.P. testified as to the events that evening. He admitted to being in possession of crack cocaine. He admitted that he tossed .5 grams of crack cocaine into the bushes at the scene of his arrest. As well, he admitted that during a level 3 search at the station, 2.3 grams of crack cocaine fell from between the cheeks of his buttocks.

[11] A.P. testified that he was on his way home around 12 midnight on June 11, 2011 and was crossing the street at Rogers Road and Glenholme Ave. in the City of Toronto when he first noticed a marked police car pass him; he told the court that the police in the vehicle appeared to be staring at him. He noted that the car made a u-turn and came to a stop directly in front of him. He testified that Officer Skelhorne, whom he recognized by face if not by name, got out of the vehicle and immediately told him to get his hands out of his pockets. He responded by asking why.

[12] A.P. told the court that just 2 or 3 days earlier, he had been stopped by Officer Skelhorne in the same neighbourhood on Winona Drive at about 10:30 p.m. and on that occasion; the officer asked his name, searched his name on CPIC and then proceeded to pat him down by running his hands along his arms, chest and legs. He stated that on that occasion, he was let go after the search.

[13] On June 11, 2011, A.P. testified that after the officer told him to get his hands out of his pant pockets; he was approached and given a pat down search. Then, Officer Skelhorne asked him, “Why do your pants look like that?” A.P. gave evidence that he did not know why the officer made that comment.

[14] However, at that point, according to the youth, the officer grabbed his belt and pulled his baggy pants forward. He stated that the officer then pushed his flashlight down A.P.’s pants and the officer told him to lift up his “balls” so the officer could see whether anything was hidden there. He stated that the officer used his other hand to run his fingers around his waist band of his pants. A.P. told the court that he felt the officer’s hands begin to descend towards his buttocks and towards his anal cavity. Alarmed, the youth testified that he stepped back quickly towards a bush that was located behind him and put his own hand down the back of his own pants and pulled a baggie of crack cocaine from his buttocks and tossed it behind him into the bushes.

[15] A.P. testified that the officers must have seen him toss the bag because they tackled him, arrested him, and took him to the station where he was subjected to a level 3 search. He admits that during this search a further quantity of crack cocaine was discovered when it fell out onto the floor after he was ordered to bend over and spread the cheeks of his buttocks. When asked why he did not also toss this bag of cocaine when he tossed the first bag, he explained that he had forgotten that he had secreted this further, much larger quantity of cocaine in his rectum area.

[16] A.P. testified that he felt violated and belittled because of this street search with the flashlight down his pants. When questioned as to why he did not complain to duty counsel or to the staff sergeant or to the court at the time of his bail hearing, he said that he felt intimidated. He did testify that he told a supervisor at the open detention facility about the incident because she was a person known to his family and he felt comfortable enough with her to disclose the details of this upsetting experience. This witness was not called.

The Arrest According to the Police

[17] The version of events as told by Officers Al-Khatib and Skelhorne was substantially the same, while significantly different than the version of events as related by A.P.

[18] According to the Officers, they were on duty, in uniform, and driving in a marked police car around midnight on June 11, 2011 in the area of Rogers Road and Glenholme Ave. in Toronto when they espied a young man known to Officer Skelhorne as A.P.

[19] Officer Skelhorne told the court that he had investigated the youth the night before, and he noted that when he had searched A.P.’s name on CPIC, he had been advised that the young man was out on bail for drug charges; as well, the CPIC screen contained a caution that the youth may be in possession of a firearm. Officer Skelhorne testified that he had no notes about the incident which had occurred the night before as it had resulted in nothing more than a 208 contact report and as such would not be in his notebook.

[20] Given the lateness of the hour, and aware of the firearm caution, Officer Skelhorne indicated that he thought he would go and talk to the young man. Both officers agreed that they were not investigating any particular crime but were engaged in “proactive policing” when they decided to stop the car and speak to the young man.

[21] Both officers testified that when they stopped the vehicle, A.P. was about 10 to 15 feet away from them. Officer Skelhorne could not remember what they may have said, but as best he recalled, it was some form of neutral greeting. Officer Al-Khatib said that it happened very quickly and there was no time for a conversation. They both recalled that A.P. was, right from the beginning of the encounter, very verbally aggressive towards them and said, “What the fuck do you want now?” or words to that effect.

[22] When the officers started to walk towards A.P., they said that A.P. seemed very agitated and angry. They both told the court that they noted that A.P. seemed to have something clenched in his right hand, and as they approached, A.P. appeared to toss whatever he had in his hand behind him and to the side into a bush.

[23] When Officer Skelhorne went to retrieve the tossed object which was three or four paces away, he discovered a “chunk” wrapped in grey plastic. Upon opening the package he found what he believed to be a piece of crack cocaine. At this point he instructed his partner to arrest A.P.

[24] A.P. refused to put his hands behind his back and the officers briefly struggled with him, took him to the ground and handcuffed him to the rear.

[25] Once handcuffed, they testified that A.P. was given a field search, or pat down. Because of the CPIC caution, Officer Skelhorne testified that he ran his hands around the young man’s pant waist to ensure he carried no weapons, and none were found.

[26] Officer Skelhorne testified that he did not make any move to touch A.P.’s buttocks. As well, he denied telling A.P. to lift his scrotum. He denied shining a flashlight down A.P.’s pants to ascertain whether he was hiding anything in that area.

[27] Officer Al-Khatib testified that he was involved in the arrest and the search incidental to arrest. He agreed with the version of events as related by his partner. It was his evidence that he had not seen his partner shine a light down the front of A.P.’s pants, not did he see his partner make any move to touch A.P.’s buttocks. He did not hear his partner ask the youth to lift his “balls” as testified to by the youth. He told the court he was involved in the search and the arrest as he was concerned about the possibility of there being a weapon, and that if anything as described by the youth had occurred, he would have seen and heard it. According to Officer Al-Khatib, it simply did not happen.

[28] Officer Skelhorne did not recall using a flashlight that evening. However, Officer Al-Khatib did recall that they used flashlights that evening and that Officer Skelhorne had used the flashlight to discover the grey plastic wrapped object tossed into the bush area.

[29] The Officers testified that they took the youth to the police station and there he was paraded before the staff sergeant. They noted that, given the arrest history and the new drug charge, a level 3 strip search was authorized.

[30] During the level 3 search a further quantity of drugs was discovered, secreted in the buttocks area. The officers noted that, when the youth spread the cheeks of his buttocks at the request of the officers, a further bag of drugs weighing 2.3 grams fell to the floor. When the drugs fell to the floor, A.P. kicked the drugs and said those drugs were not his drugs.

FINDINGS OF FACT

[31] Given the divergence in facts as alleged by the youth and the arresting police officers, it is necessary for the court to make findings of fact to which the applicable law may be applied. I have reviewed the evidence with a view to determining whether I am able to make credibility findings which would support either version of events.

[32] As Sopinka J. concluded in R.v Smith 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120, it is preferable to decide Charter issues on facts rather than the onus, but when the court is unable to determine the facts, then it must resort to applying the correct onus. In any event, counsel for both the Crown and the defence have agreed, that with respect to the section 9 Charter application, the youth had the evidential and persuasive burden to prove the Charter breach, and that with respect to the section 8 Charter application, as the search of the young person was a warrantless search, the burden lay with the Crown on a balance of probabilities.

[33] Having reviewed the evidence, I am unable to accept the version of events as related by A.P. for the following reasons:

[34] I found his evidence about how he tossed the small quantity of cocaine into the bushes implausible. I cannot accept that, while he was being detained and being searched in the presence of two officers, he suddenly broke free, backed up a few paces, and put his hands in his pants and grabbed a baggie from his rectum and tossed it into a bush, located directly behind him to his right. I found it improbable that a young man, who was detained, and in police control, would suddenly bolt a few steps backwards, remove a baggie of cocaine from his buttocks and toss it into a bush in the presence, and in the full view of two officers he says were holding flashlights.

[35] I found his stated reasons as to why he broke free and tossed the cocaine into the bushes unbelievable. He told me that he broke free because he felt Officer Skelhorne’s hand descending into his buttocks area towards his anal cavity and this action by the officer, who he described as a “big man”, made him feel violated and belittled. While his explanation as to why he broke free might be consistent with a natural feeling of revulsion in the circumstances, but does not explain and in fact seems inconsistent with his reported action of putting his own hand in his buttocks and throwing away a bag of cocaine found there.

[36] I found it improbable that he would toss a bag of cocaine located in his buttock area weighing .5 grams but would leave another bag of crack cocaine secreted in the same location in the amount of 2.3 grams “because he forgot it was there”. The 2.3 grams of crack cocaine would represent a significant amount of money to this young man and I do not believe that he was unaware that he was carrying this quantity of cocaine in his rectum area. One might wonder why he would he toss a small bag of crack into the bushes when he knew he was carrying a much larger quantity of cocaine. In terms of human experience it seems much more likely that he had the cocaine in his hand when he was approached by the police and decided to toss it surreptitiously (he thought), when they were 10 feet away, hoping it would not be noticed.

[37] I do not accept A.P.’s evidence that Officer Skelhourne was hand searching his genital area on his buttocks during a field search. In the era of communicable diseases awareness, it would be remarkable to find an officer during a field search, investigating a person’s body in private areas by hand and without use of appropriate sanitary gloves. It would represent an unhygienic investigation that would be demeaning and invasive in the extreme, in such a public place. There was no evidence that the officer was wearing any type of protective hand covering.

[38] I found the version of events as related by the police plausible, balanced and logically consistent. Their evidence was not shaken on cross examination.

[39] The testimony of one officer corroborated the testimony of the other as to the main events occurring that evening without their testimony becoming carbon copies of each other. There were some discrepancies in the evidence pointed out by the defence. For example, there were differences as to the evidence as to who was driving the vehicle, whether the car made a u-turn, whether CPIC was accessed that evening or on a different occasion, and whether the officers were using flashlights that evening.

[40] In the main, I felt the discrepancies were minor in nature and were the type of differences in detail one might expect from two officers who attended the same event a number of months before, but who came to court without rehearsing their evidence. Minor differences are to be expected and, depending on the nature of the discrepancy, actually may bolster the credibility of each.

[41] I did take note of the discrepancies relating to the CPIC search and the use of flashlights seriously. With respect to the CPIC search I find that it was more probable than not that a CPIC search was made the evening of the arrest. Officer Al_Khatib was not involved in Officer’s Skelhorne’s prior contact with A.P. a day or two earlier and he would not be confusing one event with the other. Most probably a search occurred on both occasions, and on June 11, 2011, as I accept that Officer Skelhorne was driving, the search would likely have been undertaken by Officer Al-Khatib who would more probably recall conducting the search and seeing the caution on the screen about the firearm.

[42] As to the discrepancy relating to the use of flashlights, I considered this important because of the role assigned to the flashlight by the youth in the search. Officer Al-Khatib testified that both officers used flashlights that evening. He testified that he especially recalled Officer Skelhorne using a flashlight to retrieve the drug thrown into the bushes by the youth. Officer Skelhorne indicated that he did not recall using a flashlight that evening. In cross examination he said that he did not use a flashlight that evening but his partner might have done so. He denied using a flashlight to look down A.P.’s pants and given my findings as to the credibility of the youth’s evidence, I ultimately found this discrepancy both unimportant and the type of incidental detail one could well forget during the months between arrest and trial.

FACTS AS FOUND

[43] I find that the officers were involved in “proactive policing” when they stopped to talk to A.P. The young man had been recently stopped by Officer Skelhorne a day or two earlier, and was angry at being stopped again, especially as he, by his own admission, was in possession of crack cocaine. He said words to the effect, “What the fuck do you want now?”, and, as the officers approached him, he swung his right hand behind him and tossed a grey plastic-wrapped object into the bushes. Officer Skelhourne went to retrieve the object, and upon opening the wrap, and believing the object to be crack cocaine, asked his partner to arrest the youth. A brief struggle ensued and the youth was wrestled to the ground where he was handcuffed to the rear. A brief search incidental to arrest occurred on the scene. The youth was taken to the police station, and during a level 3 strip search a further quantity of crack cocaine was discovered between the cheeks of his buttocks.

ANALYSIS

Section 9 Charter Application

[44] On the facts as found, I am not satisfied that A.P. was arbitrarily detained within the meaning of section 9 of the Charter.

[45] I accept that Officer Skelhorne knew A.P. and was aware that he was out on bail for drug offences and that, when his name was searched on CPIC, a caution appeared saying that the youth might be in possession of a firearm. Given the time of night, and in light of the caution appearing on the CPIC, the police stopping to speak to the youth was well within the acceptable limits of police investigation. Having found that shortly after the police stopped their vehicle, the youth tossed a baggie contained a controlled substance into the bushes behind him, it is not necessary for me to more clearly define the acceptable limits of police investigation and detention. On the facts of this case, there was no arbitrary detention. I find that there was no detention as defined in the leading case authority R.v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613 until after the officers had grounds to arrest the youth and, in fact, arrested him.

[46] The mere stopping of the police car and getting out of the car to speak to the youth who was waiting at a stop light did not constitute a detention. As Chief Justice McLachlin and Justice Charron wrote in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 in Paragraph 26:

The second interpretation of “detention”, reducing it to any interference, however slight, must also be rejected. As held in Mann, at para. 19, per Iacobucci J.:

…the police cannot be said to ‘detain’, within the meaning of ss.9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss.9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

It is clear that, while the forms of interference s. 9 guards against are broadly defined to include interferences with both physical and mental liberty, not every trivial or insignificant interference with this liberty attracts Charter scrutiny. To interpret detention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty is meaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation.

Section 8 Charter Application

[47] I find that the search of the youth was a search incidental to arrest. I accept Officer’s Skelhorne’s evidence that he proceeded to pat A.P. down for officer safety reasons prior to taking him to the station, and, in this regard, I accept that a search of his pant waist (and only that) occurred as a logical extension of the CPIC information received to the effect that A.P. may be in possession of a firearm. Accordingly, I find no section 8 breach of the Charter.

CONCLUSION

[48] As noted above this was a blended trial and Charter application. Based on my findings on the Charter application and the concessions made by the defence at the start of the proceedings, I am satisfied that the Crown has proven the charges beyond a reasonable doubt. Accordingly, there will be a finding of guilt on the charges before the court, namely possession of cocaine and fail to comply with a recognizance.

Released: January 27, 2012

Signed: Justice P. J. Jones