Court File and Parties

Court File No.: 2811 998 Date: February 11, 2016

Ontario Court of Justice

(Central East Region)

Between:

Her Majesty The Queen

R. Greenway, Counsel for the Crown

- and -

Myles West

S. Yeoghyan, Counsel for the Defendant

Heard: December 16, 2015 and January 28, 2016

Judgment

BLOCK, J:

Facts and Initial Detention

[1] On December 5, 2014 Myles West was stopped, grounded and searched by the Durham Regional Police while walking on Athol Street near the intersection with Drew Street near this courthouse at about 2:15 pm.

[2] He argues that he was arbitrarily detained and unreasonably searched. He submits that the 7 grams of crack cocaine pried from his closed hand during the search be excluded from the evidence at his trial for possession of cocaine for the purpose of trafficking.

[3] Police Constables Green, Crosbie and Richer testified about the arrest and search of the defendant. Detective Hudson was qualified to give expert evidence of the sale and distribution of crack cocaine. Tyrone Hylton and Mr. West testified for the defence.

Police Evidence

[4] Constables Green, Crosbie and Richer and three other officers were on duty with the 17 Division Target team when they encountered the defendant walking eastbound towards them. The Target team was engaged in suppressing the drug trade in the immediate, high crime area. They had information that a group of young black males were trafficking drugs from a nearby apartment inhabited by a well-known drug addict.

[5] P.C. Green testified that Mr. West appeared to look like a photograph of a wanted person he had seen at the beginning of his shift. A Mr. Tyrone Hylton was wanted on a threatening allegation which had no connection to the immediate area.

[6] P.C. Green said that he identified himself to the defendant as a police officer, told him that he thought he had seen a photograph of him earlier in the day and asked if he had any outstanding warrants.

[7] In response, according to P.C. Green, the defendant turned away, "postured as if to run" put his left hand into his left pocket and made a motion as if to begin running westbound. P.C. Green testified that this action increased his belief that the defendant was the wanted party. He then reached out to take control of Mr. West. As he did so the defendant took his left hand from his pocket and began reaching for his mouth. That action suggested to him that Mr. West was going to swallow drugs. A struggle then ensued which ended with the defendant secured on the ground and his drugs in PC Richer's pocket.

[8] At that time the defendant identified himself as Myles West.

[9] Under cross-examination P.C. Green said that he would have allowed the defendant to continue on his way if he had been satisfied that he wasn't the wanted party through comparison with a mug shot. He decided on arrest when the defendant, in his evidence, tried to flee. P.C. Green had no mug shot in his possession.

[10] P.C. Crosbie was present for the interaction between PC Green and the defendant. As Mr. West approached, P.C. Crosbie heard P.C. Green tell the team that Mr. West was a wanted party. He then heard P.C. Green ask Mr. West what his name was. He wasn't sure if the defendant replied with his name at this time. He saw P.C. Green grab the defendant as he turned his back but didn't otherwise know what was going on between the two of them.

[11] P.C. Green then grounded the defendant, who was silent and non-compliant. As P.C. Crosbie assisted in subduing Mr. West by holding his arm a bag of crack fell out onto the ground. He said the defendant ultimately identified himself verbally after being successfully subdued.

[12] P.C. Richer believed the defendant was going to flee because, in his testimony, "He perked straight up when Constable Green started to talk to him, almost like he tensed up and straightened up".

[13] P.C. Richer heard P.C. Green say that the defendant was trying to get something in his hand into his mouth. He said the drugs were in the defendant's left hand, from which he took possession. He agreed with defence counsel that he never saw the defendant bolt or run away. He never saw the defendant try to swallow anything.

Defence Evidence

[14] Myles West told the court that he knew the men he approached were undercover officers because of their "aura and presence". I took this expression to be shorthand for observations of manner and appearance that might readily bring to the observant mind the qualities of police officers in pursuit of their duties. I have no difficulty accepting the defendant's evidence on this point. The officers who testified were all burly, clean-cut men, apparently in their thirties. They were accompanied by three other officers. Plainclothes or not, it is entirely reasonable that a person of normal perceptive qualities would be unlikely to mistake the approaching Target team for a group of insurance salesmen heading to the nearby Tim Horton's.

[15] The defendant's evidence is that he took no evasive action because it would be futile. He expected to be investigated because he is a young black male on the streets of downtown Oshawa. Given the police evidence that they were on the lookout for a group of young black men trafficking drugs in the area, his evidence that he expected to be challenged is credible.

Credibility Assessment

[16] I accept Mr. West's evidence that he had absolutely no intention to flee and made no motion to flee. The evidence of police witnesses as to whether he made any actual motion of flight was contradictory. The defendant's evidence that he approached the officers was un-contradicted and unchallenged. It would make no sense for him to approach the police and then flee when the first question asked of him was whether he was some other, wanted, party. While the evidence of when he was asked whether he was Tyrone Hylton and when he supplied his own name was muddled, I accept that Mr. West would have identified himself when challenged in order to avoid being mistaken for a wanted person. I also believe that he was aware that refusing to identify himself would have made continued unwelcome engagement with the police inevitable.

[17] The defendant testified that he was challenged immediately on his purpose in being in the area. This evidence is also consistent with the stated mission of the Target team. He said that he was almost immediately told to take his hands out of his pockets and reveal what he was holding. He resisted this demand because he felt the police had no right to search him. I accept this evidence. I also agree with his Charter analysis.

[18] I reject the evidence that the defendant attempted to swallow the drugs in his possession. P.C. Richer saw no such attempt. The defendant scoffed at the notion he might attempt to swallow the 7 grams of crack cocaine in a plastic bag.

[19] We often hear testimony of frenzied, stupid and dangerous attempts to destroy evidence. But the young man before me struck me as confident, calm and somewhat arrogant. I don't think he panicked when the officers demanded to see what he was concealing. I think he resisted.

Analysis of Reasonable and Probable Grounds

[20] The evidence of P.C. Richer that PC Green described Mr. West as a wanted party as he approached suggests that the determination to arrest Mr. West was made before his initial detention.

[21] P.C. Green's evidence that he would continue the detention of the defendant until his identity could be confirmed by means of a mug shot also suggests that no limited investigatory detention was contemplated.

[22] I don't know whether Mr. West was investigated because P.C. Green thought he resembled Mr. Hylton, because police considered him a potential element of the group of young black male drug traffickers that was the focus of the day or, more likely, a combination of both. Police always have the authority to momentarily detain a person reasonably suspected to be a wanted party.

[23] In my view however, the chief similarity between Mr. Hylton and Mr. West is that they are both young, light-skinned black males. I reach this conclusion on the dissimilarities between their facial shape, eyebrows, jaw-lines, eye-spacing, nose shape and other features including their apparent facial hair difference at the time of this incident.

[24] The un-contradicted evidence of Tyrone Hylton was that he was 5'8" and 200 lbs at the time of interest to this Court. The un-contradicted evidence of the defendant was that he was 6'1" and 165 lbs. I don't regard the suspicion that the defendant was Mr. Hylton as anything that would survive a moment's comparison with Exhibit 2, the mug shot of Mr. Hylton. P.C. Green had viewed that mug shot for no longer than 20 seconds more than 6 hour prior to the investigation of the defendant and had no mug shot in his possession during the episode.

Charter Violations

[25] In my view the police had no reasonable and probable grounds for either search or arrest. I find violations of both Mr. West's right to be free of arbitrary detention under s.9 and his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

[26] I must now undertake the analysis required of me in respect of Charter s. 24(2):

1. Seriousness of the Breach

The defendant was detained, arrested and searched without reasonable and probable grounds. The background for the search was, I believe, an over-zealous approach to a laudable aim, the interdiction of the downtown crack trade. Unfortunately that approach lead to an arbitrary detention and unjustified search of someone with no obvious legitimate connection to the activity sought to be suppressed. The other potential basis for the search was the evident purpose of detaining a subject with a superficial resemblance to a wanted party, and the use of that detention as a pretext for a search for evidence of drug possession. I consider the breach to be serious and flagrant.

2. Effect on the Charter Protected Rights of the Defendant

The unlawful detention, arrest and search of the defendant was based on a hunch. It was forceful and carried out in public. It was a serious interference and prolonged interference with his liberty.

3. Effect on the Administration of Justice

Crack cocaine is a notorious social disrupter. Addiction and the supply of addiction are a grave social menace. The energetic repression of this trade is a very important and worthy use of police powers.

Conclusion

[27] I am aware that the exclusion of this evidence will result in the acquittal of the defendant. I must balance that unfortunate result against the awareness that arbitrary detention and searches without reasonable and probable grounds demean the administration of criminal justice and bring discredit on law enforcement. For every Myles West there are others who are subject to similar arbitrary measures without evidence being uncovered or charges laid or police misconduct exposed.

The balance of all of these factors favours exclusion. The administration of criminal justice would be brought into disrepute by the admission of such evidence. Consequently, Mr West is acquitted.

DATED at Oshawa, Ontario, this 11th day of February, 2016

Justice M.S. Block Justice Ontario Court of Justice