Court File and Parties
Court File No.: Toronto Region
Date: 2017-05-19
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Toray Holman
Before: Justice L. Feldman
Heard on: February 9, 2017
Reasons for Judgment released on: May 19, 2017
Counsel:
- E. Carrington, for the Crown
- G. Tomlinson, for the accused Toray Holman
FELDMAN J.:
Introduction
[1] Toray Holman is charged with the following counts: Careless Use or Storage of a Firearm; Carry Concealed Weapon; Unauthorized Possession of a Weapon x 2; Possession of a Prohibited Weapon; Possession of a Weapon with Ammunition; Tampering with a serial number; Possession of Property Obtained by Crime; Possession Contrary to a Weapons Prohibition Order, Fail to Comply with Probation.
[2] On the basis of information from two confidential informants that Mr. Holman was in possession of a firearm, police obtained warrants to search the defendant's home and car. Armed with the warrant, police waited for Mr. Holman outside his home. His mother was dropped off there in a Nissan Altima. The police later observed the defendant to leave a second suspect address and get into a cab carrying a knapsack. It stopped at a gas station that was shut down. An Audi drove in behind him. Mr. Holman got out of his car and entered the Audi that drove off. He was carrying the knapsack. A senior officer instructed the surveillance officers to detain and investigate the accused, which they did on Kingston Rd. The knapsack was searched and a firearm found. The accused was arrested.
[3] Counsel for the accused applies to have the search warrants quashed as insufficient to support their issuance and without which the police would lack reasonable and probable grounds for the arrest. He has brought a Garofoli application to cross-examine the affiant: R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.).
[4] The Crown submits that the officers are able to rely on the existence of the search warrant and surrounding circumstances as the objective basis for their reasonable suspicion to subject Mr. Holman to an investigative detention and to conduct a safety search incidental to it.
[5] Both counsel agree that the evidence on the voir dire is to apply to the trial proper.
The Evidence
[6] D.C. Shawn McKenzie is with the Guns and Gangs Task Force. On June 28, 2016, he, together with his crew, began a 5 p.m. surveillance shift. He and D.C. Jason Tanouye spoke over the police radio with D.C. M. O'Connor at about 7 p.m. They were instructed to attend 29 Dunford Rd in Toronto and to conduct surveillance.
[7] D.C. O'Connor advised them that the police had two search warrants, one for that address and one for a Nissan Altima vehicle, both valid until 9 a.m. on June 29, inferentially covering the entirety of that 3-day period. He was relying on instructions from the affiant, D.C. Shawn Lillie, known to these officers. Their target was Mr. Holman for whom they were provided a description and a photograph. D.C. Tanouye recalls being told that the defendant was in possession of a firearm and that there was in addition a second address of interest. D.C. McKenzie assumed the warrants were related to firearms and ammunition.
[8] More specifically, in Appendix 'C' of the Information to Obtain (ITO), D.C. Lillie deposed that he believed the defendant was in possession of a firearm that would be located at his home address or in his car. He relied on the information of two confidential informers. None of the information provided by the first informant was false. The second had proven reliable in the past. Both advised the police that Mr. Holman was in possession of a firearm. The specific date of the possession in June had been blacked out to protect their identities. It is a reasonable inference that the possession was relatively recent.
[9] The police database indicated that Mr. Holman was facing a charge of possession of a prohibited weapon and that he was on probation for uttering threats. He was prohibited from possessing any firearms. On Jan. 13, 2014, the execution of a search warrant at the defendant's home turned up five .357 calibre bullets under his mattress, resulting in a breach of recognizance charge. On Jan. 17, 2015, he was a suspect in a robbery at a bar. On May 10, 2015, he placed a 911 call about a shooting, but would not cooperate any further with the police. Based on all this information, a justice issued the search warrants.
[10] As instructed, following D.C. O'Connor's short phone briefing, the two officers conducted surveillance of the Dunford townhouse. At 9:14 p.m., they observed a female, later determined to be the defendant's mother, get out of a Nissan Altima and enter the home. Other officers joined them there to continue the surveillance.
[11] At 11:40 p.m., D.C. Wolcoupe informed D.C. Tanouye that the accused and another male left the second suspect address on Cheatham Ave. and got into a taxi. Mr. Holman was seen carrying a shoulder bag. D.C. Tanouye left the surveillance to meet up with D.C. Wolcoupe who was following the taxi. On route, D.C. Tanouye learned that the taxi dropped off the other male at 80 Mornelle Crt. and then drove into a closed gas station where the gas pumps were out of service.
[12] D.C. Tanouye caught up to his colleague prior to the taxi driving into the gas station. He saw an Audi drive up and park behind the taxi. Mr. Holman got out and spoke to the occupants, then retrieved his bag and entered the Audi, which drove off. The officer followed the Audi as it made its way to Kingston Rd. east and entered the left lane for Rylander.
[13] Still at Dunford, D.C. McKenzie learned that the accused had been seen in an Audi. He and others left to find him. He saw the defendant stopped at a red light at Kingston Rd and Ellesmere from which he entered the left turn lane at Rylander. He called for a takedown at that intersection, close to Dunford Rd.
[14] At 11:55 p.m., police proceeded to box the accused in on three sides. At the time, Mr. Holman was sitting in the rear seat driver's side. There were two other occupants in the front seat.
[15] Police drew their guns during the takedown. There were safety concerns given that this was a firearms investigation and because the defendant was seen entering the Audi bearing a satchel that D.C. Tanouye was concerned might contain a firearm.
[16] D.C. McKenzie removed the driver. He said he was aware that D.C. McNeil and D.C. Tanouye were dealing with the accused. He saw D.C. Tanouye take the satchel and drop it to the ground.
[17] D.C. Tanouye told the court that his intention on approaching the Audi was to arrest Mr. Holman because of the search warrant that had been signed that indicated the accused was believed to be in possession of a firearm. He had not read the supporting reasons in Appendix 'C' of the warrant for the pre-requisite reasonable belief but assumed P.C. Lilly had that belief as relayed to him by D.C. O'Connor.
[18] D.C. Tanouye told the court that the defendant, as instructed, kept his hands in the air as he approached him with his gun drawn. The bag was across his chest. The officer took the accused, who was compliant, out of the car and with the assistance of D.C. McNeil began to handcuff him. D.C. Tanouye placed the bag on the ground.
[19] D.C. McKenzie searched the satchel and found a firearm. He alerted his colleagues. He rendered the firearm safe by removing the clip and ammunition. One round was in the chamber ready to fire. As well, he found two additional magazine clips with ammunition.
[20] D.C. Tanouye testified that Mr. Holman admitted the gun was his. He arrested the accused for possession of a firearm. This was a warrantless s. 495 arrest.
[21] D.C. Tanouye was unable to provide a satisfactory answer why he failed to write down the accused's utterance about the gun, nor could he explain why the initial synopsis for bail omitted this as well. The officer well knew that this material evidence was of central importance and ought not to have been left to the whim of his memory. Its omission bears upon the reliability of this officer's evidence on this material fact in issue.
[22] At 12:30 a.m., D.C. McKenzie and his colleagues executed the search warrant at 29 Dunford Rd. Nothing was seized.
[23] Mr. Holman testified. He is 26 years old. He has a criminal record that includes convictions for threatening death, possession of stolen property, fail to comply and obstruct police.
[24] He told the court he was at a party that evening where he consumed beer and smoked marihuana. He went home in a taxi, after dropping off a friend, but was called by someone he considered as a brother to say he was at a gas station. He said he had the taxi drop him off there in order to give this person rent money. He got into the Audi with what he referred to as his messenger bag for work. It was a heavy bag. He said it contained his personal belongings.
[25] Mr. Holman described the takedown by the police. He said he was compliant and in shock. An officer took the bag from him. He says he did not know there was a gun in the bag, although he had packed clothing in it that morning. He insists he did not say the gun was his.
[26] Mr. Holman admitted having access both to that type of firearm and magazines with ammunition, but says he did not own a gun that day.
Positions of the Parties
[27] Mr. Tomlinson, for the Applicant, submits that there was insufficient information available in the redacted ITO to support the issuing of a search warrant. He points to no specific description of the firearm, no details about the informants, their antecedents or their motives and no basis to reasonably believe Mr. Holman was in current possession of a firearm.
[28] He says that on the evidence it cannot be inferred that D.C. McKenzie had a subjective belief the defendant was in possession of a firearm. He says there was no basis for the police to conduct an investigative detention. In fact, he suggests what occurred was an immediate arrest and unlawful search.
[29] Mr. Carrington, for the prosecution, submits that the search warrant is presumptively valid and that the police could rely on its issuance and on the subjective belief of their instructing officer to act on the warrant. He says the warrant's existence and the unfolding circumstances provided objective grounds for the takedown and investigative detention. He submits that the search of the bag was appropriate for safety reasons and as incident to the investigative detention.
The Authorities
[30] An investigative detention must be based on reasonable grounds. On an objective view of the evidence, the officer must have a reasonable suspicion the individual is implicated in the criminal activity under investigation and that the detention is necessary: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45.
[31] That officer is entitled to rely on the information and direction of an instructing officer: R. v. Debot (1986), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 221; aff'd, [1989] 2 S.C.R. 1140.
[32] In R. v. Gobire, [2013] O.J. No. 2259 (Ont. S.C.), Goldstein J. reinforced this principle. He said, at para. 38, that officers are not required to "second guess" whether their fellow officers have reasonable grounds or whether an authorizing justice has properly issued a warrant. He was of the view that were the warrant to be found invalid, it would not undermine the lawfulness of the investigative detention. In this regard, he said that, "the actions of the officers must be judged based on what they knew at the time the warrant was in existence".
[33] In Gobire, police acted on a tip from an informant, background checks and surveillance in obtaining a search warrant for the accused's residence. The accused was detained when seen leaving his home, searched and a firearm found. I agree with Goldstein J. where he said, at para. 35, that "a handgun represents an obvious and continuing threat to public safety" and that where the circumstances warrant, the police were under a "positive duty" to stop and investigate the individual where a firearm was involved.
[34] With regard to safety, where the officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may conduct a pat-down search of the detainee: Mann, at para. 45. In R. v. Plummer, 2011 ONCA 350, [2011] O.J. No. 2034 (Ont. C.A.), at paras. 53, 58, MacPherson J.A. interpreted Mann more broadly to signal the right of police to conduct a search for a "valid protective purpose" that, depending on the circumstances, contemplated "person, place or object in the vicinity". One example he used was of a bag in a car.
Application to this Case
[35] On this evidence there was an objective basis for the subjective belief of the two arresting officers that there were reasonable grounds to stop and investigate the defendant. They were aware search warrants had been judicially issued. They could rely on the subjective belief of their briefing officer, instructed by the affiant, that the accused was in recent possession of a firearm and ammunition.
[36] The information in the ITO was linked to two informers, one of whom had proven reliable in the past. The defendant's antecedents indicated criminal behaviour and possession of ammunition. The surveillance linked the accused to the subject address and indirectly to the Nissan. His movements in the context of the allegations were suspicious, his carrying of the satchel a concern for the safety of the investigating officers.
[37] There was in this evidence an objective basis, if not a duty, for the police to stop and investigate the accused where they had reasonable grounds to believe he was in possession of a firearm. The police stop was dynamic. There were 3 occupants in the Audi to be subdued. The satchel, carried across the defendant's chest, raised a red flag where the safety of the officers and others was at risk. It was searched before all the men were under full control. I am of the view that this "protective search" was warranted in these circumstances.
[38] In coming to this conclusion, I do not rely on the Holman utterance. There can be little weight attached to a material admission such as this appearing not in police notes, not even in the first bail synopsis, but only in the second. P.C. Tanouye could provide no meaningful explanation for this late addition to the evidence.
[39] I also do not accept that Mr. Holman was unaware he was carrying the firearm. He knew his bag was heavy, but held it across his chest rather than leave it beside him. He was possessive of it. He admitted having access to this type of gun and ammunition, just not that day. I view his denial of knowledge in these circumstances to be implausible and self-serving.
[40] I am persuaded that there was a lawful basis for the stop and investigation of the accused and that the search incident to it, including of the satchel, for safety reasons was appropriate. The arrest flows from the discovery of the firearm.
Released: May 19, 2017
Signed: "Justice L. Feldman"