Court Information

Ontario Court of Justice Scarborough – Toronto Date: June 26, 2017

Parties

Between: Her Majesty the Queen

And: Janakan Sriskandarajah

For the Crown: Caolan Moore

For the Defendant: Victoria Di Iorio and Ian B. Kasper

Heard: May 29 and 30, 2017

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] The accused is charged with possession of a prohibited weapon, to wit, a flick knife, i.e. a knife that has a blade that opens automatically by centrifugal force.

[2] The allegedly prohibited knife (Ex. "E") was found by police pursuant to a search of the accused's pants pocket.

[3] Prior to trial the accused brought an application to exclude the knife pursuant to s. 24(2) of the Charter, arguing that the knife was obtained in a manner that infringed the accused's rights under ss. 8, 9 and 10(b) of the Charter.

[4] A voir dire on the application was heard first. The parties agreed that the evidence on the voir dire would apply to the trial.

[5] For the following reasons I am excluding the knife from this trial. Because of this exclusion, the charge is accordingly dismissed.

B. EVIDENCE

(a) The Crown's Evidence

[6] The Crown called two witnesses: P.C. McCormick and P.C. Patterson.

[7] On January 23, 2016 Officers McCormick and Patterson received a radio call at 1:12 am to the effect that there had been an incident at the Centenary Hospital involving at least six East Asian men. According to the radio call, hospital security had been unable to control the situation. One of the East Asian men presented at the hospital with a stab wound and others among them had been observed with cuts.

[8] While on the way to the hospital, Officers McCormick and Patterson were told by Officer Persaud that men matching the description had been seen running eastbound to the parking lot of an adjacent building known as the Shoniker Building.

[9] Officers McCormick and Patterson drove into the Shoniker parking lot and saw a parked van with six East Asian men inside. Both officers approached the van and began to investigate the occupants, one of whom was the accused who was seated on the rearmost bench. Officer McCormick detected an odour of alcohol emanating from the van. There were several open and empty bottles of liquor in the van.

[10] While all six East Asian men were still in the van, Officer McCormick told them that he and his partner were investigating an incident at the hospital and that they matched the description of the men involved. In the minds of both officers the men in the van were detained when the police began their questioning. The police asked all the van occupants for their identification. All but the accused complied and provided documentation to the officers. The accused refused to provide his identification although he was asked for it several times. He continued to tell Officer McCormick that he wanted his "Miranda rights", as he put it. Officer McCormick described the accused as loud and uncooperative. Officer Patterson described him as mouthy. Both officers described him as intoxicated.

[11] Officer McCormick found the accused's refusal to cooperate annoying. As he put it, he felt that the accused's refusal to cooperate was preventing him from doing his job. In response to the accused's attitude, Officer McCormick told the accused he was being "detained for assault". He then removed the accused from the back of the van. He testified that the reason for removing the accused from the van was because he felt it was no longer safe to continue this "back and forth" with the accused while he was still in the van and that he wasn't going to let the accused's behavior dictate his response.

[12] While extracting the accused from the back of the van Officer McCormick noticed some abrasions on the back of the accused's hand. Shortly after the accused was removed from the van Officer McCormick noticed a bulge in the pocket of the accused's tight pants, which he thought might be a weapon. He reached into the pocket and removed what he came to believe to be an illegal "flick knife". He arrested and handcuffed the accused and placed him in the rear of his scout car, at which time he read the accused his rights to counsel from his memo book for the first time.

[13] At 1:29 am the two officers drove the accused to the police station. They arrived at 1:45 am. During this ride, the accused made it clear to the officers that he wanted to speak to his lawyer once they arrived at the station. He provided his lawyer's name to the officers while en route. The officers continued to question the accused in the police car before the accused had had an opportunity to consult with counsel. Among other things, they asked him why he was carrying the knife.

[14] Shortly after arriving at the station the accused reiterated his request to speak to his lawyer, this time to the booking sergeant, and spelled the name for him.

[15] Neither Officer McCormick nor Officer Patterson took any steps to contact the accused's lawyer. Officer Patterson testified that at 3:07 am he entered the investigation room where the accused was being held. He woke up the accused and asked him if he still wanted to speak to his lawyer, or if not, duty counsel. According to P.C. Patterson the accused said no.

[16] At some point between his arrival at the station and 3:07 am the accused was photographed and strip searched.

[17] During his testimony, Officer McCormick demonstrated how the knife could be opened by a forceful flick of the wrist.

(b) The Evidence of Mr. Sriskandarajah

[18] Mr. Sriskandarajah was the sole witness for the defence.

[19] He was born in Canada on April 7, 1996. He resides in Scarborough and was a university student at the time of the incident.

[20] In the late evening hours of January 22, 2016, the day before his arrest, he and several others had attended a formal event at the Scarborough Convention Centre. A large fight had broken out and the formal event had to be shut down. Police attended and dispersed the crowd. The accused suffered some abrasions to his hand during this fight. Sometime before leaving the Convention Centre the accused was approached by a friend who asked him to hold the knife that Officer McCormick eventually removed from his pocket. Although he did not witness the incident, the accused was told that another friend had fallen on the ice during the altercation at the Convention Centre and had accidentally cut himself with the knife. The accused agreed to hold the knife so as to conceal it from the authorities since it was decided that the accused and several of his friends would take their injured friend to the hospital. The accused admitted to drinking heavily that night and being quite intoxicated during his later encounter with Officer McCormick.

[21] As concerns the knife, the accused admitted on cross-examination that he had previously owned an identical knife. According to him it was impossible to open the knife with a flick of the wrist, unless the user applied some thumb pressure to a nob on the top of the blade. Doing so made the knife amenable to opening by centrifugal force.

[22] Once at the hospital a verbal altercation erupted. The triage nurse threatened to call the police so he and five of his friends retreated to the van, which they had parked at the Shoniker Building due to the outrageously high cost of hospital parking.

[23] According to the accused, Officer McCormick asked for his identification which the accused refused to provide, knowing he had no obligation to do so. Officer McCormick would not take no for an answer and asked at least five times. When the officer noticed the abrasions on his hand he asked if the accused had assaulted anyone. Others in the car had already told Officer McCormick about the fight at the formal.

[24] Officer McCormick then told the accused to step out of the vehicle. The officer reached out and grabbed the accused by the hand. The accused felt compelled to exit the van and did so without resistance. Officer McCormick then told the accused he was under arrest for assault and put him in handcuffs. Officer McCormick then put his hand in the accused's pocket and removed his wallet and the knife. The accused was then placed in the police car and was read his rights to counsel at that time. The accused promptly told the officers that he wanted to speak to his lawyer at the station and provided the lawyer's name. He repeated this request to the booking sergeant.

[25] At no time did any of the police who dealt with him that morning assist in putting him in contact with his lawyer, or any other lawyer for that matter. His first access to counsel came later that morning when he appeared in bail court. The accused had no recollection of a visit from P.C. Patterson at 3:07 am.

C. ANALYSIS

(a) The alleged ss. 8 and 9 breaches

[26] The parties agree that when Officers McCormick and Patterson approached the van they did not have sufficient grounds to arrest the accused, nor any other occupant of the van. They further agree that the officers did, however, have sufficient grounds to conduct an investigative detention of the van occupants. They also agree that the accused was indeed detained while still in the van, having been told as much by Officer McCormick.

[27] The Crown argues that this power to detain for investigation extended to the removal of the accused from the van, and that the search of the accused's pocket in the circumstances was a constitutionally permissible adjunct to their power to detain for investigation.

[28] The Defence contends that the removal of the accused from the van took the detention of the accused beyond the boundaries of what was constitutionally permissible. His detention thereafter was unlawful and thus arbitrary, rendering the search of the accused's pocket unconstitutional.

[29] Police have a limited power to detain individuals for investigative purposes: R. v. Mann, 2004 SCC 52. As set out by the Supreme Court in Clayton, 2007 SCC 32 at para. 31 the extent of the permitted detention will depend on the particular circumstances of the case:

The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

[30] When Officers McCormick and Patterson approached the van they had only very vague information about what had occurred at the hospital, and no information as to what had led up to the hospital incident. They knew that someone had been admitted to the hospital with a knife wound, but there was nothing to suggest where or how that injury had occurred, nor was there any information to the effect that any of the occupants of the van had caused the wound, had committed any offence, or were armed.

[31] Thus, the extent to which the police were entitled to interfere with the liberty of the accused was limited. In my opinion, Officers McCormick and Patterson were certainly entitled to briefly detain the occupants of the van while asking them questions to clarify what had occurred at the hospital. But, unless that brief permissible encounter gave rise to new information that called for a further restriction of the accused's liberty, the officers were obliged to back off and allow the accused and the other men in the van to be on their way.

(b) The encounter at the van

[32] After reviewing the evidence of the two officers and that of the accused I make the following findings of fact concerning the encounter between the police and the accused at the van. These findings take into account the serious intoxication of the accused at the time, as well as the burden of proof being on the accused to establish a Charter breach:

(a) Officer McCormick told the accused he was detained for assault while the accused was in the van.

(b) Officer McCormick requested the accused's identification on several occasions.

(c) The accused refused to provide his identification every time he was asked for it.

(d) The accused made it clear to Officer McCormick that he would not answer his questions without consulting counsel first.

(e) Officer McCormick took hold of the accused and ordered him to exit the vehicle.

(f) The accused felt compelled to exit the van.

(g) Almost immediately after the accused exited the van Officer McCormick saw what he believed might be a weapon in the accused's pocket and then reached into the accused's pocket and retrieved the knife.

(h) Officer McCormick then arrested the accused and placed him in the back of the police car.

(i) I am unable to conclude one way or the other whether Officer McCormick placed cuffs on the accused before or after finding the knife.

[33] As I stated above, and as the parties agree, Officer McCormick was justified in briefly detaining the accused to question him about his knowledge of what had occurred at the hospital. As soon as it became clear that the accused, as was his right, was refusing to cooperate with the officer, Officer McCormick was obliged to release the accused unless he had grounds to arrest him: R. v. McGuffie, 2016 ONCA 365 at paras. 37–38. None of the reasons given by Officer McCormick for ordering the accused from the van is supportable. There were no reasonable safety concerns in questioning the accused while he remained in the van. There was nothing to suggest he was armed or presented any threat to the officer from his position in the van. Nothing that the police had learned from the other occupants of the van increased the officers' suspicion. Indeed, removing him from the van increased the risk he might pose to the officer. Nor was it appropriate to up the ante simply to demonstrate to the accused who was in charge. Moreover, the accused had made it abundantly clear while still in the van that he was not going to answer the officers' questions until he had spoken to his counsel. Even though Officer McCormick had not yet read the accused his rights to counsel, given that the accused had signaled his wish to consult counsel, Officer McCormick was nonetheless obliged to cease questioning the accused until the accused had consulted with his counsel: R. v. Manninen.

[34] In my opinion, the detention of the accused lost its constitutional support once he was removed from the vehicle. Given that his detention thereafter became unlawful, there was no constitutional support for the search of his pocket, notwithstanding Officer McCormick's observations: R. v. Aucoin, 2012 SCC 66 at para. 44. The accused suffered an infringement of his s.8 and s.9 Charter rights. The knife was clearly obtained in a manner that infringed the accused's rights under these sections.

(c) The alleged s.10(b) violation

[35] The accused was entitled to be advised of his right to counsel immediately upon his detention: R. v. Suberu, 2009 SCC 33. Instead, he was not advised of his right to counsel until after his arrest. This breach pales in significance, however, to the breach of his right to be put in contact with his counsel of choice, which breach persisted throughout his detention from the time of his first encounter with Officer McCormick until his appearance at court the next day. This latter breach was made even more serious by the fact that the police questioned him, strip searched him and photographed him during this period. As for the evidence of Officer Patterson about speaking to the accused at 3:07 am and allegedly ascertaining that the accused was no longer interested in speaking to counsel, I cannot conclude on the evidence that this in fact occurred, and even if it did, it does not mitigate the seriousness of the 10(b) violation. The accused had made his wish to consult counsel abundantly clear over the preceding hours and had been ignored. Why would he think that P.C. Patterson was sincere in his inquiry? Moreover, the discussion as testified to by Officer Patterson falls far short of a waiver of the accused's desire to speak to his lawyer: R. v. Prosper.

(d) Should the knife be excluded pursuant to s. 24(2)?

[36] The police breached the accused's ss. 8, 9 and 10(b) rights during this investigation. After applying the test in R. v. Grant, 2009 SCC 32, I find the breaches to be serious. The accused had the right to be left alone once he made it clear to the police that he had no interest in assisting in their investigation of the hospital incident. Instead, Officer McCormick decided to exact a price from the accused for his decision to assert his rights.

[37] I further find that the lengthy denial of contact with his counsel of choice was an extremely serious and egregious example of a 10(b) violation.

[38] As far as the impact of these serious Charter violations on the accused is concerned, this too was relatively serious. The accused was unlawfully deprived of his liberty, then denied access to the only person who could be of assistance to him.

[39] I find that society's interest in the adjudication of this case on the merits does not outweigh the seriousness of the breaches and their impact on the accused. The administration of justice would clearly be brought into disrepute by the admission of the knife. It is thus excluded.

D. CONCLUSION

[40] As far as the knife is concerned, submissions as to whether it meets the definition of a prohibited weapon pursuant to s. 84(1) of the Criminal Code were held in abeyance pending this judgment. Given my disposition, these submissions need not be heard and I make no finding regarding the nature of the knife.

[41] In the result, the charge is dismissed.

Released on June 26, 2017

Justice Russell Silverstein