Court Information

Ontario Court of Justice

Date: December 15, 2020

Toronto Region

Parties

Between:

Her Majesty the Queen

— And —

Ryan Lewis

Judicial Officer and Counsel

Before: Justice L. Feldman

Heard on: August 10, 13, November 16, 17, 2020

Reasons for Judgment released on: December 15, 2020

Counsel:

• S. Walker, S. Capagreco — counsel for the Crown
• J. Casey — counsel for the accused Ryan Lewis

Introduction

[1] Ryan Lewis entered not guilty pleas to charges of Unauthorized Possession of a Firearm, Possession of a Firearm without a Licence, Unauthorized Possession of a Firearm in a Motor Vehicle, Possession of a Prohibited Firearm, Careless Storage of a Firearm, Carry Concealed Weapon and Tamper with a Serial Number.

[2] Following the arrest of the defendant by officers investigating another drug trafficking suspect, Mr. Lewis was searched and found in possession of a loaded prohibited firearm. He says the officers lacked reasonable and probable grounds to arrest and search him, infringing his Charter ss. 8 and 9 rights. He asks that the firearm be excluded under s. 24(2). On consent, the trial proceeded as a blended hearing.

The Evidence

[3] On July 20, 2019, police attended at 100 Mornelle Court, part of an apartment complex, in Scarborough, to conduct a firearms investigation. A confidential source had informed the authorities that an unplated grey van was parked in the parking lot and being used by drug dealers to store drugs and firearms.

[4] The informant indicated to his handler that persons in possession or constructive possession of drugs and firearms were always around the van to protect its contents. He gave specific information about seeing a firearm on certain dates in July. He did not mention the defendant's name.

[5] On the instructions of a senior officer, P.C.s Rowlands and Needles arrived on scene with instructions to verify the information received. They noted the van as described. Their attention was drawn to two black males, Algernon Comissiong and Amir Mikaili, standing at the rear of a red BMW situate near the van and approached by two other black males, Shagghary Scott and Jerell Howe.

[6] They saw Scott pulled out and unwrap a paper towel that contained small blue objects. P.C. Rowlands testified that Scott held one up as if to show the other two men, then folded up the towel with the objects in it and put it back in his pocket. He then saw Scott pull out some money and appear to count it while turned away from the others, then return it to his pocket.

[7] Scott and Comissiong shook hands and embraced one another. Given the informant's information and their own experience, the officers believed they had just seen a hand-to-hand drug deal, in the circumstances, an objectively reasonable inference. As indicated by the court in Plummer, "We accept that a police officer's perception of a person's 'body language and movements' may factor into the totality of circumstances founding grounds for detention". In Muller, the court said that observations of a suspect's behaviour, together with CI information, may afford valid grounds for arrest.

[8] Scott and Howe headed to a nearby basketball court. There, at 8:07 p.m. P.C. Needles placed Scott under arrest for possession of drugs for the purpose of trafficking. Scott purportedly blurted out, "I just bought". P.C. Needles found 6 small baggies of cocaine and $340 on him. P.C. Rowland then advised other officers that Comissiong was arrestable for drug trafficking.

[9] P.C. Rowlands returned to 100 Mornelle Court, where he says that from a distance of about 10 car lengths he saw Comissiong leaning into the open driver's door of a grey Mitsubishi Lancer that was 3-4 parking spots over from the van. He says Mikaili was with him a few feet away. P.C. Pargeter also saw Comissiong leaning in the open door close to the defendant, who was in the driver's seat of the Lancer. D.C. Manserra was more explicit. He described Comissiong as bent into the car unnaturally close to the driver, occasionally popping up and looking around.

[10] From 40 yards away, P.C. Parker saw things a little differently. She believed Comissiong was leaning in through an open window, as did her escort, P.C. James, who told the court that he saw Comissiong's hands inside the car and that he was speaking to the driver.

[11] P.C. James testified that given the Lancer's proximity to the van, where he was informed that drugs and firearms were stashed in an area noted for drugs, the apparent drug transaction observed earlier and Scott's possession of drugs and money, together with his utterance, he believed he had just observed another quick hand-to-hand transaction with one of the principals in the earlier drug deal. The officers ran over.

[12] As he approached the Mitsubishi, P.C. James pointed his firearm at Comissiong and yelled, 'police, everyone get down'. Comissiong and Mikaili complied, laying down on their chests close to the car.

[13] P.C. Parker ran over to the driver's door. She told the defendant he was under arrest for possession of a Schedule 1 substance. Mr. Lewis locked the door. She unlocked it through the window and began to remove him from the car.

[14] P.C. James assisted his colleague in removing the defendant. The officer said Mr. Lewis responded by struggling in the course of which he fell on top of Comissiong. I accept the evidence of multiple officers on this material fact in issue, permitting the inference that the defendant heard the police command and that he fell in close proximity to the driver's door.

[15] P.C. James arrested Mr. Lewis at 8:19 p.m. for possession of cocaine. He searched him incident to arrest. He located a handgun in his pants pocket. It had one round in its chamber, five rounds in the magazine. It was operable.

Mr. Lewis's Evidence

[16] Mr. Lewis testified solely on the Charter voir dire. He was 21 at the time. He was found guilty as a youth in 2016 for possession for the purpose of trafficking in cocaine.

[17] Mr. Lewis said he was visiting his aunt at the time of these events. She lives at 80 Mornelle Court, but he says there were no visitor spots available there. He did not check at #90 but tried to park at #100. He had 135 gms of marihuana with him in a satchel in the back seat. Although he visits often and used to go to school in the area, he claims he is not aware that it is known for drugs.

[18] Mr. Lewis says he spoke to the men by the BMW to see if they were leaving so that he could have their spot. He opened his window and asked that of Comissiong whom he knew, he says, from a distance of about a half car length. He insists Comissiong never leaned into his window, nor did Mikaili come over. He claims to have asked the men to watch his car and let him know if he was at risk of being towed, a seemingly convenient assertion in the circumstances.

[19] The defendant told the court that he saw four men run towards him pointing guns. He said he never heard anyone yell, 'police'. He says he did not see the other two men on the ground. He denied that P.C. Parker told him he was under arrest. He claimed to only realize he was dealing with the authorities after his arrest.

Questions of Reliability

[20] Ms. Casey submits that the failure by these experienced officers to note times during the investigation, ordinarily of little import, takes on more significance in its limiting of defence counsel's ability to challenge just how briefly Comissiong engaged with the defendant. She says these multiple omissions raise reliability concerns about police evidence on a material fact in issue, that is, just how short a time the two suspects were observed in contact, suggesting police acted precipitously and without reasonable grounds. She labels P.C. James's evidence of 1-3 minutes as self-serving.

[21] Ms. Casey points out, as well, that there were inconsistencies regarding who ordered the takedown of the two men and whether Comissiong was leaning in the open window or in the open car door. She says it was speculative to infer a hand-to-hand transaction.

[22] Regarding the minimal recording of times, I can accept that in a dynamic situation, as here, that can be the result, although the court had the benefit of the recording of times in the ICAD. In any case, I don't reject Mr. Lewis's estimate of being on scene relatively briefly prior to the takedown. As well, I read the inconsistencies that relate to Comissiong's positioning in relation to the car door as a result of the vantage point of the observer.

[23] Ms. Capagreco suggests it is the defendant who lacks credibility. She says, contrary to his evidence, it makes no sense that upon their approach with guns drawn the officers would not yell 'police', given concern about their own safety and even less believable that the defendant would not hear them. Comissiong and Mikaili heard the command and got on the ground close to the car door. The evidence also indicates the defendant, pulled from his vehicle, struggled and landed on Comissiong. On this evidence, I don't accept Mr. Lewis's testimony that he didn't hear the police, that he did not see the other two detainees on the ground and that he did not end up on top of Comissiong outside his car door.

Reasonable and Probable Grounds

[24] Ms. Casey submits that the defendant's arrest was both unlawful and arbitrary because the police did not have reasonable grounds to make the arrest. She says at most her client might have been subject to investigative detention.

[25] Code s. 495(1)(a) provides authority to the police to arrest without warrant on reasonable grounds that the individual has committed an indictable offence. The standard has a subjective and an objective component. The subjective portion involves a personal and honestly-held belief that the suspect has committed an offence. The objective part requires that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds exist. A conclusion that the conduct observed is criminal, in the context of all the circumstances, must be objectively reasonable.

Arbitrary Detention

[26] In Amare, Justice Casey Hill sets out the applicable principles in assessing a claim under Charter s. 9, where it is alleged the police lacked reasonable and probable grounds to arrest. These principles, taken from the authorities, are: an arbitrary arrest includes an unlawful arrest; an arrest will be unlawful and arbitrary if the arresting officer lacks reasonable and probable grounds; while it is the Crown's onus to show that the objective facts support a lawful detention, the onus is on the accused to demonstrate the detention was unlawful; reasonable grounds to believe consists of compelling and credible information that provides an objective basis for drawing the appropriate inferences; that an experienced officer has an honest subjective belief is in itself some evidence that the belief is objectively reasonable; reasonable and probable grounds involves a common-sense, non-technical approach to the evidence; credibly-based probability does not require that police officers always be correct, only that they be reasonable; an officer must take into account all available and reliable information; an officer's training and experience may provide some objective basis for his or her grounds of belief; where the directing officer has reasonable and probable grounds to arrest, those officers acting under his or her direction are deemed to be acting on those grounds.

[27] At the same time, the objective component of an officer's belief must meet an evidentiary standard of credibly-based probability. In Brown, Doherty J.A. said: "The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief, but the need to impose discernable objectively measurable limits on police powers".

Was the Defendant's Arrest Lawful?

[28] Regarding the existence of reasonable and probable grounds, this is a close case. Mr. Lewis was not on the police radar, nor was he on scene very long before the authorities closed in on Comissiong. While from their position the officers did not see an actual transaction, there is some evidence the target's hands were inside the car. The inference the investigators drew must be seen in the larger context known to them at the time.

[29] In this regard, P.C.s Needles and Rowland were told to check out an unplated van purported by a confidential source to be a repository for drugs and firearms protected by random people who may have firearms in an area known for drug trafficking. The officers knew the reputation of the area and were, in addition, mindful that the possibility of firearms made safety a priority. They could not get close to the van because of people around it.

[30] Their observations tended to affirm some details in the source's information. They were also aware the informant indicated he had seen a firearm there on certain dates in July. In the context of this dynamic situation, the apparent drug negotiation and probable transaction as between Scott and Comissiong provided a lawful basis for their respective arrests, reinforced by Scott's possession of 6 packets of cocaine.

[31] With the focus on Comissiong as either a purchaser or seller, it was open to the officers moving in on him to interpret his being in close quarters with the defendant, and with P.C. James seeing his hands inside the car, as his further involvement in the drug business. Was the collective belief of the officers reasonable?

[32] Justice Doherty approached that question in Brown this way: "…there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief". As well, the court must be mindful that often "the officer's decision to arrest must be made quickly in volatile and rapidly changing situations". As noted earlier, the test is not the correctness of the officer's decision.

[33] As indicated, this is a borderline case. A detention for further investigation, unassailable in the circumstances, would have revealed the defendant's possession of a loaded firearm. But the circumstances permitted the inference in this dynamic situation, where there was an earlier indication of both drugs and firearms, that a suspect about to be taken down for drug trafficking was continuing his business with a potential customer. While the arrest of Mr. Lewis was precipitous, there was, in my view of all the circumstances, an objective basis both for the arrest and the search incident to it.

[34] I would dismiss the applications alleging breaches of ss. 8 and 9.

[35] In the event I am wrong, and there was a Charter infringement, I would still admit the firearm following a Grant analysis. As indicated, this was a close case in which experienced officers conducted their investigation in fast-moving and potentially dangerous circumstances, where the context permitted an inference of ongoing drug trafficking and the presence of firearms.

[36] On the second prong, the negative impact of the arrest on the defendant's Charter rights was significant and would warrant exclusion of the evidence. However, on the first prong, the seriousness of any breach would be at the low end of the continuum in a dynamic situation in which I view the officers as having acted in good faith in difficult circumstances, even if mistaken. On this ground, I would not exclude the evidence.

[37] On the third prong, the firearm is reliable evidence material to the prosecution of a very serious case where society has an overriding interest in an adjudication on the merits. On a balancing of these factors, I am not persuaded that the overall repute of the justice system, viewed in the long term, would be adversely affected by admission of the evidence.

[38] In the result, Mr. Lewis is found guilty on all counts.

Released: December 15, 2020

Signed: Justice L. Feldman