ONTARIO COURT OF JUSTICE
DATE: 2021 05 13 COURT FILE No.: Toronto 20-15001921/22
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KAFI ALI
Before: Justice Peter N. Fraser
Heard on: April 6-9 & 22, 2021 Reasons for Judgment released on: May 13, 2021
Counsel: S. Malik, counsel for the Crown T. Sivarajah, counsel for the defendant Kafi Ali
Fraser J.:
[1] Kafi Ali stands charged with a number of firearms and drug related offences, arising out of an incident on March 25, 2020. He was investigated in connection with the robbery of a pharmacy in Toronto (for which he was not ultimately prosecuted) and found to be in possession of a loaded semi-automatic handgun, 5.4 grams of fentanyl and about $8000 in cash.
[2] Mr. Ali was arraigned on ten counts, several of which are duplicitous: unauthorized possession of a firearm (s. 91(1)), possession of a firearm knowing its possession is unauthorized (s. 92(1)), possession of a prohibited weapon knowing its possession is unauthorized (s. 92(2)), possession of a prohibited or restricted firearm with ammunition (s. 95(1)), possession of a weapon obtained by the commission of an offence (s. 96(1)), possession of a firearm knowing the serial number has been removed (s. 108(1)(b)), careless storage of a firearm (s. 86(1)), careless storage of ammunition (s. 86(1)), possession of property obtained by crime (s.354(1)), and possession of a Schedule I substance, namely fentanyl, for the purpose of trafficking (s. 5(2) of the Controlled Drugs and Substances Act).
[3] The accused brought an application alleging breaches of his rights under sections 8 and 9 of the Charter and seeking the exclusion of all incriminating evidence pursuant to section 24(2).
[4] The Crown’s position is that there were no breaches of Mr. Ali’s Charter rights, as he was properly detained and later searched incident to a lawful arrest. In the alternative, the Crown submits the evidence should not be excluded under section 24(2).
[5] The trial proceeded by way of a blended voir dire. The defence concedes that, in the absence of a successful Charter application, the elements of all offences are made out, with the exception of the possession of property obtained by crime charge.
Background Facts
[6] At about 3:20 pm on March 25, 2020, two men robbed the Al-Shafa Pharmacy, located at 4922 Dundas Street West in Toronto, and made off with a quantity of pharmaceutical drugs and cash. The manager of the pharmacy called 911. The police dispatcher broadcast the fact of the robbery and a brief description of the perpetrators over the police radio system.
[7] PC Ivkovic and PC Alexander were assigned to a neighbourhood patrol unit at the time. They were in uniform and operating a police vehicle that was not equipped with in-car camera equipment. The two officers heard the radio call and were among a number of available units who responded. Their search for suspects lead them to a nearby plaza, located at Bloor Street and The West Mall. It was here that they observed Mr. Ali. After observing him for a period of time, they placed him under investigative detention and then under arrest. The timing and sequence of these developments is the subject of disagreement between the parties. There is no dispute that the following items were found on Mr. Ali’s person:
- Glock Semi-automatic handgun with serial number removed and one round in the chamber
- Magazine with 14 rounds of ammunition inside
- 5.4 grams of fentanyl contained in two zip lock bags
- $7970 in cash
- Black Balaclava
- Other personal effects
Evidence of PC Ivkovic
[8] PC Ivkovic testified that when a 911 call is made, the police dispatcher broadcasts the information received over the police radio system. Information is also displayed on computer screens inside police vehicles. PC Ivkovic was trying to absorb the information coming over the radio, while driving his police vehicle and keeping a lookout. He was not consulting the on-board computer, because he was driving. The initial information he recalled hearing was as follows:
- Two suspects had stolen narcotics and cash from the Al Shafa Pharmacy.
- Both were described as black males.
- Both were wearing dark clothing and surgical masks. [1]
[9] The two officers attended the area of the Al Shafa Pharmacy to search for suspects matching that description. Additional information came over the radio indicating the suspects were possibly carrying a dark coloured bag and that no weapons were seen. There were people on the streets at this time, but there was no one who matched the description.
[10] A detective in the Major Crime Unit then directed officers on the road to attend the other pharmacies in the area. PC Ivkovic explained that these types of robberies had been happening in quick succession, with the suspects robbing more than one pharmacy at a time. The two officers attended another pharmacy at Bloor Street and The West Mall, which was a “straight shot” across Bloor from the Al Shafa Pharmacy and some 3-4 km away. This pharmacy had been robbed a few times before, as had the convenience store in the same plaza.
[11] The officers took up a position in the parking lot of the plaza. A red Buick pulled into the parking lot and drove past the police car. There where two black males inside, wearing dark clothing. They were not wearing masks. The passenger was later determined to be Mr. Ali. PC Ivkovic’s attention was drawn to these men as he believed they matched the description he had heard over the radio. The officers ran the licence plate number through their on-board computer and learned it was registered to Enterprise Rental. PC Ivkovic testified that, in his experience, rental cars were often used in connection with criminal activity because they could not be readily associated to the occupants. At this point, the officers’ suspicions were raised and they watched the two men in the red Buick.
[12] The Buick stopped in front of a donut shop at the north end of the plaza. Both men got out of the car. After a short time, the driver got back in alone, without acknowledging the passenger in any way, and drove out of the plaza heading north on The West Mall. PC Ivkovic found this “very strange” and “peculiar.” The passenger (Mr. Ali) appeared very nervous. He was pacing back and forth in front of the plaza, looking at his phone, then at the officers, then at the phone again. PC Ivkovic found this behaviour suspicious and decided to watch and see what happened. Now that Mr. Ali was out of the car, more of his clothing was visible. PC Ivkovic described a long, dark, winter jacket with grey track pants and black shoes.
[13] Mr. Ali did not enter any of the stores in the plaza. Instead, he walked away from the plaza, crossed Bloor Street and headed north on The West Mall. The officers followed him in their police car. About half a block north of Bloor, they saw the same red Buick from the plaza parked in a private drive near 328 The West Mall. Mr. Ali looked back at the police car, which was 3-4 car lengths behind him, and made a gesture toward the driver of the red Buick. He waved his hands in and out with palms down, in a motion that resembled an umpire calling a player safe. The Buick then pulled out onto the roadway and drove off at a high rate of speed. PC Ivkovic interpreted this as a signal from Mr. Ali to the driver to get out of there. Mr. Ali continued walking north.
[14] At this point, PC Ivkovic made the decision to stop Mr. Ali and investigate. He suspected that the two men had robbed the Al Shafa Pharmacy. As he put it, “we know that these guys could possibly be involved in the robbery.” He pulled the police car in front of Mr. Ali, blocking his path. The officers got out and told him to stop. They told him they were investigating a robbery and that he matched the description of one of the suspects. There is no dispute that Mr. Ali was under investigative detention at this time.
[15] The officers asked Mr. Ali his name, but he did not respond. He started to fidget and put his hands into his jacket pockets. PC Ivkovic directed him to remove his hands for officer safety reasons. Mr. Ali appeared very nervous, his hand was almost shaking, and he was not making eye contact.
[16] PC Ivkovic asked for a piece of identification. He noticed a bulge in the right pocket of Mr. Ali’s track pants and thought it could be a wallet. He pointed to it and asked if Mr. Ali had a wallet with identification. There was no response, but Mr. Ali reached into his pant pocket and pulled out a large stack of money. There were 50 and 20 dollar bills with an elastic band around them. PC Ivkovic took the money and put it on top of a nearby garbage bin. Mr. Ali said it was his rent money.
[17] PC Ivkovic testified that, at this point, he believed on reasonable and probable grounds that Mr. Ali was one of the men who had robbed the Al Shafa Pharmacy.
[18] PC Ivkovic testified that he told Mr. Ali he was under arrest and that his partner placed him in handcuffs. PC Ivkovic began a search of Mr. Ali for safety reasons and to look for items related to the robbery. He patted Mr. Ali down and searched his pockets. There was a handgun in the left jacket pocket. He called out “gun” to alert PC Alexander. Mr. Ali was taken to the ground and arrested for possession of the firearm at 4:02 pm. The entire interaction took about one minute.
[19] Subsequent searches revealed the fentanyl and other items on Mr. Ali’s person. When it was safe to do so, Mr. Ali was advised of his right to counsel and cautioned. This occurred within a matter of minutes.
Evidence of PC Alexander
[20] PC Alexander was in the police car with PC Ivkovic when the dispatcher advised of the robbery at the Al Shafa Pharmacy. He recalled hearing the following information:
- Two suspects had robbed the pharmacy, taking drugs and cash.
- Both were described as black males.
- Both were wearing dark clothing and surgical masks.
- One was wearing a hat and the other may have been.
- One may have been in his 20s and the other may have been in his 30s.
[21] PC Alexander may have consulted the on-board computer at the time, but he was mainly focused on what he was hearing over the radio.
[22] The two officers responded to the 911 call and later attended the plaza at The West Mall and Bloor as described by PC Ivkovic. He estimated it to be 4-5 km away from the Al Shafa Pharmacy. In PC Alexander’s experience, robberies of pharmacies tended to occur in groups. And he was aware that the pharmacy in this plaza, as well as the convenience store and the donut shop, had been robbed before.
[23] PC Alexander described the occupants of the red Buick as two black males wearing dark clothing. When the licence plate came back to a rental company, his suspicion was also raised. He recalled that the Buick stopped in front of the donut shop. Both men got out, but did not attend any stores. The passenger (Mr. Ali) was pacing back and forth and looking at his cell phone. There was no interaction between the two men once they exited the vehicle. According to PC Alexander, they were acting like they didn’t know each other, and he found that to be strange. The driver got back into the car a short time later and drove away without any acknowledgment of the passenger.
[24] Based on everything they had observed, PC Alexander was starting to think these were the two suspects from the Al Shafa robbery and that he and his partner had interrupted a second robbery. The officers continued to observe Mr. Ali, who left the plaza 3-4 minutes later, crossed Bloor Street and walked north on The West Mall.
[25] PC Alexander saw the red Buick parked about half a block north of Bloor. He observed Mr. Ali look back at the police car, then motion to the driver of the Buick with his hands about chest high. He waved them in and out with palms down. The Buick pulled onto the roadway and sped away.
[26] At this point, PC Alexander thought this was more than just a coincidence and was “really starting to think these were the suspects from the robbery.” As described by PC Ivkovic, they pulled in front of Mr. Ali and engaged him. PC Alexander told him there had been a recent robbery at a pharmacy and they were speaking to him because he matched the description.
[27] Both officers were trying to speak to him at the same time, but PC Alexander believed he asked if Mr. Ali had any identification and received the answer no. Mr. Ali appeared very nervous and would not make eye contact. He then pulled a bundle of cash out of his pocket.
[28] At this point, PC Alexander believed this was one of the suspects who had robbed the Al Shafa Pharmacy. He grabbed Mr. Ali by the arm and handcuffed him. He believed he had reasonable and probable grounds to make an arrest. He told Mr. Ali he was investigating him in relation to the robbery of the pharmacy, but didn’t have the opportunity to tell him he was under arrest as, at that moment, PC Ivkovic called out “gun”. PC Alexander pulled Mr. Ali to the ground. Once they had established control, he engaged in a pat down search. His purpose was to look for weapons or means of escape. The entire interaction with Mr. Ali to this point had taken about one minute.
[29] PC Alexander returned to the police vehicle and used the radio to advise other officers there was a male in custody, that a firearm had been recovered, and to be on the lookout for a red Buick.
Credibility and Timing of the Arrest
[30] The primary focus of the defence had to do with the timing of the arrest. There is no dispute that Mr. Ali was detained as soon as the officers stopped him on the sidewalk. The theory of the defence is that the officers searched Mr. Ali and recovered the gun before placing him under arrest, and they did so for reasons not authorized under the police power to search incident to investigative detention. Defence counsel asserts that there is no reference in the officers’ notes to an arrest for the Al Shafa robbery. Ms. Sivarajah claims that the officers colluded to create a false narrative in which the accused was arrested for the robbery, so as to justify their discovery of the gun as a search incident to arrest.
[31] At the point of the initial detention, PC Ivkovic’s notes indicate, “Ask male for ID. Advise robbery of pharmacy and male matches description.” At the point the bundle of money was produced, PC Ivkovic’s notes read as follows: “Escort cuffs male to rear. Advised under investigative detention for robbery. Search male for safety and other items in relation to robbery.” When the gun was discovered, PC Ivkovic’s notes indicate, “Escort grounds male. Male under arrest.”
[32] PC Ivkovic testified that he made a mistake in his notes. He asserted that he told Mr. Ali he was under arrest for robbery after he produced the money from his pocket. The reference in his notes to “investigative detention” was an error that he detected a couple of days before the trial. This was a significant error.
[33] The context in which these events were unfolding is important. The entire interaction with the accused on the sidewalk lasted about one minute. The time between the discovery of the money (which triggered the arrest for robbery) and the discovery of the gun (which triggered the arrest for the firearms charges) was a matter of seconds. If there was an arrest for robbery, it turned into something else almost immediately. And PC Ivkovic testified that the firearm became his primary concern.
[34] In cross-examination, defence counsel suggested that PC Ivkovic should have brought the oversight to the attention of the Crown Attorney before the trial. While that may have been preferable, and may have assisted the parties in their preparation for trial, I do not believe that course of action would have made the officer’s explanation any more or less credible.
[35] At the point of the initial detention, PC Alexander’s notes indicate, “Advise male speaking to him in relation to a robbery and he matched the description.” At the point the money was produced, PC Alexander’s notes read as follows: “Immediately approach male to the rear and cuff him to the rear. Advise he is being investigated in relation to a recent robbery. Escort says ‘gun’”. There is an entry further down in the notes indicating, “Male arrested was matching the robbery suspects description.” Another entry after that indicates: “See a large sum of cash was definitely of the belief he was involved in the robbery, detained and cuffed and again advised him that he was being investigated in relation to robbery.”
[36] PC Alexander’s notes do not expressly state that Mr. Ali was under arrest for robbery prior to the search. However, the entry indicating “Male arrested was matching the robbery suspects description” comes extremely close. And the notes as a whole are consistent with PC Alexander’s testimony that he believed this to be one of the robbery suspects, had the requisite grounds to make an arrest, and took control of Mr. Ali for that purpose. This interpretation is supported by the fact that PC Alexander used the police radio to advise other units to be on the lookout for the red Buick. This point is reflected in his notes, and it speaks to his belief that the two males were the robbery suspects.
[37] I accept that PC Alexander was about to advise the accused of the arrest when his partner called out “gun” and that his priorities changed dramatically to ensuring his own safety and that of the public. In this sense, his notes of the arrest accurately reflect his testimony: he formulated the grounds to arrest; handcuffed the accused; told him he was being investigated for the robbery; was about to advise him of the arrest and was interrupted by the appearance of the gun. I find the absence of an explicit note that Mr. Ali was under arrest for robbery to be an oversight.
[38] The defence submits the officers’ claim that Mr. Ali was under arrest for robbery is undermined by the fact that he was never charged with that offence. The defence further points out that the robbery was not mentioned during the booking process or entered into the case file documents prepared by the arresting officers.
[39] The record before me does not allow me to take anything from the fact that no robbery charge was ultimately laid. The local divisional officers were responding to the 911 call in their capacity as first responders. But officers from the Hold-Up squad were in charge of the investigation into the Al Shafa Pharmacy. No officer from that unit testified at this trial and I have no evidence as to what information they had. Evidence may have surfaced that exculpated Mr. Ali or clearly implicated someone else. It would be speculation for me to draw any inference from the fact that no robbery charge was laid.
[40] I am not persuaded that the absence of any reference to the robbery during the booking process indicates that there was no arrest for that offence. I accept PC Alexander’s evidence that, once the gun was found, that became the priority. He explained that officers are not required to advise the booking Sergeant of every charge faced by an arrested party. PC Alexander advised the Sergeant of the firearm charge, as it was the most significant, and the drug charge, as it served to justify the level 3 search he was requesting. Similarly, PC Ivkovic testified that he was primarily concerned with the firearm at the time of the booking process.
[41] PC Alexander created the case file and entered the basic “tombstone” information, including the name of the accused, arrest time and charges. While he did not enter the robbery charge, he believed the information would be available to the Hold-Up Squad. It was their responsibility to determine what charges would ultimately be laid. Again, I accept that PC Alexander simply chose the most serious charge. This is evidenced by the fact that the drug charges are not mentioned here either.
[42] More broadly, I would observe that if the police officers actually conducted the pat down search prior to arrest, and felt compelled to justify it in some way, they could have simply asserted that it was done incident to the investigative detention. This power was available to them in law, for the purposes of ensuring officer safety: R. v. Mann, 2004 SCC 52, at para. 40; R. v. Bielli, 2021 ONCA 222, at para. 64. In their testimony, both officers demonstrated their knowledge of this police power. I find it highly unlikely they would have jointly concocted a false narrative of a search incident to arrest, which was not clearly reflected in their notes, in these circumstances.
[43] I also take into account that, in my view, the officers did have reasonable and probable grounds to arrest Mr. Ali when he produced the bundle of cash from his pocket. The officers’ position that this was an arrest is supported by their observations up to this point. All these observations were recorded in their notes, with one or two minor exceptions. This undermines the suggestion that the arrest narrative was reverse-engineered on the eve of trial to justify the pat down search.
[44] For all these reasons, I do not find that the officers colluded or lied about the nature of their interaction with Mr. Ali. I find that they effected an arrest when they took control of Mr. Ali and handcuffed him. This occurred just prior to the pat down search that revealed the gun.
Section 9 – Arbitrary Detention
[45] Section 9 of the Charter guarantees everyone the right not to be arbitrarily detained. The burden of proving an alleged breach of this right is on the applicant. The standard of proof is on a balance of probabilities.
The Investigative Detention
[46] The defence submits that Mr. Ali was arbitrarily detained during the initial interaction with police at the roadside, in breach of section 9 of the Charter. The defence further submits that the officers were engaged in racial profiling; and that they used the radio call as a pretext for stopping Mr. Ali, who is a young black man.
[47] The Crown resists the suggestion that the stop was racially motivated. Crown counsel acknowledges that Mr. Ali was detained during the initial interaction, but argues the detention was lawful as the officers had a reasonable suspicion that he was involved in the Al Shafa robbery.
[48] In order to effect an investigative detention, police must have a reasonable suspicion that the individual is involved in a particular crime and the detention must be reasonably necessary in the totality of the circumstances: R v Mann, 2004 SCC 52 at para. 45; R v McGuffie, 2016 ONCA 365 at para 35. A valid detention requires, “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation: R. v Simpson, [1993] O.J. No. 308 (C.A.) at para. 61; R. v. Ahmad, 2020 SCC 11 at para. 46.
[49] A reasonable suspicion to detain is a credibly based possibility that the individual is involved in a crime. This is distinct from reasonable and probable grounds to arrest, which means a credibly based probability of the suspect’s involvement in a crime. Courts must be cautious to avoid conflating these different standards: R. v. Ahmad, supra, at paras. 45-49; R. v. MacKenzie, 2013 SCC 50 at paras. 84-86; R. v. Chehil, 2013 SCC 49 at paras 22-36; R. v. Stewart, 2020 ONSC 4571 at paras. 69-70.
[50] In R. v. MacKenzie, 2013 SCC 50, at paras. 71-73, the Supreme Court of Canada explained that conduct which might not be suspicious standing alone may, together with other factors, contribute to a reasonable suspicion. The Court said this about evaluating whether a police officer’s grounds to detain are objectively reasonable:
Reasonable suspicion must be assessed against the totality of the circumstances. Characteristics that apply broadly to innocent people and "no-win" behaviour - he looked at me, he did not look at me - cannot on their own, support a finding of reasonable suspicion, although they may take on some value when they form part of a constellation of factors.
Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not - indeed must not - devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
[51] The issue of racial profiling was considered by the Ontario Court of Appeal in R. v. Brown, [2003] O.J. No 1251. At paragraph 7, the Court defined racial profiling in the following terms:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
[52] The Court went on, at paragraphs 44-45, to provide further guidance as to how trial judges should approach the issue:
A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.
[W]here the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling
[53] There is no question that anti-black racism exists in Canada or that racial profiling occurs. However, the focus of this kind of inquiry must be on the particular officer’s reasoning process. Racial profiling has two components: (1) an attitudinal component; and (2) a causation component: R. v. Brown, supra, at para. 7. The attitudinal component concerns the officer’s acceptance that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The causation component addresses whether this thinking consciously or unconsciously played a role in the officer’s decision-making process.
[54] If a police officer’s explanation of his or her reasoning seems unbelievable, this can support an inference that the officer’s actual reasoning employed negative racial stereotyping: R. v. Dudhi, 2019 ONCA 665 at paras. 80-81; Brown, supra, at para. 45.
[55] That being said, the trial judge need not conclude that the police officer who denies engaging in racial profiling is lying, as the officer may be unaware of his or her unconscious biases: R. v. Sitladeen, 2021 ONCA 303 at para. 54 & 64. Judges should, therefore, “consider whether the circumstances that could correspond to racial profiling could support the inference that unconscious racial profiling played a role”.
[56] Where race or racial stereotypes are used to any degree in suspect selection or subject treatment, the detention will be unlawful: R. v. Sitladeen, supra, at para. 52. Even where an officer has objective grounds to detain an individual, those grounds cannot be used justify a detention that is otherwise tainted by racial profiling: R. v. Dudhi, supra, at para. 62-63.
[57] At the outset, I would observe that this case is categorically different from cases where police approach a person of colour without any connection to a particular offence. Here, the police were responding to a radio call for a specific crime where the perpetrators were described as two black males. This fact alone significantly undercuts the suggestion that the officers were arbitrarily targeting young black men.
[58] PC Ivkovic and PC Alexander acknowledged that Mr. Ali was under investigative detention as soon as they approached him on the sidewalk. They both testified that they suspected he was involved in the Al Shafa Robbery at that point. The following factors were identified as the basis for their suspicion:
- There were two males (as described by the dispatcher).
- They were both wearing dark clothing (as described by the dispatcher).
- They were both black (as described by the dispatcher).
- They had attended a plaza with a pharmacy that was 3-5 km away from the Al Shafa Pharmacy - both officers were aware that multiple pharmacies had been robbed in rapid succession in this area before.
- They were driving a rental car - in both officers’ experience, rental cars were often used for criminal activities.
- They were acting strangely when they got out of the car - the two men behaved like they didn’t know each other and the driver got back in the car and left without acknowledging Mr. Ali at all.
- Mr. Ali did not appear to have any business at the plaza - he walked away without entering any of the stores there.
- He appeared nervous - he was pacing and looking at his phone and in the direction of the police officers.
- Mr. Ali separated from the driver of the Buick and met up with him a short time later for no apparent reason.
- As he approached the Buick, he looked back at the officers and then signaled to the driver.
- The Buick drove away at high rate of speed immediately after the signal from Mr. Ali.
[59] The defence argues there were differences between the men in the red Buick and the description that was broadcast over the radio. Both officers agreed that the ICAD printout, which contains a record of the information put over the police radio, indicates the suspects had “dark blue clothing.” Both officers testified that they recalled hearing “dark clothing” and that was what they were searching for. I accept their evidence on this point. PC Ivkovic explained that he was trying to absorb the information coming over the radio, while driving the police car and looking for suspects. PC Alexander testified that there was a lot going on: they were searching the area, remaining “hyper-vigilant” and listening to the police radio. In these circumstances, it is not surprising that the officers only heard “dark clothing.”
[60] The defence points out there was no reference to a get-away car in the radio call. On this point, PC Ivkovic explained that suspects who commit a robbery on foot may park a car nearby. This is common sense. Similarly, defence counsel argues that the two men in the Buick did not have surgical masks, hats or a black bag as referred to in the description broadcast. In my view, these kinds of items can be easily removed and their absence could not reasonably eliminate the two individuals as suspects.
[61] The defence also highlights alternative explanations for each of the circumstances forming the grounds for the investigative detention. It is true that each individual observation may admit of other reasonable explanations: the officers candidly acknowledged this in cross-examination. However, the entire constellation of circumstances must be examined in order to determine whether there was reasonable suspicion. In my view this standard was clearly met in view of all the information known to the officers at the time.
[62] I find the officers had ample grounds to detain Mr. Ali and there is nothing in their conduct that corresponds to racial profiling. It is significant that the officers did not detain the two men in the red Buick right away. In fact, they let the driver of the Buick leave when it first pulled out of the plaza. As PC Ivkovic put it, “we hadn’t built up to anything yet.” Instead, the officers waited and continued to observe. This record establishes that the mere fact that the two occupants of the vehicle were young black males was not enough to cause these officers to effect a detention (despite the fact that they matched the description that had been broadcast).
[63] According to the defence, the fact that the officers ran the licence plate of the red Buick reveals that they were engaged in racial profiling. I disagree. While the description of the robbery suspects was not very detailed, the two occupants of the car did match what the officers were looking for. And they were close to a pharmacy that was 3-5 km away from the Al Shafa Pharmacy. I am satisfied that the officers were acting on the information provided and were properly gathering additional information.
[64] In my view, there is no evidence that these officers engaged in racial profiling to any degree, either consciously or unconsciously. I am satisfied the officers suspected Mr. Ali was one of the people who robbed the Al Shafa Pharmacy. I find that suspicion was objectively reasonable. There was, therefore, no breach of Mr. Ali’s rights under section 9 of the Charter arising out of the investigative detention.
The Arrest
[65] I turn now to a consideration of the lawfulness of the arrest. Section 495(1)(a) of the Criminal Code authorizes a police officer to arrest a person without a warrant. The officer must subjectively believe, on reasonable and probable grounds, that a person has committed or is about to commit an indictable offence. Those grounds must be justifiable from an objective point of view: R. v. Storrey, [1990] 1 SCR 241 at para. 17.
[66] After the initial detention, the police officers made the following observations during their interaction with the accused:
- Mr. Ali looked nervous and was not making eye contact.
- In response to a request for identification, he pulled a large bundle of cash from his pocket.
[67] Based on these additional circumstances, but primarily the appearance of the cash, both police officers testified that they formed reasonable and probable grounds to arrest Mr. Ali for the robbery. PC Alexander explained that all his observations added up to more than just a suspicion and he now believed this was one of the robbers. PC Ivkovic testified that, in view of the totality of the conduct, the money “connected the dots” and “solidified things” such that he believed Mr. Ali was involved in the robbery.
[68] In my view, this belief was objectively reasonable. The factors set out above, at paragraph 58, in connection with the investigative detention supported a legitimate suspicion that Mr. Ali and the driver of the Red Buick were responsible for the robbery. The additional fact that Mr. Ali possessed a large quantity of cash was another significant factor pointing to the probability of his involvement in the robbery, as money had been taken from the Al Shafa Pharmacy.
[69] I find that the arrest was lawful. As a result, there was no breach of Mr. Ali’s rights under section 9 of the Charter arising from it.
Section 8 – Unreasonable Search
[70] The defence argues that the search of Mr. Ali’s person amounted to a breach of his rights under section 8 of the Charter. The defence submits that the search was done pursuant to an investigative detention and without the requisite grounds. The Crown’s position is that the search was incident to a lawful arrest and occasioned no violation of the Charter. My findings in connection with the investigative detention and arrest are largely dispositive of this issue.
[71] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. As the search in this case was conducted without a warrant, the burden is on the Crown to show, on a balance of probabilities, that the search was reasonable: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 11. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the search is conducted in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278; R. v. Grant, 2009 SCC 32, at para. 56; R. v. Fearon, 2014 SCC 77, at para. 12.
[72] At common law, the police have the power to search a lawfully arrested person. In order to be valid, the arrest must be lawful, the search must be conducted incident to the arrest, and it must be carried out in a reasonable manner: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 27; R. v. Bielli, 2021 ONCA 222, at para. 63. The main purposes of a search incident to arrest are to ensure the safety of the police and the public, to prevent the destruction of evidence, and to discover evidence of the offence for which the accused was arrested: R. v. Caslake, supra, at para. 19. There is no requirement for reasonable and probable grounds to conduct a search incident to arrest, but it must be truly incidental to the arrest in question: R. v. Caslake, supra, at para. 17.
[73] PC Ivkovic testified that the purpose of the search was for officer safety, the safety of the accused, and to locate other items related to the robbery. PC Alexander testified that the pat down search was for safety and to look for means of escape.
[74] I have already found that the search came after the arrest and that the arrest itself was lawful. In view of the officers’ stated reasons, which I accept, I find that the search of Mr. Ali was incident to a lawful arrest. There is, therefore, no breach of section 8 of the Charter.
Section 24(2)
[75] As I have found no breaches of Mr. Ali’s rights under the Charter, I do not reach the s. 24(2) analysis concerning remedy.
Trial Proper
[76] The defence concedes that, in the absence of a successful Charter application, the elements of all offences are made out, with the exception of the charge of possession of property obtained by crime over $5000. Counsel submits that a reasonable doubt remains that the cash in Mr. Ali’s possession was obtained through the commission of an offence.
[77] Mr. Ali is presumed innocent. The Crown must prove the essential elements of the offence beyond a reasonable doubt. The burden of proof rests squarely on the Crown throughout the trial and never shifts to the defence. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320.
[78] DC Keveza was qualified as an expert in drug trafficking, fentanyl and the packaging and pricing of fentanyl. He testified that the fentanyl in question here represented a street value of over $1000. The money in Mr. Ali’s possession appeared to be arranged in bundles of $1000, which were inverted in the pile, so as to be readily identifiable as such. In DC Keveza’s experience, drug dealers often use this technique to make large sums of money easy to count in a cash-driven business.
[79] The defence has conceded that Mr. Ali possessed the 5.4 grams of fentanyl for the purpose of trafficking. He had a loaded firearm, which is a known tool of the drug trade. His possession of almost $8000 in cash is entirely consistent with it having been derived from the sale of the illegal drug he possessed for precisely that purpose.
[80] In all the circumstances, I am not left with a reasonable doubt about the source of this money or Mr. Ali’s knowledge of its illegal character. I find the Crown has proved the offence beyond a reasonable doubt.
[81] Given this finding, and the concession of the defence with respect to the remaining counts, I find Mr. Ali guilty of all charges.
Released: May 13, 2021 Signed: Justice Peter N. Fraser
Footnotes
[1] This event occurred during the Covid-19 pandemic when surgical masks were a common sight.