Court File and Parties

DATE: September 10, 2021 ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KEN-WEEKENDEN TSHILOMBO

Before: Justice D. P. Cole

Heard on: August 9, 10 & 12, 2021

Reasons for Judgment released (by Zoom) on: September 10, 2021

Counsel: C. Moreno, for the Crown S. Friedman, for the accused Ken-Weekenden Tshilombo

Endorsement

COLE J.:

[1] The accused stands charged with three categories of offences, all arising from an incident occurring on August 1, 2018:

Count 1 – escaping from lawful custody;

Counts 2-9 – various offences directly relating to or resulting from the finding of a loaded semi-automatic handgun that the accused discarded as he ran from the police;

Count 10 – possession of cocaine.

[2] At the outset of the trial, counsel helpfully filed an Agreed Statement of Facts (Exhibit 1), which substantially reduced the amount of evidence that needed to be called. In result, the two police constables centrally involved in the case were the only two witnesses called to support the Crown’s case. The accused did not testify, nor did he call any other witnesses on his behalf. Counsel are to be commended for the expeditious way they stripped this case down to its essentials.

[3] Of the two constables, P.C. Craig was the more senior officer, both in terms of his experience on the Ottawa force and in the leadership role that he assumed throughout these events. He testified that he has considerable experience, going back several years, working as a police officer conducting investigations and surveillance in a public housing development called “the Caldwell area”, which term I understand derives from the addresses of two high rise buildings – 1465 and 1485 Caldwell Avenue.

[4] P.C. Craig was aware from previous involvement in the area that one D. F. is a resident of #208 – 1485 Caldwell. P.C. Craig knew – from other officers, community members, Ottawa Housing security staff and his own knowledge – that Mr. F. is a long-time crack cocaine user who sometimes allows his apartment to be used as a place for drug use and drug trafficking by both residents and non-residents of 1485 Caldwell. P.C. Craig had heard from a variety of sources that this “crack house” was being used by drug users and traffickers throughout July 2018. With this in mind, P.C. Craig testified that around 7:00 p.m. on July 31, 2018 he had watched a video taken from a hallway camera of people going in and out of #208 earlier that day. He described this activity as “extremely busy” with people usually entering and leaving after some 2-10 minutes inside the apartment. (In cross-examination, he conceded that he had not observed Mr. Tshilombo either enter or leave this apartment on this video).

[5] P.C. Craig enlisted the support of his partner P.C. Vanderheiden to begin observations of #208 at approximately 11:30 p.m. on July 31. They concealed themselves behind a windowed door in the east stairwell, where they could easily watch the hallway outside #208. At 11:36 p.m. the officers advised their dispatcher that they were “going to do (sic) proactive”, planning to stop anyone who came out of the apartment. At 11:56 p.m. they observed a white male and female enter the apartment, but did not see them exit. Some 10 minutes later they observed the now accused person, who is black, exit the apartment. In cross-examination they testified that they had not seen him enter the apartment, and that they had no idea how long he had been in the apartment, nor, of course, what he might have been doing inside #208.

[6] The officers testified that when the now accused exited the apartment, he deliberately pulled his “hoodie” tight around his head, thereby partly obscuring his face, which the officers interpreted as a deliberate attempt by Mr. Tshilombo to avoid exposing his face to the hallway camera located just outside the apartment, as well as to any persons he might encounter as he left the address. This in my view takes on some particular salience when it is recalled that there was evidence from P.C. Vanderheiden that this was a particularly hot summer night.

[7] Following their pre-arranged decision that they were going to investigate anyone who came out of the apartment, the two officers went down the east stairwell to the lobby in anticipation of meeting the now accused as he exited the elevator. However, it seems that the accused decided not to take the elevator; instead he appears to have walked down to ground level by using the west staircase (opposite to the one where the officers had observed him). In any event, they did not catch up to him until he was standing in the driveway of the building, about to enter a taxicab.

[8] P.C. Craig immediately tried to engage the now accused in conversation, asking him “what are you up to?”. Apparently getting no immediate response, he then asked: “what were you doing in the building?”, to which the now accused replied: “I wasn’t in the building. You saw me come from outside…Why are you harassing me?”.

[9] I pause at this point in the narrative to comment that I have absolutely no difficulty in concluding that the officers had ample grounds to at least investigate the accused. He had been observed to exit a known (and seemingly rather notorious) “crack house” late at night. I mention this fact first because defence counsel referenced the decision of Henschel J. in R. v. Galaz-Castro [2018] O.J. No. 511, where she found that an accused’s departure from a “drug stash” or “crack” house late at night could not, without more, authorize the police to arrest and later search him. If this were the only basis for the police to act as they did in this case, I would likely adopt Her Honour’s analysis. However, there are two other bases for P.C. Craig’s decision to detain that satisfy me of the legality of the police behaviour at the outset of the interaction here. First, the accused’s apparent effort to conceal himself from the hallway camera by pulling his hoodie tight around his head additionally suggests that he may have been involved in drug trafficking. More important, the accused’s obvious lie about not being in the building gave the officers further grounds to investigate him further. Despite extensive cross-examination designed to demonstrate that P.C. Craig had no lawful basis for investigating the accused, I accept P.C. Craig’s reasoning and his bona fides on this issue. This was neither a “hunch”, nor was it a “fishing expedition”.

[10] P.C. Craig then demanded that the accused provide him with some identification. He testified that he considered that he had the right to do this because, as a police officer, he had been granted “agent status” by the Ottawa Housing Corporation, which he believed gave him the right to ask any person found on OHC property to provide identification. Whether the obligation to identify oneself arises whenever requested to do so by a police officer acting as an “OHC agent”, or whether that obligation only arises where such an officer is contemplating issuing a “trespass notice”, is not something I have to decide in this case. In my view, what is relevant is that from this point on Mr. Tshilombo was clearly detained within the meaning of case law authorities, as properly conceded by Crown counsel.

[11] The accused handed P.C. Craig his driver’s licence; while the officer radioed in the particulars on the licence to his dispatcher – no doubt to ascertain whether he might be a person of interest to police authorities – Mr. Tshilombo got into the rear passenger seat of the taxicab.

[12] At this point I find myself unfortunately compelled to expressly disbelieve a portion of P.C. Craig’s evidence, when he testified that he felt justified in arresting the now accused “because I could smell an odour of fresh marijuana…so I arrested him for that offence”. There are three reasons I reject that portion of his evidence. First, his partner, P.C. Vanderheiden, who had considerable occasion to be in close physical proximity to the now accused over the next several minutes, was clear throughout his evidence that at no time did he detect any odour of marijuana. Second, while the accused was later seen to remove from his pocket a baggie containing cocaine (a subject I shall deal with later in these reasons), no marijuana was ever found. Third, as any practitioner of criminal law in this province – and likely elsewhere – becomes rapidly aware, too many police officers purport to detect “an odour of marijuana” when they have no other basis for arresting someone, what counsel used to refer to in the pre-Charter era as “a colourable device”. As the late Justice Rosenberg, a highly experienced criminal law counsel and judge, sagely observed almost 25 years ago in R. v. Polashek, [1999] O.J. No. 968 such idiosyncratic and vague “olfactory” evidence too often turns out to be “tailored” to justify an otherwise dubious arrest. In a word, this is a very old police game which should have been outlawed long ago. On this – and some other issues revealed in this case – police training needs to be updated.

[13] To these I add a fourth factor. While vaguely supporting P.C. Craig’s evidence on this point (“if Your Honour is inclined to accept his evidence on the subject of the smell of marijuana…”), Crown counsel concedes that neither officer provided the now accused with his s. 10(a) and (b) Charter rights immediately after he was detained. Given what the Supreme Court of Canada and the Ontario Court of Appeal have repeatedly said about the constitutional importance of the “informational component” implicit in those sections, I think that concession was entirely right and proper, and I intend to apply it first to exclude the evidence of the now accused’s identity derived from the improper request for his identification. I would go further: in my view the breaches of the accused’s constitutional rights are so fundamental that I conclude he was not lawfully detained once the breaches occurred. I thus acquit the accused of Charge 1, escaping from lawful custody.

[14] When the now accused was seated in the back of the taxicab he began to empty his pockets, perhaps to demonstrate that he had no marijuana on this person. P.C. Vanderheiden, who had positioned himself outside the driver’s side rear door, carefully watched the accused as he did this, and noticed him try to use his left hand to stuff a baggie into the gap between the rear seat and the backrest. P.C. Vanderheiden immediately seized the baggie (which was later analyzed as containing a more than minimal amount of cocaine). Using the same argument in favour of excluding the admission into evidence of the accused’s identity derived from his driver’s licence, defence counsel similarly moves to exclude the cocaine from evidence. In my judgment, though exclusion of this “real evidence” is somewhat closer to the line, I agree with defence counsel that the exclusionary rule contained in s.24(2) of the Charter should be applied here. Thus, the accused is acquitted of Count 10 – possession of cocaine.

[15] When I was a student in the 1974-1975 Bar Admission course to become a lawyer, one of the high points of the course, for those of us interested in litigation, was the annual advocacy lecture given by the then dean of the litigation bar Mr. J.J. Robinette. In words that I have tried to remember throughout my career as lawyer and judge, Mr. Robinette cautioned that while there is usually only one issue to be determined in a case, often the analytical difficulty is in isolating what precisely that issue is. Now that the evidence derived from the unlawful search of the “content” of the accused’s driver’s licence and the evidence of the cocaine have been excluded, I have come to the conclusion that the most important issue now to be determined is what to make of the seizure of the accused’s “earbuds”.

[16] Factually, once the accused was ordered out of the taxicab by P.C. Craig he stood still for a brief period and then fled from the police, running in the direction of 1465 Caldwell, the adjacent building. The police chased him, but lost sight of him when he turned around the side of 1465. As the police went in that direction a citizen called out to the police from his fifth floor balcony that he had observed the now accused run past the entrance to the underground parking garage, that he had seen the accused throw something towards the garage entrance, that he had heard a metal sound hit a railing, and that he had seen the accused continue to run north until he disappeared. The police went to where the citizen told them he had seen the accused throw the object and found a loaded unregistered black Browning High Power Mark 3 handgun.

[17] The police immediately seized the handgun and in due course submitted it for various forms of testing. While the forensic examiners found that the handgun and ammunition met the various relevant Criminal Code definitions of “restricted firearm” and “ammunition”, it is important to note that no DNA profile could be detected on the handgun.

[18] When the officers returned to the taxi they located what they considered to be the accused’s earbuds on the backseat of the cab. They seized the earbuds and also submitted them for testing. The accused’s DNA profile was located on the earbuds. Thus, the relevance of the earbuds is that if they are admissible in evidence, they provide the necessary and sufficient linkage to placing the illegal handgun in the possession of the accused.

[19] (To this I should add that the Agreed Statement of Facts makes it clear that continuity of both the seizure and testing of these various items is not disputed (paras. 1, 3, 5 & 6).

[20] The main reason I reserved judgment in this case is because I wanted to consider defence counsel’s argument that the Charter breaches previously referred to are so egregious that s.24(2) should be similarly applied to exclude evidence of both the earbuds and the handgun (and ammunition). In a word, defence counsel’s argument is that what the American legal authorities refer to as “the fruit of the poisoned tree” should be applied so as to mandate exclusion of these pieces of evidence. I have devoted considerable thought to this argument over the past few weeks, and I have come to the conclusion that what happened here is no different from a police officer coming upon an item that has been discarded by a suspect, seizing it and submitting it for forensic testing. In my judgment that is exactly what happened here: the accused abandoned his earbuds in the back of the taxicab and the police seized them some minutes after the accused had fled.

[21] Though counsel appears to have limited the basis for his s. 8 Charter application to exclude from evidence only to “items located on [the accused]”, I have nevertheless considered some of the applicable case law as it has assisted me to focus my thinking in relation to the discarded earbuds. I have found three cases to be particularly useful. In R. v. Nesbeth, 2008 ONCA 579 the accused had been acquitted at trial in a situation where the accused had been “investigative(ly) detained” by police. Rather than staying to answer questions, the accused fled and discarded his knapsack while being chased by the police. The knapsack was seized and drugs were found inside. The trial judge had acquitted the accused on the basis that the officers had no power to detain the accused when they first engaged with him. Writing for the court Justice Rosenberg allowed the appeal. He said (in part):

“In my view…the trial judge erred in failing to consider whether the respondent had a reasonable expectation of privacy in the knapsack at the time the police seized and opened it…By his conduct in intentionally throwing away the knapsack, the respondent had precluded himself from relying on the s.8 protection”. (paras. 21, 23)

I see this case as entirely comparable to the facts surrounding the seizure of the earbuds.

[22] I would go further. I have also considered whether there is anything about the earbuds that is so personal to the accused that it merits some special consideration in terms of protection of privacy. In R. v. Nesbeth Justice Rosenberg cites (at para. 21) Justice Cory’s decision in R. v. Edwards (1996), 104 C.C.C. (3d) 136 (S.C.C.) where he lists seven factors a court should consider in determining whether an accused has a reasonable expectation of privacy in the totality of the circumstances. This view was subsequently refined by the Supreme Court in R. v. Patrick, 2009 SCC 17 (at para. 27) where the court was considering whether the privacy interest in an item seized could be said to be “objectively reasonable”. I cannot find that any of the factors listed by the Supreme Court in either Edwards or Patrick can possibly apply here. After all, if there is no reasonable privacy interest in a seized backpack (which might contain all sorts of personal effects), there surely can be none in something as commonplace and banal as a set of earbuds.

[23] Though this was not a case cited in submissions by either counsel, I have found the Ontario Court of Appeal decision in R. v. Pino, 2016 ONCA 389 – itself, interestingly a decision where the Ottawa Police Force was sharply criticized for its behaviour in a drug case – to be of assistance in thinking out the relationship between Charter breaches and searches. In that case, the Charter breaches respecting the accused’s arrest by the Ottawa police occurred after the discovery of the marijuana at issue in the case. Writing for the court, Justice Laskin clarified that, in order that evidence be “obtained in a manner” that might offend s.24(2) a causal connection between the breach(es) and the discovery of evidence is not necessary. In coming to this conclusion Laskin J.A. analyzed in some detail the terms “causal”, “temporal” and “contextual” as they should be applied in a s.24(2) analysis. Though he was dealing with a case where – unlike the case at bar – several breaches of the appellant’s Charter rights had occurred after the marijuana was discovered in the trunk of her car, Laskin J.A. concluded as follows:

“…Should it make a difference whether the s.10(b) breaches occurred before or after the discovery of the evidence? I do not think so. In either case the administration of justice could be brought into disrepute if the court condoned serious Charter breaches” (para. 77)

While I appreciate that Justice Laskin’s reasoning that the terms “causal”, “temporal” and “contextual” should be also applied to a situation where – as here – serious Charter breaches occur before impugned evidence is discovered, in my judgment the effluxion of time – likely some 20 minutes – and the intervening factor of the accused’s flight from the police negate any constitutionally relevant nexus between the breaches and the evidence sought to be excluded.

[24] In sum I hold that defence counsel’s argument that the nexus between the s. 10 breaches and the seizure of the earbuds – or more properly, what was discovered on the earbuds as a result of forensic analysis – is not sufficient so as to justify exclusion under s. 24(2). In other words, it is my opinion that the Charter breaches committed here by the police had crystallized by the time the accused elected to flee, which breaks the chain of causation in terms of whether the evidence of the earbuds was “obtained in a manner that brings the administration of justice into disrepute”.

[25] In my judgment this reasoning is sufficient to dispose of defence counsel’s argument that the earbuds (and what was discovered on them) should be excluded from evidence. In the alternative, I now turn to defence counsel’s main argument, namely that, assuming the existence of an appropriate nexus between the breaches and the seizure of the earbuds, a proper analysis of the various “Grant” factors should lead me towards exclusion of that evidence. As I have sifted through the various cases he has cited in support of his argument, I have decided that only two of them merit comment.

[26] In R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504, the Ontario Court of Appeal found several breaches of the accused’s rights. First, s.9 of the Charter (which was not orally argued here, though brief reference is made to it in defence counsel’s factum) was clearly breached by the Ottawa police when they “imprisoned” the accused in their police cruiser in handcuffs for some 30 minutes. Second, the police refused to allow the accused to speak with counsel for some hours after he had expressed a desire to do so. Thirdly, during a forcible strip search of the accused, one of the officers deliberately stood on the accused’s ankles for at least one minute. The trial judge found as a fact that this last act “was clearly an intention to cause Mr. McGuffie pain…a gratuitous assault”. Nevertheless, despite Grant the trial judge refused to exclude evidence of cocaine possession.

[27] On appeal this judgment was reversed. While conceding that the facts of that case were much more egregious than in the case at bar, defence counsel urges me to adopt the approach of Doherty J.A. who wrote for the court:

“…While society no doubt has a significant interest in a trial on the merits and the evidence in issue is both reliable and crucial, society’s immediate interest in an adjudication of the merits of this particular case must yield to the more important long-term interests served by excluding the evidence in this case.

The police misconduct falls at the very serious end of the continuum discussed in Grant, at para. 74….

I can find little, if anything, that might be said to mitigate the police misconduct. This was not a situation on which the police conduct slipped barely over the constitutional line, or in which legal uncertainty could reasonably be said to have blurred that line. Finally, there is nothing by way of extenuating circumstances that might offer some excuse for the police disregard of the appellant’s constitutional rights.

Courts, as representatives of the community, cannot be seen to condone the blatant disregard of the appellant’s rights that occurred in this case. The only way a court can effectively distance itself from that conduct is by excluding the evidentiary fruits of that conduct.” (paras. 75-8; my italics)

In my view, as the italicized portion clearly delineates, the police misbehaviour in the case at bar can in no way be compared to the flagrant abuse of an accused’s rights such as occurred in McGuffie. Even though the same police force was involved, which counsel says should incline me towards ”educating the police” through exclusion of evidence of the earbuds, I simply do not consider that the Grant factors apply in this case to the same extent. This is not “the clearest of cases” where Grant and its progeny should be applied.

[28] Defence counsel also cited the Ontario Court of Appeal decision in R. v. Mhlongo, 2017 ONCA 562, [2017] O.J. No. 3439, a case where the accused was a passenger in a car which was being investigated by the Hamilton police. The vehicle’s driver was arrested for having false plates on the vehicle. Upon being questioned another passenger fled the scene. The police soon caught him and returned to the vehicle, at which time they detected the accused throwing what later turned out to be a substantial amount of cocaine under a nearby white car. The trial judge concluded that this accused’s s.8 and 10(b) Charter rights had been infringed, but declined to apply s.24(2) to exclude the evidence, largely on the basis that “the police officers had not acted in bad faith or in wilful and deliberate breach of the appellant’s rights…[and]…were justified in acting as they did by the ‘urgency and necessity’ of the situation surrounding the drug find and arrest” (para. 58).

[29] Defence counsel stresses the point that one of the Court of Appeal’s reasons for allowing the appeal was the breach of the appellant’s s.10(b) rights. Blair J.A. wrote for the court:

“By failing to inform him of his 10(b) rights, the police deprived the appellant of any meaningful opportunity to assert his legal rights during the investigative detention and, ultimately, he incriminated himself by throwing the drugs in his possession under the white vehicle. Protection against self-incrimination is an important concern underlying the s.10(b) right: see Suberu, at paras. 40-41. Had the appellant been informed of his rights – as he should have been, at or around 7:25 pm. – events might well have unfolded differently” (para. 72)

I view the last sentence of this citation as important. That accused was not advised of his s.10(b) rights until approximately 8:00 p.m., some 35 minutes after he should have been so advised. In the case at bar, clearly Mr. Tshilombo was not advised “without delay” once the police detained him. But what might have happened in the next few minutes is unknown in the case at bar, as the accused decided to flee. As I have already stated, because of the police failure to advise him of his “informational rights” I am prepared to exclude the evidence derived from his driver’s licence and the cocaine, but I am not prepared to exclude the evidence derived from his abandoned earbuds. I see these two cases as considerably different.

[30] In response to these various arguments, Crown counsel argued that, unlike the fact pattern that prevailed in R. v. Grant, there were reasonable grounds to investigate the accused in the case at bar. He reminded me that the Supreme Court of Canada recently allowed a Crown appeal from a split decision of the Ontario Court of Appeal in a fact pattern somewhat similar to what is under consideration here. In R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32 the four-judge majority “would allow the appeal, substantially for the reasons of Brown J.A. at the Court of Appeal” (para. 1). In the Court of Appeal Brown J.A. had issued a strong dissent (R. v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346), arguing that if in the long term courts hope to retain popular support “in the real world context” they must be very sensitive to public disgust with gun crimes (see para. 135). Crown counsel therefore argues that even if the police investigation in the present case was flawed, on the strength of that recent decision I should not ignore that a lethal handgun is at issue.

[31] With respect, I do not read the brief reasons of the Supreme Court as indicating that the views of Brown J.A. are henceforth to be regarded as a guide to lower courts when questions arise as to the admissibility of handguns into evidence. I note first that the longer term views of the majority appear to reflect the need for some ongoing consideration of outstanding questions as to whether a 24(1) remedy may be more appropriate than the exclusionary remedy available under s.24(2). Secondly, I note that the three-judge dissenting minority in the Supreme Court would have adopted the views of the majority in the Ontario Court of Appeal. In other words, I take it that the difficult Charter issues raised by Omar and other handgun cases are still very much in a state of flux. I would not read that case as Crown counsel would wish me to do.

[32] In result therefore the accused is acquitted of counts 1 and 10. He is found guilty of charges 2-9, subject to any arguments that may be made about the applicability of the Kienapple principle. (If counsel has such arguments, they can be made on the sentencing date).

[33] Before going on to consider next steps in the case at bar, I do wish to refer very briefly to the need for additional police training. I have already referred to the fact that P.C. Craig – and likely other Ottawa officers as well – needs updated training on the limits of his powers as “an agent” of the Ottawa Housing Corporation. Secondly, as I have indicated, the police need to learn that “an odour of marijuana” will usually be a completely insufficient basis for arrest, as has been noted by various levels of court for nearly a quarter of a century. This should stop.

[34] More important, as several other trial and appellate judges have commented in recent months (albeit about other Ontario police forces), given what the Supreme Court of Canada has repeatedly said about the police needing to be scrupulously careful to ensure that Charter rights are properly respected P.C. Craig and other officers need ongoing and updated training about the importance of providing such rights “without delay” after a person has been detained. It seemed fairly obvious to me that while both of the constables understood that they were required to provide the accused with his s.10(a) and (b) rights, but that they were somewhat confused as to when such an obligation would arise. P.C. Craig, for example, attempted to draw a distinction between “informal” and “formal” detention; it seemed to be his view – presumably arising from what he has been instructed – that the obligation to provide rights only arises once an accused is “formally detained”. This is not the law. Police officers need to be taught that the provision of Charter “informational rights” is not some artificial annoyance that interferes with effective police work. It is the law of the land that once a person is “psychologically detained” they must be provided with their “informational” Charter rights very soon thereafter. The outlines of this jurisprudence have largely been settled by the Supreme Court for many years now. If the Ottawa police are not better trained, cases of significant criminality such as counts 1 & 10 in the case at bar will be regularly dismissed by the courts, as amply demonstrated by other cases involving this force referred to earlier in these reasons.

[35] I now wish to hear from counsel as to how this case should proceed to sentencing on counts 2-9. While I do not by any means urge Crown counsel to take the step of moving to revoke the accused’s bail, in light of R. v. Graham, 2018 ONSC 6817 (aff’d 2020 ONCA 692) it would appear on the surface that this accused is now facing a significant penitentiary-length sentence. This is a factor that I can clearly take into account given s.515(10)(c)(iv) of the Code. I reiterate that I should not be taken as proposing that the Crown should do so, nor am I prematurely deciding what I might do with such an application – after all, I know almost nothing about the accused. However, the reason it becomes relevant at this stage is because I am told that in this jurisdiction there is a considerable difference in the length of time it would likely take to complete a pre-sentence report (PSR), depending on whether the accused is in custody. My information is that an in-custody PSR normally takes some 5 weeks to prepare, while a PSR for an offender who is out of custody usually takes some 8-10 weeks to prepare. Obviously, it is relevant to resolve this issue before a sentencing hearing date is decided.

Released (by Zoom): September 10, 2021 Signed: “Justice D. P. Cole”