Court and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 10 4 COURT FILE No.: Newmarket 2102450 & 2007555

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MALCOLM DENNIS EDWARDS

Before: Justice David Rose

Heard on: May 17, 18, September 1, 2021 Reasons for Judgment released on: October 4, 2021

Counsel: Mr. N. Singh, counsel for the Crown Mr. M. Lockner, counsel for the Crown Mr. R. Rusonik, counsel for the accused Malcolm Edwards

Reasons for Judgment

Rose J.:

[1] Mr. Edwards pleaded not guilty to the following charges:

(i) June 10, 2020 Fail to Stop a motor vehicle as soon as reasonable in the circumstances per s. 320.17 of the Criminal Code; (Count 1 on Information 20 07555);

(ii) June 10, 2020 Obstruct Marvick Chan, a peace officer in execution of his duty contrary to Section 129 of the Criminal Code (Count 4 on Information 20 07555);

(iii) August 7, 2020 assault Nathan Jardine a peace officer with a weapon, namely a motor vehicle. contrary to s. 270.01 of the Criminal Code (Count 3 on Information 2102450);

(iv) August 7, 2020 possess a loaded prohibited firearm, namely a Glock 23 without being holder of a licence or authorization for the firearm, contrary to s. 95(1) of the Criminal Code; (Count 9 on Information 2102450);

(v) August 7, 2020 Possess a Glock 23 handgun while prohibited by an Order under s. 109(3) contrary to s. 117.01 of the Criminal Code (Count 13 on Information 2102450)

(vi) August 7, 2020 Possess a Glock 23 handgun while prohibited by an Order under s. 109(2) contrary to s. 117.01 of the Criminal Code (Count 14 on Information 2102450)

(vii) August 7, 2020 Possess a Glock 23 handgun while prohibited by an Order under s. 109(2) contrary to s. 117.01 of the Criminal Code (Count 15 on Information 2102450)

The charges from June 10 relate to an incident in York Region. The August 7 allegations relate to an incident in Toronto.

[2] The trial was narrowed down to Charter allegations regarding the basis upon which the police sought to arrest Mr. Edwards on August 7. Mr. Edwards claims the police did not meet the standard of reasonable grounds when it obtained an arrest warrant which they attempted to execute that day, and claims that the firearm seized on August 7 should be excluded from the trial. Mr. Edwards also puts the Crown to the proof on the identity of the driver on the June 10, 2020 incident.

[3] In submissions Mr. Rusonik conceded Mr. Edwards’ guilt on iii), namely the driving allegation from August 7.

The June 10 stop

[4] PC Marvick Chan was conducting a RIDE stop in the early morning hours of June 10, 2020 on the on-ramp from Steeles Avenue to Highway 400 southbound. That on-ramp goes some distance in a northerly direction from Steeles Avenue before it curls to the east to join the southbound lanes of Highway 400. PC Chan didn’t have his in-car camera working that evening, because it would have consumed too much memory to just record every stopped motorist. Earlier that evening he had stopped two vehicles which fled the RIDE program.

[5] PC Chan had his car stationed with his partner PC Jamal Brown nearer to the curved portion of the on ramp. It was around 2:19 am when he saw a black car coming up, and PC Chan signalled it to stop, which it did. PC Chan spoke with the driver and told him that it was a RIDE spot check. He asked for documents but the driver did not have a driver’s licence. Chan smelled dried cannabis and saw flakes of cannabis in the cabin. The driver did hand over the ownership and registration for the car. Chan asked him what his name was and he said Dennis Edwards, with a date of birth of November 5, 1964. The window was down and he could see him under the street lights. The driver looked like he was in his late 20s to early 30s, so when he said he was born in 1964 it didn’t look right. With that he asked the driver to pull his car behind his partner’s police cruiser in a designated area. The car was a black Mercedes Benz 4 door sedan with licence plate CLWZ 556. By then PC Chan was investigating the driver for his licence, the cannabis and sobriety.

[6] PC Chan described the driver as being late 20s black male with braided or corn row hair pushed to the back of his head. He had a scraggy unkempt beard. He was wearing a pink golf shirt with light coloured blue jeans. He had a necklace with a shiny gold pendant. PC Chan could see flakes of cannabis in the cabin.

[7] When the Mercedes pulled up behind PC Brown’s car Chan set up a spike belt in front of the Mercedes. PC Chan then went to the car with his partner, PC Brown to brief him on the reason he had stopped the Mercedes. Chan maintained a visual contact with the driver of the Mercedes. During his conversation with PC Brown the driver of the Mercedes turned his front wheels to the left and drove over the spike belt and fled. Chan had to get out of the way of the fleeing Mercedes, which came within inches of him. PC Chan described his conversation with the driver of the Mercedes as being minutes, maybe less.

[8] A video played at trial showed the Mercedes pull out in front of PC Brown’s police car and speed off, entering Highway 400 southbound. When PC Brown’s car enters the highway only seconds later the Mercedes appears to have disappeared in traffic.

[9] PC Chan moved his car to a parking lot off Steeles Avenue near where he had set up the RIDE program. He began to investigate the identity of the driver using his police computer to make queries.

[10] The licence plate CLWZ 556 came back to a Dennis Edwards, but the plate was attached to a white Mercedes, not a black one. Dennis Edwards had a date of birth of November 5 1964, which would have him as 55 years old. Dennis Edwards also came back tied a stolen car report from January 7, 2020 from Niagara Police. The car that was stolen had a licence plate CJAR 181. Dennis Edwards was the registered owner of the car. The January 7, 2020 report listed a VIN number which returned to a black Mercedes Benz which was not listed as stolen. The January 7, 2020 report also listed Dennis Edwards as being not forthcoming about the stolen vehicle.

[11] There was a second Niagara report from the day before, namely January 6, 2020 which listed a motor vehicle hit and run for the black Mercedes with the plate CJAR 181. It also listed a person named Lindsay Sheppard with a date of birth of August 22, 1988. PC Chan queried that person and it led him to another Niagara police report from 2019, which listed Mr. Malcolm Dennis Edwards born 1992 as someone operating Lindsay Sheppard’s car.

[12] With the name Malcolm Edwards, PC Chan found three police photographs of Malcolm Edwards. He viewed the three photographs from three different police agencies and identified him as the driver of the black Mercedes with plate CLWZ 556 that fled the RIDE program earlier that evening.

[13] In cross-examination PC Chan testified that he saw the York Regional Police mug shot of Mr. Edwards first and then either the Niagara or Brantford picture. He agreed that the pictures are of a face directly from the front, and that during the RIDE stop he saw the driver from the front as they were speaking but also from the side as the driver was getting his documents. He disagreed that describing the driver as a black male was a generic reference.

[14] PC Chan was closely cross-examined about his decision to find the single photographs of the driver of the Mercedes Benz without first getting a police officer to do a photo line up – an officer who was not also an eyewitness. He said he was trying to identify the driver and he didn’t know who the driver was before he saw the mug shots.

Attempts to apprehend Mr. Edwards

[15] Detective Constable Benoit Paquet was working in the Criminal Investigation Bureau (CIB) and was tasked with locating Mr. Edwards on June 14. He reviewed a report by PC Chan which indicated that Mr. Edwards was arrestable. That report was entered into evidence. He tied the licence plate CLWZ 556 to an address on Sparkle Drive in Thorold. He asked Niagara Police to drive by to see if that licence plate was at the address, but it wasn’t.

[16] Paquet also got a lead from Peel Police that the car CLWZ 556 was at a tire shop in Mississauga. He went to the tire shop and found that the Mercedes with plate CLWZ 556 had been in for tire service. It turned out the car needed 4 tires because they were all punctured. The tire shop gave the name of the customer as being James Johnson 5894 Main Street Niagara Falls. It gave a phone number of 289 547 5854.

[17] DC Paquet also queried the Ontario works program in the Niagara region and found that Mr. Edwards had been receiving social assistance benefits, and had an address of Unit 2 5894 Main Street Niagara Falls. With that Paquet believed that he had located Mr. Edwards’ address and phone number.

[18] DC Paquet called the phone number and the person identified himself as Mr. Edwards. DC Paquet explained the situation and that Mr. Edwards was arrestable. The person who answered the phone denied any involvement and said that he would get a lawyer to call DC Paquet. None did, so 2 hours later he called the number again, but the person who answered the phone said they weren’t Edwards and hung up.

[19] DC Paquet did some further investigative attempts to locate Mr. Edwards. He tried to match the licence plate through the 407 ETR system but that yielded nothing. Similarly his efforts to locate him through the Toronto Community Housing Corporation turned up nothing.

[20] With that DC Paquet sought, and obtained, an arrest warrant for Mr. Malcolm Edwards born December 29, 1992. That warrant was signed by Justice of the Peace Clark on July 20, 2020.

August 7, 2020

[21] On August 7, 2020 Toronto Police executed the arrest warrant for Mr. Edwards. He had been located in the area of Dupont and Lansdowne avenues. Mr. Edwards was driving a black Mercedes Benz east bound on Dupont as that road approached a railway underpass just west of Lansdowne. The police were travelling just behind Mr. Edwards’ Mercedes in two unmarked police vans. As the three vehicles approached the railway bridge the decision was made to arrest Mr. Edwards. One police van drove to the driver side of the Mercedes, and PC Baroudi got out. He was in his uniform. He yelled at Mr. Edwards to stop his car but the Mercedes veered to the right, and hit officer Jardine who was part of the police team.

[22] An Agreed Statement of Facts was marked as an Exhibit in this trial. It is reproduced at the end of this Judgement. Some of the agreed facts are important to understand what happened on August 7. For convenience, paragraphs 6 – 10 are:

6. As Mr. Edward's vehicle reached the CN Rail bridge passing over the road between Campbell Avenue and Lansdowne Ave, traffic became heavy, bringing the vehicle to a stop.

7. The officers, who had been following the Accused in two unmarked police vans, decided to execute the takedown at this point.

8. The unmarked police vans were stopped with one just behind the driver's side of the Mercedes, and the other slightly ahead on the passenger's side, angled so as to block in the Mercedes.

9. Officers exited both vehicles, some with their sidearms pointed, shouting, "Police, get out of the car". Officers Hwang and Rekhi (both in plainclothes) and Baroudi (in uniform) exited from the police van near the driver's side of the Mercedes, and approached the driver. Officer Nathan Jardine (in plainclothes) exited the police van in front of the Mercedes.

10. Mr. Edwards accelerated forward in an attempt to flee, striking Officer Jardine and knocking him to the ground. Officer Jardine suffered injuries to both knees, his elbow, back, and left toe and ankle.

11. Mr. Edwards continued to accelerate and attempt to maneuver around the police vehicle, colliding with the police van's door, bending it backwards. He then collided with the bridge truss, activating the airbags and rendering the vehicle inoperable. The Mercedes came to rest with its rear passenger side tire next to Officer Jardine's face.

12. Officers approached the vehicle and arrested both Malcolm Edwards and Julan Campbell.

13. A search of the vehicle incident to arrest revealed a black messenger bag wedged between the driver's seat and the centre console. Inside the bag was a loaded black Glock 23 handgun, with a full magazine, belonging to Mr. Edwards, and he was in possession of this firearm within a motor vehicle. This firearm meets the definition of a "prohibited firearm" in the Criminal Code.

[23] Once the Mercedes had crashed PC Baroudi drew his gun and told the occupants, both Mr. Edwards and the passenger to put their hands up. The passenger complied immediately. Mr. Edwards held up his left hand, but kept his right hand down. After more commands Mr. Edwards held up both of this hands and was arrested. The passenger was then arrested. The whole sequence from the time PC Baroudi got out of his van to first try and arrest Mr. Edwards until the time that the Mercedes crashed with Mr. Edwards in it was a matter of seconds.

[24] The warrant to arrest Mr. Edwards was ultimately executed when PC Snellings arrested Mr. Edwards on November 30, 2020, almost 4 months after Mr. Edwards arrest on August 7, 2020. A copy of the executed Arrest Warrant was entered into evidence as an Exhibit.

Issues

• (i) Was the issuance of the Arrest Warrant dated July 20, 2020 by HW Justice of the Peace Clark a violation of Mr. Edwards’ Charter Rights?
• (ii) When the police blocked Mr. Edwards vehicle in on August 7, was he detained?
• (iii) If there was a Constitutional violation of Mr. Edwards’ rights, should the evidence of the gun be excluded?
• (iv) Can the Crown rely on the identification of Mr. Edwards as the driver on August 7, 2020 be used as evidence that it was Mr. Edwards who fled the scene on June 10 in York Region?
• (v) Has the Crown proven Mr. Edwards guilty on each count?

[25] Many of the issues raised in the trial turn on the initial question of whether the July 20, 2020 arrest warrant issuance was a constitutional violation. The Defence argues that the police did not meet the threshold test for issuance of the arrest warrant, and therefore it was issued in violation of his Charter Rights.

[26] Argument proceeded on the basis that the evidence I heard at trial was the grounds which would have been given to Justice of the Peace Clark. No information to obtain was given to the Court, and the informant was not cross-examined on what was given to Justice of the Peace Clark. No record of the proceedings before Justice of the Peace Clark was provided to me. The Application uses the evidence heard at trial as the reasonable and probable grounds. Again, the question is whether such grounds existed.

[27] The July 20, 2020 arrest warrant was issued under s. 512(1) of the Criminal Code. That is the box checked by His Worship on the face of the Warrant.

512 (1) Certain actions not to preclude issue of warrant A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or undertaking has been confirmed or cancelled under subsection 508(1);

(b) a summons has previously been issued under subsection 507(4); or

(c) the accused has been released without conditions or with the intention of compelling their appearance by way of summons.

The warrant itself asserts that “there are reasonable grounds to believe that it is necessary in the public interest to issue this warrant for the arrest of the accused (507(4), 512(1)”.

[28] Notably, the language in s. 512 differs slightly from the language in the above sentence insofar as s. 512(1) has a test of reasonable and probable grounds, whereas the face of the warrant speaks to merely reasonable grounds to believe. There is no difference in law; however, see R. v. Loewen 2011 SCC 21 at par. 11 where McLachlin CJC upheld the Alberta Court of Appeal, notwithstanding “ the fact that Slatter J.A. mistakenly held that the requirement of "reasonable grounds" in s. 495(1)(a) is different from the requirement of "reasonable and probable grounds".)”

[29] The importance of the reasonable grounds to believe standard is significant This is important if we are to safeguard rights to be free from unreasonable search or seizure, or here an arbitrary arrest. It balances personal freedom with society’s right to be protected from crime. As the Court in Storrey v. R., [1990] 1 S.C.R. 241 at par 16 said, there is another protection against constitutional violations:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest: see R. v. Brown (1987), 33 C.C.C. (3d) 54 at 66, 76 N.S.R. (2d) 64, 189 A.P.R. 64 (C.A.); Liversidge v. Anderson, [1942] A.C. 206 at 228, [1941] 3 All E.R. 338 (H.L.).

[30] While there is a wealth of senior appellate jurisprudence interpreting the reasonable grounds to believe threshold in the context of search warrant, there is less case law applying the test to s. 512. I therefore turn to search warrant decisions to provide an explanation of the test. The Court in R. v. Wu 2015 ONCA 667 at par. 49 summarized the reasonable and probable grounds test this way:

49 To establish reasonable and probable grounds for arrest, a police officer must subjectively believe that a person has committed or is about to commit an indictable offence, and the police officer must be able to justify that belief on an objective basis, meaning that a reasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds. The police need not demonstrate anything more than reasonable and probable grounds. Specifically, the police need not establish a prima facie case for conviction: R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.), at pp. 250-51.

The test applies a standard of credibly-based probability, see Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219 (B.C. C.A.), at para. 7.

[31] Mr. Edwards focusses his argument on this issue by honing in on the identification evidence of PC Chan who, it will be recalled, did a series of computer queries following the flight of the Mercedes-Benz in order to determine the identity of the driver. Mr. Rusonic spent considerable time in argument on the lack of probative value of his identification of Mr. Edwards by means of the three individual photographs in Exhibit 3. Recall that those photographs were obtained when PC Chan had been led to the name Malcolm Edwards from his initial computer investigation.

[32] Chan started with the licence plate of the car he stopped. The plate CLWZ 556 was his first hand observation which was a credible identifier of the car. That plate could reasonably be expected to reveal the owner of the car. That query turned up the fact that the plate was tied to a similar make of car, but different colour. It also tied Dennis Edwards to the car which he had stopped. That led PC Chan to a series of reports from the Niagara Police. Dennis Edwards was tied to stolen car with a licence plate CJAR 181 which was a Black Mercedes Benz and his reluctance to discuss the stolen car.

[33] The investigation also gave PC Chan another report about the black Mercedes Benz CJAR 181, which was a hit and run. That listed another person Lindsay Sheppard, and that person, when queried gave PC Chan the name of Malcolm Edwards as an operator of Lindsay Sheppard’s car.

[34] Up to this point PC Chan’s investigation was a logical sequence of queries which produced police reports all clustered around the initial Mercedes-Benz CLWZ 556. The queries produced information which very quickly gave him the name Malcolm Edwards. It would be absurd to think that, given the fact that the Mercedes Benz with plate CLWZ 556 had started with the name of the owner Dennis Edwards, the name Malcolm Edwards would not be of obvious interest to PC Chan. The two men have the same name. Moreover, the driver of the car had given PC Chan the name Dennis Edwards with the same date of birth. It would be an obvious inference that whomever was the driver of the car on the night of June 10, 2020 knew the name Dennis Edwards and his date of birth.

[35] In my finding, there was nothing untoward whatsoever in taking the next step, as PC Chan did, in turning up the photographs on the police computer system. I completely reject any suggestion that PC Chan was required by rules of evidence to stop there before determining the identity of the driver. The driver of the Mercedes Benz had fled the scene in dramatic, and dangerous fashion. It drove over a spike belt to make good the escape, continuing at high speed on Highway 400. It was not explained in the evidence how the car continued to drive at high speed having run over a spike belt. That is irrelevant to my determination. What is clear is that the public interest in identifying the driver was very high, one who continued to pose a significant danger to the public.

[36] PC Chan then obtained three photographs of Malcolm Edwards, which matched the driver of the car he had seen earlier that evening.

[37] Mr. Rusonic spent considerable time arguing on the frailty of improper photographic line up procedures. He was candid in argument that viewing the 3 police mug shots was not in and of itself a constitutional violation.

[38] It is axiomatic that when innocence is at stake, use of improper identification can lead to wrongful convictions. As Justice Corrick found in the trial judgement R. v. King 2011 ONSC 6998 at par. 20,

The frailties of eyewitness identification evidence are well recognized by Canadian courts. They have been the basis of many wrongful convictions in this country. The court's concern about the frailties of such evidence is heightened in circumstances where the length of time the witness saw the person was brief, where the person identified and the witness are strangers, where identification processes employed are flawed, and where there is no other evidence connecting the person identified to the offence.

[39] Indeed, in R. v. Araya 2015 SCC 11 at par 36 the Supreme Court was clear about the danger of showing an eyewitness a single photograph of the accused, see also R. v. Xurowski 2004 SCC 72, [2004] 3 S.C.R. 509, and R. v. Fox 2002 CarswellOnt 261 (C.A.).

[40] The only case provided in argument which is similar to the one at bar is R. v. Halley 2012 ONCJ 117 where a search warrant Information to Obtain relied on the information from a Confidential Informant who viewed a single photograph to identify the accused as the person who sold him drugs.

[41] I do not agree that the authorities binding on me lead to the conclusion that the standard of proof which applies when innocence is at stake applies when the police are taking pre-arrest investigative steps for the purpose of seeking prior judicial authorization. The standard of proof is quite different in the prior judicial approval process, as is the procedure. Hearsay evidence, confidential information are both admissible in applications for warrants. It is no different with police identification of a sought person through use of police mug shots. In my finding Mr. Edwards seeks a merging of the two processes such that the standards of admissibility and weight at trial are required when applying for a warrant of arrest. For these reasons I easily reject that submission.

[42] With that established I have no difficulty in finding, on the evidence before me, that PC Paquet presented reasonable grounds to believe that the arrest of Mr. Edwards was necessary in the public interest. He had all of PC Chan’s investigation as his grounds. PC Chan was an eyewitness to the identity of the driver of the Mercedes-Benz on June 10, 2020. He had a brief opportunity to see and speak with him. As he said in his evidence it was 5 minutes, maybe less. He said in his evidence that he maintained a visual on the driver while he was briefing his partner. They made eye contact face to face. He was cross-examined about his ability to conduct cross-racial identification, and answered that everyone has their own characteristics. There is no reason on the evidence before me to reject his evidence.

[43] I find that the evidence of PC Chan was not the only evidence furnishing reasonable grounds to believe. PC Paquet followed up PC Chan’s investigation and located the Mercedes-Benz at a tire shop being serviced under the name James Johnson with an address of 5894 Main Street Niagara Falls. Tire repair was logical considering that the car had driven over a spike belt. That lead gave the police a phone number for the car, 289 547 5854, which was then tied independently to Mr. Edwards. To add further grounds to believe, Unit 2 5894 Main Street Niagara Falls, was an address for Malcolm Edwards for purposes of receiving social assistance. PC Paquet had by then tied the tire repair for the car to the name Malcolm Edwards. That was independent of the identification by PC Chan.

[44] I therefore have no difficulty in finding that the police met the standard of reasonable grounds to believe that Malcolm Edwards was arrestable when the arrest warrant was issued on July 20, 2020. Easily so. Aside from the identity, there was a valid basis to seek an arrest warrant for Mr. Edwards given the public danger presented at the RIDE stop on June 10. There is no Charter violation in obtaining the arrest warrant. The police were lawfully entitled to arrest Mr. Edwards on the strength of the arrest warrant on August 7, 2020.

Was there a detention when the police attempted to first arrest Mr. Edwards on August 7, 2020?

[45] The parties spent time in argument on the issue of whether Mr. Edwards was detained in law, when the police attempted to arrest him, before he fled the scene under the railway bridge. Mr. Rusonic argues that he was detained, and the Crown says he never was. While a moot point, I find that Mr. Edwards was not in law detained. Key to my finding is paragraph 6 of the Agreed Statement of Fact. It was an admission by Mr. Edwards that his car stopped because of traffic.

6. As Mr. Edward's vehicle reached the CN Rail bridge passing over the road between Campbell Avenue and Lansdowne Ave, traffic became heavy, bringing the vehicle to a stop.

[46] According to the Agreed Statement of Fact Mr. Edwards car was stopped in traffic before the police got out of their vans to arrest him. The period during which the police were out of their vans attempting to arrest Mr. Edwards and during which his car was stopped because of heavy traffic was very brief – a matter of a few seconds. What is clear on the evidence is that Mr. Edwards had no interest in complying with the police command to submit to the arrest. He fled instantly. There was no period in which Mr. Edwards was detained as a result of the police command that he was now under arrest. What began as a traffic jam moved seamlessly into a vehicular evasion of the police and then just as quickly into a major car crash. Mr. Edwards’ decision not to acquiesce to the arrest marked the start of his flight and attendant pursuit. There is no detention at the commencement of the pursuit, see R. v. Nesbeth 2008 ONCA 579 at par. 16, R. v. Atkins 2013 ONCA 586, R. v. Jackson 2011 ONSC 5516, [2011] O.J. No. 6394.

[47] The parties made extensive submissions on whether the evidence of the gun found in the Mercedes-Benz after it crashed was admissible in the event that the arrest warrant was obtained in violation of Mr. Edwards’ Charter rights. It is a moot point, given my finding that the arrest warrant was lawfully obtained, and there was no Charter violation.

[48] Had I found that there was a Charter violation, I would have found that the gun was not obtained in a manner which violated Mr. Edwards’ Charter rights. On the evidence before me he would not have succeeded on the threshold question.

[49] In R. v. Pino 2016 ONCA 389 the Court of Appeal found that the threshold issue on s. 24(2) questions under the Charter required a generous approach. The trial court must consider the entire chain of events between the accused and police, considering the causal, temporal and contextual connection between the evidence obtained and the Charter violation. A causal connection is not required because the nature and extent of the connection between the Charter violation and the obtaining of evidence may be sufficient, see R. v. Mack 2014 SCC 58. Conversely the temporal connection between the Charter violation and obtaining the evidence may be strong enough to command an inquiry under s. 24(2), see R. v. Fountain 2015 ONCA 354. The temporal, contextual or causal connection between the Charter violation and the obtaining of evidence must be more than tenuous, see R. v. Hamilton 2017 ONCA 179.

[50] In this case, had there been a Charter violation which resulted in an arrest warrant unlawfully being obtained, and similarly a violation of Mr. Edwards’ s. 9 rights at the moment when the police sought to arrest him, there is a temporal connection between that point and his subsequent crash. The crash happens within a very brief period of time after the police attempt to apprehend Mr. Edwards. With that established it is clear on the evidence that Mr. Edwards’ dramatic flight and car crash marked a break in the sequence. He chose to drive past the police rather than stop. The car crash occurred because he lost control of the Mercedes-Benz all on his own. From the point where the police attempted to arrest Mr. Edwards he himself authored a series of acts which were indictable offences at the same time. That breaks any chain of causation between the moment of arrest and the seizure of the handgun. His flight, and crash marked a new, different course of conduct which the police did not cause in the slightest. It was Mr. Edwards’ own decision. His driving decisions gave the police a fresh set of grounds to arrest Mr. Edwards and search his car incident to arrest.

[51] For these reasons I would not have excluded the gun from the evidence at trial.

Similar Fact evidence

[52] In this case the Crown seeks to have Mr. Edwards’ identity as the driver of the Mercedes Benz on August 7, 2020 used as evidence that he was the driver of the same car on June 10, 2020. The Crown argues that count to count evidence of a similar act should be admitted. In support of this the Crown argues the following similarities exist between the two incidents which elevate the probative value above the prejudicial effect of the flight:

i) The police interaction was a detention on June 10, 2020 of the same vehicle as the attempted detention on August 7.

ii) The police attempted to stop the vehicle by means of a spike belt on June 10, and by boxing in the vehicle on August 7, in other words active steps to stop the vehicle;

iii) The driver of the car on June 10 matches the description of Malcolm Edwards as he was arrested on August 7;

iv) On both occasions the driver of the car fled the police in a dangerous manner by driving past a police officer.

[53] Where two counts on an Indictment or Information share common features which are so distinctive and numerous as to amount to a signature and therefore render it likely that the same person committed each offence, the evidence of identity is admissible as evidence of similar acts on the other count or counts, see R. v. Hatton (1978). There must be poof of similarity between the offences and there must be proof that the defendant committed one of the offences, see R. v. Downey [1995] Crim, L.R. 414 (C.A.). In order to determine similarity the Court must examine the connection between the two events. This includes proximity in time and place, the number of occurrences and the similarities in detail and circumstances. If it is likely that both events were committed by the same person then the Court must consider whether there is evidence that links the defendant to the similar act, see R. v. Perrier 2004 SCC 56, [2004] 3 S.C.R. 228. Evidence of collusion among Crown witnesses tends to weigh against admission of evidence of similar acts. Here I can find no evidence of collusion. The police involved in the August 7 arrest of Mr. Edwards were from a different police force. There is no evidence of collusion between the police witnesses.

[54] In this case I find that there are real similarities between the June 10 and August 7 incident. Both involved the same very same car whose driver was being either detained (on June 10) or sought to be arrested (August 7). Notably the efforts to evade the police were significant. On August 7 he sought to evade armed officers who had piled out of vans on the roadway in an effort to arrest him. On June 10 the driver took the extraordinary measure of driving over a spike belt and speeding off on a 400 series highway. There is no question that Mr. Edwards was the driver on August 7. The two events are some two months apart, which is somewhat probative of a connection. It is also of some minimal probative value that the driver on June 10 was headed south to downtown Toronto, which is the general direction, namely directly south, of the intersection of the August 7 incident. It is also probative that the driver on June 10 matches Mr. Edwards, generally, namely black male who is much younger than the claimed age of 50 years.

[55] I would therefore consider the August 7 arrest of Mr. Edwards as evidence of identity on the June 10 incident, namely # i and ii above.

June 10 – identity

[56] The evidence of identity on the June 10 counts is therefore the evidence of identity from August 7, as well as PC Chan’s evidence on the following:

• PC Chan’s visual identification of the driver, namely late 20s black male with braided or corn row hair pushed to the back of his head. He had a scraggy unkempt beard. He was wearing a pink golf shirt with light coloured blue jeans. He had a necklace with a shiny gold pendant.;
• PC Chan’s identification of the car;
• PC Chan’s evidence that the driver of the car identified himself verbally as Dennis Edwards with a date of birth in 1964, which was clearly untrue.
• On August 10 Mr. Malcolm Edwards was driving the same car, fled the police when told he was under arrest and crashed the car.

[57] What I do not consider as evidence of identity, because they are pieces of hearsay evidence are:

• PC Paquet’s evidence learning about the Mercedes Benz being at a tire shop having its tires replaced;
• PC Paquet’s evidence that the person who presented the car at the tire shop was Malcolm Edwards;
• That Dennis Edwards born in 1964 is the registered owner of the Mercedes-Benz used on both June 10 and August 7.

[58] The evidence that is admissible, but entitled to no, or virtually no, weight is PC Chan’s visual identification of Mr. Edwards through three police mug shots. The reasons why this is entitled to no weight are explained above.

[59] The Crown evidence of identity that it was Mr. Edwards driving the car on June 10 is compelling, but nonetheless gives me pause. The Crown did not put into evidence on the trial proper the pieces of hearsay evidence referred to above. Those would have connected Mr. Edwards to the car in the period after the June 10 flight. Those would also have fixed the driver with the knowledge of the owner of the car, which has the same last name as the defendant.

[60] Without that evidence I have concerns that identity on June 10 has not been established to the high standard. The Crown has not met the standard of proof on the June 10 incident, and Mr. Edwards is entitled to an acquittal on those counts, namely i) and ii) the June 10 counts.

August 7 charges

[61] The result of the evidence of the gun found in the car on August 7 being admissible and the facts admitted in paragraphs 13 – 16 in the Agreed Statement of Fact is that Mr. Edwards is convicted of the remaining charges, namely iii) – vii) above.

Released: October 4, 2021 Signed: Justice Rose

Agreed Statement of Fact

R v Edwards and Campbell

1. On July 20th, 2020, York Regional Police [YRP] sought and obtained an arrest warrant for Malcolm Edwards in relation to a June 10th, 2020, incident in York Region which will be a subject of the trial proceedings. A copy of the warrant is attached.

2. Police at 11 Division of the Toronto Police Service were advised of the arrest warrant for Mr. Edwards and that he may be spending time within the jurisdiction of 11 Division. The officers at 11 Division were also advised or given the following: Mr. Edwards’ name; his photograph; his date of birth; and the fact that he was driving a black Mercedes 4 Door with tinted windows and licence plate CLWZ556.

3. On Friday, August 7th, 2020, Toronto police officers observed this Mercedes vehicle with license plate CLWZ556 was parked in front of an apartment complex called ‘Pelham Park Gardens’ on Pelham Avenue in Toronto within the jurisdiction of 11 Division.

4. The 11 Division Major Crime Unit was advised, and officers were assembled to attempt to arrest Mr. Edwards.

5. Following further observation, Mr. Edwards was seen entering the Mercedes and sitting in the driver’s seat, while Julan Campbell entered the passenger side and sat there. The Mercedes proceeded southbound on Osler Street, then eastbound on Dupont Avenue, with police officers following at a distance.

6. As Mr. Edward's vehicle reached the CN Rail bridge passing over the road between Campbell Avenue and Lansdowne Ave, traffic became heavy, bringing the vehicle to a stop.

7. The officers, who had been following the Accused in two unmarked police vans, decided to execute the takedown at this point.

8. The unmarked police vans were stopped with one just behind the driver's side of the Mercedes, and the other slightly ahead on the passenger's side, angled so as to block in the Mercedes.

9. Officers exited both vehicles, some with their sidearms pointed, shouting, "Police, get out of the car". Officers Hwang and Rekhi (both in plainclothes) and Baroudi (in uniform) exited from the police van near the driver's side of the Mercedes, and approached the driver. Officer Nathan Jardine (in plainclothes) exited the police van in front of the Mercedes.

10. Mr. Edwards accelerated forward in an attempt to flee, striking Officer Jardine and knocking him to the ground. Officer Jardine suffered injuries to both knees, his elbow, back, and left toe and ankle.

11. Mr. Edwards continued to accelerate and attempt to maneuver around the police vehicle, colliding with the police van's door, bending it backwards. He then collided with the bridge truss, activating the airbags and rendering the vehicle inoperable. The Mercedes came to rest with its rear passenger side tire next to Officer Jardine's face.

12. Officers approached the vehicle and arrested both Malcolm Edwards and Julan Campbell.

13. A search of the vehicle incident to arrest revealed a black messenger bag wedged between the driver's seat and the centre console. Inside the bag was a loaded black Glock 23 handgun, with a full magazine, belonging to Mr. Edwards, and he was in possession of this firearm within a motor vehicle. This firearm meets the definition of a "prohibited firearm" in the Criminal Code.

14. Malcolm Edwards did not have a license or registration certificate for the firearm and was not permitted by law to possess it.

15. By performing the aforementioned driving maneuver, Malcolm Edwards was driving dangerously and in doing so caused bodily harm to Officer Jardine.

16. On August 7th, 2020, Malcolm Edwards was subject to three separate firearms prohibitions: a Section 109(3) order from December 10th, 2012 (for life), a Section 109(2) order from May 13th, 2014 (for ten years) and a further Section 109(2) order from August 30th, 2017 (for life).