Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 11 09 COURT FILE No.: Brampton 19-13075

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRYAN BABIC

Before: Justice Paul T. O’Marra

Heard on: November 8, 2021 Reasons for Ruling on Applicant’s Charter Application released on: November 9, 2021

Counsel: D’Arcy Leitch, counsel for the Crown Vince Houvardas, counsel for the accused Bryan Babic

O’MARRA J.: (Orally)

Introduction

[1] Mr. Babic is charged with two offences as set out in the Information:

(1) Bryan BABIC on or about the 24th day of June 2019 at the City of Mississauga in the said region, did rob Nicholas RANKIN, Contrary to section 344 (b) of the Criminal Code of Canada

(2) AND FURTHER THAT Bryan BABIC on or about the 24th day of June 2019 at the City of Mississauga, in the said region, with intent to commit an indicatable offence did have his face masked, Contrary to Section 351(2) of the Criminal Code of Canada

[2] Mr. Babic seeks an order excluding all evidence obtained in violation of sections 8 and 9 of the Charter and pursuant to 24(2) of the Charter. This matter proceeded by way of a blended voir dire. The Crown called the following witnesses: Constable Gemmeti, Constable Scamurra and Constable Charles. Mr. Babic did not testify nor call any witnesses on the voir dire.

[3] Mr. Babic is asserting three distinct Charter breaches. Under section 9, Mr. Babic argues that he was arbitrarily detained when police boxed in the car he was driving; that Mr. Babic was unlawfully arrested thereafter; and under section 8, that Mr. Babic’s car was unlawfully searched. His detention and arrest are said to be arbitrary and unlawful for lacking the requisite grounds, and for being conducted in an unreasonable manner; the search of Mr. Babic’s car is said to be not truly incidental to his arrest, and was supported by merely speculative reasons as opposed to reasonable one. Mr. Babic also takes issue with the way his detention was affected on the grounds that the police use of force was not warranted.

[4] In the Crown’s view, the boxing in of Mr. Babic’s vehicle with a view to arresting him for robbery and disguise with intent was authorized by a reasonable law – s. 495 (1)(a) - represented a reasonable course of action in all the circumstances. Mr. Babic’s detention and arrest were supported by reasonable grounds to believe that he had committed the offences for which he was arrested and is now charged. The search of his vehicle was truly incidental to his arrest, in that it the arrest was lawful, and the search was directed at achieving a valid purpose connected to the arrest: the discovery and preservation of evidence of the offence. Finally, the search was conducted in a reasonable manner.

Background and Context

[5] By way of background and context, Mr. Babic is alleged to be the assailant in a home invasion style robbery on June 24, 2019 at a townhouse in the City of Mississauga. The perpetrator entered the unlocked front door of the residence and was met by the victim who then ran into his parent’s bedroom. The assailant rummaged around a bedroom and was eventually chased out of the house, down a street, to a gas station. He was observed to have entered a vehicle and fled. A detailed description of the car, a black 4 door sedan style Nissan Altima and its licence plate CHMY372 was noted by the witness. A generic description of the assailant was noted as well. He was observed to be male, white, 22-26 years old, 5’10” heavier build, dark short hair. The assailant had black material that covered the lower portion of his face. He wore a light-coloured hoodie, shorts, and red shoes. He wore a black bag to the front with a hatchet or small axe inside and was carrying a metal object like a large wrench.

[6] A police occurrence report was generated because of the robbery. The occurrence contained the general description and the object weapon that was carried and was linked to the licence plate associated to the black Nissan Altima. In other words, if the licence plate was queried, the police report and the details would be communicated to any police officer through their on-board computers.

[7] And that is exactly what happened on June 30, 2019, 6 days after the robbery. PC Gemmeti and PC Scamurra were on general patrol in the Argentia Drive and Derry Road area, checking out the parking lots of several hotels in the area, specifically the Four Point Hotel. This hotel was known for prostitution and illegal activity. PC Scamurra was driving, and PC Gemmeti was seated in the passenger seat. At 9:24 p.m. they entered the parking lot of the Four Point Hotel and queried marker CHMY372 on CPIC. The licence plate came back associated to the black Nissan Altima involved in the robbery on June 24, 2019. At this time the Nissan was unoccupied.

[8] The registered owner was Bryan Babic, with an address of 15 Bainbridge Street in Sault Ste Marie, and his date of birth was noted.

[9] The officers drove to a street across from the hotel. PC Gemmeti read the details of the occurrence report. A few minutes later the head lights of the Nissan were illuminated, and the vehicle drove out of the parking lot. The police cruiser followed the Nissan. Both officers testified that they drove beside the Nissan and could see the driver through an open rear passenger window. A female passenger was in the rear and a male was in the front passenger seat. The driver’s physical description matched the description of the assailant in the robbery-male, white, short dark hair. PC Gemmeti testified that he could see the entire right profile of the driver. He testified that the streetlights illuminated the area and made it easier to see the driver’s physical characteristics. Both officers testified that the descriptors were general.

[10] Since the car was linked to a robbery, the registered owner who lived in Sault Ste. Marie, may still be in the same city as where the robbery occurred, and the physical description was similar to the driver that they could see through the window, the officers called for a high risk take down and arrest of the driver.

[11] Four cruisers were involved in the take down and stopping of the car. All officers drew their firearms. Mr. Babic was arrested. PC Scamurra observed that as Mr. Babic was being brought out of the car that he was approximately 5’10” and heavier set. The female passenger was Mr. Babic’s sister. She was detained but released from the scene.

[12] PC Charles was not involved in the take down or the arrest. However, he was aware that the driver was arrested. He started to direct traffic away from the intersection where the take down and the arrest had taken place. Initially he thought the robbery was that evening and the arrest was shortly afterwards. However, he came to understand that the robbery had occurred a few days before as he did not see or hear of any reported robberies.

[13] The occurrence report was read to Constable Charles by another officer from his on-board computer. Since he was the most senior officer on scene, he decided that only he and no other officer would search the black Nissan. He was searching for tools as he was aware that a weapon such as a wrench was used. He was not searching for an axe or a hatchet. He felt that since the robbery was just a few days earlier and that tools are commonly kept in the trunk of a car he searched the trunk. He based his search on the fact that he did not believe that the car was being seized. He was uncertain if the passengers were going to take the car after they were released. He did know where the keys were located. He searched the interior of the car and did not locate any evidence. However, when he opened the trunk, he observed a black wrench and a black pouch or a tool belt. He seized both items and turned over the property to the officer in charge. He also observed several back packs that were closed. Constable Charles did not search the bags as he was not investigating other offences. In cross-examination he agreed that there was enough time to get a tele search warrant; however, that was not his mind set as someone had been arrested and he was searching the motor vehicle incident to a valid arrest. He also believed that the passengers would either move the car or take their belongings out of the car.

Section 9: Arbitrary Detention and Unlawful Arrest

[14] A police officer may lawfully arrest an individual if the officer has subjective and objective grounds to make the arrest. In particular, the Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest (which requires the officer to have an honest belief, supported by objective facts, that the suspect committed the offence).

[15] However, those grounds must, in addition, be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[16] On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they do not require proof beyond a reasonable doubt, a prima facie case for conviction, or even proof on a balance of probabilities, before making an arrest: see R v Storrey, [1990] SCJ No 12, at para. 17; R v Bernshaw, [1994] SCJ No 87, at para. 51.

Was Mr. Babic arbitrarily detained and therefore subject to an unlawful arrest?

[17] In my view, Mr. Babic was not arbitrarily detained and unlawfully arrested. I have reached this conclusion based on the following reasons.

[18] Constable Scamurra and Constable Gemmeti had reasonable grounds to believe that two indictable offences had occurred 6 days earlier based on their review of a police occurrence report. They were investigating those offences once the Nissan licence plate was linked as the getaway car that was involved in the robbery. I accept that they had reasonable and probable grounds at the time that they decided to conduct a high risk take down. I further accept that they continued to gather the evidence as Mr. Babic was brought out of the car, and they could see his build including his height. I agree that the description is generic and there is nothing remarkable or distinctive in the description given in the initial police occurrence report.

[19] Nevertheless, the driver matched the description provided by the victim and or witnesses in the robbery report. Mr. Babic was driving the same make, model, colour and licence plate number that was used in the commission of the offences. It was unusual that the registered owner resided in Sault Ste. Marie, but the car was still in Mississauga days after the robbery. The likelihood that the assailant was still driving the car linked to the robbery was not speculative, but a reasonable assumption.

[20] I have reminded myself that when I assess the grounds for the arrest that I am not required to assess the timing of the arrest, but the reasons for the arrest. It is proper for an officer to continue to gather grounds after the detention. That is what occurred in this case. This was a dynamic and stressful moment for the officers. They had to assess the information from the occurrence report, including the description of the assailant, catch up to the car and get a visual line of sight of the driver. They were also cognizant of the fact that a weapon was used in the commission of the offence - a wrench, axe, or a hatchet. It was necessary for officer safety, the public’s safety and the safety of the driver and his passengers that the car be stopped in the manner that it was.

[21] The Supreme Court of Canada stated in R v Chehil 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 27-29:

27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

28 The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter - compliant in light of their minimally [page 233] intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion "that attaches to a particular activity or location rather than to a specific person."

29 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

[22] The officers were entitled to make assumptions based on the information at hand. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 751,

"[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable."

[23] The question was raised by the defence that the officers should have investigated further or in the very least they should have detained Mr. Babic for further investigation. I do not accept this argument as the officers had already formed the reasonable grounds to stop and arrest the driver based on the constellation of factors that they were aware of.

[24] I also cannot accept the argument that the officers had continued to gather grounds after the arrest. In fact, they continued to gather grounds after the detention, but before the arrest. The decision in R v Desbiens from the Quebec Court of Appeal which is cited in R v Mark from our Court of Appeal serves to illustrate that the necessary "reasonable grounds" for arrest may be based, in part, upon information learned by the police after deciding to arrest a suspect, but before the arrest is actually effected. Constables Scamurra and Gemmeti confirmed Mr. Babic’s height and build before his arrest was actually affected.

[25] As a result, I cannot conclude that Mr. Babic was arbitrarily detained and subject to an unlawful arrest. The police officers that effected the arrest subjectively believed that there were reasonable and probable grounds to arrest Mr. Babic; and this belief was objectively reasonable, in the sense that a reasonable person in the position of the officers would be able to conclude that there were, indeed, reasonable and probable grounds for the arrest.

[26] The section 9 application is dismissed.

Section 8: Unreasonable Search and Seizure

[27] A warrantless search has been held to be prima facie unreasonable. Once the accused shows that the search was warrantless, the Crown has the burden of proving that the search was, on a balance of probability, reasonable.

[28] In this case, the police asserted that the warrantless search was justified as it occurred after or incidental to a valid arrest.

[29] There are three conditions for a valid search incident to arrest: R v Stillman, [1997] 1 SCR 607, at para. 27. First, the arrest must be lawful: R v Caslake, [1998] 1 SCR 51, at para. 39. Second, the search must be “truly incidental” to the lawful arrest, meaning that the search must be directed at achieving a “valid purpose connected to the arrest”: Caslake, at para. 19. And, third, any search incident to arrest must be conducted reasonably: R v Fearon, 2014 SCC 77, at para. 27.

[30] A search will be truly incidental to an arrest if it is intended to serve a valid purpose connected to the arrest, and if the searching officer, or the office authorizing the search, has a reasonable belief that this purpose may be served by the search: Fearon, at para. 21.

[31] There are three recognized purposes that justify a search incident to arrest:

(i) to ensure the safety of the police and the public. (ii) to protect evidence from destruction; and (iii) to discover evidence of the offence: Caslake, para. 19.

Was Mr. Babic’s car unreasonably searched?

[32] The power to search incident to arrest is not limited to a search of the accused’s person. It extends to anything in the accused’s “possession or immediate surroundings”: Cloutier v. Langlois, [1990] 1 S.C.R. 158, para. 49. A search incident to arrest can include a search of the motor vehicle of the accused where the arrest took place when the accused was in or had care and control of the vehicle at the time of the arrest and the search was rationally related to the reason for the arrest. This may include searching the passenger compartment, the trunk, or even removing interior panels: R v Pearson, 2017 ONCA 389; R v Stonefish, 2019 ONCA 914; R v Smellie, 53 BCAC 202.

[33] I have found that Mr. Babic was lawfully under arrest.

[34] In this case, Constable Charles was looking for evidence that was involved in the commission of the offence. In his mind, since a wrench was used as a weapon in the home invasion style robbery only a few days earlier it was reasonable to conclude if tools were still in the car they would be kept in the trunk. The reasonableness of his belief is to be assessed on a common-sense and practical standard. I believe that the standard was met. The car itself is evidence of the offence. It was used in the commission of the offence. It was reasonable to suppose that further evidence of the offence might have still be in it.

[35] I agree that there were no exigent circumstances that made it impossible to obtain a search warrant and there was plenty of time, however, that does not necessarily mean that a warrant must be obtained in every case. "Exigent circumstances" were not required for the lawful exercise of the common law power of search incident to lawful arrest where, as here, the place to be searched was a motor vehicle on a public highway, and the person arrested was the driver. See: R. v. Tontarelli, 2009 NBCA 52, [2009] N.B.J. No. 294 (NSCA) and R. v. Ibrahim, 2021 MBCA 12, [2021] M.J. No. 56 (CA), para. 84.

[36] Therefore, I have concluded that the warrantless search of the trunk was incidental to a valid arrest. There was no infringement of Mr. Babic’s right under section 8. The application is dismissed.

Released: November 9, 2021 Signed: Justice Paul T. O’Marra