Court File and Parties

Ontario Court of Justice Date: 2023 09 06 Court File No.: Windsor 23-81100159

Between:

His Majesty The King

— AND —

Emmanuel Kwarteng

Before: Justice S. G. Pratt

Heard on: 1 August 2023 Reasons for Judgment released on: 6 September 2023

Counsel: M. Witteveen and S. Szasz.............................................................. Counsel for the Crown J. Sitter........................................................................................ Counsel for the Defendant

Ruling on S. 8 and 9 Charter Application

Pratt J.:

[1] Emmanuel Kwarteng, hereinafter the Applicant, has brought an application under ss. 8 and 9 of the Charter of Rights and Freedoms. He argues that police violated his right to be free from unlawful arrest and unreasonable search or seizure when they arrested him on 1 February 2023. He says that as a result of those violations, I should exclude the evidence found on his arrest, namely, an assortment of illegal substances. The Crown says there were no such violations and that no evidence should be excluded.

[2] These reasons explain why the application will be dismissed.

Facts

[3] As of 1 February 2023, the Applicant was staying at 395 University Avenue East, apartment 305. While he was not a tenant of the property (he was not named on the lease, and for reasons given on the record on the application hearing date I found he was not, in fact, a tenant), he was staying there initially with the consent of Elizabeth Reid Dietrich. Ms. Reid Dietrich was the named tenant on the lease.

[4] According to the evidence I heard, Ms. Reid Dietrich made a complaint about the Applicant’s presence in the unit. I note that I did not hear from her directly, so the only information I have about her position is the hearsay provided by police officers who responded to the call. I cannot take that evidence for its truth but I can use it to understand why the officers did what they did. On the evidence before me, police were asked to remove an unwanted party from apartment 305. That was the reason for their presence that day.

[5] PC Trevor Snyder testified to being dispatched to the building at 11:28am. He, along with other officers, spoke with Rachel Shaw, a caseworker with the community housing program that administers 395 University Avenue East. Ms. Reid Dietrich herself confirmed she wanted the male in her apartment removed and she gave police consent to enter the unit to get him out. PC Snyder said she returned to the apartment one further time to check on her cat, and when she came out, police went to the unit. They entered at 12:12pm, announcing themselves as Windsor Police.

[6] PC Snyder testified to finding a Black male, later identified as the Applicant, sleeping facedown on a cot in the living room. When the male awoke and rose to a seated position, the officer saw four cell phones on the bed near the Applicant’s hands. He also saw a black fannypack. The Applicant was asked his name and he responded “Ben”. When asked for a last name, he said they could ask Liz. He refused to leave, despite being told to do so, until he had a chance to speak to Liz. He claimed to have no identification on him. He also denied ownership of the cell phones found in the cot with him.

[7] After repeated refusals to leave the apartment, the Applicant was arrested pursuant to the Trespass to Property Act (“TPA”) at 12:14pm. He was given his rights to counsel and caution, and handcuffed to the rear. At 12:15pm, he verbally identified himself as the Applicant and provided a date of birth. PC Snyder testified that there was no one listed in Ministry of Transportation records by that name, so he couldn’t confirm the male’s identity. He commenced searching the fannypack for identification. When asked if he was from Windsor, the Applicant replied he had family “all over”.

[8] Inside the fannypack PC Snyder found a large quantity of Canadian currency and a bag of rubber bands. The Applicant denied ownership of the money.

[9] Prior to entering the unit, police had been told by Ms. Reid Dietrich which bags belonged to the Applicant so they could remove his belongings when they removed him. Based on that information, police searched the duffle bag under the cot. In that bag was another fannypack. Inside, police found a plastic bag leaking white powder. They suspected it to be crystal methamphetamine. It was then, at 12:20pm, that the Applicant was placed under arrest for drug possession for the purpose of trafficking. Police continued to search the duffle bag for proof of the Applicant’s identity. They found a bag similar to a shaving kit. Inside were quantities of suspected cocaine, fentanyl, and crack. The crack was in a vial while the other substances were in plastic bags. Other empty vials with residue were also located.

[10] Having queried the proffered name on the Police Information Portal, police received a response at 12:25pm. They were able to view a photo taken by the Peel Regional Police that was associated to the name Emmanuel Kwarteng. On comparing the photo with the Applicant, police were satisfied they had the Applicant’s identity. They immediately stopped searching.

[11] PC Snyder testified that before leaving the apartment, the Applicant asked for his boots. They were in the duffle bag where the drugs were found.

[12] Other officers were also present. Constables Wojdylo and Falzetta entered the apartment with PC Snyder. Wojdylo remained with the Applicant during Snyder’s search of the bags, and Falzetta contained the unit while police were interacting with the Applicant. According to PC Snyder, it was PC Falzetta who performed the Police Information Portal search that resulted in confirming the Applicant’s identity.

[13] The nature and amounts of substances found were conceded. In total, there were 40.9g of fentanyl, 63.4g of crystal methamphetamine, 7g of cocaine, and 1.9g of crack cocaine. There was also $4,460 in Canadian currency.

[14] For his part, the Applicant testified that he was staying in the apartment with the knowledge and consent of Ms. Reid Dietrich. He said she wanted him there for protection, and that she had never told him to leave. If she had, he said, he would have gone to his friend’s apartment in the same building. He further testified that he was preparing to leave anyway as life in the apartment was “getting too hectic”. He denied giving any name other than his own to officers. He said Ms. Reid Dietrich would know him as Emmanuel.

Analysis

[15] As there was no warrant authorizing the search of the Applicant’s bags, it falls to the Crown to prove the search was nonetheless reasonable in the circumstances. It must also show that the search was carried out in a reasonable manner.

[16] A search incident to arrest is a long-recognized and accepted investigative step. When a lawful arrest is made, police may search the arrestee and the surrounding area for weapons or other potential sources of danger to the police, the arrestee, or the public, for evidence of an offence, or for items that could help identify the arrestee.

[17] The Applicant argues that his arrest was not lawful. He claims an arrest under the TPA was merely a pretext that allowed police to roust him from his bed and search for drugs. As the underlying arrest was not lawful, the search incident to that arrest must also be found to be unlawful.

[18] I do not accept this argument.

[19] The police witnesses called on the application testified to having no prior dealings with the Applicant. Indeed, if they had prior experience with the Applicant a search for identification would not likely have been necessary. The information they were given was simply that there was a person named Ben in the unit who was dealing drugs and was refusing to leave.

[20] While I cannot accept what Ms. Reid Dietrich said to officers for its truth, I can consider it when determining the propriety of subsequent police actions. She told them the male in her apartment was a drug dealer from Toronto who had been there for three months. He had threatened her and forced her to deliver drugs to a buyer the previous day. He also wouldn’t let her use certain cupboards in the apartment.

[21] Police also confirmed that Ms. Reid Dietrich was the only tenant named on the lease.

[22] The police evidence that they were there to remove a trespasser was not shaken on cross-examination. While I recognize the idea of a pretext entry into the apartment is a possible inference, I must consider this application based on evidence, not conjecture. On the evidence I heard, given by witnesses who testified clearly and believably, police entered the residence to remove a guest who had overstayed their welcome and was refusing to leave. When they entered the apartment, the Applicant continued to refuse to leave. He also refused to identify himself as anything other than “Ben” and said he had no identification. His arrest under the TPA was reasonable in the circumstances and lawful.

[23] The officers’ actions corroborate how they said they viewed the situation. They did not summon the Emergency Services Unit or the drug unit. As soon as they had authorization to enter the apartment, they did. They went to the trespasser and told him to leave. When he wouldn’t, they arrested him under the TPA. Those actions are consistent with their evidence.

[24] I find the Applicant has not proved a breach of s. 9 of the Charter of Rights and Freedoms. The arrest was lawful. I now turn to the search incident to this arrest.

[25] PC Snyder, who had the most direct dealings with the Applicant, described the exchange they had on police entry. Snyder told him he had to leave. The Applicant’s response was that he wasn’t going anywhere. He had Liz’s permission to stay there. He was again told he had to leave. He demanded to speak with Liz. He was given a warning under the TPA and asked to identify himself. He said his name was Ben. When asked for a surname, he said, “you can ask Liz”. It is very clear that the Applicant had no intention of identifying himself or of leaving as directed. As I have found, the arrest under the TPA that followed was reasonable.

[26] Following the arrest, police still did not know who they were dealing with. The Applicant then gave his name and date of birth. A check of Ministry of Transportation records and local databases revealed no results. He claimed to have no identification on him that would prove his identity. To sum up police knowledge at that point, they had a person who said his name was Ben but refused to give a last name. That person then gave an entirely different name, together with a date of birth. A search of that name yielded no results. It is entirely reasonable that PC Snyder would look in the bag next to the Applicant for some information that might assist in confirming the arrestee’s identity.

[27] Prior to entering the apartment, police had been told by Ms. Reid Dietrich where the Applicant’s belongings were. Again, I do not accept this for its truth but do accept it as a reason why PC Snyder continued his search for identification in the bag under the cot. He’d been told that bag belonged to the Applicant and noted that it was in easy arm’s reach of the Applicant. A search of that bag for the purpose of determining identity and incident to the Applicant’s arrest was reasonable in the circumstances.

[28] In the case of R. v. Nunnery [2006] O.J. No. 4199 (S.C.J.), Justice Dambrot considered the extent of searching for identification incident to arrest. Specifically, His Honour considered what can happen when identification is given but can’t be confirmed with present resources, at paragraph 26:

I have no doubt that a search for identification where the person under arrest does not identify himself or herself, or even to confirm an identification that has been given, is related to the objectives of the proper administration of justice, and amounts to a valid objective for a search incident to arrest, whether or not it is properly classified as a search for evidence. (Emphasis added)

[29] That the identification of an arrestee is a valid reason for a search incident to arrest has also been confirmed in R. v. Singh 2015 ONSC 6312, R. v. Ngong [2021] O.J. No. 3623 (C.J.), and R. v. Glasgow-Oliver 2022 ONCJ 72.

[30] The Applicant’s contention that this was really a search for drugs is further undermined by the unchallenged evidence that once the Applicant’s identity was confirmed with the Peel Region photo, they immediately stopped searching.

[31] I have considered the Applicant’s own evidence. He says he was staying there with the permission of Ms. Reid Dietrich, and that if she wanted him out, all she had to do was tell him. More than that, he was already preparing to leave what he called the hectic atmosphere in the apartment anyway. Yet, when told by multiple police officers that he had to leave, how did he respond? He refused to go and demanded to talk to Liz. That is not the response of someone willing to leave when asked, or who was planning to leave in any event. I reject his evidence on these points. I also accept PC Snyder’s evidence over that of the Applicant that when first asked for his name, the Applicant responded with Ben rather than with his actual name.

[32] Based on the evidence I have heard, I find the search of the fannypack and duffle bag were legitimate searches incident to the lawful arrest of the Applicant. The search was reasonable and was carried out for a recognized purpose in a reasonable way.

[33] The application for relief under s. 8 of the Charter of Rights and Freedoms is dismissed.

Released: 6 September 2023 Signed: Justice S. G. Pratt