R. v. Spencer, 2023 ONCJ 456

CITATION: R. v. Spencer, 2023 ONCJ 456

DATE: 2023-09-06

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

BLAIR SPENCER

Before Justice Mara Greene

Reasons for Judgment released September 6, 2023

A. Leggett…………………………..………………………………………………………………… for the Crown

R. Gadhia ……………………………..…………………………………………………………....for Blair Spencer

[1] Mr. Spencer is charged with twelve offences in relation to a loaded firearm and a single bullet that the Crown alleges Mr. Spencer had in his possession on November 1, 2021. It is alleged that during the course of a lawful detention and arrest Mr. Spencer tossed a loaded firearm. After his arrest, when his bag was searched, the police located a single 9mm bullet inside his bag. This bullet was the same calibre as the bullets found in the loaded firearm.

[2] The Crown, Ms. Leggett, called four plain clothes officers, two uniform officers and a transport officer at trial. She also played videos from nearby buildings and from the body worn cameras of the two uniformed police officers. These videos captured much of what took place that night.

[3] Ms. Gadhia, on behalf of Mr. Spencer, called no evidence. Instead, she relied on the inconsistencies in the Crown’s case to support her position. Ms. Gadhia argued that the firearm and bullet found by police should be excluded as a remedy for a host of Charter violations committed by the police. Crown counsel, on the other hand, argued that the police acted lawfully and that all the evidence should be admitted. Counsel for Mr. Spencer further argued that even if I do not exclude the evidence, I should still find Mr. Spencer not guilty because the Crown has failed to prove that Mr. Spencer was ever in possession of the firearm or the ammunition.

Summary of the Evidence

[4] In the late night of October 31, 2021 and the early morning hours of November 1, 2021 Officers Girgis, Poirier, Prodeus and Rorobek were on general patrol near the Rogers centre. While they were all members of the major crime unit, on this night they were doing general patrol, albeit in plain clothes as opposed to in a uniform. According to all four officers, they arrived in the area in a motor vehicle and noticed a large rowdy gathering on the north side of Bremner Avenue. Due to the size of the gathering and the fact that some people were dancing on vehicles, the officers decided to pull over and watch the group.

[5] After they parked their vehicle, the officers noticed a BMW that appeared to be involved in the filming of a video of some sort. Upon seeing the BMW, the officers decided to keep an eye on both groups.

[6] The four officers split into two groups. Officer Poirier and Officer Girgis in one pair and Officer Rorobek and Officer Prodeus in the other.

[7] According to Officer Girgis, as he and Officer Poirier neared the BMW he noticed that there was smoke in the BMW. He testified that he made note of this in case the smoke was marijuana. Officer Girgis walked closer to the BMW. When he was within 15 feet of the BMW he smelled marijuana. Officer Girgis testified that at this point he believed that marijuana was being consumed in the BMW. Officer Poirier testified that he saw someone in the BMW light a cigarette that caused the whole BMW to fill with smoke. He then detected an odor of marijuana and relayed this information to Officers Prodeus and Rorobek.

[8] According to Officer Girgis upon detecting the odor of marijuana, he saw a police scout car drive into the area where the larger crowd was located. Officer Girgis testified that he then overheard the people by the BMW say that they will come back when the police were gone. The BMW then left before Officer Girgis had a chance to conduct an investigation under the Cannabis Control Act.

[9] No other officer heard this comment, but they testified that they assumed the BMW would return because some of the people associated with the BMW remained on scene after the BMW left. In light of all this, the four major crime unit officers decided to remain on scene and wait for the BMW to return. Officer Prodeus then put out a call to the uniformed officers in the nearby scout car (officers Major and Peters) and asked them to remain on scene to assist with the investigation. Their presence was requested because it is generally safer to conduct investigations like the one contemplated in this case with uniformed officers.

[10] The BMW returned approximately 20 minutes later, at 12:18 a.m. Upon its arrival, a couple of pedestrians approached the car and stood nearby the car, socializing. Officer Prodeus then walked towards the vehicle to see if he could detect any marijuana use. He saw one female in the BMW holding a lit marijuana cigarette. At that point, he called officer Peters and Major and asked for their assistance in conducting a Cannabis Control Act investigation on the BMW and its occupants.

[11] Officer Rorabek, who was with Officer Poirier at the time, testified that when he and Officer Poirier walked by the BMW, he saw someone in the backseat rolling a joint.

[12] All four major crime officers and the two uniformed officers then walked towards the BMW. Officer Girgis testified that as he walked towards the vehicle, he saw three or four people standing outside the vehicle. According to officer Girgis, as he approached the vehicle, a male, now known to be Mr. Spencer, turned away and bladed himself to the officer. According to Officer Girgis this male then walked or fled with his back to the officer and his hands hidden. Fearing for his safety, Officer Girgis attempted to take physical control of Mr. Spencer and identified himself as a police officer. Officer Girgis testified that Mr. Spencer then started to struggle with him and resist the detention.

[13] As the struggle between Mr. Spencer and Officer Girgis continued, it drew the attention of the other officers on scene. They all then rushed to assist Officer Girgis take down Mr. Spencer. According to Officer Girgis at some point he heard an item drop to the ground, it was only after hearing this noise that he was able to gain control of Mr. Spencer’s hands. Officer Rorobek testified that also heard something fall to the ground. Officer Poirier testified that he saw a black object come from, or in front of, Mr. Spencer and travel across the street. He ran across the street to retrieve the item and discovered that it was a loaded firearm.

[14] Mr. Spencer was then arrested for possession of a firearm. Once Mr. Spencer was arrested, Officer Poirier said “you had a gun on you – you fucking idiot”.

[15] Mr. Spencer was subjected to a pat down search while he was still lying on the ground, but after he was handcuffed. The officers found a number of items in his pockets. Officer Girgis seized these items and threw them down at Mr. Spencer’s head while he was still on the ground, face down. Some of the items just barely missed hitting Mr. Spencer in the face.

[16] At the time of his take down, Mr. Spencer was wearing a satchel. The police searched it twice while still on the scene and found nothing of note inside. Later, during booking, the satchel was searched for a third time. On this occasion a single 9 mm bullet was found inside the satchel. This bullet was the same calibre and make as the bullets found in the loaded firearm that officer Poirier had found earlier.

Issues and the Law

[17] The following issues were raised at trial:

A) Were the police engaging in racial profiling when they investigated the people associated with the BMW?

B) Even if the police were not engaging in racial profiling, was Mr. Spencer arbitrarily detained and unlawfully arrested?

C) Did the police use too much force in arresting Mr. Spencer?

D) Were Mr. Spencer’s section 10(b) Charter rights violated because the officers failed to give him access to counsel in a reasonable time?

E) Should the loaded firearm and single 9mm bullet be excluded from evidence as a remedy for the breaches of Mr. Spencer’s Charter rights?

F) has the Crown proven beyond a reasonable doubt that Mr. Spencer was in possession of the loaded firearm found on the street and the bullet found in his Satchel?

Analysis

Section 9 of the Charter

[18] In the case at bar, two issues were raised in relation to the detention of Mr. Spencer. First, Ms. Gadhia, on behalf of Mr. Spencer, argued that the investigation and detention of Mr. Spencer and others in his group was racially motivated and second, that even if racial profiling did not occur, Officer Girgis had no grounds to detain Mr. Spencer.

[19] Crown counsel, Ms. Leggett, argued that racial profiling did not occur in this case. Ms. Leggett further argued that Officer Girgis was permitted to detain Mr. Spencer to further the Cannabis Control Act investigation and for officer safety.

A. Racial Profiling and the Pre-text Stop

[20] In the case at bar, Ms. Gadhia argued that the police, upon seeing a group of black men and women in the lit-up BMW, decided to investigate them because they were black. Having no grounds to investigate them, Ms. Gadhia argued that the police pretended to detect an odor of marijuana emanating from the BMW and used the Cannabis Control Act as a pre-text to investigate this group. Ms. Leggett argued that in order for me to make a finding of racial profiling, I would have to reject the evidence of all the major crime unit officers. Crown counsel argued that there is no basis to do so. She further argued that there was no evidence before me to support Ms. Gadhia’ s allegation.

[21] In her factum, Ms. Gadhia wrote,

Racial profiling involves targeting individual members of a racial group on the basis of supposed criminal propensity. It is offensive to the fundamental concept of equality and human dignity. It ultimately undermines effective policing by misdirecting valuable and limited resources, and it alienates law-abiding members of the community who are members of the targeted race.

[22] I agree.

[23] In assessing racial profiling cases, the courts have stated that the applicant need not prove that the officer’s behaviour was solely motivated by racial stereotypes or race. “If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment” (R. v. Dudhi, 2019 ONCA 665 at para 62).

[24] Ms. Gadhia properly pointed out that it is rare indeed for there to be direct evidence of racism. Racially motivated investigations are usually revealed through circumstantial evidence. For example, where a stop is found to be a pre-text stop where the only ground to suspect the person is race, racial profiling can easily be inferred (R. v. Ferguson-Cadore, 2016 ONSC 4872).

[25] In the case at bar, the police provided a basis to focus on and then investigate the BMW. They focused on the BMW because it was lit up and they appeared to be shooting a video. This caught their interest. The officers decided to investigate the BMW because they detected an odor of marijuana and saw smoke in the BMW at 12:03am and then saw a marijuana joint in the BMW when it returned at 12:18 am. If this is true, then there is no basis to find that the investigation of the people in the BMW was a pre-text investigation.

[26] I have no basis to reject their evidence that the officers looked more closely at the BMW because it was all lit up and the act of filming a video was unique. I appreciate Ms. Gadhia’s argument that the officers seemed to focus more on the group of black people by the BMW than on the rowdier group across the street. This is quite suspicious. Having said that, suspicion alone is not enough to reject their evidence on this point.

[27] Ms. Gadhia’s argument in large measure hinges on whether the officers really smelled and saw marijuana in the vehicle. Ms. Gadhia argued that I should reject the officers’ evidence as they were inconsistent within their own evidence, inconsistent with the video evidence and inconsistent with each other. She further argued that much of the police evidence in this case just did not make sense. Crown counsel on the other hard argued that there is no basis to reject their evidence.

[28] One aspect of the evidence that Ms. Gadhia argued was not believable was that the officers, after smelling marijuana coming from the BMW, let it drive off without investigating it or notifying nearby officers about the vehicle. Given the dangers associated with a person operating a motor vehicle with marijuana in his or her body, it is difficult to imagine officers taking no steps to stop the motor vehicle. In light of this, Ms. Gadhia urged me to reject Officer Girgis’s evidence and Officer Poirier’s evidence that they detected an odor of marijuana emanating from the BMW.

[29] While I agree with Ms. Gadhia that one would expect a prudent police officer to take steps to stop someone from operating a motor vehicle where there are grounds to believe the driver is operating a motor vehicle while impaired by drug, this fact alone does not lead me to completely reject the officers’ evidence. I appreciate that since they were on foot they could not stop the BMW once it went to leave. I would have thought, however, that the officers would have notified nearby officers to keep a look out for a dark coloured BMW sedan. This is particularly so since the officers expected the BMW to remain nearby and return shortly. Having said that, this could have just been a bad judgment call as opposed to the officers being untruthful about smelling the marijuana.

[30] Another aspect of the evidence that Ms. Gadhia argued was patently untrue is Officer Girgis’ evidence that he heard one member of the BMW group say that they are leaving and will come back once the police return. I agree with Ms. Gadhia on this point. I reject Officer Girgis’ evidence that he heard one of the people associated with the BMW say that they were going to leave and return once the police leave the area. I reject this evidence for a number of reasons. Firstly, it is inconsistent with the video evidence. The video from the CN tower shows that the BMW left before the scout car arrived. Crown counsel argued that I should not place too much weight on the video because the people in the BMW may have had a better view down the street and would see the single scout car before it was captured by the video cameras. While I accept that the vantage point from the video cameras was not the same as that of the people in the BMW, there is additional evidence on this point that confirms for me that the scout car arrived after the BMW left the area, namely the ICAD report and the evidence of Officer Major and Officer Peters. The ICAD report from that night/morning was filed as an exhibit at trial. While the utterances from the persons calling into 911 are not admissible at trial for their truth, the timings identified ICAD report are admissible and were confirmed by the uniform officers during their evidence. According to the ICAD report, the call that caused the scout car to attend the scene did not come in until 12:03:45. According to Officers Major and Peters, they were nearby, BUT not on scene, when the call came in. Upon receipt of the call, they drove over to the area. Officer Peters and Major could not state how long it took to arrive on scene, but since they were not already on Bremner, I infer that they were at least thirty seconds or more away from the area when the call came in. The only inference to be drawn from this evidence is that scout car could not have arrived on scene before 12:04:15. The BMW, however, is seen leaving the area at 12:03:47, some three second after the 911 call came in. Even if I am wrong and the officers were only two seconds away when the 911 call came in, there was still not enough time for the events to unfold as officer Girgis claims. On Officer Girgis’ version of events, the people in the BMW would have had to see the scout, then announce they are leaving and will return, and then in fact leave all before the scout car arrived on scene in response to the 911 call that occurred only 3 seconds prior to the BMW leaving. In my view, it would be unreasonable to conclude that this is possible.

[31] Another reason why I reject Officer’s Girgis’ evidence on this point is that it makes no sense that he was too far away to see a license plate or get more details of the people in the car but could still hear the content of their conversation on a loud busy street. Officer Girgis, when questioned about his decision to not ask the nearby scout car to follow the BMW, testified that this was not viable because they had no plate number and he could not get close enough to the BMW to get the plate number without being identified as an officer. This means that he had to have remained some distance away from the BMW and the group. This was not a quiet night where conversations could be captured from some distance away. On all the evidence a massive party was going on across the street and quite a number of people were nearby. It is inconceivable that Officer Girgis could have over heard people talking from 15 feet away in these conditions. All this evidence considered together leads me to reject Officer Girgis’ evidence that he heard this comment.

[32] I will only briefly address Officer Poirier’s evidence now, as this argument does not really hinge on his testimony. I will address it in more detail later in my decision. Generally, I did not find Officer Poirier to be a particularly credible witness. He was evasive during cross-examination and often spoke in vague terms. Moreover, he was inconsistent about some of observations as they relate to seeing the firearm and at times did not respond to the question posed. When pressed for details, he was hesitant or unable to provide them.

[33] In relation to whether Officers Girgis and Poirier actually smelled marijuana from the vehicle, while I do not believe their evidence on this point, I cannot completely reject it. There are a number of reasons why it seems unlikely. Firstly, and most importantly, as I noted above, operating a motor vehicle while impaired by drug is very dangerous. If there was a real concern that occupants in this car were smoking marijuana, watching them drive off would have raised significant concerns for public safety. Their failure to act seems unlikely. I appreciate that without a plate number locating the BMW may have been a bit difficult, but since it was expected to stay nearby and they could describe, I would have expected them to send out a notice to other officers to be on the look out for the BMW. Secondly, I found Officer Girgis to not be a credible witness and as noted above, I also have some concerns about Officer Poirier’s evidence.

[34] Whether or not Officers Poirier and Girgis actually smelled marijuana, however, the fact remains that the BMW did return, at which time Officers Prodeus and Rorobek saw a female passenger in the vehicle with a marijuana joint. I found these two officers credible on this point and have no reason to reject their evidence. Their observation alone was sufficient to provide a basis to conduct a Cannabis Control Act investigation of the people in the BMW. In light of this, I do not find that the Cannabis Control Act investigation of the BMW was a pre-text.

[35] I do have concerns that the police started watching the BMW and the people gathered around it in part because the group consisted of black males and black females. These four officers seemed to have spent a lot longer watching and focusing on the BMW than on the rowdier crowd across the street. My suspicion, however, is not enough. I therefore find that racial profiling has not been made out.

B. Did Officer Girgis have grounds to detain Mr. Spencer

[36] Regardless of whether or not racial profiling occurred in the case at bar, Ms. Gadhia argued that Officer Girgis did not have any grounds to detain Mr. Spencer and that he violated Mr. Spencer’s section 9 Charter rights when he attempted to take physical control over Mr. Spencer. Ms. Leggett argued that Officer Girgis was permitted to detain Mr. Spencer through the Cannabis Control Act and for officer safety.

[37] In relation to the detention, it is my view that Mr. Spencer only became detained when Officer Girgis put his hand on Mr. Spencer. Prior to that, Officer Girgis may have been investigating Mr. Spencer, but he was not yet detained.

a. Cannabis Control Act

(i) Relevant legal Principles

[38] Pursuant to section 12(1) of the Cannabis Control Act, no person “shall drive or have care and control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat”.

[39] Pursuant to section 12(3) of the Cannabis Control Act, a police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle may search the vehicle or any person found in it.

[40] The act specifically gives the police the power to conduct a very limited search – that of the people in the car and the car itself. The act does not give the police permission to search those outside of the vehicle.

[41] While the act is silent on whether or not police can detain anyone under the Cannabis Control Act, I am satisfied that the police must be able to do so. If the police have the power to search the occupants of the vehicle, they must also have the authority to detain them so that the search can be conducted.

[42] Crown counsel urged me to find that the act also permits the detention of those outside of the vehicle. Respectfully , I disagree. The Act does not bestow this power nor can this power be inferred from powers the Act does give police officers. This is particularly so since the only offence identified in the Cannabis Control Act, is operating or being in care of control of a motor vehicle with marijuana. There is no offence of being an occupant of a vehicle while using or carrying marijuana. It appears that the power to search under the act is in furtherance of investigating the operator/driver of the motor vehicle as opposed to anyone else. In light of this, it is my view, that the Cannabis Control Act, only permits investigation of people within the vehicle when the marijuana was detected.

(ii) Analysis

[43] Officer Girgis is the sole officer who initiated the detention of Mr. Spencer. He offered two main reasons for detaining Mr. Spencer – to conduct the Cannabis Control Act investigation and for officer safety. Officer Girgis’ evidence on what he did to initiate the detention and his grounds was, in my view, somewhat convoluted. As such, is it helpful to review his evidence on this point in detail.

[44] When first asked by Ms. Leggett about his interaction with Mr. Spencer, Officer Girgis testified that he and his three other teammates decided to conduct a Cannabis Control Act investigation. This was because twenty-five minutes earlier he had smelled marijuana coming from the BMW and because one of his teammates moments earlier saw a person inside the vehicle with marijuana.

[45] Officer Girgis testified that he saw at least one person in the vehicle and three or four people outside the vehicle. Of the people outside the vehicle, he could not remember if anyone of these people had ever been inside the BMW.

[46] Officer Girgis went on to testify that as he approached the BMW, the accused started to walk away and “blade” himself. Later in his evidence, Officer Girgis added that as he approached the BMW he used his flashlight and said “police”. Mr. Spencer immediately started blading and walked away so that Officer Girgis could not see his hands. Officer Girgis described this blading as Mr. Spencer turning his body away from the officer so that Officer Girgis could not see Mr. Spencer’s hands. Officer Girgis testified that because he could not see Mr. Spencer’s hands, he had concerns for his own safety. It was at this point in time that he grabbed Mr. Spencer’s arm in an attempt to take physical control of him. Officer Girgis moments later testified that he first identified himself as a police officer to Mr. Spencer and advised Mr. Spencer that he was investigating him because he was fleeing and blading himself (albeit it is unclear to me how this was done if Mr. Spencer’s back was to him at this point in time). Later in his evidence, Officer Girgis testified that he could not remember what he said when he arrived at the BMW other than “police”. In explaining his concern for his own safety, Officer Girgis testified that he had a genuine fear because a person’s normal reaction when seeing an officer is not to walk away and hide their hands.

[47] Later in his evidence, Ms. Leggett asked Officer Girgis why he put his hands on Mr. Spencer. Officer Girgis responded that it was to continue the Cannabis Control Act Investigation and for officer safety because he could not see Mr. Spencer’s hands and he believed that Mr. Spencer was armed and posed a threat to the officer. This notion of him being armed, had not been mentioned at all earlier in his testimony.

[48] In relation to the Cannabis Control Act investigation, Officer Girgis first testified that he did not remember if any of the people outside the BMW had ever been inside the car. When asked specifically about Mr. Spencer, Officer Girgis first stated that he could not remember if Mr. Spencer was ever inside the BMW. He later testified that he never saw Mr. Spencer in the BMW. Despite stating that he did not see Mr. Spencer in the BMW, Officer Girgis testified that his plan was to investigate Mr. Spencer under the Cannabis Control Act because he did not know who had been in the BMW.

[49] During cross-examination, Officer Girgis was asked again about his reason for detaining Mr. Spencer. Officer Girgis repeated that he was investigating Mr. Spencer under the Cannabis Control Act and then for officer safety. He grabbed Mr. Spencer’s arm to detain him because Mr. Spencer was not cooperating, and Officer Girgis could not see his hands.

[50] In my view, parts of Officer Girgis’ evidence are contradictory. He was inconstant about what he remembered in relation to Mr. Spencer ever being in the BMW, he was inconsistent about what he said when he addressed the group standing outside the BMW, he was inconsistent about whether Mr. Spencer was walking away from him, blading him, turning away or fleeing the area.

[51] In relation to what Officer Girgis said, if anything to the group when he first arrived, Officer Girgis’ evidence that he said “police” and then told Mr. Spencer that he was investigating him for officer safety. This could not possibly be true. This is because Mr. Spencer had not yet turned to leave and his hands were still visible when Officer Girgis first approached the group with his flashlight.

[52] Putting aside issues relating to Officer’s Girgis’ credibility for the moment, it is my view that the Cannabis Control Act does not give the police the authority to detain someone where the officer does not possess reasonable grounds to believe that the detainee was in a motor vehicle with marijuana.

[53] It is not an offence to be found in a car with marijuana. It is an offence to be the driver, or in care and control of a motor vehicle with marijuana in it. This is an important distinction. While the act allows the police to search anyone found in a vehicle where there are reasonable grounds to believe marijuana is in the vehicle, it does not give the police the power to arrest them. Instead, it appears to be in furtherance of investigating whether the driver of the car has committed an offence. Given the narrow scope of the legislation, it only follows that the police cannot detain someone who was not in the motor vehicle at the relevant time.

[54] In the case at bar, Officer Girgis admitted that he had never seen Mr. Spencer inside the motor vehicle. In my view, Officer Girgis had no basis at all to believe or suspect that Mr. Spencer had ever been in the BMW. Mr. Spencer was not at the doorway to the BMW when Officer Girgis approached. Mr. Spencer was not part way in the BMW, or even standing in front of an open door of the BMW. I am mindful that at one point in his evidence Officer Girgis testified that he was interested in the entire group because it seemed that people may have been going in or out of the vehicle, but I reject his evidence on this point. Officer Girgis had been watching the vehicle since it returned. He made no note of people exiting or entering the vehicle. Knowing the limits of the Cannabis Control Act, had his intention really been to comply with the act and only investigate those in the vehicle he would have made note of this.

[55] At its highest, Mr. Spencer was communicating or socializing with people that were in or near the BMW. In my view, this is not sufficient to meet the test to detain someone under the Cannabis Control Act. Officer Girgis was permitted to approach the group, and attempt to ask people questions, but anyone who was outside the car, who the officers did not have reasonable grounds to believe were in the vehicle with the marijuana was not required to remain and answer police questions. They were legally entitled to walk away from the police and their investigation.

[56] Ms. Leggett made one further argument on this point. She argued that I should interpret Officer Girgis’ evidence as saying that he was investigating the people around the vehicle to determine if they were ever in the vehicle and as such subject to the search provisions of the Act. Respectfully, there is nothing in Officer Girgis’ evidence that supports this interpretation. Moreover, even if he had said this, while it was open to any officer to approach the people outside the car and ask them questions, they did not have the grounds to detain them.

b. Common law power to detain for investigative purposes

(i) Relevant Legal Principles

[57] Pursuant to R. v. Mann, [2004] S.C.C. 52, an officer may detain a person where an officer has reasonable suspicion that the person has committed a criminal offence. As the Court of Appeal stated in R. v. Peterkin, 2015 ONCA 8, at paragraph 40,

An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:

i. The extent to which the interference with individual liberty is necessary to perform the officer’s duty;

ii. The liberty that is the subject of the interference; and

iii. The nature and extent of the interference.

(ii) Analysis

[58] Ms. Leggett argued that at the time of the detention, Officer Girgis had sufficient grounds to conduct an investigative detention of Mr. Spencer because not only was he investigating the group under the Cannabis Control Act, but when Mr. Spencer bladed and walked away from the officer, this gave him grounds to reasonably suspect Mr. Spencer was engaging in criminal acts. In support of this argument, Ms. Leggett relied heavily on the case of R. v. Noor, 2022 ONCA 338 which she argued stands for the proposition that walking away from an officer who is conducting an investigation is sufficiently suspicious to support an investigative detention. Respectfully, I do not agree.

[59] In R. v. Noor, supra, the police were called to the area to investigate a gun call. The Court of Appeal held that the officer had sufficient “objectively articulable grounds at the time Mr. Noor was detained to support the officer’s subjective belief that Mr. Noor could possibly be the suspect”. These articulable grounds included that Mr. Noor was in the vicinity when the crime occurred and he matched the general description of the suspect’s physical features and clothing. When the police went to speak to Mr. Noor, he projected a startled look and immediately attempted to walk away. It was the combined effect of the being in the area, matching the description, the startled look and the walking away that the Court of Appeal held was sufficient to give the officer reasonable grounds to suspect Mr. Noor committed the offence they were investigating, not the fact of just walking away.

[60] In my view, it would not comply with the Charter to find that walking away from an officer, in and of itself, was sufficient to give an officer ground to detain for investigative purposes. If this was enough, then officers would never need grounds to detain because whenever anyone walked away, that in itself would provide the grounds.

[61] The way a person reacts to police can be sufficient to provide a basis for an investigative detention. For example, in R. v. Nesbeth, 2008 ONCA 579, the Court of Appeal held that Mr. Nesbeth’s reaction to the police demand to stop was sufficient to give rise to a reasonable belief that Mr. Nesbeth was involved in a criminal act. In that case, the police arrived and said “stop police”. Mr. Nesbeth bolted as soon as he saw the police (as opposed to turned away or walked away), he used some force in an attempt to impede the officers attempts to detain him by throwing a shopping cart in their way, he threw the knap sack he was carrying and he was in a stairwell, late at night, in a high crime building. This is a very different from merely walking or turning away from an officer. In my view, the courts have drawn a distinction between merely walking away from an officer and other more overtly suspicious conduct.

[62] The question remains whether or not, on all the evidence, Officer Girgis had reasonable grounds to suspect that Mr. Spencer committed an offence, either under the Cannabis Control Act or any other offence. In my view, he did not. I reach this conclusion for two reasons. Firstly, I reject most of Officer Girgis’ evidence about what he saw Mr. Spencer do and secondly, even if I were to accept some of Officer Girgis’ evidence it still would not provide grounds to detain Mr. Spencer.

[63] In relation to Officer Girgis’ evidence about what Mr. Spencer did that raised his suspicion, I reject his evidence that Mr. Spencer “bladed” or hid his hands from the officer. I do so for a number of reasons. Firstly, Officer’s Girgis’ evidence was inconsistent about what Mr. Spencer did once the officer approached him. For example, Officer Girgis initially testified that Mr. Spencer bladed himself. It later became clear that what Mr. Spencer really did was turn around and walk away which meant that Officer Girgis could not see Mr. Spencer’s hands. Officer Girgis at times made it sound like Mr. Spencer he was actively hiding his hands, when at other times, his inability to see Mr. Spencer’s hands was caused by the fact that Mr. Spencer was turning to walk away from him. At another point in his evidence, Officer Girgis testified that in response to the officer arriving Mr. Spencer fled the scene, which is very different from merely turning away. Another inconsistency in Officer Girgis’ evidence relates to what he said upon arrival. Officer Girgis at one point in his evidence testified that he told Mr. Spencer that he was under investigation but later testified that he could not recall what he said when he arrived. It seems inconceivable that the officer would have told Mr. Spencer that he was under investigation for officer safety reasons as soon as the officer arrived, because at that point Mr. Spencer could not yet have started to walk away.

[64] My second reason for rejecting Officer Girgis’ evidence is that his evidence is inconsistent with what I saw on the video of the interaction between Mr. Spencer and Officer Girgis. On the video from the Rogers Centre, Officer Girgis can be seen approaching the group that is outside the BMW while all the other officers walked directly to the BMW to talk to the people inside the BMW (as the Cannabis Control Act allows). Officer Girgis has his flashlight out and shines it on Mr. Spencer. When I watch the video, I see Mr. Spencer turn around to face the officer. He faces him for a few moments and then turns away a bit. As he does so, Officer Girgis reaches for Mr. Spencer. It looks to me that the officer then starts to pull Mr. Spencer away from the area. A struggle breaks out and then all the other officers on scene step in to assist Officer Girgis.

[65] Ms. Leggett argued that it is not reasonable for me to reject Officer Girgis’ evidence because of what I may see on the video. This is because the video is too grainy and from too far away to really see what was taking place. I agree that the video is taken from far away. The only way to see what is taking place is to zoom in on the interaction between Mr. Spencer and Officer Girgis. In zooming in, the picture does become grainy and harder to see. However, it is still clear enough to see that when Officer Girgis arrived with his flashlight, Mr. Spencer turned towards the officer and looked at him for a moment or two. Moreover, while Mr. Spencer may have turned away after a few moments, he did not flee the scene, as officer Girgis claimed at one point in his evidence. Mr. Spencer did not “immediately” turn away as Officer Girgis claimed at another point in his evidence, and he did not hide his hands as Officer Girgis claimed in yet another part of his evidence. In my view, even though the video is grainy, it is clear enough to make out that Mr. Spencer did not react to officer Girgis in the manner that Officer Girgis testified to at trial. I reject that Mr. Spencer made any attempt to flee the area, that he immediately turned away from the officer, that he bladed or that he hid his hands. I do not accept Officer Girgis’ evidence on how things unfolded with Mr. Spencer as such I also reject his evidence for why he detained Mr. Spencer as his reasons for detaining Mr. Spencer are inherently linked to his observations of Mr. Spencer. I therefore find that his detention was unlawful.

[66] Even if I did accept Officer Girgis’ evidence that as soon as he identified himself as a police officer Mr. Spencer turned and walked away, this, in my view, would not be a basis to suspect that Mr. Spencer was engaged in a criminal activity or that he had a firearm on him as Officer Girgis stated at one point in his evidence. Not only was Mr. Spencer never seen inside the BMW, there was no suggestion at all that he was ever in the driver’s seat of the BMW, let alone being in care and control of the BMW when marijuana was inside it. Unlike the Noor case, there was no reason to suspect that Mr. Spencer had done anything illegal when he allegedly walked away from Officer Girgis. Moreover, in Noor, in addition to walking away, Mr. Noor had a startled look on his face. Mr. Spencer did not.

[67] In my view, Mr. Spencer was legally entitled to walk away from the officers on November 1, 2021. If he did in fact do so, which for the above reasons I am not satisfied he did, Mr. Spencer’s exercising his right to walk away from the police when there was no other basis to suspect him of criminal activity does not provide a basis to detain him.

c. Detention for Office Safety

(i) Relevant Legal Principles

[68] There is no statutory authority to detain a person for officer safety. Moreover, the common law does not identify per se a police power to detain for officer safety. There is, however, ample authority that allows an officer to conduct safety searches.

[69] One kind of safety search identified in the case law is the safety search incident to an investigative detention. These searches are permitted where the officer has reasonable grounds to believe that his or her safety or that of others is at risk (see R. v. Peterkin, supra at para 49 and R. v. Mann, supra, at para 29)

[70] The other kind of safety search first arose in R. v. MacDonald, 2014 SCC 3, which is more of a free-standing police power to conduct a safety search during the course of a general investigation. In R. v. MacDonald, officers knocked on the door of Mr. MacDonald’s residence. They saw something black and shiny in his hand, hidden behind his pant leg. The officer twice asked Mr. MacDonald what he had in his hand, Mr. MacDonald said nothing. To get a better look, the officer pushed open the door and saw that Mr. MacDonald was carrying a gun. The majority of the Supreme Court of Canada held that a safety search was permissible only if the officer believes on reasonable grounds that his or safety is at stake and that it was necessary to conduct the search.

[71] In light of the above cases, I have no difficulty finding that the police are permitted to detain someone for officer safety purposes. There are limits to this power, however. In my view, the power to detain for safety purposes should mirror the power to conduct a safety search. That is an officer can detain a person for officer safety as long as the detention is reasonably necessary and the officer has reasonable grounds to believe that his or her safety (of the safety of others), is at risk.

(ii) Analysis

[72] The final basis that Officer Girgis provided for detaining Mr. Spencer was for officer safety. Officer Girgis testified that he was genuinely fearful for his safety because, in his mind, it is not a normal reaction to walk away from a police officer who is conducting an investigation. He further testified that he was concerned for officer safety because he could not see Mr. Spencer’s hands and was concerned that he had a firearm on him. I reject Officer Girgis’ evidence that he was genuinely concerned for his own safety. Firstly, as I noted above, Officer Girgis was inconsistent in his own evidence about this portion of his interaction with Mr. Spencer. Secondly, his evidence runs contrary the video of the scene. Thirdly, Officer Girgis was inconsistent in other portions of his evidence with the other video evidence ( as I explained earlier in this judgment). When I look at all the evidence at trial, I reject Officer Girgis’ evidence about what Mr. Spencer did prior to his detention. I also reject his evidence that he had a genuine safety concern. Mr. Spencer appears to have done nothing, other than being present to cause the officer to have concerns for his safety.

[73] Even if Officer Girgis subjectively had safety concerns, those concerns are not objectively reasonable and would not meet the test of reasonable suspicion let alone reasonable grounds. Officer Girgis’ assertion that it is not a normal reaction to walk away from an officer and that because it is not a normal reaction it means safety is in issue is not acceptable reasoning. As noted in Noor, people are permitted to walk away from an officer conducting an investigation. If there are no grounds to detain someone, that person is permitted to walk away. Exercising one’s rights by walking away, when there is nothing extraordinary about the way the person walked away cannot reasonably raise an issue for officer safety.

[74] It is helpful to contrast this case to other officer safety cases. For example. In R. v. Peterkin, the Court of Appel held that the officers in that case had grounds for a safety search. They noted that a constellation of features existed to support the officer’s safety concern. The constellation of features included: taps to waistband, blading so the officer could not see his right side, awkward receipt of a driver’s license and then attempt to flee when advised of a pat down search plan. In the case at bar, if Officer Girgis were to be believed, all that exists is Mr. Spencer turning away from the officer with the officer being unable to see his hands. I know that during his evidence Officer Girgis referred to Mr. Spencer as blading, but when asked to describe what blading meant, Officer Girgis testified that Mr. Spencer turned away from the officer. This is not the kind of blading referenced in Peterkin.

[75] Crown counsel also argued that in assessing Officer Girgis’ concern for his own safety, I need to be mindful that four months earlier another plain clothes officer had been killed in the line of duty. There can be no doubt that being a police officer is a difficult job. Loosing a colleague in the line of duty can be traumatic and cause one to be more fearful. I can appreciate an officer being more cautious in his or her duties in the aftermath of this kind of trauma. Having said that, it does not alter the fact that since I rejected Officer Girgis’ evidence, in the case at bar, there appears to be no basis at all to be concerned for officer safety based on Mr. Spencer’s actions when first approached by Officer Girgis.

[76] When I consider all the evidence, it is my view that Officer Girgis did not have sufficient grounds to detain Mr. Spencer when he reached for and grabbed Mr. Spencer’s arm. Mr. Spencer was entitled to pull away and resist an unlawful detention.

C. Did the officers use excessive force in detaining and arresting Mr. Spencer?

[77] Mr. Spencer resisted Officer Girgis’ attempt to unlawfully detain him. On all accounts the resistance was not excessive. Mr. Spencer did not punch out at the officer or otherwise assault him. Mr. Spencer appears to just try and pull his arm away. The struggle between Mr. Spencer and Officer Girgis escalated because Officer Girgis continued to unlawfully detain Mr. Spencer and Mr. Spencer continued to struggle in defence of an unlawful detention.

[78] All the other officers, however, did not see the initial interaction. They heard a commotion and turned around and saw their colleague and teammate struggling with a male. Concerned for Officer Girgis’ safety, they all ran to the officer and assisted in taking Mr. Spencer down. I cannot find that these officers acted inappropriately. They saw an officer struggling with an unknown male. These officers could not know that Officer Girgis was unlawfully detaining Mr. Spencer. It was reasonable for them to be concerned for their colleague and assist him by taking control over Mr. Spencer. I know that some force was used to take him down, but I cannot find that it was excessive or in violation of Mr. Spencer’s Charter rights.

[79] After Mr. Spencer was on the ground, Officer Girgis did throw items at or near Mr. Spencer’s face. The items did not hit him and in my view, this force is not sufficient to lead to its own Charter violation. It was unprofessional and an abuse of his position of authority, but in my view this is best addressed under s. 24(2) of the Charter.

D. Were Mr. Spencer’s rights as guaranteed by section 10(b) of the Charter violated?

[80] The essence of the defence argument under section 10(b) of the Charter is that the delay between his detention and his opportunity to access counsel was too long. Mr. Spencer was advised of his right to counsel at the scene. He at first indicated that he did not want to speak to counsel. Mr. Spencer remained on scene in a police wagon for a long period of time while the officers while the officers sorted out who might also be arrested in relation to the firearm.

[80] Mr. Spencer was then taken to the police station where he was booked and again advised of his right to counsel. It was not until thirty minutes after he was booked into the station that Mr. Spencer was given an opportunity to speak to counsel.

[81] Ms. Gadhia argued that this delay in accessing counsel violated Mr. Spencer’s Charter rights. Ms. Leggett argued that Mr. Spencer had confirmed on two occasions that he did not wan tot speak to counsel, as such no violation occurred.

[82] This is an unusual case, Ms. Leggett is correct, on two occasions Mr. Spencer stated he did not want to speak to a lawyer. To break this down, at the scene, when first advised of his right to counsel, Mr. Spencer indicated that he did not want to speak to counsel. Later, when waiting to be booked in at the station, Mr. Spencer advised an officer that he did in fact want to speak to a lawyer. Then, once inside the station, during booking, Mr. Spencer stated that he did not want to speak to a lawyer but did want his phone call. Officer Poirier testified that in his mind Mr. Spencer had not wanted to talk to a lawyer, but he called duty counsel out of an abundance of caution.

[83] In my view, one reasonable inference from the above comment is that Mr. Spencer was indicating that he did not have a specific lawyer to call but wanted to talk to someone who could help with this. While, I would have thought with this kind of response, a prudent officer would clarify who or why he wanted to make a phone call. I cannot, however, find this is tantamount to asking to speak to lawyer. Mr. Spencer did not testify and explain this comment and I cannot speculate on what Mr. Spencer wanted in that moment.

[84] In light of this, the delay in contacting duty counsel was reasonable and in my view Mr. Spencer’s section 10(b) rights were not violated.

E. Section 24(2) of the Charter

[85] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct (admission may send a message that the justice system condones serious state misconduct)

(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) Society’s interest in the adjudication of the case on its merits.

[86] The Court’s role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[87] Under the first prong of the 24(2) analysis, it is incumbent on trial judges to assess the seriousness of the violation in terms of the “gravity of the offending conduct by state authorities”. The seriousness of the state-offending conduct lies along a continuum where on the one end the evidence is obtained through inadvertence or minor violations and at the other end evidence is obtained though wilful or reckless disregard for Charter rights. As was noted in R. v. Grant, supra, at paragraphs 73-74, state conduct falling on this latter side of the spectrum will “inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute

[88] In the case at bar, Mr. Spencer was unlawfully detained by Officer Girgis. I rejected Officer Girgis’ evidence in relation to what he saw Mr. Spencer do and his reasons for detaining him. I have no direct evidence on why officer Girgis decided to detain Mr. Spencer. Looking at all the evidence, however, it is my view that the only reasonable inference is that Officer Girgis decided to investigate the entire group including Mr. Spencer and for some reason in doing so attempted to take physical control of him. I have found that Officer Girgis did overstep his authority by grabbing hold of Mr. Spencer and continued to overstep his authority by not releasing Mr. Spencer when Mr. Spencer attempted to break free of the officer’s grasp. In doing so, I find that Officer Girgis showed a blatant disregard for Mr. Spencer’s Charter rights. His actions in detaining Mr. Spencer suggests a lack of appreciation of the limits of his powers and an abuse of his powers.

[89] Another factor I must consider in looking at the seriousness of the breach, is that after Mr. Spencer was secured – Officer Girgis went through is pockets and threw keys and other items at Mr. Spencer’s face. Crown counsel urged me to put little weight on this as people have bad days sometimes. I agree people to have bad day sometimes. We don’t always act our best. But that does not excuse the behaviour. What Officer Girgis did was unprofessional, disrespectful and abuse of his position. Mr. Spencer was on the ground, cuffed and face down when the items were thrown at him. In my view Officer Girgis’ conduct was degrading, unacceptable and adds to the seriousness of the overall section 9 violation.

[90] Crown counsel argued that I cannot find that the acts were degrading because Mr. Spencer did not testify. I disagree. I can take judicial notice that certain acts are degrading. Throwing personal belongings at someone who is cuffed and faced down on the ground, moments after another officer has called him an “idiot” is degrading.

[91] In my view, this first prong militates in favor of exclusion.

[92] In relation to the second prong, the impact of the breach on the Charter rights it was meant to protect, this prong also militates in favour of exclusion. Mr. Spencer was detained with force for an extended period of time. This kind of detention strikes at the heart of what Section 9 of the Charter is meant to protect.

[93] The final prong strongly favours inclusion of the evidence. Gun violence in this city continue to rise. The senseless loss of life by the use of illegal firearms is a significant issue in Toronto. Given the prevalence of gun violence and the risk to life that use of firearms poses, there is a significant interest in having this matter tried on its merits.

[94] The final step is the balancing of the three prongs. The type of balancing required under section 24(2) of the Charter is qualitative not quantitative in nature. The balancing must consider the effect of admitting the evidence on the long-term repute of the administration of justice (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494).

[95] In my view, the appropriate remedy in this case is to exclude the bullet but not the firearm. The long-term repute of the justice system is put at risk if Mr. Spencer were to receive no remedy at all from the blatant Charter violation that took place in this case. Moreover, the repute of the justice system would be put at risk if this court did not distance itself to some degree from Officer Girgis’ conduct. Having said that, given the prevalence of gun violence in Toronto, to exclude a firearm in this case would also put the administration of justice into disrepute. In my view, the remedy of excluding the bullet but not firearm, ensures that there is still a trial on the merits in relation to the firearm while still providing Mr. Spencer a remedy and distances the court from Officer Girgis’ action.

F. Has the Crown proven beyond a Reasonable doubt that Mr. Spencer was in possession of the firearm?

[96] The firearm in issue in this case was not found on Mr. Spencer. Instead, it was located across the street under a tire of a parked vehicle. It is alleged that Mr. Spencer dropped the firearm during the struggle with the police and it skid across the road where Officer Poirier located it.

[97] Crown counsel argued that the evidence supports a finding that the firearm belonged to Mr. Spencer. Crown counsel’s argument was based on Officer Poirier’s observation that the firearm came from in front of Mr. Spencer’s body, Officer Poirier’s subsequent actions in walking in the direction of where item went and finding the firearm, the observations of the other officers who saw the firearm skid across the street (or at least heard something metallic fall during the scuffle), and the video that shows a black object skidding across the street from the area where Mr. Spencer was being detained. Crown counsel also relied heavily on the fact that a bullet, the same calibre of the bullets found in the loaded firearm was found in Mr. Spencer’s bag. Having excluded the bullet as a remedy under section 24(2) of the Charter, I cannot use this last connection.

[98] No officer saw the gun in Mr. Spencer’s hand, his bag or otherwise in his possession. Officer Poirier testified that he saw something black fly out from in front of Mr. Spencer. He followed the direction that he thought the object travelled and located the firearm across the street from the struggle. Officer Girgis testified that while he told his teammates that he saw Mr. Spencer throw the gun, he did not in fact see this. He saw and heard something drop. Then the firearm was found. Putting two and two together, it was his opinion that Mr. Spencer threw the firearm. Officer Rorobek heard the metallic item drop. The other officers in the area heard a metallic item drop but could not identify where it came from.

[99] The body worn cameras from officer Peters and Officer Major provide good evidence of what Mr. Spencer was doing during the struggle. For the most part, Mr. Spencer’s hands are visible and empty. At no point can I see Mr. Spencer putting his hands in his pockets or his bag and dropping or throwing a firearm. I am not saying that it could not have happened, given how quickly everything was happening, it is possible that it occurred but just not captured on the video. If it happened, however, it was very subtle. Another relevant consideration is that at the time of the struggle there were many people around. Some of whom were not that far the from the struggle. The police in fact arrested others in relation to the firearm, albeit the officers claimed it was on the basis of “joint possession”.

[100] The only officer who testified that they saw the gun come from Mr. Spencer was Officer Poirier. I am left in a reasonable doubt about whether or not Officer Poirier actually saw this. First of all, Officer Poirier first testified that the saw Mr. Spencer throw the firearm. When pressed for details, however, Officer Poirier conceded that he did not actually see the fireman in Mr. Spencer’s hand nor did he see Mr. Spencer throw it. Instead, he testified that he saw a black object come from in front of Mr. Spencer. He could not provide any further details about this object and what exactly he saw. This is not surprising, since it was dark outside, a struggle was taking place between Mr. Spencer and multiple officers. As I saw on the videos from the body worn cameras, hands and clothing were all over the place. Given the inconsistency in his evidence on this point, the lack of details and the overall difficulty he would have had seeing anything, I am not confident in the reliably of his observations.

[101] The fact that for the most part Mr. Spencer’s hands are visible during the struggle (on the videos), adds further doubt in my mind that the firearm found came from Mr. Spencer. Moreover, as I noted earlier in my judgment, I did not find Officer Poirier to be a generally credible witness.

[102] Ms. Gadhia also argued that the item alleged to be the firearm is seen skidding across the street after Mr. Spencer was already on the ground. In light of this timing, she argued that Mr. Spencer could not possibly have tossed the firearm. The whole event happened in a matter of seconds, the timing of the gun skidding across the street does not lead me to conclude that Mr. Spencer could not possibly have thrown that firearm.

[103] I understand why the officers believed that Mr. Spencer was the person who threw the gun. He was the only person struggling with the police and the gun went flying the same time the struggle ensued. Having said, there were quite a number of people around. I am not satisfied that any officer actually saw Mr. Spencer toss the firearm. It was dark, and other items were also dropped during the struggle. While it is possible, even likely that the firearm came from Mr. Spencer, when I consider all the evidence together, I am not satisfied beyond a reasonable doubt that it did.

[104] I therefore am left in a reasonable doubt that Mr. Spencer was ever in possession of the loaded firearm found on the scene. He is therefore found not guilty of all charges in relation to the firearm. Since I excluded the bullet also not guilty of those charges too.

[105] I therefore find him not guilty on all counts.

Released September 6, 2023 Justice Mara Greene