ONTARIO COURT OF JUSTICE
CITATION: R. v. Owusu, 2023 ONCJ 568
DATE: 2023 11 27
COURT FILE No.: Brampton 22-31106254
BETWEEN:
HIS MAJESTY THE KING
— AND —
BENJAMIN OWUSU
Before Justice I. Jaffe
Heard on July 26, 27, August 15 and September 5, 2023
Ruling on Charter applications released on October 30, 2023
Written Reasons for Judgments Delivered on November 27, 2023
S. Stackhouse..................................................................................... counsel for the Crown
S. Sutharsan................................................... counsel for the accused Benjamin Owusu
JAFFE J.:
[1] Benjamin Owusu faces multiple charges all of which relate to the seizure of a loaded handgun and some cocaine from a car in which he had been the driver. In remedy of what he alleges were multiple serious violations of his Charter-protected rights, Mr. Owusu seeks a stay of proceedings or alternatively, seeks the exclusion of the seized items.
[2] Specifically, the applicant advances the following Charter complaints:
I. His s. 8 and 9 rights were violated when the police detained and arrested him on insufficient grounds;
II. The police used excessive force in deploying the taser in the course of the his arrest thereby violating his s. 7 rights;
III. The delay in providing the applicant with his rights to counsel violated his s. 10(b) rights;
IV. The officers’ deliberate muting of their body-worn cameras while on scene constituted an additional s. 7 violation; and
V. The video recording of Mr. Owusu’s strip search violated his s. 7 and 8 rights.
THE DETENTION
[3] Section 9 of the Charter guarantees everyone the right not to be arbitrarily detained. The onus is on the defence to establish the arbitrariness of a detention on a balance of probabilities, though in some cases where a primary facie case of arbitrariness has been made out, the Crown may bear an evidentiary burden of justifying the detention: R. v. Iseler (2004), 2004 34583 (ON CA), 190 C.C.C. (3d) 11 (Ont. CA), at para. 25; R. v. Hardy, 2015 MBCA 51, at para. 40. Where the detention is tied to a presumptively unreasonable warrantless search, the Crown will bear the burden on the interrelated s. 8 and 9 complaints and must prove the lawfulness of the search: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.
[4] The starting point in a s. 9 inquiry is determining whether the detention was authorized by law because a lawful detention is not arbitrary unless the law authorizing it is arbitrary: R. v. Grant, 2009 SCC 32, at para. 54. Here, it is the Crown’s position that Mr. Owusu was initially detained, and his car subsequently searched, under the authority of both the Cannabis Control Act and the Liquor Licence and Control Act. Specifically, the following provisions of those Acts are implicated in Mr. Owusu’s Charter applications:
Cannabis Control Act:
12(1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat.
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
Liquor Licence and Control Act:
42 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit or if the liquor is,
(a) in a container that is unopened and the seal unbroken; or
(b) packed in baggage that is fastened closed or not otherwise readily available to any person in the vehicle.
(2) A police officer or conservation officer who reasonably believes that liquor is being unlawfully kept in a vehicle may at any time, without a warrant, enter and search the vehicle and search any person found in it.
[5] In R. v. McKenzie-Walcott, 2022 ONSC 1350, at para. 7, the trial judge addressed the scope of the search powers in s. 12(3) of the CCA in the following terms:
The interplay of these subsections means that if an officer has reasonable grounds to believe that cannabis is in a car but is not in its original packaging, is not packed in closed baggage or is readily available to a person in the car, a warrantless search of the car under ss. 3 is authorized: R. v. Nzita, [2020] O.J. No. 3109, 465 C.R.R. (2d) 301(Ont. C.J.) at para. 28. In this case, the search was lawful within the CCA if the officer had reasonable grounds to believe that there was unpackaged or readily available cannabis in the car.
[6] More recently in R. v. Moulton, 2023 ONCJ 140, Henschel J. reviewed multiple cases under the almost identically worded provisions of the Liquor License and Control Act, and came to the conclusion that once an officer has reasonable grounds to believe that cannabis is located within a vehicle in contravention of s. 12(1) of the CCA, s. 12(3) provides the officer with the authority to search “the entire vehicle, including any baggage”: Moulton, at para. 239.
Relevant Evidence
[7] It was around 10:20 p.m. on October 8, 2022, when officers Delgado and Omar, both members of the Peel Regional Police Service (PRPS), decided to patrol the parking lot outside of the Wilkinson Shelter in Brampton. Both officers testified for the Crown.
[8] Omar drove the marked police cruiser into the lot since in his experience, there is frequent illicit drug activity on that particular property. The officer testified that as he entered in the lot, he drove behind a parked Volkswagen Jetta and, even though the windows in the police car were shut, he detected the smell of marihuana. He could see smoke in the cabin of the Jetta, and he could also see the heads of its two occupants. A check of the vehicle’s license plate revealed that it was a rental car.
[9] Omar testified that based on his observations of the smoke and odour of marihuana he decided to investigate the occupants of the car and he approached the passenger side. The officer explained that from his vantage point at the passenger side he could see that the driver, who he would later find out was Mr. Owusu, had a laptop computer in his lap and a hand rolled marihuana cigarette in his right hand. The cigarette was lit, and the odour of cannabis was unmistakable. It was at this point that Omar decided to investigate the vehicle and its occupants under the Cannabis Control Act.
[10] Omar testified that as he was making initial contact with the occupants of the car, his partner, Delgado, approached the driver’s side. Omar described seeing Mr. Owusu repeatedly looking behind his right shoulder and to the officer, he appeared nervous. He advised the officers that he did not have his driver’s license and to Omar, Mr. Owusu seemed reluctant to disclose his identity. According to Omar, Mr. Owusu’s nervous demeanour stood in contrast to that of his passenger who remained relatively calm and polite.
[11] For the most part, Delgado’s evidence is consistent with Omar’s account. He recalled that as they drove by the Jetta an odour of marihuana was detected, and uncertain if the odour was emanating from the Jetta, Delgado decided to investigate. While Omar was at the passenger side, Delgado approached the car and observed a beer can in the rear cup holder. He advised Omar of his observations which furnished Omar with separate grounds to investigate the occupants under the Liquor License and Control Act (LLCA).
Analysis
[12] If the officers detected the odour of marihuana emanating from within the vehicle in addition to observing smoke, a marihuana cigarette, and open cans of alcohol inside the vehicle, it follows that they had grounds to investigate the vehicle and its occupants under the authority of the CCA and the LLCA.
[13] I found both officers to be credible. They were both detailed and thoughtful in their evidence. No material internal or external inconsistencies were revealed in their accounts, and they testified without any apparent animus, exaggeration, evasiveness, or defensiveness. I mention this not because the absence of these qualities in their evidence enhances their credibility, but rather to explain why I have not found them to be incredible.
[14] There were some minor inconsistencies in their evidence. For instance, Delgado testified it was about one to two minutes before he exited the police cruiser and joined Omar at the side of Mr. Owusu’s Jetta. However, footage from the security cameras in the parking lot reveal that Delgado was only about 10-15 seconds behind Omar. This difference in seconds does not amount to a material inconsistency.
[15] However, a finding that the police witnesses were credible does not automatically lead to an acceptance of their evidence. An equally relevant, but distinct, consideration is the reliability of their evidence. In assessing the reliability of the Crown’s evidence, I have considered the extent to which the evidence was corroborated, together with the officers’ ability to observe, recall and communicate the events in question: R. v. H.P.S., 2012 ONCA 117, at paras. 30-45.
[16] Without appearing to be custom-tailored to match each other’s accounts with precision, the evidence of each officer lent independent support to the other’s account. This was not only relevant to the credibility assessment but also provides some assurance as to the reliability of the Crown’s evidence.
[17] I also find that the evidence of Anthony Zangari, who had been Mr. Owusu’s passenger, lent substantial independent support to the evidence of officers Omar and Delgado.
[18] Mr. Zangari explained that on the night of October 8, 2022, he had been helping Mr. Owusu with music while the two sat in the Jetta with its engine off. Mr. Zangari recalled that they were sharing a marihuana cigarette when the police appeared at the vehicle. Mr. Zangari testified that he complied with the officers’ request for identification but that Mr. Owusu hesitated. According to Mr. Zangari, that is when “everything unfolded.”
[19] Neither Mr. Zangari’s credibility nor the reliability of his evidence was seriously challenged in cross-examination. I found him to be a credible witness who did his best to recount his interaction with the police while sitting in Mr. Owusu’s rented Jetta. His evidence corroborates the officers’ evidence, particularly as it relates to their belief that there was marihuana being consumed in the car and as it relates to Mr. Owusu’s lack of cooperation.
[20] Finally, the evidence of both officers is supported by the footage from their body-worn cameras. Although the volume on Omar’s body-worn camera was not activated for the first minute of his interactions with the occupants of the Jetta, when the audio is activated, the officer is heard advising the occupants that they were being investigated under the CCA and LLCA. Delgado’s camera captured his flashlight illuminating the open can of beer in the back console of the vehicle and the fact that he relayed that information to Omar.
[21] Referring to R. v. Kyeremeh, [2022] O.J. No. 5917, the defence argues that the odour of marihuana on its own can not justify a search under s. 12 of the CCA. However, the case before me is easily distinguishable as the odour of marihuana was detected in conjunction with the officers’ observations of both smoke and a marihuana cigarette within the car. Whereas the mere odour of marihuana reveals little about when the marihuana was consumed, there was no such uncertainty in this case.
[22] Detecting the odour of marihuana and observing smoke within the Jetta, Omar had objectively reasonable grounds to believe that cannabis was being consumed and contained in a vehicle in contravention of subsection 12(1) of the CCA. Viewing the actual marihuana cigarette in Mr. Owusu’s hand served to bolster those grounds. The open bottles of alcohol furnished separate sufficient grounds to investigate under the LLCA. Mr. Owusu’s detention was not arbitrary.
THE USE OF FORCE
[23] Omar deployed his taser on Mr. Owusu moments after Mr. Owusu exited the car. It is argued that the use of the taser was excessive and in violation of Mr. Owusu’s s. 7 Charter rights.
[24] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Supreme Court acknowledged that police may have to employ force during an arrest or apprehension, but the amount of force allowed will always be limited by the principles of proportionality, necessity and reasonableness: Nasogaluak, at para. 32.
[25] A police officer’s common law power to use as much force as is reasonably necessary in effecting an arrest has been statutorily conferred, and circumscribed, in s. 25 of the Criminal Code. Section 25(1)(b) authorizes police to use force provided:
i) The officer was required - or authorized by law to perform an action in the administration or enforcement of the law;
ii) The officer acted on reasonable grounds in performing that action; and
iii) The officer did not use unnecessary force.
[26] Section 25(3) prohibits the use of force by an officer that is intended or likely to cause death or grievous bodily harm unless the officer believes on reasonable grounds that it is necessary for the self preservation of the person or the preservation of anyone under that person’s protection from death or grievous bodily harm. Section 25(4) further circumscribes the use of greater force by the police.
[27] Though courts must vigilantly guard against police abuse of their use of force powers, an officer’s actions and reactions made in the context of a dynamic situation should not be measured against a standard of perfection, nor should the amount of force employed be measured with exactitude: Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para 35.
[28] In R. v. Robinson, 2019 ONSC 4696, at paras. 105-107, Dennison J. addressed the common-sense perspective that must guide the judicial scrutiny of police actions where excessive use of force is alleged:
In considering if the use of force was reasonable, the actions of police must not be held to the standard of perfection. The situations that police face are often dynamic, fluid and call for quick decisions to be made on the spot. As explained in Nasogaluak, at para. 35, "police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work." Police must often react quickly to unexpected circumstances. Actions should be judged with consideration to the exigent circumstances they faced, and the degree of force used should not be measured with exactitude: see R. v. Asant-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 73-76; and R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 32, LeBel J.
The reviewing court must be careful to guard against the tendency to judge the actions of police with the benefit of hindsight: see R. v. DaCosta, 2015 ONSC 1586, at para. 98; and R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 23-24. Nor should the conduct "be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture": R. v. Amofa, 2011 ONCA 368, 282 O.A.C. 114, at paras. 19, 24-25; see also R. v. Rigo, 2017 ONSC 3694, 393 C.R.R. (2d) 204, at para. 73.
In considering the totality of the circumstances, the court will necessarily have to engage in a fact-finding exercise and assess any inconsistencies in the evidence between the witnesses' accounts, including the measure of the discrepancy, any explanation for the inconsistency and the materiality of the issue upon which differences arise. In the context of a dynamic arrest situation, the trier of fact must exercise a degree of common sense when considering inconsistencies in the evidence with a view to the totality of the circumstances. This includes a recognition that officer stress may be capable of limiting or distorting perceptions and reporting differences between witnesses may be a result of their "being in different positions and seeing things from different perspectives:" R. v. Phills, 2010 ONSC 4446, at para. 92; see also Rigo, at para. 91.
Relevant Evidence
[29] While Delgado was interacting with Mr. Owusu, Omar walked around to the rear of the Jetta to relay to dispatch the license plate of the Jetta and its location. The officer could see that Mr. Owusu was still “acting in a strange manner” by moving around in his seat and looking over his shoulder. The officer explained that at one point, Mr. Owusu reached into the back seat. He also placed a phone call and persisted with the call despite the officer telling him to hang up. Omar explained that Mr. Owusu’s phone call to an unknown person raised safety concerns as the officers had no way of knowing who was being summoned to the area.
[30] Omar noticed that Mr. Owusu was not following Delgado’s instructions and continued to scan around him. At one point the officer observed Mr. Owusu reach for a satchel near his right foot which raised concerns that there may be a weapon in the vehicle. The officer was questioned in cross-examination about the fact that he made no mention of a satchel in his notes saying only that Mr. Owusu was “reaching for something on floor driver’s side right foot.” Omar explained that when he subsequently searched the vehicle, there was a satchel (which turned out to contain a loaded gun).
[31] Omar testified that he joined Delgado on the driver’s side and by then the driver’s door was open. Omar explained that when Mr. Owusu ignored Delgado’s directions to exit the car, Delgado began to physically extract him. Omar made a call to dispatch requesting back up units on a rush basis and standing at Delgado’s right side, he attempted to assist him in pulling Mr. Owusu out of the car.
[32] It was while Omar was pulling at Mr. Owusu by his jacket that he heard the Jetta’s engine rev and realized that the vehicle was reversing. With its driver’s door open the two officers were stuck and were dragged a distance Omar estimated was ½ to 1 meter.
[33] Omar explained that in the course of being dragged by the car, his right arm was injured and he experienced sharp pain in his forearm and shoulder. The officer testified that as Mr. Owusu was being forced to exit his car, Mr. Owusu was pushing towards the officers and once out of the car, Omar believed that Mr. Owusu was pushing towards him in an effort to run towards the street.
[34] With his knowledge that Mr. Owusu had made a call to an unknown person moments before, Omar was scared. Fearing Mr. Owusu may be armed, he made the decision to use his taser to immediately place him in custody. Omar shot once at Mr. Owusu hitting his torso and leg causing Mr. Owusu to fall forward, face first. He was then handcuffed to the rear by Delgado.
[35] In cross-examination, it was suggested to Omar that he made snap decision that Mr. Owusu possessed a weapon based on a brief two-minute interaction. The officer explained that his belief was rooted in about nine separate observations which included the fact that Mr. Owusu resisted providing identification, kept looking around and reaching into the back seat and down towards his feet.
[36] Omar explained that there are two scenarios in which the use of a taser is permitted. First, when someone is assaultive towards an officer or others, and secondly when the need to take the person into custody is urgent. Omar testified that both rationales were in play during Mr. Owusu’s arrest.
[37] With some minor differences, Delgado’s evidence concerning the events leading up to the deployment of the taser is consistent with Omar’s evidence. Delgado described Mr. Owusu as being fidgety during their initial interaction and he appeared to be deliberately ignoring the officers. As he approached the driver’s side, Delgado observed another beer bottle in the centre console. The officer made the decision to open the driver’s side door to ensure that Mr. Owusu did not flee the scene.
[38] The officer recalled advising Mr. Owusu about the LLCA and CCA at which point Mr. Owusu began making a phone call. The officer overheard Mr. Owusu providing his location to whoever was on the other end of the line. Delgado testified that at this point, he became a little more aggressive with Mr. Owusu telling him to get out of the car. The officer recalled that Mr. Owusu started resisting while at the same time, his hand was roaming around the centre console leading the officer to believe he was about to start the car. The officer then heard the engine running and Mr. Owusu placed the car into reverse pulling Delgado in the process.
[39] Delgado explained that he was in fear for life as he and Omar were being dragged by the reversing car and yelling at Mr. Owusu to stop the car. When the car stopped the officers pulled him out. Delgado testified that at this point, Mr. Owusu was not complying with officer commands. The officer explained that they were trying to put handcuffs on Mr. Owusu, and to him, it appeared as though he was trying to flee. Delgado no longer had the energy to continue fighting. It was then that Omar discharged the taser.
[40] The body-worn cameras of both officers captured their interactions with Mr. Owusu. The two officers were polite and explained in simple terms the basis for their investigation. Mr. Owusu was not only non-compliant in response to Delgado’s multiple requests that he step out of the car, but he also summoned some unknown person or people to the scene. During that phone call, Mr. Owusu was overheard asking the person on the other end of the line “so you are going to be here in a second? Steeles and Tomken.” Mr. Owusu continued with his phone conversation ignoring the officers’ demands that he exit the car.
[41] Footage from Omar’s body-worn camera substantiates his evidence that while interacting with the officers, Mr. Owusu reached with his right arm behind him to the back seat and reached towards the front. It also captured Delgado instructing Mr. Owusu multiple times to “step out” of the vehicle and telling him “if you want to grab something, I will grab it for you. I can’t see what you are grabbing.”
[42] The footage from the cameras also supports the officers’ accounts that the vehicle was placed in reverse while they were attempting to remove Mr. Owusu from the scene. The car had been parked with its front-end flush against the curb when they first approached the Jetta whereas following Mr. Owusu’s arrest, it appeared to be several feet away from the curb.
Analysis
[43] The defence argues that Omar’s deployment of the taser was hasty and unnecessary. Things were under control. The two officers had Mr. Owusu cornered, there was no weapon in sight, and there were multiple additional officers about to arrive on scene. Moreover, once deployed, the officers did not comply with police directives by failing to inquire about whether he wanted medical attention.
[44] I find that Omar displayed a good knowledge of the PRPS directives governing the use of tasers as set out in the Incident Response Directives acknowledging that he failed to comply with directive 18(b) by not advising Mr. Owusu that he had been the subject of a taser and that the effects were temporary.
[45] In challenging officers Delgado and Omar on how they dealt with Mr. Owusu, the footage from their body-worn cameras was played repeatedly in short clips with each clip capturing seconds of time. The officers were asked to explain their actions and thought processes during those fleeting intervals.
[46] It would be nice if police officers had the benefit of freezeframing their interactions with the individuals they encounter. If they had the luxury of holding someone in suspended animation so they could examine the position of their hands, their movements, their surroundings. If officers had an expanse of time to carefully assess every risk and run through their mental rolodex of possible options to mitigate those risks. While that may be how the interactions between the police and civilians are examined in court, that is not how they unfold in real life.
[47] Recall the circumstances under which Omar discharged his taser. It was late at night in the parking lot known to police to be site of illicit drug activity. While conducting a lawful investigation, Mr. Owusu is not only uncooperative and unwilling to identify himself, but he also placed a phone call and summoned some unknown person or people to his location. He was fidgeting and reaching towards an unknown item. He refused the officer’s multiple requests to exit the car, and when they lawfully attempted to remove him from the car, he placed the car in motion dragging the officers backwards. Once extracted from the car, Omar believed that Mr. Owusu was attempting to push past Delgado towards him and flee.
[48] I find that the actions of Omar in deploying the taser once in his efforts take a non-compliant Mr. Owusu into custody was a necessary, reasonable, and proportionate response. The officer’s belief that the use of the taser was necessary to prevent Mr. Owusu from causing harm to the officers or others was objectively reasonable. The deployment of the taser brought a quick end to a potentially dangerous situation and did not violate Mr. Owusu’s s. 7 Charter rights.
RIGHTS TO COUNSEL
[49] When detained, an individual has a Charter protected right under s. 10(a) to be promptly advised of the reasons for his detention: R. v. Mann, 2004 SCC 52, at para. 21. The police are not obligated to employ formal wording in compliance with their duty under s. 10(a) rather they must provide the accused with sufficient information with which an accused can make reasonable decisions, specifically with respect to the exercise of their s.10(b) rights. R. v. Evans (1991), 1991 98 (SCC), 63 C.C.C. (3d) 289, at pp. 302-3 (S.C.C.).
[50] Section 10(b) of the Charter imposes informational and implementational obligations on the police. First, the police must inform the detainee of his or her right to retain and instruct counsel immediately and inform them of the existence and availability of legal and duty counsel. Secondly, if the detainee indicates a desire to exercise those rights, the police must provide them with a reasonable opportunity to exercise the right. Finally, the police must refrain from eliciting evidence from the detainee until they have been given that reasonable opportunity: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at para. 17; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para 29.
[51] The applicant bears the onus of establishing a breach of his s. 10 rights. In this case, the applicant argues that the informational and implementational components of his s. 10(b) rights were violated.
Relevant Evidence
[52] A review of the bodycam footage reveals the following timeline:
| Time | Event |
|---|---|
| 10:11 p.m. | Omar discharged his taser striking Mr. Owusu and causing him to fall to the ground face first. |
| 10:13 p.m. | Officers turn him around and begin a pat-down search while Mr. Owusu continuously attempted to sit up. |
| 10:14 p.m. | Omar advised Mr. Owusu that he was under arrest for dangerous operation and for drinking and driving. |
| 10:15 p.m. | Officers assisted Mr. Owusu to a standing position and when he asked the officers why he was under arrest Omar replied, “you’re under arrest because you hit me with your car and because you’ve been drinking.” An officer assisting Omar advised him that she had an ASD with her (i.e. a roadside screening device) and Omar asked if she could read Mr. Owusu the breath demand and conduct the ASD test. Within a minute, Omar located the loaded gun in the car. He then advised other officers of the discovery and attended at the cruiser in which Mr. Owusu was sitting. |
| 10:17 p.m. | An officer was administering the ASD test and explaining to Mr. Owusu the reasons for the test. |
| 10:18 p.m. | Omar advised Mr. Owusu that he was under arrest for possession of a firearm and for dangerous operation. Mr. Owusu remained non-compliant and resistant. He would not put his feet in the cruiser despite the officers’ multiple requests that he do so, and when asked to give his first name to the officers he replied, “it doesn’t matter.” |
| 10:21 p.m. | Omar continued to explain to Mr. Owusu the reasons for his arrest. Mr. Owusu’s non-compliance persisted, and he continued to ignore the officers’ repeated demands to put his feet inside the cruiser. |
| 10:23 p.m. | While Omar was continuing in his attempts to convey information to Mr. Owusu, Mr. Owusu told him that he wanted to call “his people.” Omar replied that he is allowed to speak to his lawyer but first he wanted to read Mr. Owusu his rights to counsel. The officer read those rights from the back of his notebook. Mr. Owusu’s frequent interruptions delayed this process. |
| 10:25 p.m. | Omar asked Mr. Owusu for details of his counsel of choice. Mr. Owusu provided the name “Sutharsan” and told the officer to “look him up,” At this point Omar read the primary caution to Mr. Owusu advising him that he need not say anything but whatever he does say may be given in evidence. Shortly after receiving the primary caution, and while agitating in the back seat of a cruiser with his feet still on the outside, Mr. Owusu said, “where my people at, they’ll be here any second.” |
| 10:32 p.m. | After being searched, Mr. Owusu was led to an ambulance where he interacted with paramedics. When asked by one of the paramedics “what’s your name” he replied “it doesn’t matter.” Mr. Owusu advised the paramedics that he does not need any medical attention and added that he just wanted to make a call to his “people.” At the same time, an officer searching the Jetta advised Omar that he located Mr. Owusu’s identification. |
| 10:33 p.m. | Mr. Owusu was placed back into the rear of a police cruiser to be transported to the division however, he continued to ignore directions to put his feet inside the cruiser. For two minutes, Mr. Owusu argued with the officers and refused to put his legs in the car. At one point an officer advised Mr. Owusu that they will put him in touch with his lawyer when they are at the station and that Mr. Owusu’s non-compliance is “prolonging that process.” While being transported to the police station, Williams advised Mr. Owusu that it came to his attention that Mr. Owusu was breaching his house arrest, so he provided rights to counsel again. |
| 10:36 p.m. | Omar can be seen searching numbers on his cell phone. This accords with his evidence that at around this time, he looked up defence counsel’s phone number, placed a call but received no answer. |
| 11:04 p.m. | Mr. Owusu was led into a room where he is subjected to a strip search. |
| 11:11 p.m. | Mr. Owusu was led into a private room where he had a private consultation with his counsel of choice. |
Analysis
[53] I have no difficulty concluding that the officer’s suspicion that Mr. Owusu had been driving within three hours of consuming alcohol was objectively reasonable and that he had the grounds to make a demand under s. 320.27(1) of the Code.
[54] However, the complaint is not whether the officer had grounds to make the demand. Rather, Mr. Sutharsan argues that Omar was wrong to prioritize the administration of roadside screening test over his obligation to provide Mr. Owusu with his rights to counsel without delay. In other words, the officers’ decision to withhold rights to counsel until the completion of the roadside breath test resulted in an unconstitutional suspension of Mr. Owusu’s s. 10(b) rights. I do not agree.
[55] Recently in R. v. Breault, 2023 SCC 9, the Supreme Court confirmed that a detainee’s s. 10(b) rights are temporarily suspended during a roadside screening test provided the test is administered immediately: Breault, at paras. 6 and 35. In the present case, there was an ASD on the scene and as the above timeline reveals, the roadside screening test was underway within minutes of Mr. Owusu’s arrest. The timing of the test in this case fulfilled the immediacy requirement of s 320.27(1)(b) and justified a brief suspension of Mr. Owusu’s s. 10(b) rights.
[56] Omar began to provide s. 10 (a) and (b) rights to Mr. Owusu immediately upon completion of his ASD test however Mr. Owusu’s constant interruptions prolonged the process. There has been no breach of the informational component of Mr. Owusu’s s. 10(b) rights.
[57] Mr. Owusu was afforded his private consultation with his counsel of choice at 11:11 p.m., precisely one hour after he was placed under arrest. The activity and number of police officers and civilians in the parking lot following Mr. Owusu’s arrest, provided no reasonable opportunity to facilitate a private consultation with his counsel at the scene. Moreover, the possibility that the unknown person or persons that Mr. Owusu had summoned to the parking lot might arrive at any minute, supported the police decision to transport Mr. Owusu to the police station before putting him in contact with his lawyer.
[58] There is no doubt that Mr. Owusu would have been in contact with his lawyer at an earlier time but for his actions at the scene. For instance, Mr. Owusu’s refusal to put his legs inside the police cruiser added to the delay in transporting him to the police station and to me, this appeared to be a deliberate effort on his part to thwart police efforts. There was no violation of Mr. Owusu’s s. 10(b) Charter rights.
MUTING OF BODY-WORN CAMERAS
[59] Section 7 of the Charter guarantees everyone “the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The defence argues that the deliberate muting of body-worn cameras by all four police witnesses had the effect of depriving Mr. Owusu of relevant evidence and constituted a serious breach of his s. 7 rights.
Relevant Evidence
[60] A review of the camera footage reveals that while still on scene, Omar, Delgado, Williams and Grewal, muted their cameras at different times and for varying durations while the investigation into Mr. Owusu was ongoing.
[61] Delgado muted his camera the most starting at 10:19 p.m. after reading rights to counsel to Mr. Owusu’s passenger Mr. Zangari. After saying he needed to explain to “sergeant” and for the next 2 ½ minutes, Delgado interacted with another officer who was standing by the open driver’s door of the Jetta holding a flashlight. With his body-camera still muted, Delgado walked back to a marked cruiser and thereafter briefly interacted with a few people before attending at the cruiser in which Mr. Zangari was sitting. At 10:21:36, the officer turned on his audio and began to interact with Mr. Zangari.
[62] Delgado muted his camera for another two minutes starting at 10:22:04 after telling another officer “I’m just going to go talk to him.” Delgado approached the side of the marked cruiser in which Mr. Owusu was sitting and officers Williams, Omar and Grewal can be seen standing by the open car door interacting with Mr. Owusu.
[63] In less than a minute, Delgado walked away from that cruiser and back towards the Jetta where he spoke to other officers. Delgado turned his microphone back on at 10:24:00 and told the officer “This gentleman won’t get in the car. The accused won’t get in the car over there.”
[64] Seconds later, Delgado muted his camera again this time for about 21 minutes starting at 10:24:09 while still standing next to the Jetta. The officer walked away, was given blue gloves from another officer, and then returned to the Jetta where he conducted a search of the car’s interior while remaining on mute. Delgado’s actions in searching the car are illuminated by a flashlight and the items searched are clearly visible. It is clear he was having conversations with multiple officers both during and after the search. Delgado turned his microphone back on at 10:45.47, pointed out damage to the car next to Mr. Owusu’s car, and then muted his camera again seconds later for about 1 ½ minutes as he was interacting with a large group of other uniformed officers. Delgado activated his microphone as he entered his police cruiser and kept it on for the duration of his drive from the scene to the police station.
[65] Omar muted his camera for just over two minutes after reading rights to counsel to Mr. Owusu. Omar is heard telling him to “hang tight” and saying he needs to speak with the sergeant for a second. He then approached an officer and muted his microphone at 10:26:29. He can be seen interacting with other officers away from Mr. Owusu. Omar walked past Mr. Owusu, towards the ambulance. He then interacted with the paramedics and then walked back to Mr. Owusu who was, at that time, being taken out of the cruiser in handcuffs. Omar turned his microphone back on at 10:28:06. Omar muted again at 10:33:13 after a female officer is overheard saying “Delgado are you guys muted or no?” Delgado replied that he was muted and Omar replied, “I’m not, hold on.”
[66] Grewal activated her microphone at 10:17:31 as she approached Mr. Owusu who was by that point sitting in the back of the cruiser. The officer muted her microphone at 10:35:48 after Mr. Owusu was fully inside the police cruiser and the door was shut.
[67] Williams muted his camera for a total of about 3 ½ minutes. He muted it for less than a minute starting at 10:27:20 after he asked Omar if he could talk to him “for a sec.” He and Omar then spoke to the paramedics. Williams returned to the cruiser and he turned his microphone back on at 10:28:10 at which point Mr. Owusu was standing on the outside of the cruiser. Williams muted again after another officer asked him if he is transporting at 10:35:47. He turned his microphone back at 10:39 when he entered the cruiser to transport Mr. Owusu.
Peel Regional Police Directive
[68] At the time Mr. Owusu’s arrest, the use of body-worn cameras was governed by a Peel Regional Police directive. The relevant sections are set out below:
F. Operation of a Body Worn Camera
- An Officer shall activate their B.W.C.:
(a) when interacting with a member of the public, at the earliest opportunity that allows for Officer safety;
(b) upon arrival to a call for service;
(c) during an arrest or detention, and the B.W.C. shall remain activated for the duration that the Officer has the person in custody, including during transport and lodging;
(d) to record utterances that would normally be taken in the field including utterances and spontaneous statements;
(e) to record a pat down search and/or a frisk search in the field, in accordance with P.R.P. Directive I-B-119 (F); or any other directives dealing with “Search of Persons”; and,
(f) to record any other interaction where the Officer believes a B.W.C. recording would support them in the execution of their duties.
- At the earliest opportunity when the B.W.C. is recording, Officers shall:
(a) advise members of the public that they are interacting with that their B.W.C. is recording and that they are being recorded;
(b) when entering a private residence and/or private place, on the basis of consent alone, provide the owner/occupant a reasonable opportunity to refuse or consent (R. Wills 1992 2780 (ON CA), [1992], O.J. No. 294) to being recorded and, if refused, comply by stopping the recording or requesting the owner come out to a public setting; and,
(c) advise other Officers and/or first responders in their presence that a B.W.C. has been activated, and they are being recorded.
- When the B.W.C. is recording, Officers shall not deactivate, mute or deliberately re-position their B.W.C. as to not effectively record the Officers’ actions and individuals that they are interacting with until the event has concluded, except when:
(a) there are discussions between P.R.P. members about protected investigative techniques, that take place away from any member of the public (where muting the B.W.C. would be sufficient to ensure against the unintentional disclosure of such discussions then the B.W.C. should be muted for the duration of those discussion rather than being turned off);
(b) conducting any interaction with a confidential informant, or an undercover operator, that takes place away from any member of the public (where muting the B.W.C. would be sufficient to ensure against the unintentional disclosure of such interactions then the B.W.C. should be muted for the duration of those interactions rather than being turned off);
(c) it is momentarily necessary to obstruct the video to protect the dignity of another person (i.e. to allow an individual in a state of undress time to put clothing on) in these circumstances only, the video may be obstructed and this should only be resorted to for a short period of time and provided that the member(s) are not in a situation where they might use force while the lens is covered; or,
(d) directed to do so by a Supervisor.
[69] All four witnesses were questioned about the police protocol and their understanding of when it was appropriate to mute their cameras. The officers believed that it was appropriate to mute their microphones when not in the presence of the person being investigated and while speaking with other police officers.
[70] Omar acknowledged muting his camera while on scene explaining that he muted it away from members of the public during conversations with other police officers about administrative tasks which he considered to be private police conversations.
[71] Omar was asked about the training he received on the use of body-worn cameras and recalled that he attended a two-day session when the cameras were first rolled out, in mid-2021. Omar provided this insight into that training:
We learned the purpose of the body-worn camera was for accountability and it was intended to record interactions with the public so that it would protect the public from police officers and create accountability as well as protect police officers following those interactions from any potential complaints. And so basically we were told that the real intention of the body-worn camera was accountability and things of that nature. But of course, by extension of recording our interactions with people it does serve as evidence but that was not the primary reason for body-worn cameras.
We were told to record interactions with the public through received radio calls for service and during traffic stops and to record interactions with the public if the public approach us and if members of the public are becoming hostile or they are reporting something to the police.
[72] Asked about his understanding of when officers are entitled to mute their cameras, Omar said this:
When we were originally trained, we were told we are able to mute body-worn cameras to do personal things for example receive personal phone calls. We were told we can mute them to have conversations with one another. We were essentially told that we can mute them when we are not recording an interaction with the public because the camera is it was intended to record interactions with the public. ….
The directive has since been released and in relation to this part, when this incident took place the directive also allowed police officers to mute their cameras under three separate circumstances. One of the circumstances that allowed the police to mute cameras, is when police officers are away from any members of the public having conversations about protected police investigative techniques. Which in my opinion includes conversations about administrative process of how what happens during an arrest of an accused person.
[73] Delgado described the protocol in similar terms saying that he recalled the audio of his camera should be turned off when not in the presence of the person being investigated and then only while discussing police tactics or receiving directions from a supervisor. The officer acknowledged that when he searched the Jetta and located the satchel containing a firearm, he had muted the audio but explained that it was done unintentionally.
[74] Williams testified that he muted his camera when he was away from the public and conversing with other officers. Though he acknowledged that it is an officer’s responsibility to keep up to date with police directives, he explained that at the time, the use of body-worn cameras was a work in progress and the relevant directives were constantly changing. Grewal testified that she believed her camera was to be muted when having discussions with other officers and not in the presence of the public.
Analysis
[75] The starting point for this analysis is a recognition that there is no constitutional obligation on the police to record their interactions with the accused, let alone with each other, during an investigation: R. v. Moore-McFarlane (2011), 2001 6363 (ON CA), 56 O.R. (3d) 737, at para. 64.
[76] Much of the jurisprudence in this area has arisen in cases where the police failed to video record their breath-room interactions with the accused: see for instance R. v. Khan, 2010 ONSC 318, R. v. Piko, [2000] O.J. No 3605 and R. v. Browniee (2008), 70 M.V.R. (5th) 61. Similarly, in R. v. Schmidt, 2023 YKTC 32 and R. v. Kurmoza, 2017 ONCJ 139, both drinking and driving cases, the Courts concluded that there was no constitutional duty on the police to create a recording of their interactions with the accused and while their failure to activate their in-car cameras was in violation of existing police policies, it did not amount to a Charter violation. In Kurmoza, Henschel J. found that a police directive requiring the police to record does not confer on an accused a constitutionally enshrined right to have all interactions recorded. I agree with those comments.
[77] Those decisions addressed the failure of the police to activate their cameras in the first place. There have not been many cases which have squarely considered the constitutional implications of an officer’s decision to mute a body-worn camera during an investigation. In R. v. Saunders, 2021 ABPC 77, the court considered whether the accused’s s. 7 and 11(d) rights were violated by the officer’s intentional deactivation of his body-worn camera during his transportation from the scene to the police station. The Court ultimately concluded that there was no constitutional obligation on the transporting officer to “activate, or keep activated, his body-worn camera” and no evidence upon which to conclude that in turning off his camera, the officer was acting in bad faith: para. 75.
[78] Despite the absence of a free-standing Charter right, an officer’s failure to record their interactions during an investigation could nevertheless violate an accused’s s. 7 Charter rights depending on the officer’s intentions and/or whether the absence of a recording prejudices the accused’s right to a fair trial. For instance, the muting of a body-worn camera would likely amount to a Charter breach if it was done with the intention of concealing relevant events of an investigation.
[79] In R. v. Azfar, 2023 ONCJ 241, a case to which the defence has referred, two officers had briefly muted their body-worn cameras during a roadside investigation of a two-car accident. The muting of the audio occurred after their initial discussions with the accused and just after one of the officers said, “I am going to mute quickly for investigations.” Once the officers reactivated their microphones, the accused was given an ASD demand and was ultimately arrested on an “over 80” charge.
[80] In cross-examination, both officers acknowledged that the muting of their cameras had the effect of limiting the information that would be disclosed to the accused, though neither testified this was their intention and one of the officers agreed that the substance of the muted conversation was important to their investigation of the accused.
[81] Porter J. concluded that the officers’ deliberate suppression of relevant evidence struck at the heart of the court’s ability to review the legality of police conduct and warranted judicial disapproval in the strongest of terms: Azfar, at para. 41. Ultimately, finding that the first two Grant inquiries weighed heavily in favour of exclusion, Porter J. excluded the results of the breath test.
[82] Falling short of a Charter breach, an officers’ failure to record might lead to the drawing of a negative inference or deprive the Crown from proving an issue in dispute: Moore-McFarlane, at para. 66. For instance, the muting of a body-worn camera may deprive the Crown of proving a statement voluntary: R. v. Charleston, 2023 ONCJ 229, at para. 80.
[83] In Azfar, Porter J. inferred that the muted conversation related to the existence, or non-existence, of the officer’s grounds to make the ASD demand which is a pivotal issue in assessing the lawfulness of the police conduct. By contrast, from Mr. Owusu’s initial detention right through to the provision of rights to counsel, and the initial discovery of the firearm, each relevant stage of the investigation was captured in audio and video by the body-worn cameras of multiple officers.
[84] Unlike in Azfar, where the only two officers on scene muted their cameras, there were numerous officers on the scene of Mr. Owusu’s arrest. This meant that while one officer may have muted his microphone, it was possible that his conversations would be captured by the cameras worn by one of the many other officers on scene. For example, while Delgado muted his microphone at 10:22 p.m. and approached the car in which Mr. Owusu was sitting, the microphones on the cameras worn by officers Williams and Omar recorded Delgado asking if Omar was ok. The reality that body cameras worn by some officers on scene captured conversations of officers who muted theirs, undermines any suggestion there was a concerted group effort to conceal evidence.
[85] Ultimately, a determination of whether the deliberate muting of body-worn cameras constituted a Charter violation or invites a negative inference, calls for a fact-specific analysis. There is no bright-line rule.
[86] There is simply no basis upon which to find that the officers involved in Mr. Owusu’s arrest deliberately sought to conceal the true version of what occurred on the scene. Moreover, I find that the fairness of Mr. Owusu’s trial, including his ability to advance s. 8, 9 and 10 Charter arguments, was not compromised in any way by the muting of the cameras, as all relevant interactions were fully recorded. The muting of the body-worn cameras in this case did not amount to a Charter breach.
STRIP SEARCH
[87] The Supreme Court confirmed in R. v. Golden, 2001 SCC 83, that the common law power to search someone incident to their lawful arrest includes the power to the strip search: para. 26. The Court defined a strip search as “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments: Golden, at para. 47. [emphasis added]
[88] The police’s common law power to search incident to arrest, permits the search for weapons to protect public and officer safety: Golden, at para. 94. However, a strip search for safety purposes can only be undertaken if a prior frisk revealed “a possible weapon secreted on the detainee's person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee's person”: Golden, at para. 94.
[89] The search of Mr. Owusu at the station constituted a strip search insofar as it exposed Mr. Owusu’s undergarments, and for a moment, his buttocks. However, the defence argument is not focused on whether the officers had grounds to strip search Mr. Owusu. Rather the defence argued that Mr Owusu’s Charter rights were violated during the search because officers Williams and Archand failed to deactivate their body-worn cameras throughout the search.
[90] Compounding the seriousness of that breach is the officers’ lack of knowledge about the limitations on strip searches. Mr. Sutharsen argued that Mr. Owusu was led into the room for the specific purpose of being strip searched, even though no supervising officer had authorized that level of search. It was not until the metal detector went off, and Mr. Owusu was already stripped down to his underwear, that Sgt. Salmon authorized the strip search. Even more distressing is the lack of basic knowledge displayed by Sgt. Salmon, a 24-year veteran of the service, about what constitutes a strip search.
Relevant Evidence
[91] Sergeant Salmon was the acting Staff Sergeant and the officer-in-charge of 21 Division on the night of Mr. Owusu’s arrest. Sgt. Salmon testified that he authorized the search of Mr. Owusu and that he and two other officers (Williams and Archand) conducted the search in a private room in 21 division.
[92] Sergeant Salmon testified that based on the circumstances of the arrest and Mr. Owusu’s behaviour, both on scene and at the station, he directed officers to keep their body-worn cameras on while inside the police station however, the sergeant acknowledged that the cameras ought to have been deactivated during Mr. Owusu’s search. Neither Archand nor Williams, deactivated their body-worn cameras and as such the entire search is captured on audio and video.
[93] On camera, Mr. Owusu can be seen being led into a small washroom of the police station at 11:04 p.m. for what officer Archand told him would be a strip search. Concerned that Mr. Owusu kept “grabbing his crotch,” Sgt. Salmon instructed Mr. Owusu to take off his pants though he assured him that they will not “fully strip search” him. Mr. Owusu’s pants were removed though underneath his pants Mr. Owusu was wearing long dark shorts.
[94] Mr. Owusu was then asked to remove the strings from his shorts, but Mr. Owusu resisted asking the officers to instead cut the strings from his shorts. Since Mr. Owusu was resisting the officer’s request to remove the strings from his shorts, Sgt. Salmon told Mr. Owusu to remove his shorts. However, before Mr. Owusu was required to remove his shorts, Sgt. Salmon confirmed that Mr. Owusu was wearing underwear, and told him again that he was not being “stripped searched.”
[95] Once down to his dark boxer brief underwear, and while still wearing a t-shirt, Mr. Owusu was told to face the wall at which point Archand began to scan the outside of his clothing with a metal-detecting wand. The wand signaled the presence of metal around Mr. Owusu’s waist. Mr. Owusu simply explained that he had surgery and when asked more than once to elaborate, he replied, “for injuries” and that he had been “hurt.”
[96] Once the metal detector went off, Sgt. Salmon announced to the searching officers and to Mr. Owusu: “because that has happened, I am authorizing a strip search, so you can just drop them and pull them back up just to make sure there is no metal there.” At this point, Mr. Owusu suddenly pulled down his pants saying, “let’s get this over with.” The officers can be heard saying “we’re good we’re good pull them up.” Mr. Owusu replied, “I thought that is what you wanted to do” and one officer is heard replying “that’s the last thing we wanted to do.”
Analysis
[97] Mr. Owusu had been found in a car inside of which was a loaded gun. Mr. Owusu had attempted to leave the scene, he was uncooperative and agitated and the metal detector alerted the officers to the presence of metal around Mr. Owusu’s hip. I find that Mr. Owusu’s arrest was lawful, that the search was truly incident to that lawful arrest, and that the officers had grounds to conduct a strip search prior to lodging Mr. Owusu in the cells.
[98] However, the Court in Golden recognized that, regardless of how they are carried out, strip searches are “inherently humiliating and degrading” and directed that strip searches be conducted as quickly as possible: para. 90. While the physical search of Mr. Owusu was appropriately brief, the creation of an audio and visual record of the search can have the effect of permanently documenting and perpetuating a detainee’s humiliation. This is no doubt why paragraph 10(d) of the of the Peel Regional Police Directive on the use of body-worn cameras directs officers not to record “a strip search and/or body cavity search under any circumstance.”
[99] The Crown concedes, and I find, that that video recording of Mr. Owusu’s strip search breached Mr. Owusu’s s. 8 Charter rights.
REMEDY
Stay of Proceedings: s. 24(1)
[100] One remedy to redress a Charter breach is a stay of proceedings under s. 24(1) of the Charter. This is the most drastic remedy available and one which I find is not appropriate in this case.
[101] I find that the state conduct which violated Mr. Owusu’s Charter rights had no impact on the fairness of his trial. By the time the brief strip search was conducted, all evidence had been seized, and there was no further evidence derived from the search. Accordingly, the focus is on whether the state conduct risks undermining the integrity of the justice system.
[102] I am confident that the audio recording of the strip search was not done for the purpose of embarrassing Mr. Owusu or for any other nefarious reason. Rather, I find that the recording was done through inadvertence. This was not a run-of-the-mill arrest, and the officers can be excused for not having turned their minds to deactivating their cameras while dealing with an agitated, distracted and at times non-compliant detainee.
[103] Counsel for Mr. Owusu referred to the case of R. v. Im, 2016 ONCJ 383, in which McArthur J. granted a stay of proceedings where the accused was subjected to a “level 3” strip search which exposed his undergarments following his arrest on a drinking and driving charge. The Court was particularly troubled by the officers’ lack of understanding concerning the constituent elements of a strip search. McArthur J. found it was inexcusable that the officers remained uninformed despite the release of Golden fifteen years earlier and, despite the fact that the principles in Golden had been incorporated into the governing police policy: Im, at para. 27.
[104] I make a similar observation concerning Sgt. Salmon. There is no doubt the sergeant operated under a misapprehension of what constitutes a strip search in law and maintained that being stripped down to underwear did not constitute a strip search. And while Sgt. Salmon agreed with the Crown’s suggestion that he authorized a “level 3 search,” in cross-examination it became clear that the officer was unfamiliar with the different levels of searches as they have been described in the case law. However, despite Sgt. Salmon’s misunderstanding, his approach to the strip search of Mr. Owusu conformed with all the relevant guidelines issued in Golden: para. 101.
[105] The case before me is meaningfully distinguishable from Im. In Im, the search was found to have been conducted not only in the absence of authorization from a supervising officer but in the absence of reasonable and probable grounds. The violation was compounded by the absence of any proper record of the search. Another factor which weighed heavily in the scale towards a stay of proceeding, was the Court’s finding that there were “significant ongoing systemic issues” and “a history of improper strip searches” amongst officers at the specific police division: Im, at paras. 25 and 29.
[106] In this case, there exists crystal clear record of the search which, paradoxically, is the very thing which amounts to a Charter violation. And while the strip search of Mr. Owusu may have started prior to any express authorization by the sergeant, the entire search was done with his knowledge and for the most part, in his presence.
[107] There is also no basis before me to conclude that video recording of strip searches is a systemic problem within the Peel Police Service. While the lack of knowledge displayed by Sgt. Salmon is concerning, it did not impact on the intrusiveness of the search in relation to which there were reasonable and probable grounds. Moreover, while the search should not have been video recorded, in all other respects, the manner of execution conformed with Charter standards. This is not one of the clear cases where a stay of proceedings is warranted.
Exclusion of Evidence: s. 24(2)
[108] The alternate remedy is the exclusion of evidence under s. 24(2). The end-goal of a s. 24(2) analysis is to make a decision regarding the admission or exclusion of evidence obtained in violation of the Charter, that will best maintain the long-term reputation of the administration of justice: R. v. Grant, 2009 SCC 32, at para. 70. This requires a consideration of the following three lines of inquiry: Grant, at para. 71.
Seriousness of the Charter Infringing State Conduct
[109] This first inquiry focuses on whether the admission of the evidence would bring the administration of justice into disrepute by effectively conveying a judicial acceptance of police disregard for the rule of law: Grant, at 72. As Fish J. stressed in Morelli, 2010 SCC 8, at paragraphs 99-103 “The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.”
[110] Police conduct which results in Charter violations runs along a continuum with willful or egregious disregard for Charter rights on the one end, and minor breaches committed in good faith on the other. The more willful or deliberate the state conduct, the greater the Court’s need will be to disassociate itself from the conduct: Grant, at paras. 72 ,74 and 75; Harrison, 2009 SCC 34, at para. 22; R. v. Ansari, 2015 ONCA 575, leave to appeal to the SCC refused by [2015] S.C.C.A. No. 487, at para. 68.
[111] As previously mentioned, I find the recording was done inadvertently and without any deliberate disregard for the rule of law. I plot the conduct of the police in this case closer to the “good faith” end of the continuum.
The Impact on the Charter-Protected Interests of the Accused
[112] The second inquiry concerns the impact of the breach on the applicant's Charter-protected interests. Under this line of inquiry, a court must look at the interests engaged by the right infringed and evaluate the extent to which the violation impacted those interests. The impact must be considered on a spectrum that ranges from "fleeting and technical, to profoundly intrusive:” Grant, at para. 76.
[113] A strip search is by its nature intrusive and documenting it on videotape makes it even more so. However, the strip search itself was justified and, with the exception of the video-recording, it was done in a manner that conforms with the Supreme Court’s direction in Golden.
[114] The impact on Mr. Owusu’s Charter protected rights was not fleeting as the entirety of the strip search was recorded. However, nor would I characterize the impact as being profoundly intrusive. I am satisfied that the recording was not done to embarrass or humiliate Mr. Owusu and there was no police or Crown intention to play the recording in a public proceeding.
Society's Interest in an Adjudication on the Merits
[115] Under this line of inquiry, the focus is on whether the truth-seeking function of this trial would be better served by admission of the evidence, or by its exclusion: Grant, at para. 79. In answering this question, a Court should focus on the reliability of the evidence and its importance to the Crown’s case: Grant, at paras. 81 and 83; Rocha, at para. 39.
[116] The Charter breach did not compromise the reliability of the physical evidence seized from the vehicle: Grant, at para. 115. The handgun, its ammunition, drugs and drug paraphernalia remain highly reliable and are essential to a determination of the Crown’s case on its merits. I find that society’s interest in an adjudication on the merits would be “seriously undercut” by the exclusion of this reliable evidence: R. v. Blake, 2010 ONCA 1, at para. 31.
Conclusion
[117] Mr. Owusu’s applications for a stay of proceedings or alternatively, for the exclusion of evidence are dismissed.
THE CHARGES
Gun and Drugs
[118] A Glock handgun loaded with ten rounds of ammunition, one of which was in the chamber, was found within a satchel in the driver’s side footwell of the Jetta. A quantity of cocaine was found inside a grocery bag located in the same footwell.
[119] The central issue on the gun and drug charges is whether Mr. Owusu had knowledge of the handgun and cocaine. The Crown argues that knowledge is the only reasonable inference to draw from the circumstantial evidence which includes the proximity of the gun and drugs to Mr. Owusu (i.e., in the footwell of the car he was driving), and his behaviour when interacting with the police.
[120] In arguing that knowledge has not been proven, the defence pointed to a lack of evidence. For instance, there is no forensic evidence linking Mr. Owusu to the seized drugs and gun, and there is a complete absence of information about who rented the Jetta. It is argued that demeanor alone is not sufficient to prove possession nor is the fact that the items had been in close proximity to Mr. Owusu.
[121] Both the loaded handgun and the cocaine were found in separate bags but both on the floor of the driver’s side footwell. When Mr. Owusu was sitting in the driver’s seat, they would have been right by his feet. I accept Delgado and Omar’s evidence that Mr. Owusu was agitated and nervous during their initial interactions with him and I accept Omar’s evidence that Mr. Owusu was reaching down towards his feet. Mr. Owusu’s reversing of the car while the officers were attempting to extract him from the vehicle was done in a desperate effort to leave the scene. Finally, I accept Mr. Zangari’s evidence that neither the gun nor the cocaine belonged to him, and that he observed no one else enter the Jetta.
[122] The combined force of this evidence invites no other reasonable conclusion other than Mr. Owusu had knowledge of both the gun and the drugs. The same evidence easily proves Mr. Owusu’s control over the seized items.
[123] The remaining essential elements of the gun charges, namely that it was a loaded, prohibited handgun in proper working order, and that Mr. Owusu did not possess the necessary license were established by the agreed statement of facts. The agreed statement of facts also establishes that the powder found within the grocery bag was 7 grams of cocaine.
[124] The Crown has proven counts 2, 3, 4, 5 and 7 on the multicount information as well as the single drug count.
Dangerous Driving
[125] The actus reus of the offence is lifted straight from the wording of s. 320.13(1) and is established with proof that the accused was driving in a manner that was "dangerous to the public, having regard to all the circumstances": Beatty, 2008 SCC 5, at para. 43, R. v. Roy, 2012 SCC 26, at para. 28.
[126] The mens rea, will be established with proof that the manner of the defendant’s driving amounted to a marked departure from the standard of care that a reasonable person would observe in his circumstances.
[127] In R. v. Roy, at para. 36, the Supreme Court suggested that the following two questions be asked in determining whether the mens rea requirement has been met:
The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
[128] A finding that the driving constituted an objectively marked departure from the normal standard of care, imports with it the presumption that the driver possessed sufficient mens rea, together with the presumption that a reasonable person in the position of the accused would have been aware of the risks created by the manner of driving: Beatty, at para. 37.
[129] However, a purely objective test which did not allow an accused to raise reasonable doubt concerning his or her actual state of mind, would be incompatible with criminal law. Accordingly, the objective test applied to a dangerous driving offence has been modified to accommodate evidence of the accused's actual state of mind which may raise a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by his driving: Beatty, at para. 37.
[130] Finally, the driving in question need not have persisted for a proscribed duration to constitute a "marked departure." For instance, even a quick jerking of the steering wheel could constitute a “marked departure” if it was done intentionally: R. v. Willock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.), at para. 31.
[131] The Crown urges me to accept Omar’s evidence that he heard the Jetta’s engine revving as the officers stood at the open driver’s door. Though the movement of the vehicle is not perceptible on the body-cam footage, it is clear from the security camera footage that the car moved within its parking spot. The Crown argued that any notion that the car’s movement was accidental is countered by the evidence and common sense.
[132] Mr. Sutharsen urges me to find that the vehicle could have been placed in gear accidentally, and even if it was done intentionally, the short distance the vehicle moved did not amount to an act of “driving.” As well, defence counsel cited R. v. Romano, 2017 ONCA 837, in arguing that the Crown is improperly focusing on the potential risks or consequences of the driving in this case. In Romano, the Court reiterated the principle previously confirmed by the Supreme Court, that in determining whether the offence of dangerous driving has been made out, the focus should remain on the manner of driving and not the consequences of that driving: Beatty, at para. 46.
[133] I accept Mr. Zangari’s evidence that the car’s engine was off when the police first approached, and I am convinced Mr. Owusu turned the engine on while the officers stood at his door. As described earlier in these reasons, though the vehicle remained within the lines of its parking spot, it is clear from camera footage that it moved backward. I am convinced it was moved back intentionally. The movement came right after Delgado observed Mr. Owusu reaching towards the middle console, and coincided with the revving of the engine, and with police efforts to extract Mr. Owusu from the car.
[134] Though the distance Mr. Owusu travelled may have been a matter of feet, it nevertheless constituted “driving” and with two police officers standing by his open door, the driving was "dangerous to the public, having regard to all the circumstances.” I am left in no doubt that Mr. Owusu deliberately placed the vehicle into reverse with an intention to disrupt police efforts to arrest him. Mr. Owusu’s driving displayed a marked departure from the standard of care expected of a reasonable person in his circumstances. The Crown has proven the dangerous driving charge.
Released: November 27, 2023
Signed: Justice I. Jaffe