WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. K.A., 2023 ONCJ 68
DATE: 2023 02 02
COURT FILE No.: Cornwall 3911-998-21Y26
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
K.A.
Heard June 27, June 29, June 30, August 4, September 22, October 4, October 20, November 25 and December 14, 2022
Before Justice Diane M. Lahaie
Ruling on Charter Application
Released on February 2, 2023
M. Soucy….…………………………………………….………...Counsel for the Crown
Y. Tahmassebipour.....................................Counsel for the Applicant/Defendant, K.A.
LAHAIE, J.:
[1] K.A., a young person within the meaning of the Youth Criminal Justice Act, faces charges of carrying a concealed weapon, possession of a weapon for a purpose dangerous to the public peace, unauthorized possession of a firearm in a motor vehicle, possession of a loaded prohibited firearm and unauthorized possession of a firearm. There is no dispute the young person possessed a 9 mm Smith & Wesson semi-automatic handgun in a motor vehicle in the Township of Sourth Stormont on February 11, 2021. Upon arrest, the firearm was on his person. The parties advised in advance of this date that the results of this Application would be dispositive of the trial.
[2] Counsel for K.A. brings an Application for exclusion of the evidence seized by police based on purported breaches of the Applicant’s s. 7, 8, 9 and 10(b) Charter rights. The Applicant also seeks to have the charges stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms alleging racial profiling, from which the administration of justice should dissociate itself.
[2] The Applicant argues the arresting officer lacked the necessary reasonable and probable grounds to believe an offence had been committed under any section of the Criminal Code. He maintains the seizure of any evidence and the arrest were thereby in breach of the Applicant’s s. 8 and s. 9 Charter rights. Since the arresting officer lacked the necessary reasonable and probable grounds to believe an offence had been committed, he also lacked the necessary reasonable and probable grounds to arrest the Applicant without a warrant in accordance with the statutory requirements provided for in s. 495 of the Criminal Code. As such, the Applicant was arbitrarily detained in violation of his s. 9 rights under the Charter.
[3] The Applicant further advances that he was not afforded an opportunity to exercise his rights to counsel in a meaningful manner, thereby violating his section 10(b) Charter rights. This argument was not pursued. The Applicant maintains that, in the circumstances and given the number of serious breaches of the Applicant’s Charter rights, the “impugned conscriptive evidence could negatively impact trial fairness of the Applicant’s trial and bring the administration of justice into disrepute”. As such, the Applicant submits the evidence seized from the Applicant should be excluded pursuant to section 24(2) of the Charter.
[4] Finally, the Applicant argues in his materials “the breach of the Applicant’s section 7 Charter right is so egregious, given the timeframe in which it occurred, that the only appropriate remedy is a stay of proceedings”. This argument as framed was also not pursued at trial.
[5] The trial proceeded in a blended fashion with the evidence of all witnesses being considered within a voir-dire as well as the trial itself. The Court heard the evidence of Sgt. Anthony Cantelmi, Sgt. Daniel Loney, Cst. Mike Anthony, Cst. Jeremy Falle, Detective Cst. Kyle Jeaurond and Sgt. Nicholas Keays. The Applicant did not testify.
[6] As stated, the Court was advised that the result of this Application would be dispositive of the case. I will now make findings of fact. In doing so, the Court may accept some, all or none of the evidence of any witness. Following my review of the totality of the evidence, I find the facts to be as follows:
[7] An investigative unit within the Montreal Police known as the “Groupe Projet Ouest” had been actively investigating James Inness-Carr since October 14, 2020, four months before the date of the incident giving rise to the charges before me. On or about October 21, 2020, they sought and obtained a search warrant for Mr. Inness-Carr’s residence to search for and seize a firearm. When they executed the search warrant, they realized that Mr. Inness-Carr could access a door to the building’s garage and had managed to leave the property without their knowledge. No weapon was located in Mr. Inness-Carr’s apartment during the execution of the search warrant. Sgt. Cantelmi was in Mr. Inness-Carr’s apartment when this warrant was executed.
[8] Sgt. Cantelmi spent time monitoring Mr. Inness-Carr’s social media accounts. K.A. was a person believed to be associated with Mr. Inness-Carr. As a result of his investigation, Sgt. Cantelmi believed that K.A. had an altercation with someone at one point and the person with whom he had that altercation was believed to have been shot by Tyrone Ouellette. As a result of his investigation into Mr. Inness-Carr, Sgt. Cantelmi believed that Mr. Inness-Carr and some of his associates would not innocently be in possession of legally obtained firearms. Rather, they gravitated around violent incidents in which firearms were present.
[9] On February 10, 2021, while investigating Mr. Inness-Carr and monitoring his social media, Sgt. Cantelmi observed a photograph posted that day at 15:00 by Mr. Inness-Carr on Snapchat depicting a firearm. Sgt. Cantelmi recognized the flooring in the background as the flooring in Mr. Inness-Carr’s residence from the earlier investigation. He also noted the distinctive blue coat worn by the person in the photo.
[10] Sgt. Cantelmi’s unit sought a search warrant for the residence of Mr. Inness-Carr in relation to the firearm while they kept him under surveillance.
[11] On February 11, 2021, while they waited for the search warrant and conducted surveillance on Mr. Inness-Carr’s residence, the investigative team observed three men attend Mr. Inness-Carr’s residence. The men knocked and waited for someone to come to the door. One of the men held a handgun. The officers were not expecting this event. Sgt. Cantelmi concluded that these men were there to attempt a home invasion, perhaps in response to Mr. Inness-Carr’s social media postings. The door to Mr. Inness-Carr’s residence was not answered and the men left. The surveillance team communicated their observations to other officers. Sgt. Cantelmi testified the men were stopped, their vehicle was searched, and a firearm was located. I mention this evidence only in furtherance of the Court’s analysis of Sgt. Cantelmi’s beliefs at the relevant time, which will be further discussed below.
[12] While other officers stopped the three potential home invaders, Sgt. Cantelmi and his team continued to keep Mr. Inness-Carr’s residence under surveillance as they waited for the search warrant to arrive. The search warrant was later issued but not before Mr. Inness-Carr left the residence, wearing the distinctive blue coat seen in the previous day’s Snapchat posting with the gun. Mr. Inness-Carr was accompanied by the Applicant.
[13] When a taxi arrived at the residence, Mr. Inness-Carr left with the Applicant. The surveillance team followed the taxi in which they travelled to a Harvey’s parking lot where Mr. Inness-Carr and the Applicant got out of the taxi and into a white Sonata with an unknown driver after transferring items from one vehicle to the other. Sgt. Cantelmi was close enough at one point to confirm the men were in fact, James Inness-Carr and the Applicant.
[14] Sgt. Cantelmi tried to get assistance from the officers on his police force to stop the vehicle, without success. As they followed the target vehicle, Sgt. Cantelmi and his fellow officers communicated with the Sureté du Québec (SQ) requesting assistance, but they too were unavailable. Sgt. Cantelmi’s team, driving eight unmarked cars, followed the white Sonata through Montreal. Sgt. Cantelmi initially thought the Sonata might stop at the shopping centre in Pointe Claire. When it continued to travel west, he thought perhaps the vehicle would stop in Vaudreuil as Mr. Inness-Carr had been seen there in the past. The Sonata kept driving west. Sgt. Cantelmi realized the car would be crossing into Ontario and telephoned 911.
[15] Sgt. Cantelmi explained to the dispatcher that he was with the Montreal police and that they needed assistance in stopping the Sonata, providing a description and plate number of the target vehicle. He advised the female dispatcher that they were following a vehicle with an armed suspect who was seated in the rear of the Sonata. In reality, the target of the investigation was Mr. Inness-Carr who was seated in the front passenger seat. The Applicant was seated in the back seat.
[16] Sgt. Cantelmi was asked a number of clarifying questions. At one point, he stated that the main suspect could be in possession of a firearm, or it could be at his residence. He provided the main suspect’s name and he also named K.A., stating that he believed K.A. was approximately 20 or 21 years old. He explained that they could not get their people assembled in time and needed assistance in stopping the motor vehicle. In answering various questions, Sgt. Cantelmi wanted the OPP to realize that the occupants in the vehicle would not likely be in possession of a legally obtained firearm; rather, they were people who were believed to be associated with violent crimes. I accept Sgt Cantelmi’s evidence that he wanted the OPP to know what they were getting into.
[17] The dispatcher started speaking French to Sgt. Cantelmi at various points, then a mixed French and English. She passed along information, at times accurately communicating what Sgt. Cantelmi was saying. However, at times, her statements were inaccurate. When Sgt. Cantelmi corrected her, I find that she was speaking to her supervisor at that point, which the Court finds to have been Sgt. Keays. By way of example, Sgt. Cantelmi advised that one of the target’s friends was involved in a shooting recently. On the audio recording the dispatcher stated, “There has been a shooting and he is involved in the shooting”. Clearly frustrated at the misinterpretation of what he had said, Sgt. Cantelmi corrected her, saying, in French there could be a weapon in the vehicle and that’s it.
[18] The conversation between Sgt. Cantelmi and the dispatcher was mostly in English, with some French. The dispatcher did not know the French terms for what she was trying to communicate at times and spoke in a mixed French and English.
[19] Sgt. Keays was the OPP communications supervisor on February 11, 2021. His primary role was to determine whether the incident met the OPP policy for pursuits. He determined that there would be no pursuit in this case and that the officers should proceed with alternative measures. Alternative measure included the deployment of a spike belt which occurred near the Upper Canada exit but was not used.
[20] Approximately 20 officers with the OPP and the RCMP joined the investigation. They were located in different areas along Highway 401.
[21] Sgt. Daniel Loney, an experienced officer with the OPP received his instructions from Inspector Hardy on the date of this incident. He believed based on the information he heard over the air, that this was a serious call, that the target vehicle was being followed by police from Quebec and that the occupants were believed to be in possession of a firearm.
[22] Sgt. Loney pulled alongside the target vehicle to confirm the number of people onboard. He was only able to see the driver and front passenger. He then pulled in behind the vehicle, activated his emergency lights and sounded his horn. The vehicle pulled over as directed. The other officers who travelled behind the target vehicle managed to stop all traffic on the 401 Highway. Sgt. Loney issued commands for the occupants to exit the vehicle. The occupants were directed to exit one at a time and did so. The driver who was not involved in this situation and was simply an Amigo driver, was removed without incident.
[23] The Applicant was the last to exit. Cst. Jeaurond issued the same commands as Sgt. Loney directing the Applicant to exit the rear seat. The Applicant was ordered, along with the others, to keep his hands in the air but he lowered his hands and appeared irritated that he was being directed in this manner. When Sgt. Loney noticed the Applicant not listening as the others did and that there appeared to be a problem, he moved in to assist Cst. Jeaurond. Cst. Jeaurond found the Applicant’s behaviour unusual given the serious nature of the situation and the fact that there were several officers on the highway with weapons drawn.
[24] Cst. Jeaurond placed the Applicant under arrest for possession of a restricted weapon. He took control of him and engaged in a pat down search. Cst. Jeaurond felt what seemed like a gun in the pocket area of his left pant leg and asked Sgt. Loney to take over, given the more senior officer’s experience. Sgt. Loney asked what the item was and received no response. He lowered the Applicant’s pants, revealing a gun and magazine. The Applicant wore boxer shorts which remained on. Sgt. Loney asked if the gun was loaded. The Applicant gave no response. Sgt. Loney retrieved the item and discovered that there were eight 9 mm rounds in the magazine but that there was no live round in the chamber. In conducting the search, Sgt. Loney removed the Applicant’s coat, sweater and pants until he was dressed in only his boxer shorts and a t-shirt for a brief period of time. After the weapon was located, the Applicant verbally identified himself as K.A. When Sgt. Loney was satisfied that there were no other dangerous objects on the Applicant’s person, the Applicant was placed in the rear of Cst. Smith’s cruiser.
[25] The Applicant was driven to the OPP Detachment where he was given an opportunity to speak with counsel. Efforts were made to contact his parents. He was interviewed and provided a statement.
[26] There was a voir-dire to determine the admissibility of the young person’s statement. Ultimately the parties agreed that the statement added nothing to the case for either party. The Court will provide a ruling on its admissibility if needed.
Analysis of the Evidence
[27] Sgt. Cantelmi testified in a clear and straightforward manner. Sgt. Cantelmi believed the occupants of the vehicle were likely in possession of the firearm he had seen in James Inness-Carr’s possession on a Snapchat photo posted by James Inness-Carr the day before the Applicant’s arrest. He and his team had the Applicant’s residence under surveillance as they awaited a search warrant to search his home for the firearm. Sgt. Cantelmi was aware James Inness-Carr lived with family members including children. He was very concerned about safety of people who might be in the vicinity of Mr. Inness-Carr when police either went into his home to find the weapon or arrested him in a public area.
[28] When he executed a previous warrant at James Inness-Carr’s residence, Sgt. Cantelmi was surprised to learn that Mr. Inness-Carr had managed to slip out through the garage. He was unaware of the existence of this exit point. Mr. Inness-Carr’s residence was searched but no weapon was found on that occasion.
[29] I find that it is reasonable to believe that someone in possession of such a weapon, who was involved in criminal activity, as the officer believed, would likely leave with the gun rather than leave it in his apartment. Sgt. Cantelmi certainly believed that Mr. Inness-Carr left the apartment with a firearm in October when the initial search warrant was executed.
[30] As the surveillance team waited for the search warrant on February 11, 2021, they observed what I find to have been an attempted home invasion. The social media posts, the observations of Sgt. Cantelmi on the date of this incident and the information gathered by this investigative unit easily ground the officer’s belief that Mr. Inness-Carr left his home with the Applicant, while in possession of the gun depicted on his social media posting the previous day. I find that when Sgt. Cantelmi told the dispatcher there could be a weapon in the vehicle and that’s it, he was concerned that she was overstating what he had said when she stated, “There has been a shooting and he is involved in the shooting”. I find that Sgt. Cantelmi believed on reasonable grounds that Mr. Inness-Carr was armed.
[31] The Applicant was also someone known to Sgt. Cantelmi from his investigation into Mr. Inness-Carr’s associates. The officer identified K.A. by name on the audio recordings of his call to 911. I find that there was nothing unclear or vague about Sgt. Cantelmi’s information as he spoke to the dispatcher. The details may have seemed unclear to some of the recipients of Sgt. Cantelmi’s communications but having heard all of the audio recordings played during this trial, I find that Sgt. Cantelmi was not being vague or intentionally withholding any information. He communicated a detailed account of what he knew and what he needed. Sgt. Cantelmi answered questions being asked of him and provided as much information as he could regarding the situation and the occupants of the target vehicle. I found Sgt. Cantelmi to be an experienced officer and a credible witness. I found his evidence reliable.
[32] Sgt. Daniel Loney testified in a fair, frank and straightforward manner. I found him to be a credible witness and I found his evidence very reliable. I will not review his evidence in any greater detail as the essence of his evidence is captured in my findings of fact set out above. Sgt. Loney contributed in a meaningful way to the safety of all concerned on the date of this incident.
[33] Cst. Mike Anthony testified in a direct and forthright manner. I found him to be a credible witness and I found his evidence reliable with the exception of a portion of his evidence in examination in chief when he believed the target vehicle was an Elantra. He correctly noted the license plate number however and nothing turns of the error involving the make of the car. He recalled hearing that unmarked units were following the target vehicle on the 401 with an armed suspect. He did not recall hearing the Applicant’s name over the air. He testified that when dealing with an armed call, people are “amped up” and the suspect’s name was not the focus of his attention. He stated that he could not adequately explain the stress involved when dealing with someone with a gun.
[34] Cst. Anthony recalled discussions about jurisdiction and where the charges would be laid. He volunteered to be the lead investigating officer on the file. Cst. Anthony assisted with the search at roadside, which revealed a loaded firearm in the front seat area of the Sonata and the firearm taken from the rear passenger, K.A. He dealt primarily with Mr. Inness-Carr at the detachment. I find that he was not directly involved in the arrest or search of the Applicant.
[35] During this officer’s testimony, several audio recordings of what was being transmitted over the air to the officers were played. At 15:59, “Julie” at OPP Communications advised that the SQ was in pursuit of a white Hyundai Sonata bearing Quebec license plate number E17 WYD and its location. The audio recording reflects that the officers on the road who heard this transmission, were advised the “armed suspect” was “in the back” of the Sonata, identified by name as “K.A.”, who was approximately 21 years old. On another recorded audio transmission relayed to some of the OPP officers, the target is identified as James Inness-Carr.
[36] I find that the audio transmissions are different in content as each of the districts of the OPP had different dispatchers. At the end of the day, the original call from Sgt. Cantelmi involved one female operator. As the information funnelled through the channels and went out to the officers on the road in each district, there were differences. Following my review of all of the audio recordings filed, I find that the officers involved in the stopping of the vehicle and the search of the Applicant believed there was a firearm in the vehicle. The OPP officers were clearly operating on the belief that there was an armed suspect in the target vehicle and that police from the province of Quebec needed OPP assistance in stopping the vehicle.
[37] At approximately 16:03, the OPP officers were advised that they were not to engage in a pursuit but that alternative measures would be used to stop the vehicle.
[38] Cst. Jeremy Falle testified that he learned on a radio call from the dispatcher that SQ was following a vehicle on Highway 20 and coming into Ontario. Highway 20 becomes the 401 Highway at the border between Quebec and Ontario. Cst. Falle testified that at 15:54, he learned that it was Montreal Police and not SQ. According to Cst. Falle, the information being communicated was that there was a firearm in the Quebec plated Sonata and the OPP was being asked for assistance. Cst. Falle testified that Sgt. Loney was one of the coordinators of the “high risk traffic stop”.
[39] Cst. Falle took control of the driver of the Sonata. He described the driver as cooperative. He searched him and secured him in his police cruiser and then went back to cover Sgt. Loney according to his evidence.
[40] I find that Cst. Falle was primarily focussed on the driver and that by the time he returned to “cover Sgt. Loney”, Cst. Jeaurond had already asked Sgt. Loney to search the Applicant as he felt an object consistent with a weapon on the Applicant’s left side. In other words, Cst. Falle did not observe any of the Applicant’s earlier behaviour or the earlier interaction between Cst. Jeaurond and the Applicant.
[41] Cst. Falle observed Sgt. Loney clear the loaded firearm. He noted that there was no bullet in the chamber. Cst. Falle assisted in booking the Applicant at the Detachment, where he learned he was a young person. He advised the Applicant of his rights to counsel and caution and explained the charges to him. At 17:10, he placed the Applicant in the youth cell at the Long Sault detachment of the OPP.
[42] Cst. Falle initially testified that he contacted the Applicant’s next of kin to get the number of his lawyer. In cross-examination, he testified that Cst. Wensink made the calls to reach the Applicant’s family members. In cross-examination, Cst. Falle conceded that he did not recall various important details. I find that his evidence regarding his observations of the firearm were accurate but that his notes were not complete on various issues he could not recall when he testified, and his memory of those details was poor. For example, he did not recall the Applicant wearing only boxers and a t-shirt by the end of the search. He did not recall the details of what was said over the air and often stated as he testified that he would have to listen to the call logs. I found Cst. Falle to be a credible witness. However, where his evidence differed from the evidence of Sgt. Loney who was very focussed and clear in his recall, I preferred the evidence of Sgt. Loney as I found the evidence of Officer Loney to be more reliable.
[43] Detective Cst. Kyle Jeaurond had been a member of the street crime unit of the OPP for approximately 4 months on the date of this incident and a member of the OPP for approximately 5 years. Cst. Jeaurond recalled hearing over the air that Montreal Police were following the Quebec plated Sonata with three people on board and that the suspects were believed to be in possession of a firearm and believed to have been involved in a shooting in Montreal. He was on general patrol at the time. He pulled over to put on an OPP vest and use of force options.
[44] Cst. Jeaurond drove onto Highway 401 and observed the target vehicle under the overpass at Power Dam Drive. When the vehicle was stopped by the marked cruisers, Cst. Jeaurond parked diagonally behind the cruisers, exited his police vehicle and drew his pistol. Cst. Jeaurond testified that the occupants of the vehicle were being directed to exit one at a time and that the Applicant was the last to exit. Cst. Jeaurond directed the Applicant repeatedly to keep his hands in the air, but his hands kept dropping. Cst. Jeaurond testified that he directed the Applicant to walk backwards towards the sound of his voice. According to Cst. Jeaurond, the Applicant appeared frustrated, even irritated, but he ultimately complied. Cst. Jeaurond testified that the Applicant’s behaviour increased his level of concern as he was behaving as though the officers were an inconvenience to him. Trying to rule out a language issue, he issued his commands in French as well. Cst. Jeaurond handcuffed the Applicant to the rear and advised him he was under arrest for possession of a restricted firearm.
[45] Cst. Jeaurond testified that he searched the Applicant incident to arrest and asked if he had any guns, knives or needles which could hurt them. According to Cst. Jeaurond, the Applicant was calm and said “nope” twice. Cst. Jeaurond searched the Applicant. He located a large folded up bundle of cash and placed the Applicant’s headphones on the money so it would not blow away. He then searched the Applicant’s left pant pocket and felt an object consistent with the handle of a gun. He opened the pocket but saw nothing. Concluding that it was obvious there was something there, he turned over the search of the Applicant to Sgt. Loney, the more experienced officer while he maintained control of the Applicant. The Applicant repeatedly complained of a sore shoulder and Cst. Jeaurond let go of that area slightly, explaining that he could not let him go completely as he felt there was a gun, and he was concerned about the trigger potentially shooting them or the Applicant.
[46] It was obvious to the Court that the entire incident was a stressful experience for Cst. Jeaurond. He maintained throughout his testimony that he understood the Montreal police had reasonable and probable grounds to believe the suspects were in possession of a firearm which had been used in a violent offence and that his grounds came from their information. I find that the Applicant’s behaviour heightened the officer’s grounds to believe the Applicant was in possession of a firearm.
[47] Cst. Jeaurond turned the Applicant over to another officer for transport. Cst. Jeaurond later interviewed the Applicant. As the statement was not considered in this case, I will not set out the contents of the statement or the evidence of Cst. Jeaurond surrounding the taking of the statement in this ruling.
[48] Cst. Jeaurond testified in clear, candid and forthright manner. I found his evidence reliable.
[49] Sgt. Nicholas Keays was the communications supervisor at the Communications Centre at the time of this incident. His role was to determine based on the information he had, whether the situation met the OPP policy requirements for “Subject Apprehension Pursuits”. He testified that his job was to protect the public from pursuits and that he had no interest in the investigation itself. Sgt. Keays determined that the OPP would proceed with alternative measures rather than engage in a pursuit and directed the officers on the road accordingly.
[50] During this officer’s testimony, the Court heard a number of audio calls, including one call between this witness and the Provincial Operations Sgt. regarding whether a “notification” was required, during which Sgt. Keyes expressed his views, after the weapons were seized and the suspects were under arrest, that the Montreal Police were following this vehicle and wanted the OPP to assist by stopping it but that they were vague in terms of the information they shared.
[51] He testified that “Dominique” who spoke to Sgt. Cantelmi, was his source of information and that he never spoke to Sgt. Cantelmi himself. Sgt. Keays’ did not make any determinations regarding whether there were grounds to stop the vehicle or arrest the occupants of the Sonata. His role was to determine whether the officers on the road would engage in a pursuit or employ alternative measures such as using the spike belt. Following my review of the totality of the evidence, I placed no weight on his characterization of Sgt. Cantelmi’s discussion with the 911 operator.
The Law and the Court’s Findings and Conclusions
[52] Section 495(1)(a) of the Criminal Code provides “A peace officer may arrest without warrant a person who has committed an indicatable offence or who, on reasonable grounds, he believes has committed or is about to commit an indicatable offence”.
[53] The arresting officer must have reasonable and probable grounds to make the arrest. The standard of “reasonable and probable grounds” has both a subjective and an objective element (R. v. Storrey, 1990 CanLII 125 (SCC), 1990] 1 SC.R. 241 at para. 250).
[54] Defence counsel argues that the officers had insufficient grounds to justify the stop, arrest and search of the Applicant. He maintains that the officers engaged in racial profiling. He further argues that the information which existed in this case did not meet the standard of reasonable and probable grounds to believe that James Inness-Carr was in possession of a firearm in the Sonata at that time.
[55] In advancing these arguments, Defence counsel maintains that Sgt. Loney’s evidence was the most credible and reliable evidence presented at this trial. He argues however that there was a disconnect between the evidence of Sgt. Loney and Cst. Jeaurond. With respect, the Court disagrees on the issue of there being a disconnect. Cst. Jeaurond dealt with the Applicant prior to Sgt. Loney. Sgt. Loney was drawn to Cst. Jeaurond’s interaction with the Applicant when he heard Cst. Jeaurond yelling commands. I find that Sgt. Loney was drawn to that situation because the Applicant was not complying as he was dropping his hands and Cst. Jeaurond became more insistent as he had a heightened concern for officer safety.
[56] I have examined the evidence of each of the witnesses and the cases provided by counsel on the issue of racial profiling. I have considered how a reasonable person of a similar racial background would perceive the interaction with police in this case, the larger social context and all issues of relevance on this point. I find that there was an absence of prejudice, racial profiling or oppressive treatment of the Applicant at any point and that race played no part in this situation.
[57] In the present case, I find that Sgt. Cantelmi had reasonable and probable grounds to believe that James Inness-Carr was in possession of a firearm as he travelled in the Sonata that day. Sgt. Cantelmi had been investigating Mr. Inness-Carr for months. He had observed multiple photographs posted by Mr. Inness-Carr on Snapchat, depicting criminal activity and weapons. He observed the latest photograph depicting a firearm the previous day and had kept Mr. Inness-Carr’s residence under surveillance awaiting the issuance of a warrant. He believed that in October, Mr. Inness-Carr left the residence with a firearm before the officers went into the residence to execute the search warrant. He was aware of the circles in which Mr. Inness-Carr and his associates operated. Sgt. Cantelmi observed an attempted home invasion on the date of this incident, passed his information along to other Montreal Police officers and was aware that a firearm had been seized from that group of men. He observed Mr. Inness-Carr leave with the Applicant, a person he believed to have been involved in an unrelated violent incident. It was reasonable in all the circumstances for Sgt. Cantelmi to have concluded that Mr. Inness-Carr was likely in possession of a firearm on February 11, 2021. Sgt. Cantelmi fairly and I find accurately disclosed what he believed on the 911 call. His grounds were objectively reasonable and justified the stopping of the motor vehicle and the arrest and detention of each of the occupants given the safety issues and ease with which a firearm can be transferred to other occupants within a vehicle.
[58] Following my review of the totality of the evidence, including all of the audio tapes filed in evidence, I find that the police witnesses involved in the stop and in the arrest of the Applicant understood and believed the occupants of the vehicle were in possession of a weapon and that the Montreal Police needed their assistance with the high risk stop as they were driving unmarked police vehicles.
[59] Cst. Jeaurond believed that the grounds for the stop and search of the occupants came from the Montreal Police. The Applicant’s behaviour heightened his grounds to believe that he was in possession of a firearm. I find that he placed the Applicant under arrest based on his observations and his belief, which was objectively reasonable in the circumstances, that the Applicant was in possession of a firearm.
[60] I am satisfied based on my review of the totality of the evidence that Sgt. Cantelmi, Sgt. Loney and Cst. Jeaurond’s grounds to believe met the requisite standards at the relevant time. There were differences in the audio recordings but what was consistently communicated to the members of the OPP and what was understood by the officers was that they were being asked to assist in stopping this vehicle as there was an armed suspect in the Sonata. This was a reasonable belief in the circumstances.
[61] I also note Section 117.02 of the Criminal Code which reads as follows:
• 117.02 (1) Where a peace officer believes on reasonable grounds
o (a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or
o (b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance,
and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that peace officer believes on reasonable grounds the offence is being committed or has been committed.
[62] In my view, the standard of “reasonable grounds to believe” in this provision is the same as the standard for a warranted search reviewed in the decision of R. v. Sadikov, 2014 ONCA 72, where the Ontario Court of Appeal writes at paragraph 81:
[81] The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7.
[63] The standard was easily met in this case.
[64] Following my review of the totality of the evidence, including the audio tapes, the submissions of counsel and the cases provided, I find that the police witnesses acted within the scope of their authority in their dealings with the Applicant. Despite the miscommunications over police airwaves, the message was clear. I find that the Applicant’s rights as guaranteed by section 7, 8, 9, 10(b) were not breached. The Charter Application is dismissed.
[65] I reserve the right to issue a supplementary ruling on the Applicant’s statement. However, counsel agree that nothing turns on the statement. The Court agrees and places no weight on the statement. At the request of defence counsel, I have considered the interaction between Cst. Jeaurond and the Applicant during the statement in furtherance of his arguments in relation to racial prejudice and the concerns raised regarding racial profiling. At the end of the day, the statement is excluded and if further reasons are required on this point, I will provide them. I do not find that the Applicant’s s. 10(b) Charter rights were violated. Rather, I find that the requirements of s. 146 of the Youth Criminal Justice Act were not met.
Released: February 2, 2023
The Honourable Madam Justice Diane M. Lahaie