SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 5-275/11
DATE: 20120124

RE: R. v. Jerome Mullings

BEFORE: Justice Spies

COUNSEL: Danielle Scott , for the Crown
Kas Marynick , for Jerome Mullings

HEARD: January 3 - 6, 9 - 13 and 17, 2012

RULING ON CHARTER APPLICATION and judgment

Introduction

[ 1 ] On December 4, 2010, at approximately 3:50 a.m., Officers Gomez and Vitale, two members of the Toronto Police Service, stopped a motor vehicle owned and operated by Shannon McPherson because of a radio call these officers received from P.C. Madeley informing them that the rear passenger, in a vehicle meeting the description of Ms. McPherson’s vehicle, was possibly armed. That passenger was the defendant, Jerome Mullings and he was sitting in the right rear passenger side of Ms. McPherson’s vehicle. P.C. Madeley testified that he had formed the opinion Mr. Mullings was possibly armed when he observed him outside of Whispers, an afterhour’s nightclub, before he left in Ms. McPherson’s vehicle. Ms. McPherson’s boyfriend, Wendell McLean, was in the front passenger seat of the car.

[ 2 ] It is the position of the Crown that within seconds of stopping the vehicle, Mr. Mullings was observed to be holding a firearm in his hands by P.C. Vitale, who had approached the vehicle on the passenger side. The Crown asserts that Mr. Mullings then either moved the firearm to the rear passenger floor or it fell onto the floor as he was removed from the vehicle by P.C. Gomez. There is no dispute that a loaded semiautomatic handgun was later seized by P.C. Vitale from somewhere inside the vehicle; he testified it was on the rear passenger floor. Mr. Mullings is charged with a number of offences related to his alleged possession of this firearm. He re-elected trial by judge alone and pleaded not guilty to all of the charges.

Issues

[ 3 ] At the outset of the trial, Mr. Mullings brought an application to exclude the firearm from the evidence, arguing that he was detained when police stopped Ms. McPherson’s vehicle and that his detention was arbitrary and contrary to section 9 of the Charter as there was no reason to suspect that he was connected to a criminal offence at the time of his detention. It was also his position that there was a breach of section 8 of the Charter when P.C. Vitale shone a flashlight into the rear passenger area of the vehicle after it was stopped. The evidence on this application was heard during a blended voir dire with the trial and all of the evidence was called through Crown witnesses save for an affidavit filed on the application by Mr. Mullings. The application included a claim that Mr. Mullings was assaulted by police officers both during his arrest and once he was at the station and that as such there had been a breach of his rights under section 7 of the Charter . That portion of the application was abandoned before argument on the application was heard.

[ 4 ] On January 11, 2012, I gave oral reasons dismissing the defendant’s Charter application and advised counsel that I would provide more fulsome reasons with my judgment. Those reasons are set out below.

[ 5 ] As for the issues related to the merits of the Crown’s case, although Mr. Mullings admitted to being outside Whispers and observing P.C. Madeley and the other plainclothes officers and to being the person that P.C. Madeley stated that he observed outside Whispers, he denied that he was carrying the firearm and disputed most of the observations P.C. Madeley alleges that he made. Mr. Mullings did admit to being in the right rear passenger seat of Ms. McPherson’s vehicle and to being arrested by P.C. Gomez, but he denied having the firearm in his possession at any time. He testified that he did not see a firearm in the vehicle or know that one was in the vehicle.

Overview of the Facts

[ 6 ] On December 4, 2010, Officers Madeley, Mahli and Morris were working a night shift in plainclothes. At the start of their shift, P.C. Madeley determined that special attention should be paid to Whispers, located at 325 Weston Road in Etobicoke. He arranged for Officers Gomez and Vitale, who were in uniform working in a marked scout car that night, to provide back-up assistance if they were not otherwise on a radio call.

[ 7 ] Officers Madeley, Mahli and Morris all testified that Whispers and the area it was in had a reputation for problems with firearms. Officers Gomez and Vitale and Mr. Mullings knew of this as well. P.C. Madeley was aware that a homicide shooting had occurred there five years earlier. He had attended Whispers earlier, on the night of December 3, 2010, and had spoken with the owner who informed him that he had recently been having issues with people trying to get into the club with firearms. During a walk-through of the club, P.C. Madeley was shown a bullet hole in a pool table in the back of the restaurant portion of the club. The owner requested police presence and assistance at the club due to the recent gun violence. This was the reason for P.C. Madeley’s decision to give Whispers special attention during the early morning hours of December 4 th .

[ 8 ] Whispers was located off a laneway area running north-south, just east of Weston Road and south of Rogers Road. The entrance to this area is from a side street off Weston Road. On the west side of the laneway are the backs of the units facing Weston Road. On the east side of the laneway there are a number of storefronts to other units, including Whispers. Cars park on each side of the laneway.

[ 9 ] Officers Madeley, Mahli and Morris attended Whispers at approximately 3:15 a.m. on December 4, 2010. They remained seated in an unmarked police car with a view to the entrance of the club. At some point, Mr. Mullings arrived at Whispers with Ms. McPherson, who was driving her blue four door Mazda, and Mr. McLean who is related to Mr. Mullings. Ms. McPherson parked her car on the west side of the laneway, just north of Whispers. She testified that she and Mr. McLean and Mr. Mullings joined the line that had formed along the wall, running north of the door to the club. Mr. Mullings gave a different version of events which I will come to.

[ 10 ] At about 3:40 a.m. the officers observed a disturbance near the entrance to Whispers, which P.C. Madeley described as two black males yelling, neither of which were Mr. Mullings, and that the two female security officers were becoming upset. The officers exited their vehicle to see what was going on. Ms. McPherson was near the door at the time of this commotion and believed that the manager of the club was arguing with a male who wanted to get into the club. Mr. Mullings testified that he was still in Ms. McPherson’s vehicle at this point but that he heard the commotion and exited the vehicle at this time.

[ 11 ] A drawing was entered into evidence from P.C. Madeley’s notebook which showed a sidewalk in front of the storefronts on the east side of the laneway. The drawing also shows a small alcove or lobby, in the southwest corner of Whispers. The front door to Whispers was on the west side of the unit, facing the laneway. It was in this alcove that female security officers were positioned on the night in question, patting down patrons as they arrived before permitting them to go into the club.

[ 12 ] Officers Madeley, Mahli and Morris each testified that as they approached, it became clear that the people waiting outside the club realized that they were police officers and that they were no longer undercover. The officers heard the crowd yell “police, beast and boy dem”, all referring to them as being police officers. Ms. McPherson testified that the manager told people waiting that the police were coming and Mr. Mullings confirmed this.

[ 13 ] P.C. Madeley remained outside on the sidewalk and the other officers took up a position behind security in the alcove. It was at this time that P.C. Madeley testified that he first observed Mr. Mullings. Mr. Mullings noticed P.C. Madeley as well as the other officers. The evidence of P.C. Madeley, as to what he alleges he observed about Mr. Mullings is in dispute. Neither of the other officers noticed Mr. Mullings and so they had no evidence to offer as to his behaviour.

[ 14 ] There is no dispute that around this time, Mr. Mullings returned to the rear passenger seat of Ms. McPherson’s car and sat behind Mr. McLean. They left, going north on Weston Road, with Ms. McPherson driving. At this point, P.C. Madeley voiced out over the radio on the tactical band to Officers Gomez and Vitale to have them stop the vehicle. P.C. Madeley ran towards the vehicle to try to get a licence plate number but was unable to make one out.

[ 15 ] P.C. Madeley testified that over the radio he gave a description of Mr. Mullings as a male black, 5 foot 8 inches with all black clothing, a black hoodie and two large braids, approximately 25 years of age. He also described the vehicle as a blue four door Mazda, that the driver was a female, the position of the two male occupants and that the vehicle was going north on Weston Road. P.C. Madeley testified that he radioed that the suspect in the backseat was possibly armed with a firearm. There was no recording of this call but the evidence of P.C. Madeley as to what he stated over the radio was confirmed by Officers Gomez and Vitale. They both testified that P.C. Madeley told them the rear passenger was possibly armed.

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