COURT FILE NO.: 10-90000301

DATE: 20120615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Roy Tony Davis

BEFORE: Justice Spies

COUNSEL: H. Amarshi, for the Crown

E. Schofield, for the Defence

HEARD: June 11-14, 2012

ruling on defence CHARTER application to exclude evidence

INTRODUCTION

[1] Mr. Davis is charged with various drug offences and breach of probation orders in connection with his arrest on December 10, 2009, outside 841 Queen Street East ("841 Queen"). Mr. Davis was arrested by Officers Rahim and Shutt who, at the time, were with the Community Response Unit ("CRU") of 55 Division for the Toronto Police Service ("TPS"). Before arresting Mr. Davis, Officer Rahim conducted a pat down search. He arrested Mr. Davis for possession of cocaine following that search. It is admitted that as a result of a further search incident to that arrest, Mr. Davis was found to have 7.01 grams of crack cocaine in his pants pocket.

[2] Mr. Davis has brought an application for an order declaring that his rights under sections 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms were violated and that a stay of proceedings be granted or, in the alternative, that all evidence that was seized be excluded pursuant to section 24(2) of the Charter.

[3] According to Kevin Speicher, who at the time in question was the Director of Housing for WoodGreen Community Services ("WoodGreen"), the government agency that manages 841 Queen, this building houses residents on three floors who are otherwise homeless or hard to house. Some have mental health problems and some residents have serious drug addiction issues. According to Mr. Speicher, drug addiction problems were ongoing in this building.

[4] Mr. Speicher's evidence confirmed that at the time of Mr. Davis' arrest the officers from 55 Division had written authority, by his letter dated May 1, 2009, to enter 835 and 841 Queen Street East for the purpose of enforcing the provisions of the Trespass to Property Act and, in particular, to direct persons to leave these premises. 835 Queen is an office building used by WoodGreen that is connected to 841 Queen by a common entrance. Mr. Speicher also confirmed that in addition to all of the security measures that he described, that officers from 55 Division were counted on to assist by patrolling the halls of 841 Queen.

THE ISSUES

[5] There was really no dispute that Officers Rahim and Shutt had the authority as they put it to trespass Mr. Davis from the building, based not only on Mr. Speicher's letter, but also as a result of the verbal request of Jessica, the frontline worker for 841 Queen who was responsible for all tenant activities in that building, purely on the basis that Mr. Davis was not a resident of the building and had been seen inside 841 Queen alone.

[6] Mr. Schofield conceded that there was no issue about the authority of Officers Rahim and Shutt to enforce the Trespass to Property Act in respect of Mr. Davis. He also fairly conceded that Mr. Davis was not detained by the officers until he was advised by Officer Rahim that he intended to search him. Mr. Schofield submits, however, that the pat down search was done by Officer Rahim, not for officer safety concerns but rather because the officers believed that Mr. Davis was dealing drugs in 841 Queen. He submitted that the real purpose of the officers in stopping Mr. Davis was in order to search him for evidence so they could arrest him. If I do not accept this submission, Mr. Schofield conceded that there were valid reasons to do a pat down search for officer safety reasons given certain information Officer Rahim obtained from Officer Shutt about Mr. Davis, but he submitted that in that case, Office Rahim did not have reasonable and probable grounds to arrest Mr. Davis for possession of cocaine.

[7] Mr. Amarshi concedes that because the pat down search and the search incident to arrest were both warrantless searches, the onus of proving that these searches were lawful lies on the Crown. The arrest is tied to the lawfulness of the search incident to arrest. To prove that it was reasonable, the Crown must also prove that the arrest was lawful, see R. v. Brown (1996), 1996 CanLII 1794 (ON CA), 47 C.R. (4th) 134 (Ont. C.A.), at para. 3.

[8] The application by Mr. Davis also alleged a breach of s. 10(b) of the Charter. There was no satisfactory explanation given for why the rights to counsel were not given to Mr. Davis at the time of arrest, and were only given some 24 minutes later at the station. As the Supreme Court of Canada explained in Regina v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38 and 39, section 10(b) of the Charter imposes both informational and implementational duties on the police. These duties include informing a detainee of the right to retain and instruct counsel "without delay" which the court held means "immediately". Accordingly, Mr. Davis' s. 10(b) Charter rights were breached.

[9] Mr. Schofield fairly conceded that if this is the only breach found by the court, this would not result in the exclusion of the evidence. This breach did not result in Mr. Davis making any statements at all to police. He said nothing prior to being given the right to counsel. I, therefore, do not need to consider this breach unless I determine that other Charter rights of Mr. Davis were breached.

[10] Accordingly the issues, which largely depend on my assessment of the credibility of the officers, are as follows:

(a) Has the Crown established that the pat down search of Mr. Davis was lawful?

(b) Has the Crown established that the arrest of Mr. Davis was lawful and that, as a result, his s. 8 and s. 9 Charter rights were not breached?

(c) If there was a breach of Mr. Davis' s. 8 and s. 9 Charter rights, should the drug evidence be excluded pursuant to s. 24(2) of the Charter? Mr. Schofield did not pursue his request for a stay of the action pursuant to s. 24(1) of the Charter.

THE EVIDENCE

The Knowledge and Experience of the Officers

[11] The knowledge and experience of the officers and, in particular, Officer Rahim is important to deciding the issues in this case. At the time in question Officer Rahim had been with the TPS for approximately six years. He was not asked when he joined 55 Division or the CRU of that division but he stated at one point he had been with the CRU for over a year and that is where he was at the time of Mr. Davis' arrest. Officer Shutt had been with TPS for about the same period of time before Mr. Davis' arrest and he has been with 55 Division for his entire career. Although his evidence was not precise, given his earlier assignments in this division, he could only have been with the CRU for less than a year before this arrest.

[12] Both officers gave some evidence about the problem areas in 55 Division and about their knowledge of the drug activity at and around 841 Queen and were aware that it housed persons with drug addiction problems, that the building was a source of a lot of community complaints and that they had been asked by management to attend at the premises to ensure the people in the building were supposed to be there and to ensure people were not dealing drugs in the building. They did this by walkthroughs on the floors of the residence. Officer Rahim estimated that he had been in 841 Queen 50-100 times before Mr. Davis' arrest and that crack cocaine was a problem there. Officer Shutt testified that he had been there upwards of 30 times.

[13] Both officers also testified that they had watched video surveillance of the inside of 841 Queen before the time of Mr. Davis' arrest at the request of the person they knew only as Jessica; a reference to Ms. Ostrum.

[14] Ten video clips dated between December 1 and December 8, 2009 were played in court for Officer Rahim. Although Officer Rahim could only be sure that he had seen three of these clips before Mr. Davis' arrest, once Mr. Speicher testified, it was established partly through an admission from Mr. Schofield and through the evidence of Mr. Speicher that these video clips are video surveillance of the interior of 841 Queen and that the dates and times shown are accurate. Officer Rahim identified Mr. Davis as being in all of the clips shown in court and Mr. Schofield did not cross-examine Officer Rahim to challenge this observation. However, what is relevant for the purpose of this voir dire is not what Mr. Davis was observed to be doing in the building on all of these videos but rather what information and belief Officer Rahim had at the time he decided to search and arrest Mr. Davis. Officer Shutt gave evidence about seeing video surveillance, which I will come to, but he was not shown any of these ten clips.

[15] Officer Rahim testified that he viewed video surveillance of the interior of 841 Queen for other investigations and to see what was happening in the building. Based on the clips that were shown in court, which Officer Rahim said that he saw before Mr. Davis' arrest, Officer Rahim testified about what he had observed and, in particular, his observations of Mr. Davis in the hallway of the building. On the videos Officer Rahim recalled seeing before the arrest, Mr. Davis is seen knocking on the door of what Officer Rahim believed to be an apartment that belonged to Vince Murphy, sometimes leaving as no one answers, although only after waiting and pacing back and forth, and sometimes entering or leaving this apartment with Mr. Murphy after being in the apartment for just a few minutes or less. In one of the videos Mr. Davis was seen knocking on the door of a female person living down the hall who was also known to Officer Rahim as a drug user, but his evidence was not clear that he knew this before his arrest of Mr. Davis.

[16] At the time of this arrest, Officer Rahim testified that Mr. Murphy was known to him as a drug user. He had stopped Mr. Murphy before and spoken to him although he was not certain if he had ever charged Mr. Murphy with any offence. Officer Rahim testified that he had arrested drug dealers at Mr. Murphy's apartment before. In cross-examination, although Mr. Schofield explored with the officer what it was he knew about Mr. Murphy, the officer's evidence that Mr. Murphy was the person observed in the videos living in an apartment that Mr. Davis was attending, was not challenged.

[17] Although Officer Rahim had no personal knowledge of this, based on information from other officers, and Mr. Murphy's reputation in the community, Officer Rahim believed that Mr. Murphy allowed drug dealers to use his apartment for the purpose of selling drugs and his belief was that Mr. Murphy would get drugs or money for allowing this. Officer Rahim testified about one video that he recalled seeing that was not part of the clips entered into evidence. He recalled Mr. Davis escorting people into Mr. Murphy's apartment and those people appeared to him to be drug users based on people he had seen on the street and stopped and spoken to. His observations on this video were not challenged.

[18] Officer Rahim testified that the people Mr. Murphy was usually around were drug users and Mr. Davis did not look like a regular drug user. He did not know for certain that Mr. Davis was not a drug user but believed that he was not because he was younger, healthier and cleaner cut. In his experience most drug users are disheveled and not well.

[19] As a result of his observations on the video, although Officer Rahim did not know who Mr. Davis was, he believed Mr. Davis to possibly be involved in drug activity. Officer Rahim had not interviewed Mr. Murphy or the lady down the hall as to why Mr. Davis was contacting them before his arrest of Mr. Davis.

[20] Officer Shutt also testified about watching videos of the interior of 841 Queen at the request of Jessica. It was his evidence that as a result of watching these videos, he had made observations of the man now identified as Mr. Davis being in the building sometimes by himself and other times with others, that he had seen Mr. Davis in the building going door to door, visiting several people in the building going unit to unit, all in a building for recovering drug addicts. He testified that "we suspected he may be involved in drugs somehow". He also stated that Jessica had advised him that Mr. Davis was not a resident of the building and that she believed Mr. Davis to be dealing drugs in the building. She asked that he trespass Mr. Davis from the building. Otherwise, Officer Shutt did not know Mr. Davis and had not interacted with him before.

[21] Officer Shutt was asked whether he was aware of any contact or connection between Vince Murphy and Mr. Davis. He testified that they both go to that building, a reference to 841 Queen, that Mr. Murphy lives there and he had seen Mr. Davis on video. He was then taken to his preliminary inquiry evidence. Officer Shutt acknowledged that he was asked certain questions and gave certain answers but was not asked if he adopted them. He was then asked if he had any reason to suspect any involvement between Mr. Murphy and Mr. Davis and he said "no". He was not asked what he knew about Mr. Murphy, whether or not he knew what Mr. Murphy looked like or whether or not he had observed any videos of Mr. Davis going into Mr. Murphy's apartment or any other questions of this nature.

[22] Mr. Schofield submitted that Officer Rahim testified that he watched the videos with Officer Shutt and relied on this alleged discrepancy in their evidence as to what they each knew about Vince Murphy and his connection to Mr. Davis. I do not know from the evidence what Officer Shutt knew about Mr. Murphy but I have considered what evidence I have as to whether or not he and Officer Rahim were always together when they watched videos of 841 Queen.

[23] Officer Shutt was not asked whether or not he was in the company of Officer Rahim when he watched the videos or whether or how many times he even did so. When Officer Rahim testified about why he and Officer Shutt decided to trespass Mr. Davis from the building, he said that previous times "we" had seen Mr. Davis on video walking through the building alone and that the people that "we" saw him walking around with concerned "us" that he might be involved in drug activity. He went on to explain that "we" looked at videos for other investigations and would just watch them to see who was going into the building that they needed to talk to. He testified the manager, a reference presumably to Jessica, advised them of ongoing drug activity in the building and that since "I" started in CRU, "we" had been going to 841 Queen to combat the drug activity in the building.

[24] Throughout this entire passage, Officer Rahim used the word "we" but he did not say, nor was he asked if he was referring to himself and Officer Shutt or to officers from 55 Division generally. However, when specifically asked whether he viewed the videotapes with anyone, Officer Rahim said that "quite often" he would view them with Officer Shutt because they were partners "most of the time" and that they attended 841 Queen a lot. I will come back to this issue when I consider the credibility of the officers.

[25] Officers Rahim and Shutt both testified that they had trespassed people at 841 Queen prior to Mr. Davis' arrest. Officer Shutt explained the process as follows: The police speak to the person in question, ask the person to identify themselves, and advise the person orally that they are not allowed in the building because they do not live there and that the police have the authority to "trespass them from the building". Information about identity is recorded on a contact card at the time they are dealing with the person. Later, at the station, that information is entered into a computer database as a field information report. This way when a person's name is run on the police database, the police are able to determine whether or not the person has a criminal record, records of arrest and whether or not field information reports have been completed for that person before.

[26] According to Officer Shutt, the interaction that he and Officer Rahim would have had with Mr. Davis to obtain his identification, run it through the computer to determine if he had been given a trespass notice before and fill out the contact card would have taken two to three minutes. If Mr. Davis had been issued a trespass notice before they would have issued a provincial offence ticket and if they determined that he had been previously been issued tickets they would have issued a Form 104 which would compel Mr. Davis to go to court.

The Search and Arrest of Mr. Davis

[27] On the day in question, Officers Rahim and Shutt were travelling southbound on Booth Avenue towards Queen Street. They were in uniform and Officer Rahim was driving the scout car. They both testified that as they reached Queen Street, they saw a male exit the common entrance doors to 841-835 Queen Street, that they did not know who this male person was, but that they recognized him from videos they had previous seen of the inside of 841 Queen. Officer Rahim testified that he recognized this male because he recognized his face and noticed his head which he described as "large and square shaped". Officer Shutt testified that he recognized this male at that time because he had a very distinctive haircut with a "flat top". Both said that they were certain this male was the same person they had seen on the videos at 841 Queen. There is no dispute that this person was Mr. Davis. I accept the evidence of the officers that because of his somewhat distinctive appearance they were able to recognize him as the person from the videos.

[28] Although both officers admitted that based on their observations of Mr. Davis on the videos that they believed he was dealing drugs in 841 Queen, they both testified that they believed that he was not a resident of the building and that their only intention in stopping Mr. Davis was to speak to him to ask for his identification, tell him he was no longer allowed in the building and trespass him from 841 Queen. At this point they did not know if Mr. Davis had been stopped before for trespassing. This is something they discussed as the pulled up to the curb.

[29] At this point the officers were travelling west on Queen Street. Officer Rahim did a U-turn and pulled up in front of 841 Queen. As a result Officer Shutt was on the curb side. Both officers testified that Officer Shutt called Mr. Davis over to the police car and that at this point they were both still seated in the car. Officer Rahim testified that Mr. Davis was told that he would be trespassed from the property, but Officer Shutt, who was doing the talking, testified that he told Mr. Davis that they wanted to speak to him about not being in the building anymore. Officer Shutt did not specifically use the term "trespass" and he did not say why he did not want Mr. Davis to go into the building.

[30] Both officers testified that Officer Shutt asked Mr. Davis for his identification and that Mr. Davis was very cooperative when he was called over. Mr. Davis did not hesitate and seemed very relaxed.

[31] Mr. Davis provided his Ontario Health Card to Officer Shutt. Officer Shutt testified that as soon as he saw Mr. Davis' name he remembered him as someone who had been involved in an arrest over drugs with other officers at 55 Division. It was his understanding that when the officers attempted to arrest Mr. Davis, he tried to disarm an officer. Officer Shutt admitted that he knew at the time that Mr. Davis did not, in fact, have a weapon. Officer Shutt testified that he had heard about this at the station from other officers and possibly as well from a safety bulletin that he had read. He advised Officer Rahim something to the effect that "remember this is the guy involved in the incident with P.C. McDuff who tried to disarm him". Officer Rahim was familiar with the incident as far as he was aware. Officer Rahim confirmed that Officer Shutt told him that Mr. Davis had tried to disarm one of the other officers at the police station. The fact there had been such an occurrence and that Officer Shutt would know about this or that he had passed this information on to Officer Rahim was not challenged when the officers were cross-examined.

[32] When Mr. Davis opened his wallet and removed his Health Card and gave it to Officer Shutt, Officer Rahim testified that he was standing near Mr. Davis and that he noticed a large quantity of cash in his wallet. He simply observed this at this point and testified that later it became important to his investigation after he arrested Mr. Davis. Officer Rahim denied that his observation of the quantity of money in Mr. Davis' wallet was suspicious to him at the time of the observation.

[33] Officer Shutt testified that when he spoke to Officer Rahim about the other incident, they were both still in the scout car. As soon as he reminded Officer Rahim of the incident with P.C. McDuff, Officer Rahim exited the scout car and said he was going to do a field search for weapons for officer safety. Officer Shutt testified that he exited as well. Officer Shutt had not yet had an opportunity to run Mr. Davis' name through the computer by the time he exited the scout car. He testified that he watched while Officer Rahim did the field search.

[34] Officer Rahim testified that he got out of the scout car soon after Officer Shutt called Mr. Davis over but he was not sure if he was out of the car when he received the information from Officer Shutt about Mr. Davis' attempt to disarm an officer on a prior occasion. He could not recall exactly when Officer Shutt exited the car except that he was outside at some point. He seemed sure, however, that he was standing when he observed the cash in Mr. Davis' wallet and that this is how he would have seen this. Based on all of his evidence it seems likely that as Mr. Davis was approaching the police car Officer Rahim got out and went to stand by the passenger side of the car.

[35] Officer Rahim testified that because of the information he received from Officer Shutt, he believed Mr. Davis may be a violent person as people do not normally attempt to disarm an officer when arrested. He considered that to be a very violent action. That made him nervous that Mr. Davis might have a weapon. It was his evidence that for officer safety reasons, he told Mr. Davis that he was going to do a pat down search for weapons. After Officer Shutt's comment his main concern was "our safety". Officer Rahim admitted that Mr. Davis was cooperating and was not doing anything aggressively before he told him that he was going to search him for weapons. He admitted that but for the comment from Officer Shutt he would not have done a pat down search of Mr. Davis. When it was put to Officer Rahim that there would have been no need for a search as they had already finished with Mr. Davis, Officer Rahim testified that they were still dealing with him as they only had his name.

[36] Both officers testified that once Mr. Davis was told that he was going to be searched his demeanour changed and he became tense and nervous. At that point he started to put his hands over his pockets and Officer Rahim had to ask him to move his hands away. According to both officers he would lift his hands but he then put them back down. Officer Rahim asked him two or three times to take his hands off his pockets. He wanted his hands away from his pockets for officer safety reasons. Officers Rahim and Shutt testified that as a result they thought Mr. Davis might have a weapon or something that he shouldn't have in his pockets.

[37] Officer Rahim took control of Mr. Davis' arm in order to do the pat down search. Officer Shutt testified that he stood by and watched the search. When Officer Rahim did the pat down search he immediately went to the belt line and Mr. Davis' pockets where he had had his hands. Over his right pant pocket he felt what he described as a large round object that felt to him like crack cocaine. It was not perfectly round. It felt like a rock. He admitted that he did not feel anything that felt like a weapon. Both he and Officer Shutt testified that he told Officer Shutt that Mr. Davis had crack cocaine. Officer Rahim then told Mr. Davis he was under arrest and he became tense so Officer Shutt assisted in handcuffing Mr. Davis to the rear. Officer Rahim then pulled out a clear baggie from the right front pocket that both he and Officer Shutt believed to be crack cocaine. Officer Rahim handed Officer Shutt the crack cocaine which Officer Shutt described as a round object the diameter of a quarter.

[38] After Officer Rahim located the crack cocaine and before Mr. Davis was put into the scout car, a full pat down search was done for officer safety reasons. As the police continued to search Mr. Davis, they seized $132 from his left front pocket along with $205 found in his wallet as well as a cell phone. At this point Officer Rahim told Mr. Davis that he was also under arrest for possession for the purpose of trafficking.

[39] Officer Rahim testified that he believed the object to be crack cocaine based on his experience and based on what he felt and also the observations he had made of Mr. Davis in the building on the videos I have already referred to. His evidence at the preliminary hearing where he said that the object that he felt was close to the size of a golf ball but was not perfectly round was put to him. He was not asked if he adopted those answers but did say at trial that he believed that what he felt was crack cocaine. It was in one piece. When he was shown the crack cocaine that was seized, he readily admitted that it might not be in the exact size of a golf ball but he demonstrated by putting the tip of his thumb and index finger together that in one piece, it was approximately the diameter of one. He considered this to be quite a large piece of crack cocaine. Officer Rahim said that later when he held the crack cocaine in his hand he felt it to be the size of a golf ball but not the thickness of one, which is why he described it in that manner in his notes; it was what came to his mind and that is why he described it in this way.

[40] Officer Shutt did not fill out a field information report because Mr. Davis was arrested. I did not find this significant.

[41] Mr. Davis was not given his rights to counsel at the time of his arrest. He was given his rights to counsel by Officer Rahim about 24 minutes after his arrest, once they were at the station but while sitting in front of the sally-port.

ANALYSIS

Credibility of the Officers

[42] Mr. Schofield submits there are serious and irreconcilable conflicts between the evidence of Officer Rahim and Officer Shutt that go to their credibility. He argued that I should not believe their evidence that their motive in stopping Mr. Davis was to trespass him from the building. He described this evidence as "police manipulation;" an excuse in order to search for evidence. In the same vein he submitted that the evidence of Officer Rahim that he believed he felt crack cocaine was incredible and that he did not have reasonable grounds to arrest Mr. Davis.

[43] Mr. Schofield submitted that there was an irreconcilable difference in the evidence of the officers as to what they said about Vince Murphy. I have already described Officer Rahim's evidence about detailed information he alleges was known to him about Mr. Murphy. Mr. Schofield submitted that since the evidence of the officers was that they watched the videos together and met with Jessica, it is inconceivable that Officer Shutt would testify that he was not aware of any involvement between Mr. Davis and Mr. Murphy. As I have already said, this submission presumes that the officers were always together when either one of them viewed the videos. It also presumes that Officer Shutt, had he been asked, would have disputed the evidence of Officer Rahim about Mr. Murphy.

[44] Having carefully reviewed the evidence of the two officers on this issue, I have concluded that no irreconcilable difference in their evidence on this point was established. First of all it was not established that the officers watched all of the same videos. Secondly, Officer Shutt was not asked what he knew about Mr. Murphy, nor was it established that he would have necessarily had the same knowledge of Mr. Murphy that Officer Rahim had. Officer Shutt was not asked whether or not he was aware of Mr. Murphy's reputation for permitting people to use his apartment to deal drugs. There is no evidence as to whether or not Officer Shutt saw any of the videos that Officer Rahim saw, where Mr. Davis is seen going into an apartment Officer Rahim alleges belonged to Mr. Murphy. As I have said, Officer Rahim's evidence on that particular point, namely that Mr. Murphy lived in that particular apartment was not challenged. Furthermore, Officer Rahim testified about a video that was not shown in court that strongly supports his other evidence as to why he believed Mr. Murphy was involved in facilitating drug dealing. The fact remains there are videos showing behaviour of Mr. Davis that supports the evidence of Officer Rahim given his knowledge of Mr. Murphy. For these reasons, I conclude that the evidence of Officer Shutt does not undermine the evidence of Officer Rahim as to what conclusions he drew from the videos that he saw about Mr. Davis and a connection with Mr. Murphy and what that might mean.

[45] Mr. Schofield also submitted that the officers' evidence was irreconcilably different as to when they exited the vehicle. As I have reviewed, there is no doubt that the officers have a different recollection of when each of them exited the vehicle. As I have already found, on the evidence of Officer Rahim, it is likely that he was already outside the vehicle and standing close to Mr. Davis when Officer Shutt told him about the previous incident about Mr. Davis attempting to disarm an officer. He was not sure if at that point Officer Shutt was outside the car or not. Officer Shutt recalled that both he and Officer Rahim were in the car when he told Officer Rahim about the prior incident, and it was at that point they both exited.

[46] With this dispute on the facts, it is not clear how Officer Rahim could have been quietly told by Officer Shutt about the prior incident, as clearly he would not have wanted Mr. Davis to overhear this. It would have been possible if Officer Shutt was in the car as his window must have been open. It is more likely that they were either both still in the car as Officer Shutt recalled, or both standing next to the car, as Officer Rahim recalled, which would mean one of them is incorrect in his recollection. This, however, is only important after the event and there would have been no reason for them to pay particular attention to this sequence at the time.

[47] Although not argued by Mr. Schofield or ever suggested to Officer Rahim, I have considered whether or not he might have given his version of events in order to support his position that he needed to search Mr. Davis for officer safety reasons. Arguably, if they were both still in their police car, when Officer Rahim was told or reminded about the prior incident, there would be fewer officer safety concerns at that moment in time. However, the officers needed to deal with Mr. Davis for two or three minutes in order to trespass him from the building. This would have involved getting information from Mr. Davis including his identification so that a contact card could be filled out and a computer search done to determine whether or not he had been trespassed from the building before. As Officer Shutt put it, he would not let Mr. Davis stand near him at the side of the police car, before he had finished all of his computer checks, without a pat down search for officer safety reasons. I, therefore, find there would have been no reason for Officer Rahim to deliberately change his evidence on this point.

[48] For these reasons, I find that this is not the kind of inconsistency that leads me to be concerned about the credibility and reliability of the evidence of either of the officers. In fact, in my view, these are the kinds of inconsistencies that I would expect from honest witnesses who have not collaborated on their notes or their evidence. Although in cross-examination Mr. Schofield made some suggestion that the two officers collaborated in making their notes, the fact that there are these differences in their evidence would suggest that is not the case.

[49] On that point, Officer Rahim testified that he made his notes independently and the only discussion he had with Officer Shutt was about times. The evidence of Officer Shutt at the preliminary hearing that he made his notes on his own but spoke to Officer Rahim about the investigation and discussed what took place was put to Officer Rahim. Officer Rahim said that if they had a discussion about anything other than times it might be something like asking whether or not they were on Booth Avenue or Booth Street. Officer Shutt was not questioned about the making of his notes or this evidence. Given the differences in their evidence on the points Mr. Schofield identified, I accept the evidence of Officer Rahim that the officers essentially made their notes independently.

[50] Although not the subject of oral submissions, there were other issues raised by Mr. Schofield when he cross-examined the officers in support of his position that they were not truthful with the court. Officer Rahim was cross-examined about the fact that he did not recall that ten minutes prior to their involvement with Mr. Davis, they had picked up a video at 841 Queen. Although Officer Shutt testified that he went into the building with him, Officer Rahim did not know if he did or not. Officer Rahim explained that he had not looked at this part of his notes and simply did not recall it. He didn't consider it important. I accept that explanation.

[51] A passage from Officer Shutt's evidence in chief from the preliminary inquiry was put to him in cross-examination. In that passage on a number of occasions he said "we" searched the individual, referring to Mr. Davis and in the same passage he also stated "I" searched him for officer safety reasons. In that passage he said "I" searched him three times although he also used "we" twice. Officer Shutt recalled the questions and answers. He was not asked if he adopted the evidence. His explanation for the earlier evidence was that he was working with a partner and he was describing a search that he was watching while his partner did the search. He was working with his partner watching Mr. Davis' hands while his partner conducted the search. He did not have any physical contact with Mr. Davis before he was handcuffing him. He was, however, standing right next to Mr. Davis.

[52] There were other examples where the officers in testifying used what I would describe as the "royal we". For example in chief, Officer Rahim testified that "we asked for identification" although later he was clear that it was Officer Shutt who asked for it. As they were working together as partners, I do not put much weight on the fact these officers used the term "we" on occasion in describing steps that clearly only one of them took. When they were specifically asked who did what their evidence was consistent.

[53] Overall I find that generally the evidence of the officers was credible and internally consistent. They gave their evidence in an evenhanded manner and I have found that any differences in their recollection of events are not of concern. In fact those differences strongly suggest there is no collusion through the making of their notes or otherwise. They were fair in acknowledging points that weaken their position in terms of their search and arrest of Mr. Davis. For example, they readily admitted that they believed Mr. Davis was dealing in drugs, that he was cooperative before he was told he would be searched, and most importantly, Officer Rahim admitted that he did not feel anything that he believed to be a weapon when he did his pat down search of Mr. Davis. There is also no reason to doubt the reliability of their evidence. The issue remains, however, whether or not I accept their evidence on the key points in dispute.

Has the Crown established that the pat down search of Mr. Davis was lawful?

[54] The officers both testified that they had trespassed other people from the building before Mr. Davis' arrest and that evidence was not challenged, nor was their evidence that they believed Mr. Davis was not a resident of the building. Furthermore, their stated intention was consistent with their mandate from Mr. Speicher. They also both testified that they had been asked by Jessica to give Mr. Davis a trespass notice and it was not suggested that this was not true. Although Mr. Schofield commented on the fact that the Crown chose not to call Ms. Ostrum, the Crown had no obligation to do so and, of course, Mr. Schofield could have done so if he wished. There is no evidence that Mr. Davis was targeted for any other reason, unless I find that he was only called over to search him for drugs. Both officers testified that had Mr. Davis not been searched, they would have completed the process to trespass him from 841 Queen and then let him go on his way. I accept the evidence of the officers that they did not stop Mr. Davis for the purpose of investigating him for drugs or searching him for evidence and find that when they saw Mr. Davis exit 841 Queen that their motive in calling him over and asking for his identification was so that they could trespass him from the building.

[55] I turn then to whether or not I should accept the evidence of Officer Rahim that his purpose in doing a pat down search of Mr. Davis was to see if he had a weapon.

[56] First of all, Mr. Schofield did not submit that if I accept the evidence of Officer Rahim, as to his motive, that he had no authority to conduct a pat down search for weapons. Clearly in light of the authority in R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, Officer Rahim had the power to search incident to a lawful detention provided that search was for the purpose of protecting officer safety. In Mann (at para. 40) this included a pat down search to ensure safety but it is clear that such a search power does not exist as a matter of course: the officer must believe on reasonable grounds that his or her safety or the safety of others is at risk.

[57] It was repeatedly suggested to Officer Rahim that the reason he took steps to search Mr. Davis was because he believed he was a drug dealer or that he was looking for evidence. Officer Rahim firmly denied this each time and stated he would not have searched Mr. Davis but for the comment by Officer Shutt about the fact that Mr. Davis had previously attempted to disarm an officer. I accept that evidence. The fact that Mr. Davis had previously attempted to disarm an officer and that Officer Shutt might be aware of this was never challenged by Mr. Schofield. This information in my view clearly would justify a pat down search of Mr. Davis for officer safety concerns. Whether or not Mr. Davis, in fact, had a weapon on the prior occasion is irrelevant. The fact the officers had reason to believe that he had attempted to disarm an officer during an arrest, which clearly suggests that he attempted to obtain an officer's firearm, would clearly have been of sufficient concern to justify a search for weapons.

[58] Even if Officer Rahim was still in the police car when he received the information about Mr. Davis previously attempting to disarm an officer, as suggested by the evidence of Officer Shutt, I find that there would still have been a need to do a pat down of Mr. Davis for officer safety concerns. Short of simply deciding not to deal with Mr. Davis at all, and drive away, the officers were going to be close to him for two to three minutes while they completed the process Officer Shutt described in order to give him an oral notice not to go into 841 Queen. I accept the evidence of Officer Shutt that even as he sat in the police car that he was concerned for officer safety given Mr. Davis was standing close to the police car.

[59] For these reasons I find that Officer Rahim conducted a pat down search for officer safety reasons, over Mr. Davis' clothing, and that the search was lawful.

Has the Crown established that the arrest of Mr. Davis was lawful and that, as a result, his s. 8 and s. 9 Charter rights were not breached?

[60] Section 495(1)(a) of the Criminal Code provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence. Reasonable grounds have both a subjective and objective component. As Cory J. wrote in R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.):

… an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds, must in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case. (at para. 17)

[61] In R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (Ont. C.A.), the court stated that in considering the lawfulness of an arrest, "[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience: see R. v. Golub" (at para. 4 citations omitted).

[62] In considering whether or not there were reasonable and probable grounds to arrest Mr. Davis, I must first assess the evidence of Officer Rahim and determine whether or not I should accept his evidence that he believed that what he felt in Mr. Davis' pocket was crack cocaine. This evidence is critical to determining the subjective component of the reasonable and probable grounds requirement.

[63] Officer Rahim testified that prior to Mr. Davis' arrest, he had made lots of arrests involving crack cocaine; he estimated he had been involved in investigations with this drug on 50-100 occasions and that he "knows it when he sees it". This evidence was not challenged. However, I accept Mr. Schofield's submission that what Officer Rahim testified he felt could have been other objects including a candy in Mr. Davis' pocket. Mr. Amarshi fairly conceded that if the officer had relied only on what he testified he felt in Mr. Davis' pocket he could not have had reasonable and probable grounds to believe that Mr. Davis had cocaine in his pocket. However, the officer had a great deal of other information that informed his belief.

[64] Before turning to that evidence, I have considered the credibility of Officer Rahim in terms of his description of the crack cocaine that was seized from Mr. Davis, as that was also repeatedly challenged during his cross-examination.

[65] In considering the evidence of Officer Rahim, his evidence that when he felt the crack cocaine it was in one piece was not challenged. The exhibit has broken down into three pieces as well as powder and small bits. In court, to explain his reference to a golf ball, Officer Rahim put his thumb and index finger around the piece of crack cocaine and looking at the diameter between his fingers stated again that in his estimate it was about the size of a golf ball. He said this is why he used this reference in his notes. He was not talking about the depth of the object but rather its circumference.

[66] If one compares the size of the crack cocaine seized and a golf ball, clearly the crack cocaine is considerably smaller. However, it is impossible to say, if when it was intact, its circumference was considerably smaller than a golf ball. Intact, it would also likely have had a circumference greater than a quarter. In considering this evidence of the officers, it is important to remember that they were simply giving their own comparator. I did not find this challenge to the evidence of Officer Rahim to be serious and this area was another example of where I was able to determine the officers had clearly not colluded in making their notes or giving their evidence.

[67] Furthermore, there would have been no advantage to Officer Rahim deliberately exaggerating the size of the cocaine since it was seized. What is important is that what he would have felt was not perfectly shaped, was hard and was big enough to feel through Mr. Davis' pants pocket. It is also significant that Officer Rahim immediately announced to Officer Shutt that Mr. Davis had crack cocaine and that he put Mr. Davis under arrest for possession of cocaine. His evidence in this regard was corroborated by Officer Shutt and was not challenged. Given the speed at which these events occurred, this evidence corroborates his evidence that he believed what he felt was crack cocaine.

[68] It is also important to consider the other information that Officer Rahim had including his experience dealing with drugs, the fact that 841 Queen was a building where there were residents dealing with drug addictions, particularly crack cocaine, his information about Mr. Murphy and, in particular, that Mr. Murphy was a drug user and permitted his apartment to be used for drug dealers, the videos that he had seen where Mr. Davis was knocking on Mr. Murphy's door and pacing the halls and the videos where he went into Mr. Murphy's apartment for very short periods and the video where Mr. Davis was observed ushering people into Mr. Murphy's apartment. He also believed that Mr. Davis did not look like a drug user and gave an explanation for this belief. Mr. Schofield submitted that I should not rely on this evidence but it was based on the officer's experience and seems reasonable to me. Finally, it must be remembered that Officer Rahim's interaction with Mr. Davis happened very quickly in a matter of a few minutes. In addition, after he told Mr. Davis that he was going to search him, Mr. Davis acted in a manner that suggested that he had something in his pockets that he did not want the officer to see.

[69] Mr. Amarshi also relied on the fact that Officer Rahim had observed that Mr. Davis had a large quantity of cash when he opened his walled to remove his Health Card, but since Officer Rahim testified that this did not become important to him until after he seized the cash, I did not consider this evidence as a factor in his decision to arrest Mr. Davis.

[70] For all of these reasons I accept the evidence of Officer Rahim that he believed that what he felt in Mr. Davis' pocket was crack cocaine. Accordingly, I find that the subjective component of the reasonable and probable grounds to arrest requirement is met.

[71] Turning to the objective component of the test, the issue is whether or not there were sufficient grounds, objectively viewed, to arrest Mr. Davis for possession of cocaine. In considering this issue, as a matter of law, the "reasonable person" is presumed to be "standing in the shoes of" Officer Rahim, see R. v. Devlin, 2006 CanLII 18353 (ONCA) at para. 7. Furthermore, as the Court of Appeal stated in R. v. Bush, 2010 ONCA 554 at para. 61: "a trained police officer is entitled to draw inference and make deductions drawing on experience. …The trial judge was entitled to take into consideration that experience and training in assessing whether he had reasonable and probably grounds….[citations omitted]. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay."

[72] Mr. Schofield referred to a few cases where he suggested the court had found a police officer did not have reasonable and probable grounds for arrest, which he suggested were stronger than the facts here. Without reviewing each of those cases here, suffice it to say that I was not persuaded that any of them were sufficiently comparable to the facts of this case to be of assistance. Each case is to be assessed on its own facts which I have endeavored to do here.

[73] In my view, considering all of the evidence of Officer Rahim as to his experience in drug dealing of cocaine, what he felt when he did the pat down search and all of the other information that he had that I have already referred to, on an objective basis, a reasonable person would have reasonable and probable grounds to arrest Mr. Davis for possession of cocaine.

[74] For these reasons I find that the arrest of Mr. Davis was lawful and there was no breach of his s. 9 Charter rights. As such, the search was lawful and the evidence was lawfully discovered and there was no breach of Mr. Davis' s. 8 Charter rights.

If there was a breach of Mr. Davis' s. 8 and s. 9 Charter rights, should the drug evidence be excluded pursuant to s. 24(2) of the Charter?

[75] Having found that Mr. Davis' Charter rights were not breached, a section 24(2) analysis is not necessary. However, in the event that I am incorrect, I will still consider whether or not I would have excluded any of the evidence had I found that Mr. Davis had not been lawfully searched and/or arrested. In doing so I am guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, which sets out the factors I would have to consider and balance in order to make such a determination; namely whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone deviation from the rule of law, the impact of the breach on Mr. Davis and finally the reliability of the evidence.

[76] In considering the first factor, Cory J. stated in Storrey:

Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence …before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. (at para. 14)

[77] Had I found that Officer Rahim deliberately acted beyond the scope of his authority and searched Mr. Davis because he suspected that he had drugs on him, that would be a serious and flagrant breach of the Charter favouring exclusion of the evidence. In balancing all of the factors as required by Grant, I would likely conclude that the admission of the drug evidence would, viewed in the long term, bring the administration of justice into disrepute. Unlike Grant, this is not a case where the officers were operating in circumstances of "considerable legal uncertainty" as the requirements for a lawful arrest have been settled for some time.

[78] However, assuming that the findings that I have made with respect to the intentions of the officers in initially interacting with Mr. Davis, Officer Rahim's motive for conducting a pat down search and his subjective belief that he felt crack cocaine, are sound, that would leave possible error on whether or not the officer had sufficient grounds, objectively viewed, to arrest Mr. Davis for possession of cocaine. If that finding is not correct, it would not impact my finding that Officer Rahim had a subjective genuine belief in the lawfulness of what he was doing. In that event, if a section 24(2) analysis were necessary, I favour the approach taken by the British Columbia Court of Appeal in Regina v. Ward 2010 BCCA 1. This would not be a case of deliberate police misconduct as urged by Mr. Schofield. Rather in my view, it would be a case of an error by an officer that in my view could be considered a close call; not a flagrant violation. This would render the infringement less serious and weigh towards admission of the evidence along with the fact that the evidence is reliable and crucial to the Crown's case. As was the case in Ward, the search in this case was relatively minor; namely Officer Rahim putting his hand into Mr. Davis' pocket, to remove the crack cocaine. As the court found in Ward (at para. 15), although a person's pocket may be a place where there is a relatively high expectation of privacy, given the other Grant factors, it would not necessarily follow that the impact on Mr. Davis' section 8 rights was so great as to tip the balance of the section 24(2) factors against admission of the evidence.

Disposition

[79] Having found that there were no breaches of Mr. Davis' Charter rights, save for the breach of s. 10(b) that I have referred to, for these reasons, the defence application seeking to exclude the drug evidence is dismissed.

SPIES J.

Date: June 15, 2012