ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 1696/12
DATE: 2013 03 19

B E T W E E N:

HER MAJESTY THE QUEEN

A. D. Allison, for the Respondent

Respondent

-and-

ADRIAN WOODROW THOMPSON

P. Bawden, for the Applicant

Applicant

HEARD: March 4, 6‑8, 12, 2013

RULING

RE ALLEGED BREACHES OF SECTIONS 8, 10(a) and 10(b)

OF THE CHARTER

HILL J.

INDEX

INTRODUCTION
OVERVIEW
FACTUAL BACKGROUND
The Police Radio Dispatch
Adrian Thompson is Detained
Communication of Reason(s) for Detention
Search of Detainee Incident to Detention
Rights to Counsel for the Detainee
Search of the Vehicle
Arrest of Mr. Thompson
Additional Defence Evidence
Police Note‑taking
ANALYSIS
Introduction
Detention of Mr. Thompson
Governing Principles
When Detention Occurred
Section 10(a) of the Charter
Positions of the Parties
Governing Principles
The Charter Breach
Rights to Counsel
Positions of the Parties
Governing Principles
Breach of Section 10(b) of the Charter
Search of the Vehicle
Positions of the Parties
Governing Principles
Unconstitutional Warrantless Search
Remedy
Positions of the Parties
Governing Principles
The Balanced Result
CONCLUSION

INTRODUCTION

[1] A “gun-call” to the police – an almost daily occurrence in the Greater Toronto Area.

[2] The exercise of police authority to detain a person and to search his or her vehicle in the context of the possible presence of a firearm presents the need for balance between the interests of constitutional rights and public safety concerns.

[3] Adrian Thompson submits that in his case that constitutional balance was abused and that the court ought to exclude, as inadmissible evidence, the firearm police seized from his vehicle on account of asserted breaches of sections 8, 10(a) and 10(b) of the Charter.

[4] While acknowledging constitutional violations of the accused’s rights, the prosecution seeks, in all the circumstances, to have the seized firearm admitted into evidence.

OVERVIEW

[5] Adrian Thompson has a prior criminal record including for firearms-related offences. He admits that he is not inexperienced with the criminal justice system.

[6] On September 10, 2011, Adrian Thompson and his young daughter went shopping for furniture.

[7] The accused’s vehicle was parked at the Brick, a retail store in Brampton.

[8] Concealed in Mr. Thompson’s vehicle was a loaded handgun, marihuana, and cocaine.

[9] The Peel Regional Police Service (PRPS) Communications Centre, on receipt of a tip, dispatched officers to the Brick parking lot where there was an encounter with the accused leading to his detention and a warrantless search of his vehicle.

FACTUAL BACKGROUND

The Police Radio Dispatch

[10] On September 10, 2011, just after 1:30 p.m., over about a six-minute time period, the PRPS Communication Centre issued a dispatch in broadcast form, which also appeared in text on the terminals in various scout cars on patrol, relating to a call to the location of Clarence Street and Kennedy Road South in Brampton:

13:34 TEXT: COMPL ADV A ML SHE REPORTED BRANDISHING A GUN ON 17AUG11 IS AT “THE BRICK” AT A/INT….COMPL IS TERRIFIED….SHE ADV SHE DIDN’T SEE HIM WITH A GUN TODAY…4 DOOR MAZDA 3 MARKER BKZZ239 COMES BACK POINTER/OFFICER SAFTY

13:35 MISC ,RIN:T3601-01198-50503 TYPE:INAME:THOMPSON,ADRIAN ,WL1Z 1J1 ADDR: 325 OLD HARWOOD AVE, AJAXVIN:4F2CY OC77BKN04872 CLASS:PAS 11 MAZD TRI TY BLK NO.CYL: 4 LIC:BKZZ239 STATUS:ATTACHEDTAG: 0737682 EXPIRES: 03MAY12

13:36 SUPP TXT: FROM PREV OCC (#11256485) ML THOMPSON ADRIAN DOB 19850503…M L/B, 5’8”, THICK BUILD, SHORT BLK HAIR, GRY JOGGING PANTS….

13:36 SUPP TXT: COMPL ADV SHE SAW THE ML TODAY AT THE BRICK AND RECOGNIZED HIM AND LEFT THE AREA IMMEDIATLEY TO CALL POLICE….COMPL IS NO LONGER IN THE AREA

13:40 SUPP TXT: IN PREVIOUS OCCURANCE…COMPL ADV THE ML HAD A “METAL BLACK HANDGUN” WHICH HE TOOK OUT FROM THE VEH’S CENTER CONSOLE….

Adrian Thompson is Detained

[11] Sergeant Ceballo, a uniformed officer in a marked police cruiser, was on routine patrol when, at 1:34 p.m., he heard the radio dispatch relating to a male person of interest at the Brick at Clarence Street and Kennedy Road. The officer had in excess of twenty years’ policing experience. At 1:35 p.m. and 1:36 p.m., the name “Adrian Thompson”, together with background information, and his description was broadcast. Sergeant Ceballo did not know Mr. Thompson.

[12] The sergeant also heard the police communications dispatch at 1:37 p.m. reporting that the complainant had left the area of the Brick.

[13] This was a gun call and the vehicle licence plate for Thompson’s Mazda came through the dispatch system as “Pointer/Officer Safety”, a status related to officer caution but described in somewhat ambiguous terms by the police witnesses. Sergeant Ceballo drove into the Brick parking lot and located the vehicle with licence plate #BKZZ239 parked nose-in against the curb facing the doors of the Brick. The officer recalled the scene as a busy Saturday with cars parked in most parking spaces. To take up observations of the subject vehicle, Sergeant Ceballo parked his cruiser about ten feet to the east of the Mazda Tribute and twenty to thirty feet from the doors of the Brick. The sergeant radioed that he had located the Mazda – a communication heard by uniformed Constables Woroch, Seville and De Silva, all driving their own marked cruisers.

[14] Sergeant Ceballo testified with respect to the radio dispatch information communicated at 1:40 p.m., that he did not hear or see that text on his in-cruiser terminal. The sergeant intended to investigate whoever came to the parked Mazda Tribute.

[15] The officer further informed the court that at 1:41 p.m. he observed a black male exit the Brick and approach the Mazda vehicle. At this point, he radioed to other officers directing a “take down” of the Mazda. The officer saw the Mazda lights flash suggesting that the vehicle’s door locks had just been remotely deactivated. On his evidence, Sergeant Ceballo then drove west in the lot and parked his cruiser behind the rear bumper of the Mazda Tribute intending to box‑in the vehicle from being able to exit. Sergeant Ceballo understood that Constable Woroch was in the area.

[16] On Sergeant Ceballo’s evidence, he quickly exited his vehicle and moved toward Adrian Thompson. He observed a young girl, perhaps eight years of age, in the area at the east side of the Mazda. The officer assumed that she was with the suspect. To the sergeant’s recall, as Mr. Thompson opened the driver’s door of the Mazda, he came to within two to three feet of the suspect. The officer has no notes of what he said to Adrian Thompson. He may have given the police challenge: “Stop, police”. After telling the suspect to step away and not to enter the vehicle, he directed him to the rear of the Mazda. The suspect did not initially comply. The suspect’s daughter began to cry and scream – she appeared scared.

[17] According to Sergeant Ceballo, in dealing with Mr. Thompson he gave directions and “verbal commands” – his manner of speaking was such that “he didn’t really have a choice”. Mr. Thompson complied and moved past the sergeant to the rear of the Mazda. Sergeant Ceballo testified that had the suspect not complied, he would have been arrested.

[18] Sergeant Ceballo testified that because of the nature of the call, it was important that he secure control of the scene including not allowing the suspect to enter his vehicle where he might access a firearm and endanger the safety of the police and the public.

[19] On Sergeant Ceballo’s testimony, once he and the suspect and his daughter were behind the Mazda they met Constable Woroch who had also boxed the Mazda in with his cruiser. The sergeant testified that at this point, with Constable Woroch only one to two feet from their position, he told Mr. Thompson that he was being “detained”. On his evidence, that was the only conversation he had with the suspect at this point.

[20] Mr. Thompson confirmed in his evidence that it was Sergeant Ceballo who told him he was detained:

A. … ‘cause I still asked him, you know, what’s going on, what’s the point of this, what’s going on, he said, “You’re being detained.”

To be honest with you, I don’t know that phrase “to be detained.” I didn’t know what he was talking about. I know being under arrest, I know that. I didn’t really understand what he meant by I’m being detained, and he didn’t explain it to me. He just said I’m being detained.

Q. Were any reasons given for why you were being detained?

A. None at all.

(continues exactly as in the original judgment…)

CONCLUSION

[211] The seized firearm and the police observations relating to its discovery are excluded from evidence.

[212] By way of postscript, something must be said about the police note‑taking as described in this trial. As a general rule:

(1) because police officers don’t wear head‑cams and have to discharge their duties in often risky and fast‑moving circumstances, it is to be recognized that there is a limit to the degree of detail that can be recorded in a notebook at the scene of an incident or indeed subsequently

(2) reasonable efforts should be made, however, to contemporaneously record significant details, including those relevant to constitutional rights of a suspect – note‑taking should not be routinely deferred to later in a shift at a police facility

(3) where multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group

(4) an officer should record when notes were made, where and in whose company if not alone.

See generally Schaeffer et al. v. Wood et al., (2011), 2011 ONCA 716, 107 O.R. (3d) 721 (C.A.), at paras. 67‑70.

Hill J.

DATE: March 19, 2013

COURT FILE NO.: CRIMJ(P) 1696/12
DATE: 2013 03 19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Adrian Woodrow THOMPSON

COUNSEL:
D. Allison, for the Crown
P. Bawden, for the Defence

HEARD: March 4, 6‑8, 12, 2013

RULING
RE ALLEGED BREACHES OF SECTIONS 8, 10(a) and 10(b)
OF THE CHARTER

Hill J.

DATE: March 19, 2013