ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-617238
DATE: 20130123

BETWEEN:

HER MAJESTY THE QUEEN

– and –

OHENE SEKYERE DARTEH

Applicant

Chris Leafloor, for the Crown

Anna M. Martin, for the Applicant

HEARD: November 13, 14, 15, 16, 19, 26, 28, 29, 30 and December 19, 2012

B. p. o’marra j.

reasons for judgment

background

[1] In the early afternoon of September 1, 2010 Ohene Darteh was riding his bicycle near an intersection in Toronto controlled by traffic lights. He was stopped and questioned by members of the Toronto Police Service. There was a physical altercation between Mr. Darteh and one of the officers. Mr. Darteh was arrested and handcuffed behind his back before being placed in the rear of a police cruiser. He was later removed from that cruiser for transport in an ambulance. The officer who was involved in the original physical altercation claims that he found a plastic bag containing cocaine in the backseat area of the cruiser. The cocaine was shown to Mr. Darteh at the scene. He immediately denied the drugs were his and claimed that they must have been planted.

the application

[2] Mr. Darteh claims his rights under the Charter were violated by the Toronto Police Service. He sought exclusion of the cocaine as evidence or a stay of proceedings as a remedy.

[3] On December 19, 2012, I ruled that Mr. Darteh’s Charter rights had been breached by the Toronto Police Service. Under s. 24(2) of the Charter, I excluded the cocaine that the police claim to have found in the rear of the cruiser.

[4] The Crown then advised that there was no further evidence to be tendered at trial. The accused was arraigned, pleaded not guilty and the charge was dismissed. The following are my reasons on the Charter motions.

the evidence

Initial Contact on September 1, 2010 Between Mr. Darteh and the Police

[5] Ohene Darteh was born in Ghana on October 11, 1987. He came to Canada at the age of 13. His first language is Twi but he speaks and understands some English. In September of 2010 he lived with his mother and four siblings in an apartment on St. Clair Avenue West in Toronto.

[6] Shortly after noon on September 1, 2010, Mr. Darteh was riding his bicycle near the intersection of St. Clair and Runnymede Road. He was wearing blue boxer shorts, a long blue jersey, white shoes and socks. His shorts did not have pockets.

[7] Three members of the Toronto Police Service were working in uniform in an unmarked Dodge Caravan near the intersection. Constable Correa was driving the vehicle and was accompanied by Officers Uher and Roy. They were members of an anti-gang unit of the Toronto Police Service. Officer Correa has been a member of the Toronto Police Service since February of 1987.

[8] Officer Correa testified that he observed Mr. Darteh to ride his bicycle in an area designated for pedestrians. That would violate the Highway Traffic Act. There was significant discrepancy within the evidence of the three officers as to what direction and what street the Dodge Caravan was being driven on when Mr. Darteh was observed.

[9] Officer Correa said his intention initially was to caution Mr. Darteh about the Highway Traffic Act infraction. He said there were a number of pedestrians waiting to walk through the crosswalk when Mr. Darteh rode his bike in that area. Officer Roy did not see any pedestrians in the crosswalk area when Mr. Darteh was observed.

[10] Officer Uher testified that Officer Correa said he would stop Mr. Darteh and speak to him after observing the Highway Traffic Act violation. Officer Uher also indicated that other information may arise from such traffic stops related to drugs and guns. Officer Roy testified that Officer Correa wanted to speak to Mr. Darteh before he observed Mr. Darteh riding the bicycle in the intersection. He does not recall Officer Correa saying why he wanted to stop Mr. Darteh

[11] Officer Correa yelled at Mr. Darteh to get his attention. Mr. Darteh recognized the officer from a prior incident. He did not know or recall the officer’s name.

[12] Mr. Darteh testified that he said “Good day” to the officer. He asked the officer why he had called him over. Officer Correa asked whether he was aware he had just ridden his bicycle on a pedestrian crosswalk. Mr. Darteh denied doing that but apologized so as not to upset or provoke the officer. Officer Correa and the other officers were all in their vehicle during this conversation. Mr. Darteh testified that Officer Correa asked him where he was coming from and also for his name and address. He told the officer that he was returning from a friend’s home. He also provided his full name, including middle name, and address.

[13] Officer Correa claims that Mr. Darteh was very hostile towards him and refused to identify himself when asked. Officer Correa advised Mr. Darteh that he was obliged to identify himself under the Highway Traffic Act.

[14] Mr. Darteh testified that he told the officer that he just wanted to go home if he was not going to receive a ticket. Officer Correa said he would not issue a ticket but looked “not pleased”. Mr. Darteh says that Officer Correa removed and threw his sunglasses on the dashboard of his vehicle and got out. Mr. Darteh was a bit scared and could not understand why Officer Correa seemed so upset. Officer Correa came very close to his face. Mr. Darteh is five foot, five inches tall and weighs 170 to 180 pounds. Officer Correa is six foot, one inch and weighs 230 pounds.

[15] There is significant dispute as to what happened after P.C. Correa got out of his vehicle. Mr. Darteh asked if it was okay to lay his bike on the ground. He had to keep one foot on the ground while straddling his adult bike. Officer Correa agreed he could put the bike on the ground. Mr. Darteh testified that the other two officers remained in the vehicle although Officer Correa urged them to come out. When Mr. Darteh put the bike down, Officer Correa stood directly in front of him. Due to the height difference, Mr. Darteh had to step back a little to make eye contact. Mr. Darteh testified that Officer Correa asked the other two officers to get out of the vehicle and stand on either side of him. They each held one of his arms.

[16] Mr. Darteh testified that Officer Correa then asked if he had anything on him. He said no. Officer Correa asked him to lift his shirt which hung loosely well below his waist. He complied since they were the police and he was now fearful. He claims Officer Correa asked him to keep holding his shirt up.

[17] Mr. Darteh claims that Officer Correa then grabbed and pulled his shorts and underpants down to his ankles. He felt disgraced and wondered why this was happening. He says the officers laughed at him. He was exposed naked below the waist for about one minute. The police deny that Mr. Darteh was asked to lift his shirt. They also deny that Officer Correa pulled down Mr. Darteh’s shorts and underpants.

[18] Mr. Darteh told the police that it was improper conduct by them and asked for Officer Correa’s name and badge number. Mr. Darteh claims that Officer Correa said “I am called the Terminator”. Mr. Darteh was then quite terrified. Officer Correa asked the other officers to hold him. One officer produced handcuffs. Mr. Darteh asked why he was being cuffed and was he under arrest. He was more terrified as they tried to cuff him. He told them they could not do so since he had not done anything wrong. Mr. Darteh claims that Officer Correa grabbed his neck as if in a headlock to put him on the ground. He denies he ever pushed the officer and that it would have been stupid for him to do so.

[19] As Officer Correa tried to force him to the ground, Mr. Darteh pulled his own head aside which caused Officer Correa to fall to the ground. Mr. Darteh says that the other officers stood nearby. Mr. Darteh raised his hands to show he had done nothing. The officers then grabbed his arms. He was then on his knees and denied resisting. He was then put face down on the ground and felt a knee on the back of his head and neck. He yelled for help. He received further blows to his back and rib area. He believes he passed out briefly. He was pulled to his feet but it was difficult for him to stand.

[20] Officer Correa claims that Mr. Darteh was the first to use force by pushing him with both hands in the chest area. This caused him to fall back. Officer Correa then saw Officers Uher and Roy grab Mr. Darteh by the arms. Mr. Darteh was struggling violently to resist the officers. Officer Correa tried to grab Mr. Darteh by the upper body. He described the violent moves of Mr. Darteh that caused him to fall backwards where he struck his elbow on the ground. When he got up he saw Mr. Darteh still resisting and fighting Officers Uher and Roy.

[21] Officers Uher and Roy tried to put the cuffs on Mr. Darteh. Officer Correa felt pain in his left arm that limited his actions. He knelt on Mr. Darteh’s left shoulder to hold him down. Mr. Darteh continued to struggle. At approximately 12:36 p.m. Mr. Darteh was finally cuffed to the rear. A request was made for another police cruiser to attend to transport the prisoner to the station.

Placing Mr. Darteh in the Rear of the Cruiser and the Finding of Drugs

[22] Mr. Darteh testified that he was taken to a marked police vehicle and laid out on the hood where he was searched by Officer Correa. He lay on his stomach and the police ran their hands around his waist area. He kept asking why he had been arrested and received no response.

[23] Officer Uher testified that after the cuffs had been put on to the rear they conducted a basic pat search for weapons. He described this as a “proper pat search”. He said the accused was searched twice before he was placed into the cruiser and he believes that Officer Correa assisted him in the search of Mr. Darteh.

[24] Uniformed Officers Morris and Pargetter had arrived in the marked cruiser to transport Mr. Darteh. At 12:42 p.m. Officer Morris observed the three officers with Mr. Darteh who was on the ground in handcuffs. Officer Morris testified that Mr. Darteh was picked up and put on to the hood of his vehicle and that he did a quick pat down search of Mr. Darteh before he was placed into the rear of his cruiser.

[25] After the search, Mr. Darteh was lifted from the hood of the vehicle and laid into the rear area of the cruiser on his stomach. He said he was in pain, perspiring and was breathing very heavily. His lip had been hurt when he was taken to the ground earlier. He said he needed to see a doctor. Officer Morris asked for his name and he provided full particulars.

[26] An ambulance was requested but did not arrive until approximately 1:20 p.m.

[27] Officer Correa recalls that Mr. Darteh complained of a sore back which led them to request an ambulance. Officer Correa said that it took some 30 to 40 minutes before the ambulance arrived. At approximately 12:40 p.m. Mr. Darteh was advised that he was under arrest for Assault Police. Officer Correa also advised him of his right to counsel and cautioned him. He received no response from Darteh.

[28] Officer Correa had a clear view of Mr. Darteh while awaiting the ambulance. He saw Mr. Darteh placed sitting up in the back of the cruiser. Mr. Darteh immediately laid down across the seat. He was moving about. Officer Correa kept a watch on the prisoner to make sure there was no danger of breathing problems (which he described as “positional asphyxia”). He opened the door and looked inside. He asked what Mr. Darteh was doing and received a mumbled response. The prisoner seemed to be trying to get the cuffs off. His movements were not “normal”.

[29] Officer Roy is not sure who put Mr. Darteh into the cruiser. He does not recall anyone telling him that Mr. Darteh was trying to remove the cuffs in the car. He would have made a note if Mr. Darteh had appeared to be doing anything unusual in the cruiser.

[30] When the ambulance arrived Mr. Darteh was removed from the cruiser and put onto a stretcher to be conveyed from the scene. Officer Correa re-attended the marked cruiser and checked the backseat. He claims that he found a clear plastic bag with what appeared to be cocaine on the seat near where the seatbelt is bolted. Officer Correa then approached Mr. Darteh who was on the stretcher and in the presence of the other officers held up the bag and said to Mr. Darteh “look what I found”. Officer Correa advised that Mr. Darteh would then be charged with possession of cocaine in addition to the assault charges relating to the earlier incident. Mr. Darteh immediately denied that the drugs were his and said that they must have been planted by the police.

Reference to The Terminator

[31] Mr. Darteh testified that he did not know Officer Correa’s name in the course of this incident. When he asked for his name he claims that Officer Correa responded that he was “The Terminator”. Mr. Darteh was not asked any questions in cross examination on the issue of references to The Terminator.

[32] Officer Correa was asked in cross examination whether he had a nickname. He indicated that many years ago when he worked as a police officer in the Parkdale area of Toronto people would call him The Terminator. He indicated that he never referred to himself as such and certainly did not do so in the course of the incident involving Mr. Darteh.

[33] Officers Uher and Roy who were with Officer Correa on the day in question testified that they were not aware of any such nickname for Officer Correa and that there was no reference to “The Terminator” by anyone in the course of the dealings with Mr. Darteh.

When did the Arresting Officers Learn Mr. Darteh’s Identity?

[34] Officer Correa testified that it was the failure of Mr. Darteh to identify himself upon request that triggered Mr. Darteh’s assault on him that led to the arrest. Officer Correa testified that he did not learn the identity of Mr. Darteh until some time after the ambulance arrived on scene at 1:20 p.m.

[35] Officers Roy and Uher also testified that they did not know the identity of Mr. Darteh until after he left for the hospital which would be after 1:20 p.m. Officer Uher indicated that he was aware “generally” of Mr. Darteh’s name based on a prior incident. He said he was not 100% sure of Mr. Darteh’s name but thought he knew something close to the proper name.

[36] Well before the arrival of the ambulance at 1:20 p.m. there were searches made on the police computer system on scene under the name of Ohene Darteh. Officers Correa, Roy and Uher testified that a request by any one of them would show the badge of one particular officer so that it is difficult to ascertain who exactly made the request. At 12:49 p.m. there is a request from their vehicle computer in the name of Ohene Darteh with a date of birth of October 11, 1987. It was unclear which of the officers made the specific request. However, it is clear that as of that time one of the three original officers on scene had Mr. Darteh’s name and date of birth in order to make such a request.

Prior Dealings Between Officer Correa and Mr. Darteh

[37] Mr. Darteh testified that he recalled seeing Officer Correa on a prior occasion in August of 2009. He did not recall Officer Correa’s name but did recognize him when he was stopped on September 1, 2010.

[38] Mr. Darteh testified that on August 10, 2009, he and another person were sitting in front of the building where they live when a police car pulled up behind them on St. Clair Avenue. Officer Correa asked if they lived there. Mr. Darteh said he did. Officer Correa asked for Mr. Darteh’s name and Mr. Darteh provided it along with his address and phone number. Officer Correa commented on Mr. Darteh’s accent and asked where he came from. Mr. Darteh said that he was born in Ghana. Officer Correa appeared interested in his place of origin and said that he had a friend from Ghana. He asked Mr. Darteh where in Ghana he came from. Officer Correa said that his impression was that Ghana was a peaceful country based on information he had received from another friend. The police reports produced on this motion indicate that Officer Uher was also present during that incident. Mr. Darteh testified that on that prior occasion there was no discussion about him being involved in a gang and in fact he was not involved in a gang of any sort.

[39] Officer Correa testified that he initially did not recall the prior dealing with Mr. Darteh in August of 2009. His recollection is that he spoke to Mr. Darteh at that time in regard to loitering in the area of St. Clair close to the area where Mr. Darteh was later arrested in September of 2010. Officer Correa recalled that Mr. Darteh was with another male at the time. He said there was nothing unusual about the meeting and it was difficult for him to recall. He did not recall Mr. Darteh’s name or the nature of this prior contact. When he was permitted to look at notes he had made at that prior time he agreed that Mr. Darteh had identified himself although he had no independent memory of the contact at all. He did recall that he was working with Officer Uher at the time. An Incident Report prepared by Officers Correa and Uher referred to Mr. Darteh as a gang member – “Crips”. Officer Correa said that he must have had some information to have put down that Mr. Darteh had some gang connection. He did not recall specifically any discussion about Ghana but says it may have taken place.

[40] Officer Uher had a second prior incident where he had contact with Mr. Darteh on August 26, 2009. By reference to records made at that time Officer Uher indicated that he had spoken to Mr. Darteh that day in the company of four other persons in regard to loitering. Mr. Darteh and the others were cautioned and no further action was taken.

Discrepancies Re: Quantity of Drugs Seized and Maintained by Officer Correa

[41] Officer Correa testified that the drugs that he found in the backseat of the cruiser were retained by him until he returned to the station. They were weighed in the presence of a supervising officer. Officer Correa then sent a quantity of the drugs for testing that were of a particular weight. Those drugs were returned to Officer Correa since the quantity exceeded the amount that was permitted for analysis. Officer Correa then prepared smaller amounts of the drug for forwarding and testing. There was evidence on the Charter application regarding a discrepancy in the final amount of drugs maintained under the direction of Officer Correa. Approximately 1/4 of the original weight of the drugs seized was missing. Officer Correa agreed in cross examination that he could not account for this discrepancy.

Disposition of Other Charges Against Mr. Darteh

[42] On September 1, 2010, Mr. Darteh was charged with assaulting a Peace Officer, Assault with Intent to Resist Arrest and Possession of Cocaine for the Purpose of Trafficking. He was later summonsed on Highway Traffic Act infractions. Those latter offences relate to a bicyclist riding in a crosswalk and a cyclist failing to identify himself. I was advised in the course of the pretrial motions that the charges of Assault Peace Officer and Assault with Intent to Resist Arrest were withdrawn at the preliminary hearing. In Provincial Offences Court Mr. Darteh was found not guilty of the charge of riding his bicycle in a pedestrian crosswalk. He was found guilty based on a rather unsatisfactory record of failing to identify himself contrary to s. 218 of the Highway Traffic Act.

Analysis

[43] The Applicant’s position is as follows:

The initial detention was arbitrary and contravened s. 9 of the Charter;
the arrest for the criminal charges of assault against the police was unlawful;
he was subjected to an unlawful and humiliating strip search in a public place; and
whatever force he applied towards the police was reasonable and lawful in resisting an unlawful arrest.

[44] There is no doubt there was a physical altercation between Mr. Darteh and the police.

[45] Officer Correa claims it started when Mr. Darteh refused to identify himself and pushed him in the chest. This was followed by Mr. Darteh violently resisting attempts by all three officers to control him. This led to the charges of Assault Police and Assault with Intent to Resist Arrest.

[46] Mr. Darteh claims he did identify himself on request and denies he pushed Officer Correa. He claims whatever force he used thereafter was defensive and reasonable.

[47] I have considered a combination of factors in rejecting Officer Correa’s allegation that the first physical contact was a push in the chest by Mr. Darteh. These include the following:

(a) None of the witnesses refer to Mr. Darteh as being other than sober throughout.

(b) The respective sizes of Mr. Darteh and Officer Correa. The officer is considerably taller and heavier.

(c) It is highly improbable in the circumstances that Mr. Darteh would initiate physical contact with a larger uniformed officer while two other uniformed offers are present.

(d) If Mr. Darteh in fact possessed cocaine (which is far from clear on the evidence) it makes no sense that he would be physically aggressive to a police officer who is merely cautioning him about a Highway Traffic Act matter.

(e) I accept Mr. Darteh’s evidence that Officer Correa referred to himself as “The Terminator” during the incident. The police deny this name/title was ever mentioned. Officer Correa’s evidence that in the past he was referred to as “The Terminator” confirms Mr. Darteh on an important issue of credibility. There was no evidence or suggestion that Mr. Darteh heard the reference to Terminator in any other context. I find as a fact that Officer Correa did refer to himself during this incident as The Terminator. In the circumstances that was consistent with Officer Correa being aggressive and trying to intimidate Mr. Darteh.

[48] The Charter issues on this matter do not require me to rule on whether the cocaine found by Officer Correa in the cruiser belonged to Mr. Darteh. However, there are important credibility issues relevant to the Charter that cast light (and doubt) on whether the cocaine belonged to Mr. Darteh.

[49] Mr. Darteh was subjected to at least two pat searches after he was cuffed to the rear before he was placed in the rear of the cruiser. He was wearing shorts that had no pockets. No weapons or contraband were found on Mr. Darteh before he was placed in the cruiser.

[50] Officer Correa decided to search the rear of the cruiser after Mr. Darteh was removed. That cruiser was in the custody and control of Officers Morris and Pargetter.

[51] Despite being searched twice before being put in the rear of the cruiser and with cuffs to the rear and no pockets in his shorts Officer Correa attributes the drugs to Mr. Darteh. In all the circumstances that seems highly improbable. I have found Officer Correa to be untruthful and unreliable on other issues. I do not accept his evidence on this issue.

[52] Officer Correa claims his sole reason to stop Mr. Darteh was to caution him on a Highway Traffic Act infraction related to riding a bike in a pedestrian area. He also claims he had no memory on September 1, 2010 of his prior contact with Mr. Darteh in August of 2009.

[53] Officer Roy testified that Officer Correa wanted to stop and speak to Mr. Darteh before he observed the alleged Highway Traffic Act infraction.

[54] Mr. Darteh’s description of his prior meeting with Officer Correa is benign. He recalls an unremarkable discussion wherein Officer Correa said positive things about Mr. Darteh’s country of origin (Ghana). Mr. Darteh was not cautioned or charged with any offences on that date.

[55] The Incident Report prepared by Officer Correa for the meeting in August of 2009 refers to Mr. Darteh having a gang connection to the Crips. Mr. Darteh was not aware of this note and denies he has ever had any gang connection. There was no evidence on this motion that he in fact had any gang affiliation.

[56] It is a recognized and proper aspect of police work to gather intelligence in neighbourhoods related to drugs, guns and gangs. This routinely involves police contact with citizens that does not involve the laying of charges or giving of cautions.

[57] On September 1, 2010 Officers Correa, Uher and Roy were part of an anti-gang initiative of Toronto Police Service. I find in this case that the reason for stopping Mr. Darteh was to gather intelligence related to drugs and possible gang connections. I reject Officer Correa’s assertion that the reason for stopping Mr. Darteh was solely to caution him in regard to a Highway Traffic Act violation involving the bicycle. Based on the prior contact and the general nature of his anti-gang duties I find that Officer Correa decided to stop, question and search Mr. Darteh. The evidence as to the Highway Traffic Act infraction was an illegitimate ruse to initiate the detention and search of Mr. Darteh.

[58] The most serious allegation made by Mr. Darteh is that he was subjected to an unlawful and humiliating strip search in a public place in daylight. Based on the significant findings of credibility I have made I accept Mr. Darteh’s evidence. The conduct of Officer Correa in particular was intimidating, overbearing and oppressive. Despite his denials I find he was in fact conducting a drug investigation from the outset. When Mr. Darteh denied having anything in his possession Officer Correa told him to lift his shirt. He then proceeded to pull down Mr. Darteh’s shorts and underwear. That constituted an egregious violation of ss. 8 and 9 of the Charter.

[59] Under s. 24(2) of the Charter I find that the intrusion on bodily integrity was deliberately inflicted and the impact on Mr. Darteh’s dignity was high. He has testified to significant negative impact of these events on his mental and physical well-being.

[60] The drugs allegedly recovered are real evidence but the circumstances of the seizure are not reliable.

[61] There is a strong temporal connection between the breaches of ss. 8 and 9 of the Charter and the finding of the cocaine in the cruiser. Even in the absence of a causal connection these were flagrant and intrusive violations. The admission of the evidence would bring the administration of justice into disrepute.

R. v. Flintoff, 1998 632 (ON CA), 111 O.A.C. 305 at para. 30.

[62] In the result, the cocaine alleged to have been retrieved from the cruiser is excluded as evidence.

B. P. O’Marra J.

Released: January 23, 2013