minicounsel

Footnotes

2009 SCC 32, [2009] 2 S.C.R. 353.
2010 SCC 24, [2010] 1 S.C.R. 851.
(1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.).
[1977] O.J. No. 3097 (C.A.) at para. 18. See also R.v.Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.) at para. 22, where Rosenberg J.A. said that the standard of reasonable grounds as it relates to a search warrant does not require proof beyond a reasonable doubt, or even proof on a balance of probabilities. Rather, if the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.
[2008] O.J. No. 3754 (S.C.J.) at para. 68, where most of the principles relative to the legality of an arrest and the existence of reasonable and probable grounds are reviewed and helpfully summarized.
(1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) at page 114-5.
See R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at paras. 61, 66-68, and 70. See also R. v. Hanson, [2009] O.J. No. 4152 (S.C.J.), R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.), R. v. Clark, [2003] O.J. No. 1323 (O.C.J.), and R. v. Williams, 2009 ONCA 35, [2009] O.J. No. 123 (C.A.).
See R. v. Koffman (1985), 20 C.C.C. (3d) 268 (O.C.A.), and other cases cited in Watt’s Manual of Criminal Evidence, 2012, at paragraph 12.01.
It was initially claimed that P.C. Riley breached his s. 10(a) right to be informed promptly of the reason for his detention or arrest, and defence counsel did not pursue the point. Regardless of whether the foundation for it was present, P.C Riley told Mr. Abdusemed that he was detained relating to dangerous driving, and seconds later he told him that he was arrested for that offence.
[2009] S.C.R. 460.
Ibid., at paras. 72-75.
2009 SCC 34, [2009] S.C.J. No. 34.
R. v. Grant, above, at paras. 76-78.
Ibid., at paras. 79-83.
R. v. Harrison, 2008 ONCA 85, 89 O.R. (3d) 161 (O.C.A.).

COURT FILE NO.: CR-11-90000795-0000

DATE: 20130612

Joshua Cramer, for the Crown/Respondent

Respondent

and -

Hussein Aly, for the Defendant/Applicant

Defendant/Applicant

HEARD: May 27-31, 2013,

at Toronto, Ontario

Michael G. Quigley J.

Reasons For Ruling

Re: Charter, ss. 8, 9 and 24(2)

A. Overview.. 1

B. Facts. 3

(i) Officer Naidoo’s Evidence. 3

(ii) Officer Riley’s Evidence. 5

(iii) The videotapes. 9

C. Positions of the Parties. 11

(i) The Crown’s Position. 11

(ii) The Defence Position. 11

D. Analysis. 12

(i) Basic Principles. 12

(ii) Credibility of the Officers’ Testimony. 14

(a) P.C. Naidoo’s Evidence. 14

(b) P.C. Riley’s Evidence. 16

(iii) Did P.C. Riley have reasonable and probable ground to detain and arrest the applicant? 20

(iv) The problem of the videotaped evidence. 21

(v) Was the search of the applicant lawful?. 22

(v) Did police breach the applicant’s s. 10(a) and (b) Charter rights?. 24

(vi) Should the evidence be admitted or excluded under s. 24(2)?. 24

Conclusion. 30

1On July 2, 2010, the applicant, Semit Abdusemed, was a passenger in a blue Alero motor vehicle driven by Joseph Trench in downtown Toronto. The vehicle was involved in a rear-ender automobile accident near the intersection of Jarvis and Dundas Streets at 6:15 PM that day. Mr. Trench fled the scene of the accident in his vehicle. At least two Toronto Police Officers, P.C.s Naidoo and Riley, witnessed the accident. They were on bicycle patrol about to regulate a parade. They gave chase on their bicycles. They followed Mr. Trench’s vehicle until they lost sight of it.

2Three minutes later the vehicle was located on Bond Street, across from one of the entrances to St. Michael’s Hospital but there were no occupants in the vehicle. Officer Naidoo, the first of the two officers to arrive on scene, found the vehicle, inspected the damage to it, and then noticed an unidentified male on the side of the street. That man pointed down Bond Street towards Queen Street and stated that "those two guys right there" came from the vehicle. Officer Naidoo looked up and saw two black males at the bottom of Bond Street very close to Queen Street, and he saw them veer off towards the West. He chased after the men on his bicycle. Seconds later, he located two individuals. The two men that he stopped were Joseph Trench and this applicant, Mr. Abdusemed. The time was 6:20 PM, only five minutes after the collision four blocks east on Jarvis Street, just south of Dundas.

3The officer asked, "who was driving the car just now?" Mr. Trench did not ask which car. He replied that it was his girlfriend's car. P.C. Naidoo detained the two men and told them to come with him back to the location of the vehicle for further investigation. Just after this time, Officer Riley arrived. He also purported to detain the applicant. Since P.C. Naidoo told him the two men would not identify which of them had been driving but with no further discussion or exchange of information between them, P.C. Riley immediately arrested Mr. Abdusemed for dangerous driving. This was even before Officer Naidoo arrested Joseph Trench for dangerous operation of a motor vehicle a minute or two later, and even though it was he who had been on scene first, and even though it was Trench who was in possession of a set of keys.

4One or two minutes later, after they had walked as a foursome back to the location of the vehicle about a third of the way up Bond Street, P.C. Riley searched Mr. Abdusemed. He found and seized two packages of cocaine from Mr. Abdusemed’s pockets, each about the size of a 1” round marble. He arrested him for possession of cocaine for the purposes of trafficking. The charges of dangerous driving were subsequently withdrawn against both Mr. Trench and against Mr. Abdusemed who is now on trial here for the drug charges.

5On this application, Mr. Abdusemed seeks to exclude the illicit drugs that were found in his possession as evidence on this trial. He argues that police did not have reasonable and probable grounds to arrest him. Moreover, regardless of what they might say about Mr. Trench, he submits that they had no reasonable grounds to suspect that he was involved in recent criminal activity and as such he claims that his detention and eventual arrest were arbitrary and violated his section 9 Charter rights. Further, on the basis of his position that the police did not have the authority to search him because that search was not incidental to a lawful arrest, those searches were not authorized by law, were therefore presumptively unreasonable, and accordingly violated Mr. Abdusemed’s right to be free from unreasonable search and siezure under section 8 of the Charter.

6The applicant claims the Charter violations that produced the evidence in this case were very serious. He claims that the police acted with blatant disregard for his fundamental rights and that the police knowingly acted based on pure speculation and never had anything close to reasonable and probable grounds to arrest this applicant and therefore no legal grounds to search him. He claims that insofar as they acted on a basis of pure suspicion and possibility, those factors aggravate the situation. The applicant claims that to admit the illicit drug evidence that was seized at this trial would bring the administration of justice into disrepute, applying the analytical methodology mandated in R. v. Grant¹, and consequently that the evidence of possession of illegal drugs should be excluded under section 24(2) of the Canadian Charter of Rights and Freedoms.

7For the reasons that follow, I have concluded that the evidence must be excluded. There are two principal reasons. From a legal perspective, the arresting officer did not have reasonable and probable grounds to arrest this applicant for dangerous driving and as such, the search of Mr. Abdusemed that yielded the illicit drugs was incident to an unlawful arrest. However, even if the police had the authority to detain the applicant for further investigation and to conduct a pat-down search for officer safety, that detention did not give them the right to conduct the field search that they did, so it was not inevitable that the contraband drugs would be discovered.

8At its highest, the police were entitled to conduct a pat-down search of Mr. Abdusemed, but only to the extent that they reasonably believed that issues of officer safety were engaged in those circumstances. On the conflicting evidence of the officers themselves, there was no reasonable basis to reach that conclusion. The applicant was entirely cooperative and compliant and a pat-down search was not conducted out of concern for officer safety immediately after detention, or frankly at any other time, notwithstanding P.C. Riley’s protestations that there was an extremely discomforting situation of officer safety when he arrived. The full field search that did take place occurred two minutes after that and about 100 metres away from where police detained Mr. Abdusemed, and after P.C. Riley acknowledged that there was no longer a situation of officer safety – it had “been solved.”

9But even if a pat down search had been conducted, and notwithstanding that Officer Riley appears never to do less than a full field search on suspects who he detains, the two marble sized pieces of cocaine ultimately found in his pocket could not reasonably have been construed as a weapon or anything that caused realistic or reasonable concern for officer safety. The decision in R. v. Mann cannot be used as a backdoor authorization to conduct an illegal search in violation of Charter rights in the absence of reasonable and probable grounds, objectively held, to believe that the person being searched has committed a particular criminal offence. It does not permit any and all intrusive searching of a person’s pockets simply because there may be something in those pockets.

10Equally, if not more importantly, the numerous conflicts in the evidence of the two officers in this case is exceedingly troubling. These were not on extraneous or unimportant matters. I was not able to reconcile their evidence and reach findings of exactly what happened in the course of the chase of these two men and their detention and arrest, once the officers came into the vicinity of Bond Street where their interactions with the suspects and each other took place. That was due to the disparity and incompatibility of evidence provided by the two officers. That problem was enhanced by the evidence of Officer Riley relative to the extent to which he believed he is entitled to search a suspect, even following a mere investigative detention. It showed either a disturbing absence of knowledge, or a conscious disregard for the limits of the law relating to investigative detention and search incident to arrest.

11Against this background, and applying the analysis mandated by R. v. Grant, I consider the Charter breaches to be serious in this case. They significantly interfered with the Charter protected interests of the applicant. Their seriousness requires that the evidence be excluded lest the administration of justice be brought into disrepute in the eyes of the public. The application is granted. The drugs and other evidence seized are inadmissible at this trial.

B. Facts

(i) Officer Naidoo’s Evidence

12On Friday, July 2, 2010, P.C. Garth Naidoo was northbound on bicycle patrol on Jarvis Street in Toronto. He was with his colleague, P.C. Jesse Riley, and other officers. They were headed to Bloor Street to assist in crowd management at one of the parades held during Toronto's Gay Pride Week. P.C. Naidoo is a seven-year veteran of the TPS.

13Just south of Dundas Street, he heard a car collision behind him, looked around and saw a northbound gray vehicle stopped on the street. A man was standing beside it pointing at a dark blue vehicle that was speeding away westbound into a parking lot on the west side of Jarvis Street. The dark blue vehicle was an Oldsmobile Alero (the “blue Alero” or the “vehicle”). It appeared to P.C. Naidoo that the vehicles had collided and the blue Alero was fleeing the scene. He was 50 to 70 m away as he saw the blue Alero drive away too quickly in an unsafe manner. He immediately changed directions and pursued the blue Alero south through the lane way at the back of the parking lot, but then lost sight of it.

14Officer Naidoo went west along Shuter Street, south on Mutual and then west on Queen. Just before he got to Bond Street, he looked diagonally across the park in front of Metropolitan United Church. He saw the blue Alero parked on Bond Street. He cycled up Bond Street and arrived at the location of the parked vehicle at 6:18 PM. It was on the east side of Bond Street just north of one entrance to St. Michael's Hospital. He saw the accident damage on the left front of the vehicle and the hood of the vehicle was hot to the touch from driving. He could not quantify the damage but thought that it was enough to trigger a reporting obligation.

15P.C. Naidoo saw people in the park and on the west side of the street, but his focus was on the vehicle. After he arrived at the vehicle, an unidentified man walked towards him and then pointed to two black males walking south down the west side of Bond Street and said "It was those two guys there." P.C. Naidoo was 50 to 100 m from where the two black males were walking down the street. They were walking together and looked back over their shoulders towards him. He chased after them on his bicycle. He caught up and spoke to them just after they turned westbound on Queen Street next to St. Michael’s Hospital Emergency entrance and driveway. P.C. Naidoo had not lost sight of them from when he first observed them until he engaged them at that location.

16One of the men was taller, perhaps 6'1", slim and with short hair and he was wearing a red T-shirt and black pants. P.C. Naidoo found out that his name was Joseph Trench. The second man was shorter, perhaps 6 feet tall and heavier, wearing a black T-shirt and plaid shorts. P.C. Naidoo said this was the accused applicant in this case, Semit Abdusemed.

17When asked, the man in the red shirt said "It's my girl’s car". The officer asked again who was driving. Again the man in the red shirt said "It's my girl’s car." P.C. Naidoo thought he was being evasive. Mr. Abdusemed did not say anything. Mr. Trench appeared to be trying to hide a set of keys in his pocket. Mr. Trench seemed very agitated. He was talking quickly and loudly. P.C. Naidoo said Mr. Abdusemed did not look at him, but was instead looking farther down the street. He said nothing.

18P.C. Naidoo detained both of them for failing to identifying themselves, contrary to the Highway Traffic Act. He asked both of them to accompany him back to the blue Alero. He said that he had reasonable grounds to do so at that stage because (i) he believed that they had been involved in the accident and fled, (ii) the unidentified civilian had pointed them out to him and associated them to the suspect vehicle, and (iii) because they were leaving, seemed to want to get away, and knew what he was talking about when he mentioned the vehicle.

19Just after, as they headed in the direction of the blue Alero, P.C. Riley arrived and later P.C. Kohout and Sargeant Crosby. P.C. Riley arrived while P.C. Naidoo was speaking to the two males as he was heading back towards the blue Alero. P.C. Naidoo told him that the two men did not identify which of them was the driver, but neither did P.C. Riley communicate any information to him.

20As they headed back towards the vehicle Mr. Trench pulled out his cell phone. By that point, P.C Riley was present and walking with Mr. Abdusemed, who he had arrested, behind P.C. Naidoo. Mr. Trench was not yet arrested by P.C. Naidoo. He said "Bro, just let me call my girl – just let me talk to her – she was driving." Then P.C. Naidoo spoke to the girlfriend, but she was at her house on Kingston Road some kilometres away, not in their vicinity. Then Mr. Trench stopped and seemed to change direction and seemed to be becoming more aggressive and agitated, so P.C. Naidoo arrested him for dangerous operation of a motor vehicle. That was at 6:20 PM, 5 minutes after the collision. At that moment in time, P.C. Riley was right behind P.C. Naidoo and Mr. Trench. He already had control of Mr. Abdusemed, who he had already arrested about a minute before.

21P.C. Naidoo then searched Mr. Trench incident to arrest. He found a set of keys, a cell phone, glasses, and cash, folded and rolled, totaling between $1,000 and $1,100. Again, he said his grounds for arrest were that he believed that “they were the occupants” of the vehicle that had fled the Jarvis Street accident scene, that “they had been evasive” about who was driving, but also, one of them, Mr. Trench, had car keys. In his view, these facts gave him grounds to arrest Mr. Trench. He said that the earliest point in time when he had those grounds was when Mr. Trench “connected” himself to the vehicle.

22When they got back to the blue Alero, P.C. Naidoo tried the keys that he had taken from Mr. Trench and determined those were the keys for that vehicle. He then gave the keys to P.C. Kohout, who was also on scene by this time. Mr. Trench’s girlfriend attended the scene about a half-hour later and she was also arrested, although P.C. Naidoo was not sure for what offence.The applicant was compliant and cooperative, but P.C. Naidoo said he would have arrested Mr. Abdusemed if his partner did not.

23The earliest point when P.C. Naidoo believed he had reasonable and probable grounds to arrest and detain Mr. Trench was when “they” displayed to him that “they” had knowledge of the vehicle, As he put it, they were "potentially" two people who were involved but who were being deceptive about which of them was driving that vehicle. That is what formed the foundation P.C. Naidoo’s reasonable and probable grounds to arrest. However, P.C. Naidoo acknowledged that he did not ask any questions to Mr. Abdusemed, never saw him in the vehicle and never saw him with keys to the vehicle. However, “their body language” said that they were together.

24P.C. Naidoo acknowledged that nothing in Mr. Abdusemed’s conduct associated him in any way with driving the vehicle. He said that it was “just a possibility” that he was the driver, a possibility evidently borne out of the fact that Mr. Abdusemed said virtually nothing until after he was arrested and searched.

25P.C. Naidoo never saw the blue Alero drive by him at any time when he was on his bicycle, nor did he see either of the two males walking south on Bond Street as he was cycling north on Bond towards the blue Alero. P.C. Naidoo could not remember if P.C. Riley had told him that the unidentified civilian that P.C. Riley had spoken to had identified the target, not as two people, but as "the black guy in the red shirt".

26Close to the end of his cross-examination, an important exchange took place about where P.C. Naidoo and the two suspects were located just after he detained them at the very moment when P.C. Riley came on scene. Mr. Abdusemed had been behind him for a brief moment, but that was before P.C. Riley arrived. As they started to walk together in a northeasterly direction towards the vehicle, he said that both of the suspects were positioned in front of him. Specifically, he testified that "Mr. Abdusemed was in front of me up until Officer Riley arrived.” This was an important answer because it was the exact opposite of P.C. Riley’s evidence on that question.

(ii) Officer Riley’s Evidence

27P.C. Riley is an 8-year TPS veteran. He also heard the collision behind him. He saw the dark blue four-door Oldsmobile Alero peel off into a parking lot located on the west side of Jarvis Street and take off. Like P.C. Naidoo, he went in pursuit, but he first went south on Jarvis Street to the corner of Jarvis and Shuter to look westbound. He saw the vehicle emerging from the alleyway, observed as it turned westbound on Shuter, and then saw it turn left at a high rate of speed down another street, south off of Shuter.

28He went west on Shuter, then south to Queen, west to Church, north on Church back to Shuter, and then west on Shuter to the top of Bond Street, one block west of Church. He turned left to go down Bond Street towards Queen Street. Just over halfway down Bond Street, he saw the parked blue Alero. He saw the damage that he thought was sufficient to trigger a reporting obligation, and that would have exceeded $1,000.

29At that point, he said that he looked up for the first time, and for the first time saw P.C. Naidoo ahead of him on Bond Street going southbound towards Queen. P.C. Riley rode after him quickly. Someone yelled to him from the westbound sidewalk that "It's the black guy with the red shirt!" P.C. Naidoo was half a block ahead of him and in pursuit. He followed his partner as quickly as he could.

30He turned the corner of Queen and Bond Streets. He saw P.C. Naidoo walking back towards him accompanied by a black male in a red T-shirt. The officer had his hand on that man’s arm, controlling him. A second black male was walking very, very close behind P.C. Naidoo. P.C. Riley became very concerned for officer safety and detained him by grabbing his arm. Only then did P.C. Riley ask "Who was driving the car?" P.C. Naidoo told him that “They wouldn't say,” which he believed was a reference to both of the suspects. He said there was nobody else around within 20 feet and that he was very nervous for officer safety.

31P.C. Riley believed the two men were in possession of the motor vehicle during the accident and subsequent flight and that gave him reasonable and probable grounds to proceed. He arrested Mr. Abdusemed for dangerous driving seconds later after he learned from P.C. Naidoo that neither of the men would say who was driving. He immediately handcuffed Mr. Abdusemed, with his hands behind his back. He testified that it was his regular practice to handcuff detainees for officer safety reasons. They all started to walk together back towards the motor vehicle. P.C. Naidoo was about ten feet ahead of him controlling Mr. Trench, and he was behind with Mr. Abdusemed. He said only then did it come into his mind that the red shirted male had been identified moments earlier as the driver by the unidentified civilian, but then he suggested that the two men could have changed shirts as they were on the run.

32P.C. Riley listed the following points as his reasonable and probable grounds to arrest Mr. Abdusemed: (i) that a collision had taken place, (ii) that the driver had an obligation at law to report that collision but instead fled the scene, (iii) that the blue Alero fled the scene in order to avoid the police, (iv) that the driver made no attempt to exchange information, (v) that the vehicle was seen speeding through the parking lot on Jarvis Street and was driving in an "extraordinarily dangerous” manner, (vi) that he had identified the damage on the front left bumper of the blue Alero, (vii) that he spoke with P.C. Naidoo and that there was no one else there except the two individuals, and (viii) that "they would not tell me" who the driver was.

33As a result of those eight elements, he concluded that both men were in possession of that vehicle. That was the basis of his reasonable and probable grounds to arrest Mr. Abdusemed for dangerous driving. That was what informed his conclusion even though he had only learned the one piece of information from P.C. Naidoo, had conveyed none of the information that he had obtained to P.C. Naidoo at that time, and even though he had just arrived on scene and arrested Mr. Abdusemed for dangerous driving even before P.C. Naidoo arrested Mr. Trench, the suspect who seemed more likely to be the driver of the vehicle.

34It is important to the chronology that P.C. Riley insisted that he had significant officer safety concerns, and was “extremely uncomfortable” to see Mr. Abdusemed walking very close behind P.C. Naidoo, "in his blind spot", at the second when he arrived on scene at the corner of Queen and Bond Streets and saw P.C. Naidoo walking back towards him with the two suspects. He leaped off his police mountain bike, threw it aside, and by his own admission, aggressively grabbed Mr. Abdusemed's arm to take control of him at 6:20 PM.

35Another important aspect of his evidence analysed later in these reasons related to where he was located when he first realized that P.C. Naidoo was also located on Bond Street. That was a question that consumed a disproportionate amount of time on the hearing and that ultimately led to him being recalled in the misplaced hope that he would clarify the matter.

36P.C. Riley said that the first time he realized that P.C. Naidoo was on Bond Street was after he had his discussion with the unidentified civilian who had identified the black male in the red shirt as the guy that P.C. Riley ought to be pursuing, after he had stopped and inspected the damage to the blue Alero and after he had come south about two thirds of the length of Bond Street from Shuter. But then, after a pause, P.C. Riley corrected that answer and said that:

A. And I should correct that. It’s not that I didn’t know he was on Bond. I knew he was on Bond. I didn’t know how far forward he was and I didn’t know he was going that direction. So I did know he was on Bond Street. I just didn’t know he had taken off so far forward.

Q. Alright. So your answer now is you did know he was on Bond Street.

A. Well, I did. Yes.

37P.C. Riley knew that the black male with the red shirt was associated with the vehicle because the unidentified civilian gave him that information, but as he came down the top part of Bond Street, he said he did not see anyone else walking south on the west sidewalk. He did not see a black male with a red shirt on Bond Street nor did he see the defendant, Mr. Abdusemed. It was only as he rounded the corner from Bond onto Queen that he saw them, 20 to 30 feet west of Bond Street on the north side of Queen, much farther west from the point where P.C. Naidoo said he first encountered P.C. Riley coming south. P.C. Riley acknowledged that he detained Mr. Abdusemed before he had any conversation whatsoever with P.C. Naidoo, and before he knew from P.C. Naidoo that neither of the two suspects that were with P.C. Naidoo would say who was driving the blue Alero.

38In spite of this, P.C. Riley knew and confirmed that he only had grounds to arrest the driver of the Blue Alero, not the passenger. He acknowledged that he would not have had grounds to arrest somebody who just happened to be there. He also acknowledged that he would not have had grounds to arrest Mr. Abdusemed if he was not the driver of the vehicle, but just the passenger. But, since the occupants of the blue Alero had taken flight, as they did, it could be because they had more to hide – illegal things as he described them – and the passenger as well may have had something to hide. Nevertheless, he insisted that he only took custody of Mr. Abdusemed because of his officer safety concern, not because they might have something to hide.

39Finally, P.C. Riley was asked to clarify differences between his testimony at the preliminary inquiry and before me when he was recalled to the stand on Thursday, May 30. One of those related to the paths he and his partner followed as they moved from the collision location on Jarvis Street to the location where the blue Alero was parked on Bond Street, the extent to which their paths overlapped, and whether they had been together on their bicycles on Bond Street north of the location where the vehicle was parked. The answer and clarification given in his original evidence is at paragraph 35, but at the preliminary inquiry at page 40 of the transcript, the exchange went as follows:

Q. Okay. When you're at the vehicle and you first observe Officer Naidoo, is he traveling south on Bond Street?

A. He had already passed the car, yes.

Q. Okay. So, he'd passed you?

A. Yes.

Q. Okay. And you're on Bond Street as well?

A. Well, no, I was behind him originally. He had - when we came off of Shuter, he was ahead of me because we had taken different paths. He did not take the same path as I did from the original accident.

We ended up at Shuter and Bond, him about 50 m or so, give or take, ahead of me. I was following, and when I - he had already passed the car, and when I saw the car, I slowed down, stopped, had a quick look at the bumper, confirmed in my mind that that was the same vehicle that was involved in the accident.

40During a tortuous morning of further examination and cross-examination on the relative locations of P.C. Riley and P.C. Naidoo on Bond Street, I heard a range of explanations and answers that I could not reconcile. At first P.C. Riley said that maybe he just did not understand the question and insisted that he had no idea what path P.C. Naidoo had taken to get onto Bond Street, but knew that P.C. Naidoo did not pass him. He could not explain why he had said that they had both come off Shuter Street together, when he had also testified that he did not know what route P.C. Naidoo had taken. He said it must have been a slip of the tongue. Neither, if they took different paths, could P.C. Riley explain his evidence that P.C. Naidoo had already passed the blue Alero. In spite of the preliminary inquiry evidence that was read to him, he insisted he could not recall whether P.C. Naidoo was ever with him, north of that point on Bond Street, which could have explained that statement.

41However, he agreed that the impression one would take from his language at the preliminary inquiry was that he was on Bond Street with P.C. Naidoo before the two of them reached the blue vehicle, and that they had come off of Shuter Street together. He also agreed with defence counsel that the impression left more specifically from that passage was that he was with Officer Naidoo at Shuter Street and Bond traveling south and that P.C. Naidoo was ahead of him. But then, P.C. Riley answered that it could be construed that way, but that it sounded as though he was not clear in his mind before he spoke that passage. Then he added, "I was speaking all over the place in that sense. But, overall it is what it says here."

42Even though he acknowledged that his memory might have been fresher at the time of the preliminary inquiry than it was at the time of this trial, plainly P.C. Riley was not prepared to accept that his evidence at the preliminary inquiry could be the more reliable version of what transpired and insisted that he was telling the truth on both occasions, in spite of the differences in his evidence

43After another hour or more of unproductive questions and answers, in response to defence counsel’s suggestion that P.C. Riley had initially given one answer and then corrected it to accord more fully with what his story now was, another piece of his evidence was played back to him. In that passage, he said “it was closer to Shuter as he was going south” when he first say P.C. Naidoo. Again, he could not or would not accept either (i) what he had said the day before or (ii) the logical conclusion that P.C. Naidoo could have been north of the vehicle with him on Bond Street, or (iii) that it at least called into question their respective evidence of the paths they took.

(iii) The videotapes

44The last “witness” on this Charter hearing, in a manner of speaking, was 38 seconds of video footage extracted from the security videotape created by the security camera located immediately above the southeast entrance to St. Michael's Hospital. That entrance is just south and almost directly across the street from the location where the blue Alero was abandoned by its occupants following the collision on Jarvis Street and the flight of that vehicle from the accident scene.

45That videotape was played for both of the police officers during the course of their testimony, and replayed numerous times on a frame by frame basis as counsel and I and P.C. Riley giving evidence in recall, tried to discern detail from it, and in particular, whether the cyclist that quickly goes through the upper right corner of the frame for less than a second immediately after the blue Alero is seen parking on the east side of Bond Street, might have been a Toronto police officer on a bicycle.

46The videotape itself shows the vehicle coming northbound and to a rapid stop and parking on the east side of Bond Street facing northbound. Half a second later the cyclist is seen going through the frame of the video, seemingly emerging, not from the sidewalk on the east side of Bond Street, but rather at an angle from one of the pathways that crosses the park in front of Metropolitan United Church. It shows the cyclist going north on that pathway just where it meets the sidewalk and appearing to pass the vehicle just as it parks, and immediately before the two suspects are seeing running south from the vehicle. Next, a woman is seen exiting from the Bond Street doors of St. Michael's Hospital, just as two black men, one a slim black male in a red shirt and one a heavier black male in a black shirt, with yellow and blue plaid shorts and black shoes coming behind him, run away from the park blue vehicle.

47The videotape shows the black male with the red T-shirt racing towards the glass door from which the woman has just emerged from the hospital, but the door has closed behind her and locked from the inside. He is unable to open that door. As a result he veers back out to the west sidewalk on Bond Street just in front of the other male. The video footage ends as the two of them appear to be continuing in a southerly direction toward Queen Street.

48The time stated on that video shows the sequence to have commenced at 18:16:47 on July 2, 2010, and to have ended at 18:17:25, that is, 6:16:40 7 PM to 6:17:25 PM, a period totaling 38 seconds. While the recorded times on the video cannot be taken with certainty to be accurate, they do appear to be roughly correspondent to the 5 minute time frame of these events, commencing with the collision on Jarvis Street just south of Dundas at 6:15 PM, and ending with the arrest of Mr. Abdusemed and/or Mr. Trench at about 6:20 PM.

49Two other videos were also prepared by counsel for the defence, one showing a 180° view of the locale from the approximate location of the vehicle, and the second being a video taken as the maker is walking directly southbound on the west sidewalk on Bond Street from the east door of St. Michael's Hospital to the corner of Queen Street and Bond.

50In his evidence, P.C. Naidoo said that he saw the two males walking south on the West side of Bond Street when he looked south from the vantage point of the unidentified civilian near the vehicle, but he had not seen them as he came up Bond Street looking for the blue Alero. Importantly, P.C. Naidoo stated that if the videoclip had played for longer, he would have had to have been visible and would have been seen by that video camera and pictured in the security tape.

51P.C. Riley was also aware of the videotape footage from St. Michael's Hospital. He confirmed that Sargeant Crosby received that videotape and gave it to him. He received that videotape at 8:20 PM on July 2, 2010 and then he gave it to Detective Smith at 51 Division. He identifies the red-shirted male, and Mr. Abdusemed, the other male with the plaid shorts who he detained and arrested.

52P.C. Riley also looked carefully on a frame by frame basis at that 38 second video clip to try to identify whether the cyclist who is seen moving through the upper right corner of the frame in less than a second might be a Toronto police officer. There were various theories discussed in the course of the hearing about how that might have been P.C. Naidoo, but the identity of that cyclist simply cannot be determined. I accept that it is more likely than not that it was not a Toronto police officer, subject to my comments in the analysis that follows about how a lengthier video clip would have been of enormous assistance to the court in resolving some of these difficulties, particularly relative to where P.C. Naidoo was when he was first seen by P.C. Riley.

C. Positions of the Parties

(i) The Crown’s Position

[53] The Crown argues here that P.C. Naidoo and P.C. Riley had reasonable and probable grounds to believe that Mr. Abdusemed and Mr. Trench had fled the scene of an accident and were driving in a dangerous manner. As such, they were entitled to detain and arrest both men, and neither the detention nor the arrest of Mr. Abdusemed by P.C. Riley violated his s. 9 Charter rights. Further, the Crown contends that P.C. Riley was entitled to search Mr. Abdusemed as a lawful incident to that arrest, and thus, that he did not breach the applicant's right not to be unreasonably searched under s. 8 of the Charter.

54The Crown also claims that Mr. Abdusemed was promptly advised of the reasons for his detention and arrest, both when he was initially arrested for dangerous driving and when he was subsequently arrested for the additional charge of possessing cocaine for the purposes of trafficking after he was searched. As such, there was no violation of his rights under s. 10(a) of the Charter, and neither were his rights to retain and instruct counsel without delay under s. 10(b) breached, given the Crown's position that he was promptly advised of his rights to counsel, both following his arrest for the dangerous driving and his arrest for possession of cocaine for the purposes of trafficking.

55Crown counsel also contended that even if P.C. Riley did not have reasonable and probable grounds to arrest Mr. Abdusemed, he had reasonable grounds to detain him, and thus grounds to perform a pat-down search because he was very concerned about officer safety. So it was inevitable, according to the Crown, that the cocaine would have been discovered in Mr. Abdusemed's pockets.

56In any event, even if Mr. Abdusemed's rights were violated, it is the position of the Crown that all three prongs of the test established by the Supreme Court of Canada in R. v. Grant, above, militate in favor of admitting the evidence under section 24(2) of the Charter.

(ii) The Defence Position

[57] Counsel for the defence submits on this application that the officers, and in particular P.C. Riley, did not have reasonable and probable grounds to arrest Mr. Abdusemed for dangerous operation of a motor vehicle. Neither did they have any reasonable grounds to suspect that he was involved in recent criminal activity. He might have been associated with Mr. Trench and a passenger in his vehicle, but all indicators pointed towards Mr. Trench as the driver, not Mr. Abdusemed. That being the case, counsel for the defence argues that Mr. Abdusemed's detention and his arrest a short time later for dangerous driving violated his s. 9 Charter right not to be detained arbitrarily.

[58] Further, after detaining Mr. Abdusemed, P.C. Riley did not immediately conduct a pat-down search in the interests of officer safety, but instead waited almost 2 minutes until they were a third of the way back up Bond Street, close to the vehicle, before conducting a search on Mr. Abdusemed. That search was a full field search. However since that search could only be incidental to the arrest for dangerous driving which was unlawful, then that caused the search itself to also be unlawful and therefore unreasonable and conducted in violation of Mr. Abdusemed's s. 8 Charter rights. It is also claimed that the officers did not inform him of the reason for his detention when they detained him, thereby violating his rights under s. 10(a) of the Charter, and that they failed to immediately apprise him of his right to counsel as required by s.10(b), thereby breaching that right as well.

59Finally, it is the defence position that the Charter violations that gave rise to the evidence in this case were very serious. In counsel’s submission, the police acted with blatant disregard for the fundamental rights of Mr. Abdusemed, and knowingly acted based on pure speculation. More importantly and fundamental to the entire position of the defence is the contention that the evidence of the officers, and in particular P.C. Riley, is entirely unbelievable and internally and externality inconsistent with the evidence of P.C. Naidoo. As such, it cannot be believed and that absence of credibility exacerbates the seriousness of the Charter breaches. As such, to admit the evidence at trial that was seized from Mr. Abdusemed would bring the administration of justice into disrepute. The defence asks the court to exclude all of the evidence under s. 24(2) of the Charter of Rights and Freedoms.

D. Analysis

60At its core, as I will explain in the following paragraphs, this case is fundamentally about the credibility and reliability of the testimony of the officers on this Charter application, and in particular, the evidence of P.C. Riley. I will point out many of the inconsistencies between the evidence of the two officers as the analysis progresses, but it will suffice for present purposes to say that there are aspects of their evidence, important aspects, that bear on their right to detain and arrest the applicant and to search him incident to that detention or arrest, that I have simply been unable to reconcile. I have found myself largely in the position where I cannot honestly make findings of fact relative to exactly what transpired throughout the 5 minutes that passed between the time the collision took place on Jarvis Street south of Dundas, and the time when the suspects were arrested near the corner of Queen and Bond Streets 5 min. later, at 6:20 PM.

(i) Basic Principles

[61] On this application, the applicant must first show that he was detained, arrested and searched by the police officers without a warrant and pursuant to their common law powers of arrest. Once that is established, as it was from the evidence of P.C.s Naidoo and Riley, and it is alleged that the police did not have reasonable and probable ground as was the case here, then those actions presumptively breach the applicants s. 8 and s. 9 Charter rights. The burden of proof then shifts to the Crown to demonstrate against a balance of probabilities standard that there were reasonable and probable grounds to support those police actions and the consequences that followed.

62Justice Binnie observed at paragraph 4 of R. v. Nolet,² that in the conduct of an analysis like this the court should proceed on a step-by-step basis through the interactions of the police and the accused from the initial point where their interactions commence, to determine whether, as the situation developed, the police stayed within their authority having regard to the information that they lawfully obtained at each stage of their inquiry.

63While the question of whether the police had reasonable and probable grounds is to be decided on the balance of probabilities, it is important to note that the proof of reasonable and probable grounds itself need not equate to proof on a balance of probabilities, as the Crown emphasized repeatedly in his submissions. Indeed, the standard is below that level of probity. The police do not need to show it is more likely than not that a suspect has committed a crime to establish reasonable and probable grounds.

64Section 495 of the Code stipulates that a peace officer may arrest a person without warrant were reasonable grounds exist to believe that the person has committed an indictable offence or is committing a criminal offence. The Supreme Court emphasized in R. v. Storrey,³ however, that when an arrest is made without a warrant it is even more important for the police to demonstrate that they have reasonable and probable grounds upon which to base the arrest. It requires more than the personal beliefs of the arresting officer that he or she has reasonable grounds. Rather, it requires proof to an objective standard. Nevertheless, the case law recognizes that street policing is fast paced. The dynamic and unpredictable circumstances that can be encountered by a police officer as an investigative situation unfolds, often seemingly at lightning speed, requires quick decision-making. The officer must make his or her decision based on available information which is often less than exact or complete. They require more latitude than would be permitted in the comparatively more relaxed circumstances where a warrant is sought based on an affidavit sworn by a police officer: R. v. Golub.⁴

65Nevertheless, even if the circumstances in which it operates requires a margin of accommodation, the reasonableness standard necessarily entails a requirement of “probability”: R. v. Cunsolo⁵. A police officer "need not establish a prima facie case for conviction" before making an arrest (see Storrey, above, at p. 324). “Reasonable and probable grounds cannot be equated with proof beyond a reasonable doubt or even the existence of a prima facie case”: see R. v. Debot, as cited in Cunsolo. Instead, the key is that "credibly-based probability must replace suspicion and possibility" (my emphasis) as the foundation for the state conduct, as Hill J. emphasized in Cunsolo in reliance on Hunter v. Southam .⁶

66Further, a police officer is entitled to draw inferences and make deductions drawing upon his or her experience in the course of assessing the situation. As well, in making his or her determination as to the existence of reasonable and probable grounds, officers are not required to accept every explanation or statement that is provided by a suspect. The question is not whether the officer's belief was accurate, although there must be an objective foundation for it, but rather whether it was reasonable at the time of the arrest based on the totality, the entire constellation of circumstances.⁷

(ii) Credibility of the Officers’ Testimony

67Crown counsel argued that P.C. Naidoo was a highly credible and reliable witness, but also that P.C. Riley's evidence should be accepted as credible and reliable under the circumstances, notwithstanding that it obviously had more significant credibility difficulties inherent in it than were present in the evidence of P.C. Naidoo. This was one of the few areas where Crown counsel and defence counsel were almost in agreement on this case, because defence counsel was also in agreement that P.C. Naidoo was the more credible of the two, but he continued to insist that there were difficulties in P.C. Naidoo's evidence and described P.C. Riley's evidence as incredible and unreliable.

68The assessment of the credibility of P.C. Naidoo and P.C. Riley and the reliability of their evidence is of central importance in determining whether the events occurred as they described them, and whether police did have reasonable and probable grounds to detain and arrest this accused, and to search him incident to that arrest.

69To assess the credibility of the two officers, I considered their memory of the events, and the manner in which they testified. Inevitably, I have focused on the inconsistencies in their evidence. In this case, the inconsistencies in the officers’ evidence involve material matters that are central to the elements of the inquiry, and call into question whether they were relaying the facts truthfully and without obfuscation. As the following reasons will endeavor to show, I found those inconsistencies raised serious concerns that evidence, and especially that of P.C. Riley, cannot be relied upon.

(a) P.C. Naidoo’s Evidence

70Dealing first with P.C. Naidoo's evidence, I found it to be considerably more credible and reliable than that of P.C. Riley, as I explain in the paragraphs that follow, but there were several difficulties with his evidence as well. They were not inconsequential, but rather significant problems that made no sense to me but which he could simply not explain. Three examples of these problems stand out in my mind.

71First, P.C. Naidoo said that he turned north on Bond Street and saw the blue Alero located a third of the way up Bond Street. He did not see anyone walking down the street towards him as he bicycled up in the direction of the vehicle. Once he got to the vehicle, however, the unidentified civilian pointed him to the two men walking south on Bond Street, south of that location and not far north of Queen and Bond. However, if the two men were on Bond Street walking south at the point where the unidentified civilian pointed them out to him, it strikes me as impossible that P.C. Naidoo could have bicycled up Bond Street to the location of the damaged vehicle without passing the black male in the red shirt and Mr. Abdusemed in the plaid shorts. That must be the case because the videotape from St. Michael's Hospital and the evidence of the unidentified civilian shows that the two black male suspects, one in the red T-shirt and the other in the plaid shorts, were headed southbound on Bond Street on the west sidewalk in the 30 to 60 seconds after they were seen on the security videoclip footage.

72On P.C. Naidoo’s evidence, the two men were still on Bond Street when they were pointed out to him, and he never lost sight of them thereafter. So, this leaves only two alternatives. One is that P.C. Naidoo did not see them because he did not actually bicycle up Bond Street, but perhaps instead bicycled across the park in front of Metropolitan United Church, or bicycled down Bond Street from Shuter Street, contrary to his evidence but consistent with P.C. Riley’s testimony on the preliminary inquiry. The other alternative is that P.C. Naidoo rode directly past those two suspects in the course of bicycling up Bond Street towards the blue Alero, and yet did not see or notice them, even though he said there were not a lot of people around or on the sidewalk, and even though they would have been less than 15 feet away from him given the narrow width of Bond Street that is plain from the photographic and video exhibits. Neither of these interpretations of the evidence enhances P.C. Naidoo’s credibility or the reliability of his evidence.

73Second, the evidence showed that P.C. Naidoo detained both Mr. Trench and Mr. Abdusemed, even though he had information that more closely associated Mr. Trench with the vehicle than Mr. Abdusemed. In spite of that information, and that Mr. Trench had told him that the keys belonged to his girlfriend who had been driving the car, P.C. Naidoo made no further inquiry. He simply determined that because the two men would not indicate which of the two of them had been driving, that they were both equally suspect and had both equally probably been the driver of the vehicle. P.C. Naidoo believed that the mere existence of a connection to the vehicle constituted reasonable and probable grounds relative to both men, but I do not accept that as adequate grounds. Instead, it reflects suspicion and mere possibility, rather than a belief by the officer in a credibly based probability of who was the actual driver of the vehicle.

74Third, and finally, I found it surprising that P.C. Naidoo would have permitted Mr. Trench to make a phone call to his girlfriend on his cell phone after he was detained as they were walking back up the east side of Bond Street, with P.C. Riley and Mr. Abdusemed 10 feet behind. That was surprising, not only because police officers do not normally permit a suspect to use his or her cell phone once detained, but also because it demonstrates that P.C. Naidoo was unsure and wanted to further investigate. He wanted to verify what Mr. Trench had told him, namely that the car belonged to his girlfriend and that she had been driving it and had just given him the keys. If P.C. Naidoo had that concern, as he evidently did, he could not also and equally have held a credibly-based probability that it was Mr. Trench, or even more remotely, Mr. Abdusemed, who was the driver of the vehicle. It was at most a possibility. The placing of that call undermines the reasonability of the claim that there was a credibly based probability that Mr. Abdusemed could have been the driver because that call took place only after Mr. Abdusemed and Mr. Trench were detained and after Mr. Abdusemed was arrested. Consequently, that action of P.C. Naidoo undermines his claimed prior probability that both men could have been drivers of the vehicle.

75The telephone call between Mr. Trench and his girlfriend did not cause P.C. Naidoo to think that she was the driver of the vehicle. But more importantly, he admitted there was no aspect of Mr. Abdusemed's conduct that associated him with driving the blue Alero. As he testified, it was “just a possibility” that Mr. Abdusemed was the driver, adding that Mr. Abdusemed had said nothing himself of any evidentiary value relative to that question. This does not amount to reasonable and probable grounds.

(b) P.C. Riley’s Evidence

76There are two fundamental aspects of P.C. Riley's testimony that cause me to conclude that that it would be unsafe to rely on his evidence as the foundation for findings, either that police had reasonable and probable grounds to detain, arrest and search Mr. Abdusemed, or that his Charter rights were not violated. Even though some of his testimony may have been believable, I reach that view because important aspects of his evidence were not credible.

77Those two aspects relate (i) first, to his testimony about his concerns for officer safety at the time when he met P.C. Naidoo and the two suspects walking back eastbound from the northwest corner of Queen and Bond Streets, and (ii) second, to the routes that the two officers took on their bicycles to get to Bond Street, and where P.C. Naidoo was located on Bond Street when he was first seen by P.C. Riley. I will address each of these credibility problems in turn.

78The first problem with PC Riley's evidence, that significantly undermines his credibility, is that the foundation for a serious officer safety concern at the moment that he encounters P.C. Naidoo and the two suspects is directly contradicted by the evidence of P.C. Naidoo. Not only that, but on the previous occasion when he testified in this matter he was only a bit concerned with that issue, but in his evidence before me he escalated that concern to a much higher level of gravity that seemed to increase the more he talked about it.

79P.C. Riley testified that if the occupants of the blue Alero had taken flight, as they did when they fled from the scene of the collision on Jarvis Street, it could be because they had more to hide – illegal things as he described them, and he said that the passenger as well may have had something to hide. In spite of that insight into his thinking about the occupants of the vehicle, he continued to insist that it was only other factors that motivated his conduct. He only took custody of Mr. Abdusemed because of the accused’s uncomfortable proximity to P.C. Naidoo, and the fact that he was standing "right behind P.C. Naidoo in his blind spot" in the middle of a 20-foot circle with no one else in that circle. P.C. Riley insisted that was a “pressing officer safety concern.” That caused him to throw his bike down and to quickly and aggressively grab Mr. Abdusemed.

80Surprisingly, there was no reference in his notes to Mr. Abdusemed having been standing uncomfortably close to P.C. Naidoo or that he was “exceptionally uncomfortable” with concerns of officer safety. He acknowledged that omission even though he also allowed that it was an important and noteworthy fact. Indeed, it was. I find that it was an important and noteworthy omission because it went directly to his right to detain Mr. Abdusemed and the grounds for that detention. Also, I noted that his concern only escalated to this level at trial – at the preliminary inquiry the level of concern was materially less – he was just a bit concerned and uncomfortable.

81Neither was there any notation in his memo book about having thrown his bike to the ground even though that also was noteworthy, nor was there a notation that no one else was around in a 20-foot circle, which affected his concern for P.C. Naidoo’s safety. P.C. Riley also admitted that he should have been in a position where he would have been able to slow things down from the dynamic speed at which they had been moving once he detained Mr. Abdusemed because "the officer safety issue was solved." As a result, he could have had more conversation with P.C. Naidoo about what each of the two of them had seen, because to that point they had exchanged nothing. He had no answer to provide when asked why he did not share his information with P.C. Naidoo, but he insisted it would not have assisted them in identifying the driver in any event. He reiterated his position that he had reasonable and probable grounds simply because either of the two suspects could have been the driver, and then as the final point, added that Mr. Abdusemed "was not going to be released from the scene regardless."

82P.C. Riley appeared to rely on his concerns about officer safety as the grounds for searching Mr. Abdusemed, but his conduct belied that as they walked along as a foursome because he did not do a pat-down search of Mr. Abdusemed to alleviate safety concerns. He knew he could do a pat-down search later, even if only for investigative detention purposes. He also said he knew he could not just go straight into Mr. Abdusemed's pockets until after he patted him down.

83Once again, in spite of its significance, P.C. Riley’s notes do not reflect him doing a preliminary pat-down search of Mr. Abdusemed. The only reference in his notebook was to a field search but he acknowledged that he does not generally put that into his notes and would have done a field search on Mr. Abdusemed whether he had arrested him or merely detained him for investigative purposes – that was his invariable practice. He would never ask about anything that he felt in the pockets of a suspect during a pat-down. Effectively, he said that everything in a suspect’s pockets could affect officer safety so he always searched pockets of a suspect in this way. It was also his invariable practice to put detainees into handcuffs.

84One of the problems with his account that goes to credibility and reliability is that key elements of P.C. Riley's evidence that precipitated his action in detaining and taking aggressive control of Mr. Abdusemed are absent from P.C. Naidoo's evidence relating to the same events. I went back to re-listen to the digital copy of the evidence to be certain on this point.

85P.C. Naidoo gave this evidence close to the end of his cross-examination. P.C. Naidoo testified that as he started back in a north-easterly direction with Mr. Trench and Mr. Abdusemed, Mr. Abdusemed was behind him for a moment, but only for a moment and only at a point in time that was before P.C. Riley had arrived. But then he said that both men were in front of him as they started to walk together and, specifically, he testified that “Mr. Abdusemed was in front of me up until Officer Riley arrived." Thus, while it is true that Mr. Abdusemed was behind P.C. Naidoo, it was only after P.C. Riley had arrived. It was only after he was detained, and after they headed back in the direction of the vehicle, when Mr. Abdusemed and P.C. Riley were about 10 feet behind P.C. Naidoo and Mr. Trench.

86In my view, P.C. Naidoo’s evidence contradicts P.C. Riley's testimony that he could have felt extreme discomfort once he arrived on scene in finding Mr. Abdusemed standing uncomfortably close behind P.C. Naidoo in his blind spot. It contradicts him because P.C. Naidoo's evidence is that Mr. Abdusemed was in front of them throughout the time leading up to the arrival of P.C. Riley. If Mr. Abdusemed was in front of P.C. Naidoo, the stated reason for P.C. Rileys discomfort was absent.

87I have been unable to find that there was an officer safety concern present of the kind that P.C. Riley described, in light of (i) this irreconcilable conflict in their evidence, (ii) the fact that there was no notation in P.C. Riley's notebook that he was ever extraordinarily uncomfortable or experienced any equivalent feelings about officer safety, even though it was important and ought to have been noteworthy, and (iii) that it was only those concerns for officer safety that informed his decision to aggressively take control of Mr. Abdusemed, thereby detaining him. Consequently, I am unable to find that there were facts present that could have justified his actions and a subsequent pat-down search of Mr. Abdusemed.

88There were also internal contradictions in this evidence. He acknowledged that once Mr. Abdusemed was detained, he should have been able to “slow things down” and felt no need to conduct a patdown search of Mr. Abdusemed at that time. He preferred to wait until they got back to the vicinity of the blue Alero, before reading him his rights to counsel and conducting a full field search on him, which he indicated was his normal practice. As a result, even though he agreed that he could have had more conversation with P.C. Naidoo about what each of the two of them had seen (because he did not know what P.C. Naidoo had observed, and he had not told P.C. Naidoo about the utterance that he had heard from the unidentified civilian), he had no answer to provide when asked why he did not share his information with his partner. Yet, he continued to reject the probability that such additional information sharing could or would have assisted in identifying the driver, and repeated that he had reasonable and probable grounds simply because either of the two suspects could have been the driver. Then, in a moment of unrestrained candor, he added that Mr. Abdusemed "was not going to be released from the scene regardless."

89The second major problem with P.C. Riley's evidence arises relative to the paths that he and P.C. Naidoo took to get from the collision site to Bond Street, and the location on Bond Street where he first saw P.C. Naidoo. This should not have been controversial but there were too many internal and external inconsistencies between the various versions of his evidence and other evidence relative to their paths and their arrival at that location to permit any sense to be made of that testimony. He said three entirely different things on that question, one at the preliminary inquiry, one in the course of giving his evidence in chief which he varied in cross-examination, and then a third version when he was recalled to give clarification evidence the following day.

90On P.C. Naidoo's evidence, he was never with P.C. Riley at any time on Bond Street before they met at the corner of Queen and Bond after he had encountered the two black male suspects, and he never was north of the blue vehicle, that is, on that portion of Bond Street between Shuter to the north and the location of the blue Alero.

91However, P.C. Riley's evidence given at the preliminary inquiry contradicted that position, as did his "clarification evidence." When that evidence was played back for him and he was asked whether he was telling the truth at the time that he made those statements, he would not accept the evidence as it had been given, even after hearing it played for him. He tried to put a different meaning on what he said. In fairness to him, however, he did acknowledge that the impression that would be left with a reasonable listener was contrary to the interpretation he was advancing, and consistent with the actual words he had used.

92He continuously said that something that was played to him was not what he had said, or not what he had meant or that he had said something different at the preliminary inquiry, or that he was rambling. In one surprising answer, P.C. Riley tried to explain the differences in his evidence by telling me that he was "talking all over the place". Unfortunately, to the extent that self-assessment was correct, which it was, it considerably undermined my ability to regard much of anything of what he said as credible or reliable.

93Further, the evidence in which P.C. Riley tried to explain the absence of any consultation or debriefing between himself and P.C. Naidoo was also unbelievable. He insisted that there was no debriefing conducted between them, even after they had returned to the location of the blue Alero, because there was nothing that he could have been told that would have helped to identify the driver, but plainly that is not correct.

94If P.C. Riley and P.C. Naidoo had exchanged the information that they had when they first encountered each other at the corner of Queen Street and Bond, they would both have known that Mr. Trench was the red-shirted black male and that he was in possession of a set of car keys, keys that associated him with the vehicle. They would both have known that P.C. Riley's unidentified civilian helper had said that it was the black guy in the red T-shirt that he should be pursuing, not two men, but one. They might have learned that their unidentified civilian helpers could have been the same person. Further, they would both have known that absolutely nothing had been said by Mr. Abdusemed that associated him with the matter other than as a passenger in the vehicle. In other words, in my assessment it was plain that P.C. Riley had evidence in his possession from the unidentified civilian that undermined the existence of reasonable and probable grounds that it was Mr. Abdusemed who was the driver of the blue Alero.

95There were other discrepancies present between the evidence of P.C. Naidoo and P.C. Riley. One other important discrepancy present in their descriptions related to the locations of people on Queen Street. P.C. Naidoo was willing to acknowledge that yes, there were other people there and nearby, a sensible statement given that it was early evening on Friday, July 2, immediately after the Canada Day holiday and at the beginning of the Gay Pride weekend. It did not make sense to me to believe that there were no other persons in that vicinity when P.C. Riley met up with P.C. Naidoo, as he was walking back in an eastbound direction with Mr. Trench and Mr. Abdusemed. However, that absence was important to P.C. Riley's claimed concern for officer safety because Mr. Abdusemed was in P.C. Naidoo's blind spot, uncomfortably close behind him and with no other persons in the vicinity. That is what informed his decision, not to yell a warning at P.C. Naidoo, but instead to leap off his police bicycle and run over to Mr. Abdusemed, and aggressively detain and take control of him.

96In the result and in summary, several important problems remain with P.C. Naidoo’s evidence that I have identified, problems which when combined with the serious difficulties with P.C. Riley's evidence, leave me in a position where I cannot be satisfied that police had reasonable and probable grounds in the circumstances of this case to detain, arrest, and search Mr. Abdusemed. While P.C. Naidoo's evidence seems somewhat more reliable and more credible than that of his partner, his evidence does not materially inform the arrest of Mr. Abdusemed. On his evidence, P.C. Riley made the decision to arrest Mr. Abdusemed based on his own conclusions of the existence of reasonable and probable grounds. P.C. Riley made that decision notwithstanding that the preceding aspects of his evidence which I have discussed significantly undermine its credibility, and leave me with the conclusion that there was no credibly base probability in this case that Mr. Abdusemed had committed any specific criminal behavior.

97At its highest, it was a “possibility”, a “suspicion” – but P.C. Riley did not slow things down to obtain greater factual verification that might have supported his hunch. Indeed, had he and P.C. Naidoo briefed each other and exchanged the information that they had, it would have further undermined the flimsy grounds that he had, either to aggressively detain Mr. Abdusemed based on concerns about officer safety, or to arrest him based on any credibly probative likelihood that Mr. Abdusemed was the driver of the blue Alero, or to search Mr. Abdusemed, either as a patdown search for officer safety in accordance with R. v. Mann, above, or as a legal search made incident to a valid common-law arrest.

(iii) Did P.C. Riley have reasonable and probable ground to detain and arrest the applicant?

98The question here is not only whether the police had reasonable and probable grounds to arrest Mr. Abdusemed, but what reasonable and probable grounds they needed in order to do so. Plainly, on the evidence of both officers, as explained above, if P.C. Riley could have grounds to detain Mr. Abdusemed on suspicion of dangerous driving, and arrest him moments later after having virtually no communication with P.C. Naidoo, those grounds had to relate to the existence of a credibly-based probability that Mr. Abdusemed was the driver of the blue Alero.

99Both officers testified that reasonable and probable grounds to arrest for dangerous driving could relate to the driver only, and not the passenger. The only criminal activity for which there could have been reasonable or probable grounds at that particular time was the allegation of dangerous driving, or dangerous operation of a motor vehicle, regardless of whatever other suspicions P.C. Riley may have harbored about the reasons the two suspects had to “hide” from police. That was the only specific suspected criminality which could be founded in the two officer’s observations of the speed and manner in which the blue Alero had left the collision scene on Jarvis Street south of Dundas. Those grounds cannot be based upon P.C. Naidoo's beliefs or his evidence, because he testified that he never directed any officer to either arrest or search Mr. Abdusemed, and it is only whether there were reasonable and probable grounds to detain, arrest and search Mr. Abdusemed that is the focus of this application.

100P.C. Riley did not have reasonable and probable grounds to arrest Mr. Abdusemed for dangerous driving. The only thing that he knew at the time that he purported to arrest Mr. Abdusemed for dangerous driving, just moments after he took control of him, and well before P.C. Naidoo arrested Mr. Trench, was that his unidentified civilian had pointed the finger at the black male in the red T-shirt, clearly not Mr. Abdusemed, and that P.C. Naidoo had indicated that "they" would not tell him who the driver of the vehicle was.

101In my view, this information cannot rise to the level of a credibly-based probability that Mr. Abdusemed was driving that vehicle. All indicators went in the direction of Mr. Trench. If the officers had spent a few seconds communicating, what they knew collectively would have established a much stronger connection to the likelihood of Mr. Trench having been the driver than Mr. Abdusemed, who did not have keys in his possession, was not wearing a red shirt, was not trying to hide keys in his jeans pocket, and had not continuously protested to P.C. Naidoo that it was his girl's car, that she had just given them the keys, and that she had been the driver. The association of the two suspects in the same vehicle did not create a credibly based probability that Mr. Abdusemed was the driver. It was a mere suspicion or hunch.

(iv) The problem of the videotaped evidence

102There were 38 seconds of video footage obtained from security cameras at St. Michael's Hospital and introduced into evidence, but for me, that footage raised as many questions as it answered. Both officers testified that video footage was obtained within a couple of hours of the arrest of Mr. Abdusemed and Mr. Trench, obviously at a time when it was fresh and still available. It was Sargeant Crosby who went into the hospital, saw the tape, and who appears to have obtained that video clip. However, there were two problems with the video clip footage. The first was highlighted by P.C. Naidoo and the second emerged during P.C. Riley’s evidence.

103P.C. Naidoo indicated in his evidence that if the video clip had been longer, it would have shown him bicycling on Bond Street. This seems likely if it is assumed that the times reflected on the videotape were more or less accurate, because the collision occurred at 6:15 PM and the 38 seconds of videotape viewed by the court, according to the times reflected on the videotape, ran from 6:16:47 to 6:17:25. However it was also P.C. Naidoo's evidence that he arrived at the location of the vehicle less than a minute later at 6:18 PM, so he was probably right that the next few minutes of security camera video footage would have shown him on his bicycle on Bond Street, either going in one direction or the other. That might have been very helpful to corroborate the evidence of the officers. For whatever reason, however, it was not made available as evidence on this hearing.

104I found it disconcerting that only 38 seconds of that video footage was available to be viewed by the court on this hearing, when that security camera presumably operates on a 24-hour basis to ensure the security of persons using that entrance to St. Michael’s Hospital. If that was correct, it suggests that more video footage should have been available, footage that might have helped to corroborate evidence. Nonetheless, the Crown suggested to me that it was inappropriate to draw a negative inference against the police based on the absence of any further security camera footage. I do not entirely agree.

105It is an established evidentiary principle that a limited inference may be drawn from the failure to call a witness. In this case, I have considered the question of whether an inference should be drawn from the failure to produce more security video camera footage. In my opinion, the absence of further videotape footage does not cause the evidence of P.C. Naidoo or P.C. Riley to be unbelievable, simply because the videotape evidence was not produced, but the inference can reasonably be drawn that if that evidence had been produced, it would have been unfavorable in some respect from the Crown's perspective⁸ – no more and no less. In what particular I cannot know, but that is the legitimate effect of the inference. No greater weight can be given to it than that, but this is at least another factor which serves in part to create uncertainty relative to the credibility of P.C. Riley's evidence in particular, as well as that of P.C. Naidoo to a lesser extent, and that arguably prevented the court from getting to the bottom of the question of the paths that were actually taken by the two officers in coming to the corner of Queen and Bond streets where the two suspects were apprehended.

(v) Was the search of the applicant lawful?

106When P.C. Riley put his notebook away after finally reading Mr. Abdusemed his rights to counsel and performed a “field search" on Mr. Abdusemed, this was one and a half to two minutes after he was arrested, and about a third of the way back up the length of Bond Street to where the blue Alero was parked. That was 75 to 100 m north of Queen Street and removed from the location where P.C. Riley first indicated he detained Mr. Abdusemed because of his extraordinary concerns about officer safety and then arrested him moments later.

107In the course of that search, P.C. Riley located a cell phone and pieces of identification in the pocket of Mr. Abdusemed's shorts, together with two small 1” round walnut-sized packages. That was at 6:22 PM. He opened those packages wrapped in plastic and identified what he thought was crack cocaine. He arrested Mr. Abdusemed at 6:23 PM for possession of cocaine for the purposes of trafficking. He said he read him his rights again relative to the new charges.

108I find that this search cannot have been lawful because, as I have previously explained, it was incident to an unlawful arrest where P.C. Riley did not have reasonable and probable grounds to arrest this accused person for dangerous driving. As such, he could not legally search Mr. Abdusemed incident to that unlawful arrest.

109There were other disturbing aspects to this search as well. First, while the search was allegedly grounded in the arrest of Mr. Abdusemed for dangerous driving of the blue Alero, it was evident on P.C. Riley's testimony that he was going to search the occupants of the vehicle, regardless of grounds. He testified to his belief that the vehicle had sped away from the collision scene because the occupants of the vehicle had something to hide. That may well have been true, but it did not permit searches to be conducted in the absence of arrests that were founded on reasonable and probable grounds and not mere suspicion. Further, Mr. Abdusemed was not going to be permitted to leave the scene – he was not free to go. It seems more likely than not on his evidence that P.C. Riley planned to search Mr. Abdusemed whether or not he had grounds to do so. That constitutes overly aggressive action that amounts to intentional disregard for the Charter rights of civilians, and this applicant in particular.

110The other aspect of the search of Mr. Abdusemed that requires comment relates to the Crown’s submission that even if the search was not incident to arrest, on the basis that P.C. Riley did not have reasonable and probable grounds to arrest Mr. Abdusemed, the cocaine would have been discovered inevitably and in any event because P.C. Riley was entitled to conduct a patdown search of Mr. Abdusemed for officer safety.

111First, on the officer's own evidence, he always conducts a full field search. While he said that he precedes that with a pat-down search in circumstances where the person is merely investigatively detained, there was no evidence that a pat-down search was ever conducted in this case, and there is no reference to it in his notes, again a significant omission given the importance of there being grounds to justify it if a pat-down search is being conducted. Further, since a pat-down search is authorized under R. v. Mann only for the purpose of ensuring officer safety, it seems plain that no such search should reasonably have been conducted here, given that P.C. Naidoo’s contradictory evidence shows that the factual foundation for P.C. Riley's “extraordinary concerns” about officer safety was patently absent.

112Even if a pat-down search had been conducted, I find that there was nothing in the pockets of Mr. Abdusemed that could reasonably have been regarded as an officer safety concern, taking account as well of his cooperative and compliant conduct, so, in my opinion, P.C. Riley could not obtain authority arising out of that pat-down search, which never took place, to conduct the full field search that he said was his custom. Reasonable limits must be imposed if any reasonable meaning is to be given to the exceptional right accorded to police officers to conduct a limited warrantless search of a suspect in the interests of officer safety under R. v. Mann. In my view, as a carve out from the conduct otherwise required of officers, it must not be abused and does not automatically permit officers to engage in a full field search of a suspect as long as they have preceded it with a perfunctory pat-down search.

113As I noted above in the overview, the decision in Mann was not intended to be used to provide blanket authorization to the conduct of illegal searches in violation of Charter rights, in the absence of reasonable and probable grounds to believe either that a person has committed a particular criminal offense, or that they must be detained to permit further investigation, and in circumstances where officer safety concerns are reasonably and realistically engaged. It does not permit any and all intrusive searching of a suspect’s pockets simply because there may be something in them that is contraband or of interest to the police.

(v) Did police breach the applicant’s s. 10(a) and (b) Charter rights?

[114] In addition to the allegations that police breached Mr. Abdusmed’s s. 8 and s. 9 Charter rights, Mr. Abdusemed claimed that police breached his s. 10(b) right to retain and instruct counsel without delay.⁹ P.C. Riley admitted that he did not immediately inform Mr. Abdusemed of his rights to retain and instruct counsel without delay: see R. v. Suberu.¹⁰

115P.C. Riley testified that he “felt uncomfortable” reading Mr. Abdusemed his rights to counsel at that time, right after arrest. Instead, he wanted to move to another location, a location where there were other officers present for purposes of officer safety. He was not going to read his rights until they were back in the vicinity of the blue Alero, and yet there was no cogent evidence that officer safety or other legitimate concerns were present that necessarily precluded P.C. Riley giving Mr. Abdusemed his rights to counsel immediately after he detained him, or at least moments later when he arrested him. Once he did read him his rights up the street acouple of minutes later, Mr. Abdusemed said he understood them but that he did not have a lawyer. P.C. Riley said that he read Mr. Abdusemed the caution. Mr. Abdusemed said nothing in response to the caution.

116In my view, there was no adequate explanation provided by P.C. Riley to explain his perceived inability to immediately advise Mr. Abdusemed of his right to counsel. Instead, that failure appears more consistent with a relaxed attitude to Charter rights that did not reflect that P.C Riley had any realistic or meaningful understanding of the substantive rights that citizens have relative to these questions. He did not show any understanding that Mr. Abdusemed’s rights to counsel should have taken priority over his plan to remove him away from the corner of Queen and Bond to where the blue Alero vehicle was parked, and where a field search could be conducted with only other officers present. I find that P.C. Riley did breach Mr. Abdusemed’s rights under s. 10(b) of the Charter to retain and instruct counsel without delay, but as this chronology of conduct shows, in the context of this case it is a lesser Charter violation However, when considered in aggregate, it exacerbates the seriousness of the Charter breaches, as I will briefly explain in the next and final section of this analysis.

(vi) Should the evidence be admitted or excluded under s. 24(2)?

[117] I have concluded that there were no reasonable and probable grounds to arrest Mr. Abdusemed and consequently, the search incident to that arrest was unlawful. As a result, the cocaine found during that search and that is sought to be introduced in evidence against him on this trial was not lawfully obtained. That conduct gave rise to violations of at least his s. 8 Charter rights, and I have concluded that the conduct of P.C. Riley following his detention and arrest violated his s. 10(b) rights to retain and instruct counsel without delay. As such, it is necessary to conduct a s. 24(2) analysis to determine if the evidence obtained as a result of that search should be admitted or excluded.

118The seminal decision in R. v. Grant, above, requires that three factors be considered and balanced in determining whether the admission of the impugned evidence would bring the administration of justice into disrepute. They are the seriousness of the Charter infringing state conduct, the impact of the conduct on the Charter protected interests of the accused, and society's interest in an adjudication on the merits. All three factors must be considered and none is definitive.

119Looking at the first factor, Charter infringing state conduct can range from being essentially inadvertent, or of only minor significance or arising out of good faith police conduct, to violations of a most egregious nature, that were the product of wilful or reckless or deceitful conduct in disregard for Charter values. Those at the former end of the spectrum may or will have only minimal impact on public confidence in the rule of law. Where evidence has been obtained through wilful or reckless disregard of Charter rights, however, or in circumstances like these where there are findings that the evidence of the police is incredible, or unreliable, or internally contradicted, there is a serious risk that was recognized by the Supreme Court of the administration of justice being cast into disrepute. That is the message that the public may receive if our courts are unwilling to act and thereby "effectively condone state deviation from the rule of law."¹¹

120In this case, the Crown argues that if there was unlawful conduct, as I have found there was, that it was so close to the line of being lawful, that there is clearly good faith on the part of the officers, and thus the search cannot be regarded as egregious or as having been conducted in blatant disregard of Charter values.

121I disagree with that contention. In my view the Charter breaches here are serious, and it is exceptionally difficult for me to make a finding of good faith when the story of the two officers about why they did not communicate with each other makes no sense. It is not believable to me, that the two officers would not have exchanged information that would have shown that it was more likely than not that it was Mr. Trench, the black male in the red shirt, who was the driver of the vehicle. As such, he was the person in respect of whom there may have been reasonable and probable grounds to arrest for dangerous driving.

122On the other hand, there was nothing that connected Mr. Abdusemed to the vehicle as driver other than the fact that he was there with Mr. Trench. He did not have car keys like Mr. Trench that he was trying to hide. He did not tell the officers anything relative to the vehicle, or who the owner was, in fact he said nothing. It was Mr. Trench who associated himself with the vehicle by telling the officers that it was his girlfriend's car and that she had been driving.

123Further, it seems more likely than not to me that P.C. Naidoo and P.C. Riley both received the same information from the unidentified civilian. This is the more likely conclusion, given the distance of only several seconds, if that, that separated P.C. Riley to the north on Bond Street from P.C. Naidoo, 50 m south of him. There is simply is not enough time that passes between the communication received by each of the two officers from the unidentified civilian who is on the west side of Bond Street close to the doors of St. Michael's Hospital for that person to be two different people. So contrary to the evidence of the officers, in my view it is more likely than not that they did have the same information and that that was information that associated Mr. Trench with the vehicle rather than Mr. Abdusemed.

124That in turn highlights the much more serious nature of the first Charter breach. It is serious because the officers knew and admitted that they could only arrest relative to a driving offense. Equally, however, P.C. Riley's evidence showed that he was going to find out why those two individuals fled from the accident scene on Jarvis Street. He was going to find out what they had to hide from him. Thus, I can only conclude that the two officers failed to communicate with each other to create a better evidentiary foundation for arresting both individuals, or if they did communicate more than they claimed, then they did not tell the truth about it.

125It cannot reasonably be concluded that there was no time available for that communication to take place because of concerns for officer safety, as P.C. Riley would have the court believe, because the evidence of the officers on that point is directly contradictory. Moreover, the absence of an officer safety concern is highlighted by the fact that P.C. Riley was perfectly comfortable simply accompanying Mr. Abdusemed back to the location of the blue Alero, without having conducted a pat-down search. That is conduct that is inconsistent with the realistic existence of an officer safety concern and serves to further highlight the incredible and unreliable aspects of P.C. Riley's testimony.

126The seriousness of the Charter breaches is also enhanced by P.C. Riley's failure to respect Mr. Abdusemed’s s. 10(b) rights to counsel. Rather than giving Mr. Abdusemed his rights at the time that he was detained, or seconds thereafter when P.C. Riley arrested him for dangerous driving, P.C. Riley preferred to not read him his rights at that time, but to instead walk back the hundred meters to the location of the blue Alero, in a location where there were other police officers and presumably fewer prying eyes of other members of the public. Only then, he said, did he feel comfortable reading Mr. Abdusemed his rights to counsel, but as Subaru makes clear, that is not enough. A delay in relaying rights to counsel to an accused person may be justified in realistic or reasonable circumstances of officer safety, or where the exigencies of the circumstances make it impossible to give those rights without delay. However, none of those factors were present here. I find that the breach of Mr. Abdusemed’s s. 10(b) rights adds weight to the seriousness of the Charter breaches in this case, following, as it does, an unlawful arrest that immediately precedes an unlawful search.

127This circumstance was not unlike R. v. Harrison¹² where the officer's determination to turn up incriminating evidence was found to have blinded him to the constitutional requirements of reasonable grounds. At para. 26-26 the court stated as follows:

26 I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under section 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).

27 In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer's misleading testimony at trial. The police conduct was serious, and not lightly to be condoned.

128In that case it was found that while the violations may not have been "deliberate", in the sense of setting out with the intention to breach the Charter, they were reckless and showed an insufficient regard for Charter rights. In my opinion, the same can be said for P.C. Riley in this case. Consequently, in my view the Charter infringing conduct of the police in this case is properly classified as being serious.

129The second element of Grant requires that I consider the impact of the unconstitutional conduct on the Charter protected interests of the accused. Its impact may be merely "fleeting and technical" or it may interfere profoundly and intrusively on the accused's Charter protected interests. Again, the court in Grant warns that as the degree of intrusion into the accused’s constitutional rights escalates or compunds, there will be an increasingly greater risk that the admission of the evidence may signal to the public that we lack commitment to enforce Charter values. That may breed public cynicism and bring the administration of justice into disrepute by instead conveying the message that it is all just so many words and that our principles are men of straw who will not be there to protect our citizens from unconstitutional conduct.¹³

130Crown counsel argued that the search of Mr. Abdusemed in this case does not significantly impact on his Charter protected interests. He says the search was minimally intrusive and that the grabbing of Mr. Abdusemed's arm by P.C. Riley was not excessive, and if it was, only to a small marginal extent. Thus, in his view if I find the search to have been unlawful it could only be by a small margin and he continued to argue that the principal of discoverability would inevitably have led to the discovery of the two pieces of cocaine. Further, he says that if P.C. Riley had not arrested Mr. Abdusemed, P.C. Naidoo said that he would have done so, so that even if P.C. Riley is taken out of the picture, Mr. Abdusemed would still have been arrested and he would still have been searched.

131I reject both of these positions. Mr. Abdusemed has a right under the Charter not to be unreasonably searched. He also has a right not to be clapped into handcuffs without reasonable and probable grounds to believe that he has committed a specific offence, as P.C. Riley did. In this case, however, what causes the search to have a significant impact on Mr. Abdusemed's Charter protected interests is not just that he was physically grabbed and detained by P.C. Riley when the evidence shows there was no officer safety justification for it, or that he was then handcuffed, again without supporting evidence. Rather, it was also the astonishing statements of P.C. Riley that he was going to search Mr. Abdusemed, that he was going to find out why those two individuals fled from the scene of the accident, and that Mr. Abdusemed was not free to leave, regardless of whether there were any reasonable grounds to detain or arrest him.

132The Crown claimed that P.C. Naidoo would have arrested Mr. Abdusemed in any event. However, this claim was not believable given the failure of the officers to communicate with each other, the likelihood that the information received by both officers came from the same unidentified civilian and my finding that P.C. Naidoo had no more reasonable and probable grounds to arrest Mr. Abdusemed than P.C. Riley did. It was entirely based on speculation and possibility, simply because of the conclusion that Mr. Abdusemed was an occupant of the blue Alero.

133Finally, P.C. Riley's evidence that he never puts a notation in his notebook about conducting a mere pat-down search, and his views that if he feels anything whatsoever in the course of conducting a pat-down search, that necessarily gives him the right to conduct a full field search in the interests of officer safety, itself has a significant impact on Mr. Abdusemed’s Charter protected interests. It has that impact because it displays a relaxed and seemingly uncaring attitude to the importance of Charter rights, and a demeanor that reflects a determined willingness to disregard those rights if they interfere with the officer’s intention of getting to the end of the story.

134In this case, as he confirmed, P.C. Riley was going to find out why it was that the occupants of that blue Alero vehicle fled the scene of the collision on Jarvis Street. While he did not explicitly admit it, it was plain from his own evidence and statements of his best practices that he was not concerned if Charter rights might otherwise have interfered with achieving that goal.

135In this case and in the context of these circumstances, I find myself obliged to conclude that the search of Mr. Abdusemed amounted to a significant intrusion into his privacy rights which is significantly aggravated by the failure to give him his rights to counsel which breached his s. 10(b) right. I find that this factor also weighs in favour of exclusion of this evidence.

136The third part of the Grant analysis focuses on society's interest in an adjudication of crimes on the merits. The public generally and rightly expects that criminal allegations will be tried on the evidence and determined against the criminal standard of proof. The reliability of the evidence is a significant factor in this line of inquiry, but unconstitutionally obtained evidence will not be admissible, regardless of how it was obtained, merely because it is reliable. Nonetheless, the importance of the evidence to the Crown's case is an important factor at this stage and requires consideration as well, especially where the exclusion of evidence would effectively end the Crown’s case against the accused.¹⁴

137In this case, the offence of possession of cocaine for the purposes of trafficking is obviously serious, the cocaine is highly reliable physical evidence, and its admissibility is crucial to the Crown's case. If the evidence is excluded, there will be no evidence remaining upon which the Crown could prosecute the case. I find that this factor weighs in favour of admissibility of this evidence because it’s exclusion will prevent adjudication on the merits since the key piece of evidence would be unavailable. Defence counsel freely acknowledges that the third factor favours the Crown.

138So in this case, two of the three Grant factors support exclusion of the evidence. However, Grant also shows that this is not a mere mathematical exercise. Even if only one factor favoured the inclusion or exclusion of the evidence, as I engage in the balancing consideration that Grant requires it would remain open to me to conclude that one factor outweighs all other considerations. The point is made in Harrison at para 36:

36 The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

139In this case, even though the effect will be to eliminate the ability of the Crown to proceed with its case, I am satisfied that the evidence must be excluded because the admission of this evidence would bring the administration of justice into disrepute. For the reasons I have outlined, this was a very serious intrusion into the applicant's privacy interests and a plainly unsatisfactorily explained failure to respect Mr. Abdusemed’s s. 10(b) rights. Most importantly, I have made negative findings in this case relative to the credibility and the reliability of the evidence of the two police officers who were involved, and in particular P.C. Riley, who alone arrested and searched the applicant and unreasonably delayed reading him his rights to counsel.

140As noted above at paras. 26-27 of R. v. Harrison, misleading conduct and my negative findings relative to the believability of the evidence of the officers itself is a factor that weighs in favour of the remedy of exclusion. The court must distance itself from this kind of conduct. This echoes the view of Cronk J.A. that if we allow the seriousness of offences and the reliability of evidence to overwhelm the s. 24(2) analysis, it “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law “the ends justify the means.”¹⁵ To do otherwise would be to send a message to the public that the courts cannot be relied upon to protect the privacy rights of citizens where police conduct is motivated only by suspicion and possibility, rather than credibly based probability.

Conclusion

141In summary, I have concluded that the evidence must be excluded. The arresting officer did not have reasonable and probable grounds to arrest this applicant. Accordingly, the search of Mr. Abdusemed that yielded the illicit drugs was incident to an unlawful arrest. Further, the arrest was followed by a failure to properly advise Mr. Abdusemed of his rights to counsel. However, even if the police had the authority to detain the applicant for further investigation, and to conduct a pat-down search for officer safety, that detention did not give them the right to conduct the field search that they did, so it was not inevitable that the contraband drugs would be discovered.

142Against this background, and applying the analysis mandated by R. v. Grant, I consider the Charter breaches to be serious in this case. They significantly interfered with the Charter protected interests of the applicant. Their seriousness requires that the evidence be excluded lest the administration of justice be brought into disrepute in the eyes of the public. The application is granted. The drugs and other evidence seized are inadmissible at this trial.

Michael G. Quigley J.

Released: June 12, 2013

COURT FILE NO.: CR-11-90000795-0000

DATE: 20130612

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

and -

SEMIT ABDUSEMED

Defendant/Applicant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: June 12, 2013

Footnotes

2009 SCC 32, [2009] 2 S.C.R. 353.
2010 SCC 24, [2010] 1 S.C.R. 851.
(1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.).
[1977] O.J. No. 3097 (C.A.) at para. 18. See also R.v.Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.) at para. 22, where Rosenberg J.A. said that the standard of reasonable grounds as it relates to a search warrant does not require proof beyond a reasonable doubt, or even proof on a balance of probabilities. Rather, if the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued.
[2008] O.J. No. 3754 (S.C.J.) at para. 68, where most of the principles relative to the legality of an arrest and the existence of reasonable and probable grounds are reviewed and helpfully summarized.
(1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) at page 114-5.
See R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at paras. 61, 66-68, and 70. See also R. v. Hanson, [2009] O.J. No. 4152 (S.C.J.), R. v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185 (C.A.), R. v. Clark, [2003] O.J. No. 1323 (O.C.J.), and R. v. Williams, 2009 ONCA 35, [2009] O.J. No. 123 (C.A.).
See R. v. Koffman (1985), 20 C.C.C. (3d) 268 (O.C.A.), and other cases cited in Watt’s Manual of Criminal Evidence, 2012, at paragraph 12.01.
It was initially claimed that P.C. Riley breached his s. 10(a) right to be informed promptly of the reason for his detention or arrest, and defence counsel did not pursue the point. Regardless of whether the foundation for it was present, P.C Riley told Mr. Abdusemed that he was detained relating to dangerous driving, and seconds later he told him that he was arrested for that offence.
[2009] S.C.R. 460.
Ibid., at paras. 72-75.
2009 SCC 34, [2009] S.C.J. No. 34.
R. v. Grant, above, at paras. 76-78.
Ibid., at paras. 79-83.
R. v. Harrison, 2008 ONCA 85, 89 O.R. (3d) 161 (O.C.A.).

B. Facts

(i) Officer Naidoo’s Evidence

(ii) Officer Riley’s Evidence

(iii) The videotapes

C. Positions of the Parties

(i) The Crown’s Position

(ii) The Defence Position

D. Analysis

(i) Basic Principles

(ii) Credibility of the Officers’ Testimony

(a) P.C. Naidoo’s Evidence

(b) P.C. Riley’s Evidence

(iii) Did P.C. Riley have reasonable and probable ground to detain and arrest the applicant?

(iv) The problem of the videotaped evidence

(v) Was the search of the applicant lawful?

(v) Did police breach the applicant’s s. 10(a) and (b) Charter rights?

(vi) Should the evidence be admitted or excluded under s. 24(2)?

Conclusion

Footnotes

B. Facts

(i) Officer Naidoo’s Evidence

(ii) Officer Riley’s Evidence

(iii) The videotapes

C. Positions of the Parties

(i) The Crown’s Position

(ii) The Defence Position

D. Analysis

(i) Basic Principles

(ii) Credibility of the Officers’ Testimony

(a) P.C. Naidoo’s Evidence

(b) P.C. Riley’s Evidence

(iii) Did P.C. Riley have reasonable and probable ground to detain and arrest the applicant?

(iv) The problem of the videotaped evidence

(v) Was the search of the applicant lawful?

(v) Did police breach the applicant’s s. 10(a) and (b) Charter rights?

(vi) Should the evidence be admitted or excluded under s. 24(2)?

Conclusion

Footnotes

Cited By (1 case)

R v Ahmad, 2016 ONCJ 704

Cited By (1 case)

R v Ahmad, 2016 ONCJ 704