ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2571-00
DATE: 20130705
B E T W E E N:
HER MAJESTY THE QUEEN
ANDREA ESSON, for the Respondent-Crown
Respondent/Crown
- and -
JAHMARR STERLING-DEBNEY
JEFF HERSHBERG, for the Applicant
Appellant
HEARD: May 28 and 30; June 12, 2013
RULING ON CHARTER APPLICATION
DURNO, J.
[1] On June 23, 2012, the applicant, Jahmarr Sterling-Debney, left his girlfriend’s apartment just before midnight and walked out of the building, across the parking lot to her Honda motor vehicle. Before he got inside he opened the trunk. The applicant says he was looking for his child’s hat in the trunk and did not put anything in the trunk. Two police officers testified they saw him put what they concluded was a handgun into the trunk. They stopped the applicant after he had left the parking lot, searched the trunk and found a loaded gun.
[2] The applicant applies to exclude the gun from evidence contending his rights pursuant to ss. 8 and 9 of the Charter of Rights and Freedoms were violated. He submits he was illegally detained, the search was unreasonable and that to admit the evidence would bring the administration of justice into disrepute. The Crown submits the officers had grounds to stop and search the vehicle because they honestly believed they saw him put a gun in the trunk. Accordingly, there is no breach of ss. 8 or 9 and the evidence is admissible.
[3] For the following reasons, I agree with the applicant and the evidence is excluded.
The Evidence
[4] Three witnesses testified on the application, the applicant and Peel Regional Police Constables Stephen Porciello and Michael Bishop. While the applicant did not know the officers’ names at the time of the incident I will use their names in summarizing the applicant’s evidence as there is no issue to which officer he was referring.
The Applicant’s Evidence
[5] The applicant testified that he had driven his girlfriend to her cousin’s home and left her there. She called him at about 11:40 p.m. saying she wanted him to pick her up and drive her to her apartment. The call was confirmed on his cell phone records that were introduced. He drove her to her apartment, went upstairs for about ten minutes and left on his own to go to a barbeque. When he left his girlfriend asked him to look for her son’s baseball hat as it must have been left in the car. Since her son was at her mother’s there was no rush to get the hat.
[6] The applicant was wearing a grey hoodie but could not recall if it had side or kangaroo pockets because he had so many grey sweaters. As he was walking to the car, he looked around to see his surrounding as he always did because it was not a safe neighbourhood. There had been a murder in the parking lot a year earlier. He saw no one. In cross-examination, he admitted that had there been two police officers sitting in a car with their lights off he would not have seen them and that it was possible he looked around more than once.
[7] As he approached the car, he put his right hand into his shorts or sweater pocket to get the keys. That was the only time he had his right hand in his pockets, his left hand was never in his pocket as he did not walk with his hands in his pockets.
[8] When he got to the car, he popped the trunk, immediately saw the hat, closed the trunk and got into the driver’s seat of the Honda. He recalled dropping the keys getting in and had to retrieve them. The applicant denied putting his hands or anything else into the trunk. Before he drove out of the lot, he sat in the driver’s seat for about 5 minutes looking for CDs to play. While doing so, he received a call from his friend Tyrell who asked him to call back on Tyrell’s other phone because Tyrell’s cell phone was going dead. The applicant reversed out of the parking spot and drove out of the parking lot. As he was driving out of the parking lot he was looking up Tyrell’s other number to push the button to call him. There were entries in the applicant’s cell phone records that supported the calls were made.
[9] He turned left out of the exit onto Rexwood Road and drove for about two to three minutes to Derry Road where he stopped for the red light before turning left. While driving he was on his cell phone talking to Tyrell. He first saw the police while stopped at the red light as they activated their siren and emergency lights. The applicant turned left and pulled over at a bus stop, the police pulled in behind him, Constable Porciello got out and went to his driver’s door and P.C. Bishop went to the passenger’s side of the Honda where he shone a flashlight into his car.
[10] The applicant rolled down his window and Constable Porciello asked if he was driving while on his cell phone. The applicant admitted that he was. The officer asked for his license, got it and told him to get out of the car. When the applicant asked why he had to get out, the officer said to just get out. When he got out, Constable Porciello took him to the front of the police car, left him there and got into the police car and used the police radio. This was the first time the applicant had ever been stopped by the police while driving. As he was never told to turn his car off, he left his car running. The applicant denied popping the trunk to the Honda when he got out of the car.
[11] When the applicant saw Constable Bishop searching the front passenger’s and driver’s seats of the Honda for about 5 minutes, including pulling at the door panels which looked suspicious to the applicant, he started to go and take a look at what he was doing. He took one or two steps towards the Honda, P.C. Porciello asked him what he was doing and put handcuffs on him but did not say he was under arrest. Bishop popped the appellant’s car trunk, searched in the trunk for 2 or 3 minutes before he pulled a bag from the trunk, took the gun out of the small black bag it was in and yelled, “Gun.” Constable Porciello then kicked out his legs at his knees taking him to the ground and put his knee in the back of the applicant’s head. When the applicant said it was not his gun, Porciello told him to, “Shut the fuck up.”
[12] The applicant said he was in shock when he saw the gun in the car. When he was taken to the ground he was told for the first time that he was under arrest but was not told the charge until he was back at the station. When the Crown asked what he was told when he was on the ground he initially said he did not recall but almost immediately thereafter said he was told he was under arrest. He said he remembers most of the events of that night.
[13] The applicant said neither he nor his girlfriend owned a firearm, that the car had been locked in the parking lot as well as when they went to Niagara Falls the day before. He did not know how the gun got in the car. He admitted having a Youth Court record for armed robbery in which a knife was used. He did not have the knife during the robbery but did not remember who had it.
(Full text continues exactly as in the original judgment, including all paragraphs [14] through [135] and the concluding release lines.)
DURNO, J.
Released: July 5, 2013
COURT FILE NO.: CR-12-2571-00
DATE: 20130705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent/Crown
- and –
JAHMARR STERLING-DEBNEY
Appellant
REASONS FOR JUDGMENT
DURNO, J.
Released: July 5, 2013