COURT FILE NO.: CRIMJ(P) 1967/12
DATE: August 9, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Stephen Laufer, for the Crown
- and -
Orlando Smart
Richard O’Brien, for the Defendant
HEARD: March 11, 12, 13, 14, and 18, April 29,
May 9, June 28, 2013 in Brampton
Reasons for Judgment
Lemon J.
The Issue
[1] Mr. Smart is charged with six offences under the Criminal Code of Canada and one under the Controlled Drugs and Substances Act. With respect to the Code, he is charged with carrying a concealed knife, possessing a shotgun without a license, storing the shotgun in a careless manner, possessing a firearm without a license, having possession of the shotgun for a purpose dangerous to the public peace and possessing a loaded prohibited firearm without a license. With respect to the Controlled Drugs and Substances Act, he is alleged to have been in possession of crack cocaine. The only issue between the parties is whether, on the evidence, possession of the knife, the shotgun and the cocaine has been proved beyond a reasonable doubt.
[2] For the following reasons, I find him guilty of carrying the concealed knife but not guilty of the balance of the charges.
The Evidence
[3] In an earlier ruling with respect to the admissibility of evidence, I set out the background evidence. It was agreed that the evidence on that voir dire was rolled into the trial proper. The relevant parts of the trial evidence are as follows.
[4] In the early morning hours of Sunday, September 18, 2011, four uniformed police officers attended at Mr. Smart’s apartment building at 265 North Service Road, Mississauga. What occurred that evening in front of Mr. Smart’s apartment resulted in Mr. Smart’s arrest.
Evidence of Officer Trujillo
[5] Officer Trujillo received a radio call in his cruiser on Sunday, September 18, 2011 at 1:45 a.m. The information that he received was that an individual at 265 North Service Road, Mississauga, saw three black males standing near the exit doors to the stair wells on each of the second, third and fourth floors. All of the men were black and in their 20s. They were wearing black or dark clothes and “hoodies”. The caller was “terrified” and felt that “something bad was going to happen”.
[6] Officer Trujillo arrived at 1:55 a.m. and parked near the building. He observed Officers Li, Meerburg and Sidhu in the area. They had already checked inside the building and were now patrolling the exterior. He went along with them. They checked to the north of the building and found no one. He then walked back towards the apartment door and decided that they should search again inside the building.
[7] Officers Trujillo and Meerburg went to the north side stairs and Officers Li and Sidhu went to the south side stairs. Officers Trujillo and Meerburg walked the stairwell to the top or sixth floor of the building. They noticed nothing suspicious. They then walked across the sixth floor hallway.
[8] Officer Trujillo observed a bike leaning against a wall to the right side of apartment 610. He cannot say how near the bike was to the door but it was not near anything else. To him, this meant that someone had just arrived or was about to leave. As he approached the door, he could hear several voices inside apartment 610 but he could not make out the words of the conversation. He listened at the door about one to one and a half feet away for a few seconds. The voices were loud enough to hear from the hallway. He went to the door to be sure that the voices were from that door. His ear was to the door. Officer Meerburg was behind him. Officer Trujillo was listening for voices or disturbances.
[9] Officer Trujillo testified that if he had not heard voices, he would have kept on walking down the sixth floor. When he was on the sixth floor, he had not planned to listen at the door of any apartment. Rather, he responded to hearing voices. He did not plan to knock on the door. He had no plan at the time that he was listening to the door and hearing voices.
[10] The door then suddenly opened and Officer Trujillo observed the accused, whom he identified in court as Alwyn Smart. At first he thought this was Orlando Smart, his brother, because he had arrested Orlando a few weeks prior. Although Officer Trujillo got the first names wrong, nothing much turns on this point. The balance of the evidence confirms that the man at the door was the accused, Orlando Smart and that later in the events, Alwyn Smart appeared from a different apartment in the building.
[11] Officer Trujillo denied that he knocked on the door and denied that he asked Mr. Smart to come outside. He denied that he pulled Mr. Smart out of the apartment. He denied that he did this because of mistaken identification.
[12] At this time, the door was fully opened. Officer Trujillo could see others behind Mr. Smart. They fled to the right into the apartment. The others were a few feet away from Mr. Smart when Officer Trujillo observed him. The others fled too quickly for him to see if they had weapons.
[13] Mr. Smart immediately tried to flee and bolted out the door to Officer Trujillo’s left. There were no words spoken by, or to, Mr. Smart. Officer Trujillo was not expecting him to charge and was standing about two feet away from the door. Mr. Smart had no facial expression as this occurred. He simply put his head down and charged out. Officers Meerburg and Trujillo arrested Mr. Smart. Mr. Smart was resisting and combative. There was no opportunity to speak with him and Officer Trujillo was concerned about officer safety at that point. He was concerned that Mr. Smart may have had a weapon, based on Officer Trujillo’s experience with gangs.
[14] Officer Meerburg had hold of Mr. Smart and Officer Trujillo placed handcuffs on him. Officer Meerburg then placed Mr. Smart against the wall. Despite this, Mr. Smart continued to push away and was yelling loudly. Officer Trujillo does not remember the words that he was using.
[15] He placed Mr. Smart under arrest for what he called “investigative detention”, relative to the 911 call.
[16] Officer Meerburg patted Mr. Smart down and said that he located a knife. At that point, Officer Trujillo was concerned that the others in the apartment may have had weapons.
[17] Officer Trujillo could not recall when Officer Meerburg found the knife. He does not recall if Mr. Smart volunteered the knife. Officer Trujillo did see it briefly but he does not recall what it looked like. He just received information about the knife. He agreed that Officer Meerburg was on Mr. Smart’s back to hold him down. Officer Trujillo did not notice anything bulky in the back of Mr. Smart’s jeans and did not recall if Mr. Smart was wearing tight jeans.
[18] Mr. Smart continued to yell and attempt to escape. He tried to stand up to run and he also tried to gain attention by yelling. There was no one else in the hall. Even after he was cuffed, Mr. Smart was in various positions as he attempted to flee. He was face down or on his side or on his knees.
[19] A male then came out of the apartment and tried to distract them and told them to let Mr. Smart go. On other evidence, this man was Rory White. Mr. White was yelling things like, “Let him go” and “what are you doing?” This was occurring in the hall in front of the doorway to the apartment. Officer Trujillo then placed Mr. White under arrest. He was concerned that Mr. White may have had a weapon, as he had come up from behind them and the door was open. He was also concerned that other individuals might come out of the apartment.
[20] When Mr. White came out of the door, he was yelling but he did not obstruct them by coming towards them and did not prevent them from carrying out their duties. Officer Trujillo did, however, feel threatened by Mr. White yelling at them in an aggressive fashion. He does not remember leaning Mr. White against the wall.
[21] No one else came out of the apartment while Officer Trujillo held Mr. White down. Officer Trujillo called for other officers to assist. Officers Li and Sidhu arrived and assisted.
[22] Mr. White was more compliant than Mr. Smart. Mr. Smart was still yelling. The doorway was still open and Officer Trujillo could see into the living room area. He advised Officer Li that there were others in the apartment. He did not want the others coming out so he and Officer Li went into the apartment. They drew their firearms from their holsters.
[23] When Officer Trujillo went into the apartment, he yelled “police” but said nothing else. Officer Li was with him. He searched the apartment because he had concerns about officer safety. He wished to make “an investigative detention” of those in the apartment as a result of the call that males were loitering in the halls or were trespassers. He thought that they may have been part of a home invasion given the number of individuals and the information that something bad was going to happen.
[24] Inside the apartment, Officer Trujillo went down the right hallway and found a man near the washroom. Officer Trujillo told him to put his hands up and the individual acted as though he was confused. There were two bedrooms. This man was coming out of the furthest one. Officer Trujillo walked towards him and passed a bedroom door to his left. There were three men in that bedroom. Two were sitting on the bed and one was standing. He told them to show their hands, stand up and walk out of the apartment. They complied, so he did not enter the bedroom at that time.
[25] He saw their faces and he saw a light on in the room. Their hands were over their heads. His gun was in his holster by then. He backed away from the door as they walked out. He then dealt with the taller man at the end of the hall. He did not look into the room at the end of the hall.
[26] He had the first three go out first and then the male near the washroom walked out; Officer Trujillo followed. Each was arrested and searched and cuffed. Some were cuffed together because they did not have enough handcuffs. He had no information of weapons found on them. He asked no other questions of the individuals.
[27] He then went back into the apartment by himself because there were fewer officers than men under arrest. He was concerned for officer safety. The 911 call had said there were nine individuals and his count was that they only had five at that time. Officer Li was taking control of the others in the hall.
[28] Officer Trujillo called out but there was no response. He went to the kitchen first and then the living room. He then went down the hallway towards the bathroom and looked in the bathroom. He then looked in the back bedroom and the closet. He looked under the bed in that room as well. He then went to the final bedroom where he had seen the three men and looked under the bed and at that time saw the shotgun in issue along with a machete. He crouched down because he wanted a clear view under the bed to see if anyone was hiding under the bed. He did not touch the two items.
[29] Photographs entered into evidence show that a machete and sawed off shotgun were in plain view on the floor just under and beside the bed. Officer Trujillo testified that one needed to kneel down to see them. When the men walked out, the weapons were as shown in the pictures. He agreed that his notes say that the weapons were in plain view when he entered the room. He missed them when he was arresting the men the first time. When the men were in the bedroom, he was looking at their hands. He denied that he moved the weapons when he went in.
[30] He then left the apartment. As he did so, the men in the hall were louder than they had been. This included Mr. Smart, who was yelling and screaming.
[31] He then told Officer Meerburg to take Mr. Smart to the cruiser along with Officer Sidhu to assist.
[32] Mr. Smart continued to yell and struggle. Even after the officers took him down the stairs and the door closed, Officer Trujillo could still hear him. Officer Trujillo then waited with Officer Li for others to arrive with a warrant to carry out a search of the apartment. He waited at the door of 610. The door was closed. Officer Chaloupka arrived to carry out the search. Officer Trujillo directed him to where the gun was in the bedroom but did not go into the apartment. He then went back to the police station and had no other involvement with the investigation.
[33] As of trial, he had not talked to Officer Meerburg since this happened. They made notes together at the end of these events because of the number of parties and the confusion at the apartments. They helped each other to refresh their memories. He cannot remember what each gave to the other. It was “more of a dynamic discussion”. There were other officers there when they made their notes.
[34] At no time while at the apartment, was he informed that Mr. Smart had shotgun shells wrapped in a bandana in his backpocket.
Evidence of Officer Riley Meerburg
[35] On September 18, 2011, Officer Meerburg was dispatched at 1:46 a.m. by police communications. That call suggested that there were nine suspicious males on the north side of the building. They were wearing dark clothing and near the exit doors of the north stairwell. They were at the second, third and fourth stairwells.
[36] He arrived at 1:51 a.m. in uniform in his own marked cruiser. He arrived with Officers Sidhu and Li.
[37] All three officers went in the front lobby and then to the north stairwell. As they went up the stairs, they opened the door at each floor and looked down the hall. They saw nothing on the sixth and nothing on fifth, but then heard running below them in the stair well. They then picked up their own pace but found no one. They did not listen at the apartment doors. Officer Meerburg saw no one or anything of significance. They went to the lobby and outside where they found Officer Trujillo. All four did a perimeter check but found nothing of note and proceeded back inside the building.
[38] He then paired up with Officer Trujillo to check the north stairwell. They went directly to the sixth floor and opened the door. On the sixth floor, he saw a bicycle in the hall. He did not recall it being there on the first search and therefore thought that it must have arrived in the last 10 minutes. They walked down the hall to check the bike and to walk across to the south side.
[39] He denied walking up to the door of apartment 610 and listening. He did not hear anything coming out of the apartment. Officer Trujillo did not say that he could hear male voices inside. There was no discussion with Officer Trujillo about his prior arrest of Alwyn Smart. He did not get within a foot of the door. Officer Trujillo did not listen at the door, nor did he knock on the door. Officer Meerburg did not knock on the door. They did not ask Mr. Smart to come out and did not grab him and pull him out.
[40] The bicycle was on his right hand side. As they approached the bicycle, the door to apartment 610 opened. The officers were about four feet away from the door. A male in dark clothing exited and looked surprised to see them. He came out of the apartment and turned left and saw them. He had a look of shock. He then turned left again as though to go to his apartment, then immediately turned back right and ran towards them. Officer Meerburg did not believe that the man’s feet moved as he turned left and then right again. It was as if he were making the decision to run into the apartment or back at them.
[41] Officer Meerburg does not recall moving towards or away from Mr. Smart, but he grabbed him and struggled with him. The hallway was narrow, so Mr. Smart had to go through them.
[42] They had no time to speak. Officer Meerburg was focusing on Mr. Smart rather than Officer Trujillo. He thought that Officer Trujillo was behind him at the time. Mr. Smart said nothing to them. This all occurred “within probably two seconds”, and Mr. Smart was instantly at him.
[43] When Mr. Smart ran towards him, his hands were up in a running position and that revealed the knife when Officer Meerburg grabbed him. He noticed a knife sticking out of Mr. Smart’s front jean pocket. Officer Meerburg put his hands up and grabbed Mr. Smart by both arms to get him down on the floor. He does not remember backing up. Rather, he pushed him to bring him down to the ground. He used nothing but his upper body to bring him to the ground.
[44] He does not recall what Officer Trujillo was doing at the time however Officer Meerburg put Mr. Smart on the ground and cuffed him. Mr. Smart was still trying to get away from him and yelling for help.
[45] Officer Meerburg saw a shiny knife with a black handle in the front pocket of Mr. Smart’s pants. He arrested Mr. Smart for possession of a concealed weapon and gave him his Charter rights. Mr. Smart did not tell him of the knife. Officer Meerburg only saw about an inch below the taped handle during the scuffle with Mr. Smart. He saw the handle but not the top of the handle.
[46] The knife was entered as an exhibit. It is approximately nine to ten inches long. It appeared to be homemade and has a serrated edge opposite the blade. The handle also has a puncture tool on the end of the handle.
[47] Mr. Smart was still yelling to have people come to his aid. He was also “fidgeting”, as if to try to get away or to get up. Officer Meerburg usually does a pat down search on arrest, but because Mr. Smart was fidgeting, he could not do a good search. He patted down where Mr. Smart’s hands could reach. This included his waistband. His knee kept Mr. Smart’s hands away from his back pockets. He put his knee to Mr. Smart’s back to apply leverage but did not strike him. Rather, he placed his body weight on him to stop the struggle. Sometimes Mr. Smart was struggling and sometimes not. He did not say that Officer Meerburg’s knee hurt him at any time. Mr. Smart was lying on his front, and while Officer Meerburg kept one hand on Mr. Smart’s hands, Officer Meerburg pulled out the knife.
[48] Officer Meerburg did not check Mr. Smart’s back pockets. He could not recall if Mr. Smart was wearing tight jeans. He did not recall if the back pockets were covered, but he did recall that Mr. Smart had no jacket on. He did not notice anything in Mr. Smart’s pockets.
[49] At that point, another man came out of the apartment, whom Officer Meerburg later found to be Rory White. He wanted Mr. White to be cuffed in case he had a weapon. He ordered Mr. White to kneel down and put his hands behind his back. Mr. White complied but was vocal. He was not resisting in any way.
[50] Before he cuffed Mr. White, Officer Meerburg reached for the knife and put it under his foot as far away from the door as he could. He then had Mr. White sit down against the wall and put his feet out in front of him. Officers Meerburg and Trujillo were the only two officers there at the time. All of this happened within a minute or two.
[51] Officers Li and Sidhu then arrived. They came from the south stairwell and ran down the hall towards them.
[52] Officer Meerburg was still dealing with Mr. Smart, who was still trying to get away. At that time, Officer Trujillo told him that since there was a weapon, he should charge Mr. Smart and remove him. He charged Mr. White at the same time.
[53] Officers Meerburg and Sidhu then took Mr. Smart to the cruiser. Mr. Smart was still actively fighting, yelling and kicking at apartment doors. This occurred even though Officers Meerburg and Sidhu had him by both arms.
[54] Officer Meerburg then escorted Mr. White to a cruiser. Officer Sidhu was still there in his cruiser. He told Officer Sidhu of the charges and turned over the knife found on Mr. Smart to Officer Sidhu. He had no other conversation with Mr. Smart. He did not recall Officer Sidhu telling him anything else. There was no discussion of any other search. Officer Sidhu did not tell him about shotgun shells or a bandana found on Mr. Smart. He did not remember any reaction from Officer Sidhu when he told him about the arrest for weapons.
Evidence of Officer Li
[55] Officer Li also received a dispatch on September 18 at 1:50 a.m. The information was that there had been a 911 call at 1:45. The individual who called was visiting his wife and had seen groups of three black males at each of the second, third and fourth floor. All were wearing dark clothes. The individual apparently was “terrified” and concerned that “something bad was going to happen”.
[56] He met Officers Meerburg and Sidhu at the front entrance. All of the officers took the elevator to the sixth floor in order to clear the north stairwell from top to bottom. When they started down, they heard a commotion and saw someone running into a hallway. They all ran down to the lobby but found no one. When they went outside, they found that Officer Trujillo had arrived.
[57] All four of them then walked through the parking lot. The parking lot is on the north-and-west sides of the building. They also checked the field further north together with their flashlights and then they came back to the building.
[58] They then discussed a plan to continue the search. He and Officer Sidhu took the south stairwell and Officer Meerburg and Officer Trujillo took the north.
[59] Officers Li and Sidhu walked up from the bottom to the top and checked each stairwell on each floor. He did not recall how long each floor took, but it was not a lot of time. He could not recall seeing Officers Trujillo or Meerburg at the other end of the hall.
[60] When they were at the stairwell of the fifth floor, they heard a commotion on the sixth. He knows that he was on the fifth floor when he heard the commotion on the sixth because the doors were marked. He also remembers that there was only one set of stairs to get to the commotion on the sixth. Officer Sidhu was with him at the time.
[61] When he arrived at the sixth floor, there was one male cuffed and on his stomach. The door to apartment 610 was open. Officer Trujillo was at the door, and Officer Meerburg was close to the door.
[62] He saw a knife with a serrated edge on the floor. The man on the ground was wearing all black clothing and swearing. Another man was on the floor in the doorway. He did not recall anyone on top of him. That man was not a threat because he was on the floor. As he approached, he saw another man inside the apartment. They had eye contact, but the man ran back into the apartment.
[63] Officer Li then went into the apartment for “officer safety” with Officer Trujillo. Officer Trujillo was either behind him, or at his side. He did not remember where Officer Trujillo went while they were in the apartment together.
[64] They cleared the kitchen, dining room, living room and bathroom. He then saw a short man at a doorway and another just inside a bedroom.
[65] He told these men to leave the bedroom and led them outside. Once outside, he searched and cuffed Mr. Chance. He did not know who the other individuals were. Mr. Chance was cooperating. They were then searched and cuffed.
[66] Officer Trujillo came back with him. Neither Officer Trujillo, Officer Li nor any others went back into the apartment. No other accused were brought out.
[67] Mr. Smart was arrested for possession of a firearm.
Evidence of Officer Sidhu
[68] Officer Sidhu has been a police officer since January 2010 and had only been nine months “on the road” at the time of these incidents.
[69] He too received the radio call on September 18, 2011 at 1:46 a.m. He got to the building at 1:52 a.m. Others arrived at about the same time. He met Officers Meerburg and Li outside the building. Their plan was to take the elevator up to the top floor and then search downward.
[70] They went to the sixth floor. He took the elevator rather than walk up. He continued on with the other two officers and they cleared the sixth floor and went down the north stairwell.
[71] They continued down the stairway opening doors at each floor. He saw the head of a black male through the railings somewhere near the bottom. He heard yelling and slamming and he ran down each floor to the bottom. He did not recall opening any doors after he heard the yelling and slamming.
[72] They did not locate anyone. They met up at the front door and found Officer Trujillo.
[73] They also looked for the men outside but found no one. He does not remember doing a perimeter search of the building. He did not remember going into the hydro field beside the building. There was nothing in his notes about the hydro field. The others may have carried out that search, but he did not remember being left alone.
[74] They went back into the building; the plan was to walk up the stairs and take the elevator back down. They found that the elevator was jammed at the sixth floor and therefore he and Officer Li went up the south stairwell. They did not walk the floor. He did not know how the others were going to clear their floors. There was a straight line of view between the stairwells. It did not take a minute to check each floor; rather, it was a few seconds. They cleared the second and third floors but at the fourth floor they heard a commotion on the sixth floor.
[75] When he got to the sixth floor, Officers Trujillo and Meerburg were with two black males. The two males were in custody and sitting on the floor. Mr. Smart was sitting upright with his back to the wall, his legs out and his hands cuffed behind his back. The other man was in the same position, but he does not know if he was cuffed. They were sitting close to each other. Both were swearing and yelling loudly. He did not know what they were saying. No one else was in the hall that he could recall. Officer Trujillo said that they were more inside.
[76] He assisted Officer Meerburg to control Mr. Smart, who was screaming and kicking. The events were “scary”, “loud” and “unusual”. He does not recall where Officer Li was. The nearest apartment to where the men were standing was 610. The door was open.
[77] He remembers Officer Meerburg telling him to take Mr. Smart while Officer Trujillo went inside the apartment. He does not recall Officer Li going into the apartment with Officer Trujillo. He made no other observations while he was there. He started to escort Mr. Smart as soon as he got there.
[78] Officer Sidhu took Mr. Smart to the cruiser and patted him down before he put him in the cruiser. He found a bandana with two shotgun shells in his back left pocket. The shells were wrapped up in the bandana, and there was “some weight” to it. The shells were two and one half inches long and three quarters of an inch wide. The bandana was in a loose ball. He seized the shells. He did not notice any bulges in Mr. Smart’s pockets until he did the search.
[79] Officer Meerburg then came to the cruiser to tell him about the weapon. Mr. Smart was arrested for possession of a knife, and the knife was given to Officer Sidhu by Officer Meerburg to transport to the police station. He was not told how the knife was found.
[80] At the same time, he told Officer Meerburg about the shotgun shells. He did not notify anyone else about the shells. He was only with Mr. Smart for a couple of seconds before Officer Meerburg arrived. Other units were also pulling up at the same time. When he found the shells, he did not arrest Mr. Smart or read him his rights. He did not know that possessing the shells was an offence.
[81] He placed Mr. Smart in the rear of the cruiser, transported him to 12 Division and lodged him in the cells.
Evidence of Officer William Stewart
[82] Officer Stewart attended the apartment with the search warrant and assisted with the execution of that warrant. In particular, he searched Mr. Smart’s bedroom from which the three men departed. In that room, he found the loaded shotgun and a machete on the floor of the bedroom. The shotgun was wrapped with a bandana. In the top right drawer of Mr. Smart’s chest of drawers, he found a gray plastic bag in which a rock of crack cocaine was wrapped. It was acknowledged that the certificate of analysis confirmed that the item was cocaine.
Evidence of Orlando Smart
[83] Mr. Smart is 28 years of age. At the time of these events, his residence was 265 North Service Road, Apartment 610.
[84] The events in question occurred between 1:30 and 1:45 a.m. Just before these events occurred, he had been talking to Mr. Baychue, Mr. Chance, and Mr. Edwards in his bedroom. They were talking about music because he is a music producer. He had been in the bedroom with them for about an hour. He had not been outside the apartment that night. All were in the bedroom except Mr. White.
[85] Immediately before these events, he had been watching Mr. White play a videogame in the living room for three to five minutes when he heard a knock at the door. He thought it was his brother or some member of his family with an emergency.
[86] He denied that he was on his way out.
[87] In answer to the knock, he opened the door and found two officers. He did not think anything of it. He asked them what they wanted and how could he be of assistance. They asked him to step outside, and he said that he would not come out because he believed that they could arrest him if he came outside of his apartment. He knew that they had no right to enter without a warrant. They again asked him to step outside.
[88] From behind him, Mr. White asked who was at the door. As Mr. Smart turned to speak to Mr. White, the officers stepped inside and grabbed Mr. Smart by his windbreaker. They threw him to the floor. One of them had his knee in his back and told him not to move.
[89] He denied that he decided to run to get away from the apartment. He denied that he ran because of the knife or because of the shotgun or shotgun shells. He was not running to get them away from his friends or to get away from the cocaine. He denied Officers Meerburg and Trujillo’s version of the events.
[90] All of this occurred very quickly. He denied that he was yelling. He was upset and asking, “what’s this for?” They asked him if he had a weapon, and he said yes. They took the knife from him from his pocket. He acknowledged that he had the knife which was entered into evidence, in his windbreaker pocket. The officers then arrested him for possession of the knife.
[91] He was not resisting and was compliant. He told them of the knife. He denied trying to stand up to get away. At that point, Mr. White came out. He told Mr. White not to come out. He heard Mr. White speaking, but he was not yelling and was not speaking very loudly. The officers told Mr. White to lie down at the door. His hands were above his head.
[92] The two officers struck Mr. Smart and told him to “shut the fuck up” when he kept asking why he was arrested. They were hitting him with their knees and fists all over his body.
[93] After he was cuffed, he was made to stand up and then searched. They searched his waistband, legs, ankles, under his arms and all of his pockets. At that time he had the same pants on as he had on at trial. The pants are fitted.
[94] He asked why he was being arrested and was told that it was because he had the knife. He thought that was unfair since he had been “jacked out of his apartment.”
[95] He wanted to get a message to the men in the bedroom that they should not come out because there was no warrant. He was telling the others in the apartment not to come out with a loud voice. He heard Officer Trujillo telling them to come outside. Mr. Smart was telling the police that they had no right to be there and that this was an unlawful search. He was not screaming and he was not kicking at the wall.
[96] After he was patted down, other officers came from the south stairs. They then endeavored to get the other men out of the apartment.
[97] He heard Officer Trujillo say “I’m going to clear the apartment,” but he is not sure who went in. He did not see Officers Trujillo and Li go in.
[98] Officer Trujillo told the others to take him outside because he was talking too much. As he was taken down the stairs, his head was hit against the wall, and the officers tried to throw him down the stairs, but he jumped and was able to keep his balance. At this time, he was talking about his rights.
[99] They then took him to the cruiser, and there was again a pat down before he went into the cruiser. One officer said that he was going to check his pockets. He did not believe that he checked his pockets. With that, the officer came up with the shotgun shells. He agrees that it was his bandana. He did not recognize the shotgun shells. The bandana may have been there, but not the shells. If he had the bandana, it would have been in his back pocket. He did not remember having the bandana, but he could have had it.
[100] He had no knowledge of the shells and had never seen them before. It is his evidence that they were planted on him. He does not know where they came from.
[101] The shotgun was not his and he was surprised that it was found.
[102] He testified that because the police hit him, he made a complaint and told other officers what had occurred. Later in the hearing, both counsel agreed that no such complaint was made.
Evidence of Raymond Chance
[103] Mr. Chance was present at 265 North Service Road on September 18. He had arrived alone that evening from his mother’s residence. He was visiting at Mr. Smart’s with other individuals who were building a music group together. He was with Mr. Smart, Sanjay Baychue, his cousin Joseph Edwards and Rory White.
[104] He had left Mr. White in the living room watching TV. He and the others went into Mr. Smart’s room. They were listening to an instrumental piece of music and writing down their thoughts about it.
[105] They listened to a few pieces of music for “quite a while.” They were there for more than an hour but he was not keeping track of the time. Members of the group went in and out of the room from time to time. He was not drinking that day, and there was no alcohol during this gathering. There was no marijuana or drugs in the bedroom and none were used by anyone.
[106] When Mr. Smart left the room, Mr. Chance did not see him again. They were still listening to music and writing down what they should add to it. All of them were sitting on the bed while listening and he was sitting in the middle.
[107] He did hear noise and wrestling. After Mr. Smart left, he could hear things like “get your hands up” and “get on the ground.” He could hear Mr. Smart saying things like “what’s all this?” They were all concentrating on the music and did not have any idea why the police came or that there may have been a 911 call.
[108] He heard a noise and the sound of some wrestling, and then the police officers came into the bedroom. By that time, they had turned the music down. They could feel the vibrations from the noise in the hall. The police were speaking loud enough to hear. He heard “police” when they came in. He did not see what Mr. White did.
[109] The men in the room were not able to come out before three officers came in. He is certain that there were three officers, and one of him was the officer in charge in the courtroom. A further admission by defence counsel was that this officer was not at the scene. Mr. Chance could not give a description of the other officers.
[110] The officers were at the door of the bedroom. They did not say why they were there. He was seated. The officers did not put their hands on them. When he walked out, he had his hands to his side and they were then cuffed in the hallway. As they were walked out, one officer was in front and one was behind. They had no choice but to do what they were asked.
[111] When they went out, Rory White was on the floor in the living room in cuffs, and Mr. Smart was in the hallway.
[112] The officers were “harassing” Mr. Smart by kneeing him and banging his head on the wall. He also saw them strike him in the stomach with a nightstick. Mr. Smart asked, “Why are you arresting me?” and was angry. Mr. Smart was not cooperating with the officers because of what they had done to him.
[113] All were handcuffed and sat in the hall. The officers then took turns going back in to the apartment. Mr. Chance was sitting in front of the apartment door. He told the officers that they could not go in and asked where the warrant was. Despite that, they continued to go in and out. He identified Officer Cullen (in the courtroom) as one who was going in and out.
[114] At that time, one of the officers came out of the apartment and said “looky here”, and “don’t act stupid”. He came out with the shotgun.
[115] Mr. Chance did not recall what the gun looked like even though it was shown to him. He does not remember if it was new or old, taped or its colour. He could not say whether the gun was 18 inches, but it was not three or four feet long. He only took “a glimpse” of the gun. Neither Mr. Baychou, Mr. Edwards nor Mr. White said anything about the gun because they were in shock.
[116] He agrees that all were arrested for possession of the firearm in the hallway before Mr. Smart was taken down the stairs.
[117] All of them were loud and angry about being charged with a weapon and receiving no answer about the reason for the arrest and whether there was a warrant.
[118] All of the men were upset, swearing and yelling because the police were not answering their questions. He was “the quiet one”. Mr. Smart was both loud and angry. He was dragged down the hall and was resisting. He was kicking and screaming along the hallway.
[119] Mr. Chance was then taken downstairs and taken to the station. He was released the next day. All were released except Mr. Smart. After he was taken down the stairs, he did not see what became of the gun.
Factual Findings
[120] There are a number of minor issues upon which nothing turns. Although there is an inconsistency between the officers as to whether anyone used an elevator, whether all four searched outside the building or how they entered the building, it does not surprise me that in the tumultuous events which occurred over a very short period of time, the officers would not have made notes of such things nor recalled everything that occurred. The fact that they differ on these minor matters lends some credence to the items upon which they do agree.
[121] When the officers re-entered the building, it is clear that Officers Trujillo and Meerburg went straight to the sixth floor while Officers Li and Sidhu checked, however briefly, at each floor. This is consistent with the brief time difference in when they arrived on the sixth floor.
[122] With respect to Officer Sidhu, his evidence conflicts with many of the other officers. He says that they took an elevator to the sixth floor. He does not remember much of the search outside of the building. He believes that he first heard of the scuffle on the sixth floor, when he was between the second and third. While I believe that Officer Sidhu was trying to be as truthful as he could, it does not surprise me that a young officer in these circumstances might not remember the events as clearly as the others. Where his evidence conflicts with the other officers, however, I cannot rely upon it.
[123] The principal determination that I had to make on the voir dire was as to what occurred at the door of apartment 610. On a balance of probabilities, I found the evidence of the police officers preferable to that of Mr. Smart. I make that same finding on the basis of proof beyond a reasonable doubt.
[124] On the basis of Mr. Smart’s evidence he was a carrying the nine inch knife in his jacket pocket. Although the officers testified that the knife was in his pants pocket, given the size of the weapon, it must have been in his jacket. Mr. Smart testified that he was in his apartment at between 1:30 and 1:45 in the morning; he was dressed in a windbreaker with a nine to ten inch knife in his pocket. I find that Mr. Smart was leaving his apartment dressed for the outdoors as the two officers walked down the hall.
[125] It is not disputed that Officers Sidhu and Li came up the south stairs somewhat more slowly than Officers Meerburg and Trujillo. Officers Sidhu and Li checked at each floor. Officers Meerburg and Trujillo went directly to the top floor. They then encountered Mr. Smart coming out the door. A brief scuffle occurred. Officers Li and Sidhu heard that scuffle and arrived from either the third or fifth floor. Officer Li remembers that it was from the fifth floor because he saw the sign on the door. Officer Sidhu, for reasons set out above, provides honest but unreliable evidence.
[126] The time that it would take Officer Li to catch up to Officers Meerburg and Trujillo on the sixth floor would be only a few seconds. It would not be the length of time that it would take Officer Trujillo to knock at the door, wait for Mr. Smart to open the door and carry on a conversation. The timing difference does not allow Mr. Smart’s version to occur. The only series of events that could have occurred would be the officer’s version that Mr. Smart took one look at them and ran towards them.
[127] The defence submits that running towards the officers would be nonsensical. I’m not persuaded that human nature is always sensible. Mr. Smart testified that he was in his apartment at 1:30 in the morning with a windbreaker on and a nine to ten inch knife in his pocket. That too does not seem sensible, but on his evidence, it did occur.
[128] Mr. Smart was adamant that he told the other individuals in the apartment not to come out. He testified that he was aware that while he was still in the apartment, the police could not enter without a warrant. It would therefore make sense that he was attempting to put as much distance between himself and the apartment as possible. A man of Mr. Smart’s size might well have been more successful dealing with the officers head on than attempting to run away from them.
[129] Finally, Mr. Smart’s evidence is damaged by the fact that he says he made a complaint about the police officer’s physical abuse of him, while counsel acknowledged that no such complaint was made.
[130] I therefore find that Mr. Smart came out of the apartment dressed to go out of doors. He ran at Officers Meerburg and Trujillo. As a result, he was found to be concealing the knife and was arrested.
[131] I must also deal with the inconsistency between Officers Meerburg and Trujillo. Was Officer Trujillo listening at the door as he described, or were the two officers still four feet away from the door when Mr. Smart opened the door and left the apartment? It is difficult to reconcile those two recollections; however, if they were attempting to tailor their evidence, this discrepancy would likely not have occurred on the stand in the fashion that it did. Indeed, Officer Trujillo said that they prepared their notes together. It could be that in the excitement of Mr. Smart coming out of the door, Officer Meerburg has simply forgotten that Officer Trujillo was listening.
[132] Having found that Mr. Smart came out of the door on his own and ran at the officers, it mattered little for the voir dire whether Officer Trujillo was listening at the door or had the authority to listen at the door. However, the discrepancy in Officers Meerburg and Trujillo’s evidence is significant; I cannot determine which is more accurate or reliable. The significant discrepancy shakes both of their evidence.
[133] The defence next submits that either Officer Meerburg or Sidhu planted the shotgun shells on Mr. Smart. I did not find on a balance of probabilities that occurred. Given the fast-paced nature of the events, I did not accept on the record before me that the officers, having just recently brought the situation under control, would then carry on to frame Mr. Smart in such an oblique way as putting shotgun shells in his pocket.
[134] However, it is troubling that Officer Sidhu failed to tell Officer Meerburg about the shotgun shells as Officer Meerburg testified. It is concerning that Officer Sidhu says that he did. On the voir dire, I found that it was unlikely on a balance of probabilities that the shells were planted on Mr. Smart. However, on the basis of proof beyond a reasonable doubt, and in the face of Mr. Smart’s denial, I cannot exclude that possibility.
[135] Although Mr. Chance’s evidence is of assistance to confirm the officers’ evidence that Mr. Smart was loud, behaving aggressively and kicking at the walls, the balance of his evidence is rejected. Mr. Smart does not say that he was “nightsticked in the stomach.” It is agreed that he made no complaint of the officers’ conduct. Although Mr. Chance says that the officers waved a shotgun in the hall, he was unable to describe it in any significant fashion. He emphatically identified a police officer, who, it is agreed, was not at the scene. Mr. Chance appears to exaggerate his evidence to assist what he thinks Mr. Smart needs. I reject Mr. Chance’s evidence where it conflicts with any other evidence.
Analysis
[136] With respect to the charge of possessing a concealed weapon, Mr. Smart has testified that the knife was in his jacket pocket. There is no doubt that it was a weapon. On the evidence it was concealed. On that basis, Mr. Smart is guilty of that charge.
[137] The defense acknowledges that, with respect to all of the other charges, the issue is possession. Mr. O’Brien submits that given the others in the room and Mr. Smart’s denial of any knowledge of the items, the Crown has failed to prove possession beyond a reasonable doubt. He concedes that if possession is found, all of the other elements of the charges have been made out.
[138] The Crown principally relies on the fact that two shotgun shells were found in Mr. Smart’s pocket. The Crown submits that the common sense inference to be made is that if he had the shotgun shells, he must have knowingly been in possession of the loaded shotgun. If so, the balance of the elements in the various weapons charges follows through to conviction.
[139] Although it is clear that the items were in Mr. Smart’s bedroom, given the wide discrepancy in the evidence of the police officers, I am not persuaded beyond a reasonable doubt that Mr. Smart can be found in possession of the weapons or the cocaine.
[140] The other men in the bedroom had plenty of time to leave the weapons and the cocaine in a manner detrimental to Mr. Smart. Given the interaction between Mr. Smart and the officers and then the interaction with Mr. White, they could dispose of the evidence as described here.
[141] Without the shotgun shells there is nothing to persuade me beyond a reasonable doubt that Mr. Smart was in possession of the shotgun. The evidence of the police officers is so inconsistent that I cannot be satisfied beyond a reasonable doubt as to how the shotgun shells were found. The conflict between Officers Meerburg and Trujillo over the manner in which Mr. Smart was found on the sixth floor is significant. Officer Trujillo stated he was listening at the door, while Officer Meerburg stated they were four feet away when Mr. Smart exited the apartment. While how Mr. Smart was found on the sixth floor matters little to my analysis here, this conflict shakes their entire evidence.
[142] Next, there is the significant discrepancy between Officers Meerburg and Sidhu over whether the newly found shotgun shells were discussed or not. Officer Meerburg said they were not discussed while Officer Sidhu said he told Officer Meerburg about them. Although the shells may have matched the weapon, in order to find Mr. Smart in possession of the shells, I must rely on both Officers Meerburg and Officer Sidhu. I cannot reconcile their differences as to whether the newly found shotgun shells were discussed or not.
[143] Further, Officer Trujillo testified that the shotgun was under the bed such that he had to crouch down to see it. He also testified that the photos of the weapon showed it to be in the same location as he saw it. However, the photos show the shotgun in such a place that one need not crouch down to see it. That too is a significant discrepancy.
[144] Given those inconsistencies, I cannot rely on the Crown evidence to find that the offences have been made out beyond a reasonable doubt.
[145] Accordingly, Mr. Smart is acquitted of all counts except the charge of carrying a concealed weapon.
“Justice G.D.Lemon”
Justice G.D.Lemon
Released: August 9, 2013
COURT FILE NO.: CRIMJ(P) 1967/12
DATE: August 9, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Orlando Smart
REASONS FOR JUDGMENT
Lemon, J.
Released: August 9, 2013