ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20130911
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY MEERZA
J. Brienza, for the Crown
H. Aly, for the Mr. Meerza
HEARD: June 10 to 24, August 9, 2013
TROTTER J.
I. Introduction
[1] On February 10, 2012, Jeffrey Meerza was found in possession of a loaded handgun, and a small amount of marijuana, while sitting in the back seat of a rental car. This resulted in eight firearms charges, a drug charge, and counts alleging a breach of a probation order and a recognizance.
[2] Mr. Meerza admits all essential elements of each of the offences. However, he seeks to exclude all evidence against him based on alleged breaches of ss. 8, 9 and 10(b) of the Charter. The essence of Mr. Meerza’s claim is that he was essentially stopped for random purposes, as part of a general criminal investigation. For the following reasons, I am not satisfied on a balance of probabilities that the initial stop was arbitrary in this sense. Consequently, I find that the stop was lawful, as was the consequent search of Mr. Meerza.
II. Evidence
[3] To set the stage, the salient events occurred at a plaza on Kingston Road, close to Morningside Avenue. Five police officers were patrolling the area in a van. It stopped at a strip plaza that included a bar called the Kingston Station Pub (“the Pub”). The police van moved along the front of the plaza, parallel to the establishments. All of the police officers testified that the car in which Mr. Meerza was in (a black Acura) came out of a laneway from behind these establishments very quickly and then sped away on Kingston Road. Mr. Meerza testified that the Acura was being driven parallel to the establishments, moving at a normal rate of speed, slowly approaching the police vehicle. He denied any erratic driving as the car was driven away.
Mr. Meerza’s Evidence
[4] Mr. Meerza admitted that he was a passenger in the Acura that evening. He was unclear about the history of the car, saying he assumed that it was rented or borrowed.
[5] Mr. Meerza admitted to carrying the loaded handgun. He said there was one round in the chamber. He also admitted to having 3.5 to 4 grams of marijuana on his person. As for the gun, Mr. Meerza explained that he lived in a bad neighbourhood and that he had been the victim of robbery in the past. Regarding the marijuana, he said that, while he smokes it daily, he smoked in the afternoon of the day, and not close in time to being in the car, or in the car itself.
[6] Mr. Meerza said that he had been with his friends at a hotel earlier in the evening. They got into the car and drove to the strip plaza in question to get some food. There was a Pizza Nova store in the strip plaza. According to Mr. Meerza, the car was driven along the length of the plaza towards what turned out to be the police van.
[7] Mr. Meerza said he was sitting in the front passenger seat. According to Mr. Meerza, this allowed him to see certain things. He said that he saw through the windshield that there were police officers in the vehicle. They were sitting down. In cross-examination, Mr. Meerza became even more definite, saying that he could see a “police” badge on the shoulder of one of the occupants.
[8] Mr. Meerza said that the car was never in the laneway and it was driven in a normal fashion. He said that he could see the expressions on the officers’ faces as they drove up. He said it was as if they had seen black males in a car and started talking. He said that the van appeared to be turned off as they approached. Mr. Meerza said that they decided not to go for pizza after all and decided to go to MacDonald’s. Everyone in the car knew Mr. Meerza had a gun, so they decided to leave the area. Mr. Meerza said the car was not driven erratically. Of the driver, Mr. Meerza said that he did not squeal the tires because “he’s from the street; he’s not stupid.” Mr. Meerza could not recall whether the car made any lane changes; however, he was certain that the car did not zig-zag. Mr. Meerza said that there was no conversation while in the car. He said that he just contemplated whether or not he would run.
[9] After the car was stopped, Mr. Meerza was asked for his ID. He was then told to get out of the car. He refused. He said that an officer reached through the back passenger window to unlock the front door and then opened it. He was asked whether he had anything that he should not have. Mr. Meerza admitted to possessing marijuana. He was hoping that the police would let him go and the gun would go undetected. An initial pat down search did not reveal the gun. Shortly afterwards, Mr. Meerza was taken to the ground when a gun was detected. Mr. Meerza testified that he was roughed up. He said his face was kicked, his mouth was bleeding inside and that his jaw was “big.” No photographs were introduced to substantiate these claims.
Evidence of the Police Officers
[10] Four officers testified about the events leading up to Mr. Meerza’s arrest. I will not review their evidence in its entirety. Instead, I focus on the following issues: (a) the direction of the black vehicle and its speed; (b) the nature of the driving of the black vehicle; (c) the smell of marijuana; (d) Mr. Meerza’s location in the vehicle; and (e) the ultimate reason to pursue and stop the vehicle in the first place.
[11] P.C. Irwin Correa drove the van that evening. There were four other officers with him. They drove past the plaza where the Pub was located and saw a large crowd of people lined up outside. He also saw three males standing away from this crowd. P.C. Correa and his colleagues had information concerning recent violent robberies in the vicinity. They decided to enter the plaza to investigate the crowd and the three males, who fit the general description of the robbery suspects.
[12] The van pulled into the parking lot, close to the crowd. People from the Pub soon identified the men in the van as police officers. Shortly after this, the three men went into the Pub (one walking quickly, the other two running). P.C. Correa said that they were not going after these men because they had not done anything wrong. The officers spoke with security personnel from the Pub (who had approached the police van) for a bit. As the van continued along the plaza, a black Acura came out of a perpendicular laneway at a high rate of speed. P.C. Correa estimated this to be 40 km/hour. He had to slam on his brakes to avoid hitting the car. The car went directly into the curb lane of Kingston Road, slowing down somewhat. The tires squealed as the vehicle sped up on Kingston Road, being operated in an erratic manner, involving lane changes. The police vehicle gave chase. At one point, P.C. Correa could not get the van into the curb lane because a car appeared to be intentionally preventing him from doing so. P.C. Correa testified that the van went 70-80 km/h before it caught up with the car on the other side of Morningside Drive. P.C. Correa said that he did a search of the plates around 23:46 on the mobile workstation, within 10 to 15 seconds after stopping the car.
[13] All of the officers got out of the van. P.C. Correa eventually positioned himself at the rear of the car, focusing on the two rear passengers. He heard one of the officers say that there was a smell of marijuana. A decision was made to arrest all of the men in the black car. P.C. Correa saw Mr. Meerza get out of the rear passenger side of the car. He did not smell marijuana when at the car, but he did when he was dealing with Mr. Meerza.
[14] P.C. Correa did a quick pat down search of Mr. Meerza and advised him of his right to counsel. Mr. Meerza attempted to produce marijuana from his pocket. The officer stopped him from doing so for safety reasons. A subsequent search revealed a gun in Mr. Meerza’s pants and he was swiftly taken to the ground. At this point, other officers became involved. Mr. Meerza resisted, attempting to keep his hands in front of his body.
[15] In cross-examination, P.C. Correa said he formed the intention to stop the car when it came out of the laneway. He did not consider the driving to be dangerous, but he did think it was careless. P.C. Correa testified that he was not aware of the laneway before that evening because he was patrolling in an area with which he was not familiar.
[16] Cross-examination revealed some confusion as to when P.C. Correa ran the plates on the Acura. He could not remember whether the plates were run before the vehicle was stopped. P.C. Correa adopted his preliminary inquiry evidence in which he said there was no time to run the plates. In any event, P.C. Correa testified that he did not know if the Acura was a rental vehicle before pulling it over.
[17] Cross-examination also revealed some equivocation on whether the officers intended on going to the back of the Pub. At the preliminary inquiry, P.C. Correa said he was going to go to the back of the Pub to see if the three men emerged. At trial, he said he did not know about the laneway, but expected to see a laneway because most strip plaza stores have back entrances. He said that he assumed he would find a laneway. P.C. Correa agreed that, because of a fence behind the strip plaza (one that is in between the laneway and the Pub), it was unlikely that the men in the Acura were the same three men, but that it was possible.
[18] Finally, P.C. Correa expressed regret about the night’s events, especially as it related to the initial pat-down search of Mr. Meerza, when he missed the firearm. P.C. Correa said that it could have cost him his life.
[19] P.C. Carl Grellette was a passenger in the van that night. He thought that it was strange that the three men went into the bar so quickly. He testified that all officers were probably thinking about the laneway when that happened. He testified that one of them would have suggested going to the laneway, but he could not remember who said it.
[20] P.C. Grellette testified that they drove along the plaza when the Acura came out of the laneway at a “decent rate of speed”, which he thought was 40 to 50 km/hr. He said the driving was either careless or dangerous. At the preliminary inquiry, P.C. Grellette said the driving was “crazy”, but he did not feel that it was arrestable.
[21] As P.C. Grellette was in the rear seat, he could not see who was in the car. But he was able to get the licence plate number. Moreover, he said that P.C. Correa had to slam on the brakes, and as he did so, Grelette’s face went into the seat in front of him. P.C. Grellette could hear tires from the Acura squeal as it went up Kingston Road. As they followed the vehicle, P.C. Grellette saw the Acura change lanes without signalling.
[22] When the Acura was stopped, P.C. Grellette went to the driver’s window, which was down three to four inches. Upon reaching the bumper of the car, he detected a strong odour of marijuana. He could see P.C. Hornby on the other side of the car, who was gesturing that Mr. Meerza, who was sitting in the back, was doing something with his waistband. This detail was not recorded in P.C. Grellette’s notes, and he admitted that it was an important observation to make and it was a mistake not to put it in. In the end, they decided to arrest all occupants of the car for possession of marijuana.
[23] Shortly afterwards, P.C. Grellette heard P.C. Correa yell “gun.” He assisted the other officers in restraining Mr. Meerza’s hands and getting control of the gun. P.C. Grelette struck Mr. Meerza in the ribs to get control.
[24] P.C. Grellette did not run the plates of the Acura. He was not sure if anyone else did either.
[25] In terms of the reasons for the arrest, P.C. Grellette testified that he considered that it was “everything” – the three males going into the bar, the excessive speed of the Acura and the fact that it almost collided with the police vehicle.
[26] P.C. Greg Hornby noticed the three men who ran into the Pub. After speaking with two employees from the Pub, he said they continued along the plaza and saw the Acura come out of the laneway at a high rate of speed, causing them to brake abruptly to avoid a collision. He said they were going to take the exit onto Kingston Road and not go to the back of the Pub. For his part, P.C. Hornby was not concerned with the three men who went into the Pub. He said they were of no significance. He did not think the men in the Acura were the same as those that went into the Pub.
[27] P.C. Hornby testified that, once on Kingston Road, the Acura moved at a high rate of speed and made lane changes without signalling. He thought it was being driven in a dangerous manner and that numerous traffic infractions were committed that night. P.C. Hornby was adamant that the Acura was speeding. He said that the van they were in was big and heavy and took quite a while to get going at a good rate of speed.
[28] As P.C. Hornby approached the rear of the vehicle, he noticed a strong odour of marijuana and saw Mr. Meerza making a stuffing motion in his waistband area. He conveyed this information to P.C. Grellette across the top of the car. After smelling the marijuana, P.C. Hornby thought Meerza was stuffing marijuana down his pants, although a gun was also a possibility. In terms of grounds to arrest, he identified the smell of marijuana as his reason. As to the licence plates of the Acura, P.C. Hornby did not run them.
[29] P.C. Daniel White testified to seeing the van “whipping out of the laneway” at a high rate of speed. He thought it was going between 30 to 40 km/h before getting onto the road. Once the Acura was on Kingston Road, its tires squealed. As for the driving, PC White emphasized that he did not wish to overstate the seriousness of the driving. He said it was careless or involved some other traffic offences, but that it was not “Criminal Code material.”
[30] P.C. White said he could see people in the car, and it appeared that there was someone in the back. He thought the timing of the vehicle emerging from the laneway was consistent with it being the men that went into the Pub.
[31] When P.C. Correa alerted the others that there was a gun, P.C. White said it was like chaos. He helped the other officers by giving Mr. Meerza a kick to the shoulder area for distraction purposes. P.C. White was fair in saying that he was not trying to suggest that Mr. Meerza was attempting to get at the gun; he was merely saying that his arms were to the front of his body. Unlike some of the other officers, P.C. White did not smell marijuana.
[32] As for the plates, P.C. White did not run them, nor did he see anyone else do so. Also, P.C. White testified that it was the intention of those in the vehicle to go to the back of the Pub to see if the three men went all of the way through. Being from another police division, P.C. White did not know whether the Pub had a back door.
Other Evidence Regarding Speeds and the Layout of the Plaza
[33] As part of its case, the defence adduced viva voce and photographic evidence about the location of the events. This evidence, which was unchallenged, indicated that the laneway was not wide enough to accommodate more than one car at a time. Moreover, it was not a smooth surface, containing numerous potholes. Also, behind the plaza is a chain-link fence that separates the access to the laneway from the Pub. The import of this evidence is that a car could not have been parked directly behind the Pub and then driven out the laneway. However, no measurements were provided about the height of the fence or how difficult or easy it would have been to overcome.
[34] Evidence was adduced from a civilian member of the Toronto Police Service, Julie Cholet, concerning GPS tracking of the police vehicle that evening. This data was portrayed in an illustrative format, displaying the movement of the van up and down Kingston Road that evening. Generally, in terms of direction of the van, this information supported the evidence of the officers who testified on the voir dire. Mr. Aly relies on the projected speed of the vehicle at certain intervals. The essence of his submission is that the police van was not moving nearly as quickly as the officers said that it was. This underwrites the further submission that the Acura was not being driven quickly, carelessly or dangerously and was, therefore, pulled over arbitrarily.
[35] During the interval just before the Acura was stopped, the van seemed to be moving at 29 km/h. However, as Ms. Cholet said, GPS tracking collects every 2 seconds or 125 metres (although this can vary between 70 to 360 metres). Also, the stated speed is an average speed within any given interval. This means that, in this interval before the stop, the van was traveling faster than 29 km/h. The last interval shows the vehicle as being stationary. Therefore, it is difficult to know the fastest speed the vehicle reached before the stop.
[36] On behalf of Mr. Meerza, Mr. Aly tendered a report written by Dr. Donald Boyes, a Senior Lecturer in the Department of Geography at the University of Toronto. The document is entitled, Accuracy Assessment of Toronto Police Service GPS Point Locations Based on Field Observations. This thorough report, which was admitted on consent, helpfully explained the methodology employed to attempt to verify the point locations generated by the Toronto Police Service. As Dr. Boyes fairly admitted, the equipment he was using was likely less accurate than the equipment used to collect the original data. After making some qualifications, Dr. Boyes concluded that: “…it can be said with reasonable confidence that the four sets of coordinates provided by the Toronto Police Service are likely to be accurate to within 5m or less.” Importantly, this analysis did not address the issue of speed.
III. Analysis
[37] On behalf of Mr. Meerza, Mr. Aly argues that there were many inconsistencies in the evidence of the officers and that this supports the proposition that they breached Mr. Meerza’s Charter rights and then attempted to cover it up by lying in court. I cannot accept either proposition.
[38] I acknowledge that there were some contradictions in the evidence of the officers. But there were problems with Mr. Meerza’s evidence as well. As noted above, Mr. Meerza testified first. It was key to his evidence that he was sitting in the front seat of the rental car. The Crown suggests that he placed himself in the front seat so that he could speak about various things he apparently saw that night, such as being able to see through the front windshield of the police van. However, all police officers that testified placed him the back seat. Mr. Aly did not really challenge the fact that Mr. Meerza was in the back seat when the car was stopped. In submissions, he pointed out that Mr. Meerza was a nervous witness and that this might explain the error.
[39] I take into account Mr. Meerza’s age and I presume he is inexperienced as a witness. However, I find that this was not a nervous mistake. When Mr. Meerza was describing his resistance to getting out of the car, he testified that one of the officers reached in through the open back door window to unlock his door. As he testified, he moved his head as if he was looking back over his right shoulder, watching this happen, re-living the moment. But it did not happen in this manner because Mr. Meerza was in the backseat of the car. This causes me to place little weight on the rest of his account that evening.
[40] In terms of the evidence of the police officers, there were some inconsistencies. For instance, there was divergence about whether the officers were going to the back of the plaza for the purpose of investigating the men that had just run into the Pub. There was also divergence as to the length of time that the officers chatted with security personnel from that institution. Similarly, there was some confusion about when the plates of the Acura were run and about the officers’ pre-existing knowledge of the laneway and the fence behind the plaza. There was not even unanimity on the smell of marijuana once the car was stopped. Mr. Aly relies on these inconsistencies to argue that the officers pulled the Acura over for an improper purpose and then came to court and gave evidence that they had fabricated amongst themselves.
[41] Mr. Aly argues that the account of the police officers is improbable because driving down such a narrow and poorly paved laneway constituted unexplained irrational and dangerous behaviour on the part of those in the Acura. He further suggests that someone would need to be impelled by a good reason to drive in such a manner and none was ever uncovered. But as Mr. Brienza points out, people act dangerously or foolishly for all sorts of reasons. Furthermore, while the evidence varied on this, the Acura may well have contained the men that ran into the Pub. As noted above, the fence behind the plaza may well have been scaled.
[42] None of these problems causes me to reject the evidence of the officers. The divergence in some of the accounts points away from collusion. If there had been an attempt to mislead, little thought went into ensuring consistency on important details. Indeed, there was no agreement on whether the chase was for the purpose of investigating the men that went into the Pub.
[43] Mr. Aly also points to the fact that the police did not seek to gather independent evidence witnesses and/or video of what occurred when the vehicle was pursued. This might have been helpful in confirming the manner in which the Acura was driven when it was on Kingston Road. It is not clear to me that this evidence existed or was available to the police. In any event, while it may have been helpful, it is not, by itself, a reason to reject the account of the officers.
[44] Mr. Aly relies heavily on the GPS evidence, especially that aspect of it that concerns the speed of the van. With an average speed of 29 km/h prior to the stop, he argues that events could not have happened in the way that the police evidence suggests. However, I have already noted the limitations of this evidence. Moreover, I note that at one point in time during the chase, another vehicle seemed to interfere with the police vehicle in terms of preventing a lane change. The other vehicle was stopped and the occupants briefly investigated. This link in the chain of events may have impacted on the speed of the van during this final interval when the emergency equipment on the van had already been activated.
[45] In the end, I generally accept the version of events given by the police officers about what happened that evening. The divergence in the evidence concerning the men who went into the Pub is of no moment because it quickly became irrelevant. I accept that, before the police had an opportunity to investigate, the Acura came from the laneway and that it was being driven in an erratic manner. This driving, which was variously described as careless or dangerous, or at least being contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, was a sufficient basis to stop the vehicle for further investigation: see R. v. Morris, 2013 ONCA 223 and Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223 (C.A.).
[46] Furthermore, once some of the officers detected the odour of marijuana, there was a sufficient basis to arrest the occupants of the vehicle and conduct searches incident to arrest. In reaching this latter conclusion, I am mindful of the caution of the Court of Appeal in R. v. Morris, supra, at para. 8: “While previous cases have cautioned against placing undue reliance upon “smell” evidence, there is no legal barrier to the use of such evidence….”. The fact that P.C. Correa and P.C. White did not smell marijuana, especially when P.C. Hornby said that the smell was “pungent,” is somewhat puzzling. Moreover, the police did not find any burnt marijuana in the vehicle. Still, I accept the evidence of the officers that there was a smell of marijuana. Mr. Meerza admitted that he is a daily user of marijuana and he was in possession of a small amount of the drug when he was searched. While he said he had not smoked recently, I accept that the police did smell marijuana coming from the car. The fact that its precise source was not determined does not undermine the grounds to conduct the searches that ensued.
[47] In short, the vehicle stop was not arbitrary and the search of Mr. Meerza was lawful. The argument concerning Mr. Meerza’s s. 10(b) rights is without merit. In any event, he did not say anything to the police other than to admit he had marijuana on him. He would have been subjected to a pat down search whatever he said.
[48] If I am in error in finding that there were no breaches of Mr. Meerza’s Charter rights, I am not persuaded that the evidence of the gun or the marijuana should be excluded under s. 24(2) of the Charter. I will not review the factors, chapter and verse, set out in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.). The overwhelming important fact in this case is that, if there was a breach, it was not very serious. Mr. Meerza was apprehended while being a passenger in a rental car. While there was, of course, some expectation of privacy in the circumstances, it was dramatically reduced: R. v. Kenyon, [2008] O.J. No. 1636 (S.C.J.). Balancing all of the factors in R. v. Grant, especially the public interest in having a trial on the merits for these serious firearms offences, I would not have excluded the evidence under s. 24(2).
Conclusion
[49] For these reasons, the application to exclude evidence under s. 24(2) of the Charter is dismissed. Mr. Meerza is found guilty on all 11 counts in the indictment.
[50] I wish to commend both counsel, Mr. Brienza and Mr. Aly, for the professional and conscientious manner with which they approached this case.
TROTTER J.
Released: September 11, 2013
DATE: 20130911
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEFFREY MEERZA
REASONS FOR JUDGMENT
TROTTER J.
Released: September 11, 2013