Her Majesty the Queen v. Larry David

Court File No.: 13-90000018-0000 Date: 2013-11-07 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Larry David

Counsel: C. Josic, for the Crown E. Rolfe, for the Accused

Heard: September 30, Oct. 1-4, 7 & 16, 2013

Ruling on Sections 8 and 9 Charter Motion

GARTON J.:

[1] The accused, Larry David, age 42, is charged with possession of crack cocaine for the purpose of trafficking. The police discovered the drugs, which were tucked into a tear in the driver’s seat cushion of the accused’s car, during a roadside stop on September 3, 2011. Mr. David was the vehicle’s sole occupant.

[2] Mr. David has brought an application for an order excluding the drugs as evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms on the basis that his ss. 8 and 9 Charter rights were violated. The position of the defence is that the police did not have reasonable grounds to detain or arrest Mr. David and that the searches of his person and car, which were conducted incidental to his arrest, were therefore unlawful.

[3] On October 16, 2013, I dismissed the application, with reasons to follow. These are those reasons.

Overview

[1] The two officers involved in the vehicle stop, Police Constables Daniel White (“White”) and Adam Morris (“Morris”), were working the 4:00 p.m. to 2:00 a.m. shift on the day in question. At 5:45 p.m., White received a tip from a confidential informant (“CI”) that a man had just sold crack cocaine from his car in an area known by the officers to have a high volume of illicit drug activity. The CI described the vehicle and driver. White and Morris attended the area and, at 6:00 p.m., observed Mr. David driving a car with the same licence plate number provided by the CI. Mr. David matched the CI’s description of the drug dealer. White and Morris continued to observe Mr. David over the next few minutes, during which time Mr. David, according to the officers’ testimony, behaved in a suspicious manner, including hunching over or leaning down as he was driving. The officers suspected that he was hiding drugs.

[2] When Mr. David stopped his car of his own volition at the end of an alley, White pulled up behind him and activated the cruiser’s flashing lights. White testified that as he approached Mr. David’s car, with the intention of conducting an investigative detention, he observed that Mr. David’s hand was between his legs. Morris made a similar observation from the passenger’s side of the vehicle. As Mr. David exited the car, White saw a piece of paper protruding from a tear in the driver’s seat cushion. White testified that at that point, he believed he had reasonable grounds to arrest Mr. David for possession of cocaine. He immediately executed the arrest. Morris then seized the package from the tear. It contained 7.58 grams of crack cocaine. Mr. David was also searched but no drugs were found on his person.

[3] Mr. David testified on the Charter application and denied the suspicious behaviour attributed to him by the officers. According to Mr. David, he was unaware that the police cruiser was following him until after he had parked and was getting out of his vehicle. He testified that he had no reason to be worried about the police presence. He was unaware of the tear in the seat cushion and had no knowledge that there was cocaine in the car, which belonged to his father.

The evidence

P.C White’s prior contact with the confidential informant

[4] White testified that the CI who provided him with information on September 3, 2011, was previously known to him. Sometime within five months leading up to Mr. David’s arrest, the CI had given White a list of the names of drug dealers and their telephone numbers. The CI also gave the officer a “drop” name – that is, a name that White could use if, after making a “cold” call to one of the alleged drug dealers, he was asked how he got the dealer’s number. Using the drop name would enhance White’s credibility with the dealer and make it more likely that the dealer would be prepared to sell him drugs. The CI, who is a carded informant with the Toronto Police Service, did not receive any form of consideration for providing this list of names and numbers.

[5] White testified that he recognized one of the names on the list as a known drug dealer. He ran police computer checks on all the names and telephone numbers, but that search apparently did not yield any results in terms of confirming the reliability of the information. He then called a phone number on the list. A male answered. White told him that he was looking for a “40 piece”, meaning that he wanted to buy $40 worth of crack cocaine. The male told him to go to a certain location – in other words, the male appeared to be prepared to set up a drug deal. This confirmed in White’s mind that the phone number was being used to sell crack cocaine and that the information that the CI had provided was reliable. As a result, White passed on the list to the Drug Squad for further investigation. White was not trained as an undercover officer and did not intend to conduct any undercover drug purchases himself. He had been an officer for about two-and-a-half years at the time.

Events on September 3, 2011

Receipt of the CI’s tip and first observation of the accused

[6] On September 3, 2011, White and Morris were on general patrol in their scout car in the area of Weston Road and Lawrence Avenue West. White was driving. At 5:45 p.m., White received the following information from the CI, which he passed on to Morris:

There was a drug dealer in the area of “the towers.” [White testified that police and local residents commonly refer to the two high-rise apartment buildings at 1765 and 1775 Weston Road as “the towers”, an area known for its drug activity. The buildings are on the east side of Weston Road and south of Lawrence Avenue West.]

The CI described the dealer as a black male, of average height, with a skinny build and wearing a blue chequer button-up shirt. He was driving a small red car with the licence plate ARCY 934.

The male was dealing drugs from his car. The CI had seen the transaction “now.” [White understood that by the word “now”, the CI meant that the deal was recent and the information fresh.] The CI stated that he/she knows this dealer and had bought crack from him before. The dealer is known to sell anywhere from “20 pieces” up to “8-balls” (which White understood to be 3.5 grams of crack cocaine). The dealer was also known to carry one to two “8-balls” with him.

[7] After receiving this tip, White and Morris drove to the towers to look for the red car described by the CI. At 6:00 p.m., they exited the rear driveway of 1765 Weston Road and turned west onto Wright Avenue. They had only gone a short distance when they spotted the car heading east on Wright Avenue. The driver crossed Weston Road and immediately turned right or south into a gas station on the southeast corner of the intersection.

[8] White testified that his scout car came to within about 15 metres of the red car before it turned into the station. He made eye contact with the driver, whom he described as a black male with short hair and wearing a blue chequer shirt. White and Morris made these observations through the windshield and without difficulty, as it was still light out. There is no issue that the driver and sole occupant of the car was Mr. David.

[9] Morris testified that he thought Mr. David may have turned into the station in reaction to seeing the scout car and to avoid the police. White noted that Wright Avenue is a dead end street that leads to the driveway behind the towers. Had Mr. David continued eastbound and not turned into the gas station, the only places that he could have ended up were the towers or a used car dealership.

[10] White noted in his memo book his first sighting of Mr. David at 6:00 p.m. He recorded the rest of his observations regarding this investigation sometime after returning to 12 Division following Mr. David’s arrest. Morris testified that he completed his notes at the police station around 9:23 p.m. Both officers testified that they did not consult with one another while making their notes, other than with respect to the times at which various events took place.

Observations at the gas station

[11] When Mr. David turned into the gas station, White pulled over to the side of the road so that he and Morris could maintain observations of him. Mr. David was about 30 to 40 yards away. Both officers were in uniform and their vehicle was a fully marked police cruiser.

[12] According to White, whose testimony differed in a number of respects from that of Morris in terms of Mr. David’s activities at the gas station, Mr. David parked beside one of the gas pumps and got out of his vehicle. The car was on the west side of the pumps, that is, on the side closest to Weston Road. White did not see Mr. David use the gas pumps or enter or exit the kiosk. However, his view of the accused was interrupted a number of times by pedestrians and vehicles arriving at or leaving the station. It was a busy time of day. White described Mr. David as walking around the area between the pumps and the kiosk. Sometimes the pumps blocked White’s view of the accused. White did not see Mr. David using a cell phone or interacting with any other people at the station.

[13] White testified that Mr. David briefly glanced in the direction of the police cruiser on a couple of occasions. Although he failed to record this observation in his notebook and made no mention of it at the preliminary hearing, he stated that he has an independent recollection of it. He explained that he simply forgot to mention it at the preliminary hearing when he was listing all his grounds for arresting Mr. David.

[14] According to Morris, Mr. David stopped his car on the east, as opposed to the west side of the gas pumps and slightly south of the last pump. In cross-examination, he testified that Mr. David’s car may have been beside a pump – he could not be sure.

[15] Morris testified that Mr. David did not get out of his car and no one, such as a gas attendant, approached his vehicle. Morris had no recollection of any vehicles obstructing his view of Mr. David’s car. He could not see what Mr. David was doing while he was in the car. Both officers found it odd that Mr. David attended at the gas station but did not buy any gas.

Observations of the accused after he left the gas station

[16] After two or three minutes, Mr. David left the gas station and turned left or south onto Weston Road. White, who was driving directly behind him, testified that Mr. David was driving extremely slowly – only about 10 km/h according to White’s speedometer. White took Mr. David’s slow speed as an indication that he was not concentrating on his driving but was either hiding drugs or thinking about what he should do next in light of the fact that he was being followed by a police cruiser. The posted speed limit on Weston Road is 50 km/h.

[17] White testified that he assumed that he and Morris spoke to one another about their observations of Mr. David at the gas station and as they followed him southbound on Weston Road. However, he did not recall any specific conversation. Morris did not recall having any discussion with White about their observations at the gas station.

[18] White testified that his intention at this point was to investigate Mr. David for dealing in crack cocaine, based on the information that he had received from the CI and the fact that i) Mr. David was in the general area of the two towers, which was the locale mentioned by the CI and which is an area known to have a lot of drug activity; ii) Mr. David and his car matched the descriptions given by the CI of the drug dealer and his vehicle; and iii) Mr. David’s turning into the gas station after he made eye contact with White could be interpreted as a stalling technique or an attempt to avoid the police. In hindsight, and with the benefit of a couple of more years of experience as an officer, White felt that he ought to have investigated Mr. David at the gas station. This investigation need not have involved a detention but simply asking questions that Mr. David may or may not have agreed to answer.

[19] White testified that the accused’s turning into the gas station, where he did not appear to buy any gas, was not significant in and of itself. However, this behaviour, along with Mr. David’s slow driving on Weston Road, raised White’s suspicions in light of the CI’s information.

[20] Morris testified that Mr. David was driving quite slowly and estimated his speed at about 40 km/h, perhaps a little less.

White’s testimony regarding events in the alleyway

[21] White testified that about ten seconds after leaving the gas station, Mr. David turned right off Weston Road into a dead end alley between two industrial/commercial buildings. There was an auto parts shop in the building to the south. The building to the north contained a hair salon and physiotherapy clinic, as well as other businesses. There are marked parking spaces along the sides of both buildings. White testified that the alley, which was only about 100 to 150 metres south of the gas station, was one of the first opportunities that Mr. David had to turn off Weston Road after leaving the gas station. Both White and Morris suspected that Mr. David turned right at that juncture in an effort to avoid the police and with the hope that they would not follow him.

[22] White testified that after turning into the alley and while still driving extremely slowly, Mr. David hunched over or lowered his body; that is, his head and shoulders moved in a downward direction. This lowering motion went on for about 3 seconds. Based in the CI’s information and his observations of Mr. David, White believed that he was hiding drugs.

[23] White was driving directly behind Mr. David when he observed him hunch down or fidget in the manner described above.

[24] White testified that Mr. David drove his car to the end of the alley, which was a distance of about 80 metres, and then veered to the right. His car ended up facing northwest, or on a 45 degree angle. White initially testified that Mr. David did not stop his car in a marked parking space. However, in cross-examination and after being shown a photograph of the area, White agreed that the parking spaces run on an angle all the way to the end of the alley and that Mr. David must therefore have parked his car in a designated parking spot.

[25] White activated his roof lights either just before or as Mr. David stopped his car. White pulled up behind him, boxing in the accused’s vehicle. The officers then walked over to the car, with White approaching the driver’s side and Morris approaching the passenger’s side.

[26] White testified that as he approached the car, he saw Mr. David’s right shoulder “dip down” and his head lower. Mr. David was still sitting in the driver’s seat. White could see the back of his head. He made these observations from an angle off the driver’s side. White immediately thought Mr. David was hiding drugs. He could also have been hiding a gun, but that thought was not at the forefront of White’s mind.

[27] White testified that at the point when he was just behind the driver’s door, he observed Mr. David’s right hand between his legs. Again, White suspected that Mr. David was concealing drugs, either on his person or below where he was seated.

[28] White could not recall if he asked Mr. David to get out of the car. However, had Mr. David not exited the vehicle on his own, White would have ordered him out for officer safety reasons. Given the fact that he was investigating a drug case and that guns and drugs often go together, he felt more comfortable speaking to Mr. David outside of his car, where he could see his hands and waistband. However, as stated, guns were not at the forefront of his mind. White had no information that the person he was dealing with was armed. He agreed that Mr. David possibly had a weapon, especially in light of the “dipping down” or fidgeting. However, in the back of his mind, he was “still thinking drugs.” He believed Mr. David’s actions were drug-related.

[29] White testified that as he got to the driver’s door, Mr. David was getting out of the car. White may have stepped back to give him room to get out. As Mr. David stood up in the course of exiting the car, White saw the package that he believed was cocaine. He testified that he scanned the front seat, as he was curious as to what Mr. David had been doing in the car. That is when he noticed the tear on the edge of the cushion on the driver’s seat and a crumpled white piece of paper protruding from it.

[30] White testified that he and Mr. David were standing in the triangular area created by the open car door. White drew a sketch [Exhibit 20] marking their respective locations in relation to Mr. David’s car when he first observed the package containing the cocaine.

[31] White testified that he has seen crack cocaine wrapped in similar paper or paper-based products on numerous occasions, although the most popular type of packaging is plastic. White estimated that he had been involved in the investigation of about 70 cases involving crack cocaine at that point in his career.

[32] White testified that prior to observing the white paper in the torn area of the seat cushion, he did not believe that he had grounds to arrest Mr. David, although he believed that he had grounds to conduct an investigative detention. After seeing the white paper, he believed that he had the requisite reasonable grounds for arrest. He believed, based on the totality of the circumstances and the CI’s information, that the seat cushion contained crack cocaine.

[33] At 6:15 p.m., White arrested Mr. David for possession of cocaine. He handcuffed him to the rear, advised him of his rights to counsel, and cautioned him. Both White and Morris testified that Mr. David was very polite and co-operative throughout their dealings with him.

[34] White recalled that Morris patted down Mr. David and then searched the car. Morris testified that he searched the car first and then searched the accused.

[35] White, who stood by with Mr. David during the search of the vehicle, was aware that Morris had seized crack cocaine from the seat cushion. White could not recall if he brought the white paper protruding from the cushion to Morris’s attention or whether Morris found it independently. He may have pointed it out to him but assumed Morris would see it in any event.

[36] Morris limited his search of the car to the front seat area. At White’s request, the canine unit attended at the scene and conducted a more thorough search of the car. White explained that he wanted to ensure that no drugs were missed, as the car was very messy and contained a lot of debris. In the end, no drugs other than the cocaine in the seat cushion were located.

[37] White and Morris left the scene with Mr. David at 7:15 p.m. At 7:30 p.m., they conducted a strip search of the accused at 12 Division. No drugs or contraband were found.

[38] White testified that had Mr. David not stopped his car on his own, he would have eventually pulled him over at some point to investigate him for the possession of cocaine. Had that happened, he would have advised Mr. David of his rights to counsel and given him the opportunity to contact a lawyer. Had Mr. David, after speaking with counsel, stated that he did not want to answer any questions, he would have been free to go. Otherwise, White would have queried him as to what he was doing, where he had been etc.

[39] White testified that had he detained Mr. David for investigation, Mr. David would have been free to contact a lawyer by cell phone. However, White would not have lent him his own personal cell phone for that purpose. White went on to state that generally speaking, when the crime being investigated involves only street level drug trafficking and the detainee wishes to exercise his or her rights to counsel but does not have a cell phone, White lets them go on their way. He explained that he assumes in these situations that the detainee would refuse to speak to him in any event after consulting with counsel.

[40] White was cross-examined extensively with respect to his testimony at the preliminary hearing regarding his intentions when he approached Mr. David’s vehicle. White testified at that proceeding as follows:

Q. So, initially when you pulled the car over, what were you pulling the car over to do?

A. To further investigate.

Q. Okay, and what – your intention when you were pulling the car over was to arrest Mr. David, correct?

A. To answer that, Your Honour, I don’t have an awful lot of experience dealing with confidential informants. I’m not sure what I would have done had it not been for my observations. It’s hard for me to go back. I know what I would do now. I don’t know what I would have done at that time, if I would have arrested him on the spot based solely on the information. In accordance with my training, to corroborate information, and being a year ago, I can’t answer that.

Q. Okay, so you’re not sure what you were going to do when you pulled him over initially?

A. No, it was for the purpose of investigating.

Q. Okay, but the reason for pulling him over was the information you received from the confidential informant?

A. Yes, that’s correct.

Q. So you have this information, you’re not sure what to do yet, so you pull the car over correct?

A. That’s correct.

Q. And one of the things that you are going to do by pulling the car over is basically detain him and investigate the information further, correct?

A. Again, if, if he wasn’t driving ten kilometers an hour down Weston Road, if he didn’t pull off the street into a gas station and appear to me to do nothing, and if he didn’t pull into a dead-end alley and if he wasn’t fidgeting around – it’s hard for me to answer that, that question, because all of those things, with the information were my grounds in this. So, it’s hard. I can’t really answer that what I would’ve done if those things didn’t happen.

[41] White candidly acknowledged during his testimony at this trial that his response to the question as to whether he intended to arrest Mr. David when he pulled him over was confused, badly articulated, and that he did a poor job of explaining what was in his mind at the time. It seems that he interpreted that question, as well as the last question in the above excerpt, as posing a hypothetical situation – that is, what would he have done if, when he approached Mr. David’s car, he only had the information from the CI and had made no further observations, such as the fidgeting? White acknowledged that his answer indicates that he did not know whether he would have arrested Mr. David in those circumstances. White testified that this is not what he meant to say and that his answer in that regard is inaccurate. He testified that he would not have arrested the accused based solely on the CI’s tip. White noted that just before and immediately after his rather confusing answer at the preliminary hearing, he was very clear as to what his intention was with respect to the vehicle stop – he planned to investigate, as opposed to arrest, Mr. David for possession of cocaine.

Morris’ testimony regarding events in the alleyway

[42] Morris testified that he observed Mr. David “fidgeting” or moving his upper body as he made the right turn into the alley. Mr. David’s right shoulder was moving up and down. This fidgeting continued as Mr. David drove slowly through the alley and parked in a space close to the end of the lot, which took about 10 to 15 seconds. Morris testified that the first thing he thought of when he saw Mr. David fidgeting was that he was trying to hide drugs. The fidgeting also raised concerns regarding officer safely.

[43] Mr. David continued to fidget until Morris had exited the cruiser and reached the rear passenger door of Mr. David’s car, which took 20 to 25 seconds. At that point, Morris observed that Mr. David’s hand was between his legs, although he could not actually see his hand – just his arm leading in the direction of his legs.

[44] Morris testified that by the time he took a couple of steps forward towards the front passenger door, Mr. David was exiting the car on the driver’s side. Morris had not expected him to get out of the vehicle. As soon as Mr. David exited the car, Morris saw the tear along the edge of the cushion on the driver’s seat. It was about five inches long. Had Mr. David been sitting in the car, the tear would have been between his knees.

[45] Morris made these observations through the front passenger side window. There was nothing obstructing his view. Since the cushion was quite thin, he believed drugs, as opposed to a weapon, were concealed inside it.

[46] As Morris walked around the car to the driver’s door, he heard White arresting Mr. David, or at least part of what was said during the course of the arrest. He assumed White had arrested Mr. David for possession of crack cocaine. By the time Morris reached the driver’s door, White had already handcuffed or was in the process of handcuffing Mr. David.

[47] From the driver’s door, Morris was able to see a “little portion” of crumpled white paper protruding from the tear in the cushion. He had not observed the paper when he was on the passenger’s side of the vehicle. Believing that there were drugs or contraband hidden inside, he immediately pulled out the paper and opened it up, exposing the crack cocaine. The drug was loosely wrapped in two pieces of plastic. The plastic was not knotted or tied.

[48] Morris testified that at the time that he seized the drugs, White and Mr. David were standing by the rear door panel. Morris did not recall what, if anything, they were saying as he was focussed on the front seat and the tear in the cushion. He told White what he had found but White never handled the drugs. Morris kept the cocaine on his person and continued to search the front seat. He located three cell phones in the centre console and a number of pieces of “pre-ripped” plastic strips in the side of the driver’s door. Morris did not search the back seat or trunk of the vehicle.

[49] Morris testified that he patted down Mr. David and searched his pockets after he had searched the car. During the search of Mr. David’s person, which lasted a couple of minutes, he seized a cell phone and $230 in cash.

[50] It was suggested to Morris in cross-examination that if Mr. David had, in fact, been fidgeting and appeared to be reaching for something, then Morris would have approached the car with his firearm drawn and demanded that Mr. David show him his hands. The position of the defence is that the absence of such actions by the officers casts doubt on their evidence that the accused was fidgeting. However, Morris testified that he had his hand on his firearm as a precaution when he approached Mr. David’s car. He also testified that everything happened at once. By the time he reached the front passenger door, White was already by the rear door on the driver’s side and Mr. David was getting out of the vehicle. Mr. David was handcuffed very shortly thereafter, as a result of which he no longer posed a potential threat to the officers’ safety. Morris went on to explain that police officers, by virtue of the nature of their job, frequently face potential danger when interacting with members of the public. There is always the risk that someone may have a weapon. The result is that, over time, “you get a little complacent” with respect to safety concerns.

[51] At no point during this investigation did either White or Morris run a check on the licence plates of Mr. David’s car. Although their cruiser was not equipped with a computer, they could have requested such a check through the police dispatcher. White acknowledged that they should have “run the plates” in order to obtain as much information as possible about the person with whom they were dealing. Morris testified that although it would have been possible, it was not practical to run the plates in this case, given the speed at which events unfolded and the fact that it may have taken some time to get a response from the dispatcher. Morris explained that it was important to maintain close and continuous observations of Mr. David and not to be distracted. Checking the licence plates would have been easier and more efficient had there been a computer in the cruiser.

The police synopsis

[52] White and Morris were questioned with respect to statements contained in the police synopsis prepared by Det. Roberto Di Giacomo, who presumably relied on what one or both of them told him about the case when they returned to the station after Mr. David’s arrest.

[53] Morris testified that if Det. Di Giacomo was the officer-in-charge of the case that night, then it is possible that he spoke to him. However, he had no specific recollection of having done so.

[54] Similarly, White did not specifically recall speaking to Det. Di Giacomo. He testified that generally speaking, the arresting officers provide the officer-in-charge with a “Cole’s Notes” version of events. They do not type the synopsis themselves and do not review it to ensure its accuracy. In White’s experience, synopses often contain mistakes. He has seen this himself on several occasions.

[55] In this case, part of the synopsis states as follows:

Upon approaching the intersection the accused observed the approaching scout car and quickly turned into a gas station, situated on the south east corner. The accused then exited his vehicle where he began to pace around and watch the officers, while the attendant pumped the gas.

The accused then quickly pulled into a dead end commercial complex, located at 1716 Weston Rd. The officers pulled in behind the accused, where they exited their scout car. Upon approaching the drivers side window, PC White observed a white package protruding out from a hole, in the drivers side seat cushion.

The accused was asked to exit his vehicle, where he was subsequently placed under arrest for Possession of Cocaine.

[56] White confirmed in his testimony that he saw Mr. David pacing around and looking over at the scout car while he was at the gas station. However, he insisted that he never saw an attendant pumping gas into Mr. David’s car and would not have so advised the officer-in-charge. He also took issue with the synopsis in the sense that it implies he saw the white package protruding from the tear while Mr. David was still sitting in the driver’s seat, which would seem unlikely. According to the evidence of both White and Mr. David, Mr. David exited the car of his own accord. It was as he was exiting and stood up that White spotted the tear in the cushion and the white paper protruding from it.

[57] White did not recall providing the address of 1716 Weston Road to the officer-in-charge and had no note of that address in his memo book.

Testimony of Detective Roberto Di Giacomo

[58] Det. Di Giacomo testified that on September 3, 2011, he would have been in charge of supervising 14 to 18 uniformed officers. 12 Division is a very busy police station as it is in a high crime area known for drugs and guns and gang activity.

[59] Part of Det. Di Giacomo’s duties include preparing synopses, which contain the facts for a guilty plea. Generally speaking, his interaction with the uniformed officers in this regard is fairly brief. They tell him what happened and why an accused has been arrested. The officers may then have to go back out on general patrol, which was what happened in the present case.

[60] Det. Di Giacomo testified that as soon as he starts hearing the “story”, he starts typing. He does not take down verbatim what the officers tell him. The synopsis is not evidence; rather, it is hearsay and intended to provide an overview or summary of the case. There is room for his own interpretation of events. It is therefore possible that he could misinterpret something that is said, especially since he may be distracted or interrupted by other matters, such as fielding calls, while preparing the synopsis. He was sure that he has made mistakes in the past. He does not verify the details and rarely visits the scene himself. If he is uncertain about something, he will ask the officers for clarification.

[61] Det. Di Giacomo estimated that he may have spent 15 to 30 minutes speaking with White and Morris regarding Mr. David’s arrest. He believed that he spoke to both officers: he explained that if he had spoken to only one, he would have noted that officer’s name. He made no such note in this case. It would appear, however, that Det. Di Giacomo spoke only to White. Had he spoken to Morris, he would presumably have questioned the officers regarding the obvious disparity in their versions of Mr. David’s activities at the gas station. According to White, Mr. David got out of his car and was walking around. According to Morris, Mr. David stayed in his vehicle. However, neither officer saw Mr. David purchasing gas.

[62] Det. Di Giacomo testified that to the best of his recollection, the excerpts of the synopsis quoted above reflect what he was told. He was confident that the officers provided the address of 1716 Weston Road and that he did not look up the address himself.

[63] Det. Di Giacomo testified that he has a habit of showing the synopsis to the officers after he has completed it. However, he may not have followed that procedure here because the case was so straightforward. He did not believe that he looked at White’s or Morris’ notes.

Testimony of Larry David

[64] In September 2011, Mr. David was living with his parents at 3390 Weston Road, which is near Finch Avenue and a fair distance north of where he was arrested. He was unemployed and receiving social assistance, having been laid off from his job at a business called “Designing Windows.”

[65] Mr. David acknowledged his criminal record. In 1994, he was convicted of two counts of trafficking in a narcotic, and received a sentence of 9 months concurrent, plus probation for 12 months. In 1997, he was convicted of trafficking in a narcotic, possession of a narcotic, and failing to comply with a recognizance. He received a total sentence of 13 months. As the record is quite dated and contains only one conviction for what could be described as dishonest behaviour – the failing to comply charge – it is of no real significance in terms of assessing Mr. David’s credibility.

[66] Mr. David agreed that his driver’s licence was suspended for unpaid fines in 2008, but stated that he had been making payments towards the fines and consequently had received a form indicating that he was permitted to drive.

[67] Mr. David’s father, Donald D. David, is the registered owner of the car that Mr. David was driving on the day in question. Mr. David Sr. uses the car for work but allows his son to drive it after work and on weekends. Mr. David testified that he drove the car about three to four times a week. The seat cushion had been on the driver’s seat for about two or three years at the time of his arrest. Mr. David testified that he never noticed the tear in it.

[68] Mr. David testified that he has a couple of friends who live at the towers and has attended at those apartment buildings in the past. However, he denied that he was there on September 3, 2011. He testified that on that day, he delivered a pair of shoes to his daughter around 5:00 p.m. so that she could wear them to school on the following Monday. His daughter, now age 15, was living with her grandmother in Mississauga at the time. At about 5:30 p.m., he returned to Toronto via Highway 401, exited at Weston Road, and proceeded south to the gas station at the intersection of Weston Road and Wright Avenue because he was low on gas.

[69] Mr. David acknowledged noticing White and Morris’ police cruiser as soon as he turned left off Weston Road onto Wright Avenue. However, he was not concerned about the police presence in the area as he was unaware of both the tear in the cushion he was sitting on and the crack cocaine secreted inside it. He testified that the first time he observed the tear was when Morris removed the package from it.

[70] Mr. David testified that he stopped his car on the east side of the gas pumps, as the gas tank is on the passenger’s side. Mr. David’s evidence was in accord with that of Morris in this regard, as opposed to that of White, who testified that Mr. David was parked on the west side of the pumps.

[71] Mr. David testified that he parked at the most southerly pump. His car was between the pumps and the kiosk. He did not get out of his car, which was facing south. There was a car behind him. A gas station attendant put ten dollars’ worth of gas in his car. Mr. David gave him two five-dollar bills as payment and left. He was at the gas station for about two minutes.

[72] As the attendant was pumping gas, Mr. David observed White and Morris’ police cruiser in his rear view mirror. It had pulled over and was now parked on the north side of Wright Avenue. Again, Mr. David testified that he was not concerned about the presence of the police as he had done nothing wrong.

[73] In cross-examination, Mr. David was questioned as to why he put only $10 worth of gas in his car when he had more than enough cash on his person – namely, $230 – to fill the tank. It was suggested to Mr. David that he was in a hurry to leave because of the presence of the cruiser. Mr. David denied this suggestion and testified that he normally puts only $10 worth of gas in the car.

[74] Mr. David did not exit the gas station via Wright Avenue, where the cruiser was parked. Instead, he exited directly onto Weston Road and turned left. He could still see the cruiser as he executed the turn. The next time that he noticed it was in the ally after he parked and turned to step out of his car.

[75] In cross-examination, Mr. David denied that he exited the gas station directly onto Weston Road in order to avoid the police cruiser parked on Wright Avenue. He agreed that he entered the gas station via Wright Avenue as opposed to Weston Road because of the heavy northbound traffic on Weston Road. It was easier to turn left onto Wright at the lights and then make a right turn into the gas station. Nevertheless, when it came time to leave the gas station, he decided to exit directly onto Weston Road, which entailed having to wait for a break in the northbound traffic. Eventually, some drivers in the northbound lanes stopped in order to let him cross in front of them and make the left turn into the southbound lanes.

[76] At one point during his testimony, Mr. David stated that he exited directly onto Weston Road because there were a lot of vehicles behind him as he was leaving. However, he agreed that these vehicles did not prevent him from driving forward and exiting onto Wright Avenue, had he wished to do so.

[77] Mr. David testified that he was not going that fast as he headed south on Weston Road as the traffic was quite heavy. He agreed that it was possible that he was driving below the speed limit. He was not looking at his speedometer.

[78] Mr. David testified that he did not pay any attention to the vehicles behind him and, in particular, did not notice the police cruiser directly behind him. Nor did he notice the cruiser when he executed the right turn into the alleyway. He testified that he did not look in his rear view mirror or side mirrors at that time or as he drove the 40 or 50 feet down the alley to the furthest parking spot. His focus was on what was directly ahead of him, which is why he failed to observe the cruiser’s flashing lights. The first time that he saw the cruiser was after he had parked and when he turned his body in order to get out of his car. No one ordered him out of the car – he got out on his own accord.

[79] Mr. David agreed that he slowed down in order to turn into the alley. It was suggested to him in cross-examination that he would have looked in his rear view mirror at that point to see if there were any vehicles behind him. Mr. David maintained that he did not see the cruiser until after he had parked his car.

[80] Mr. David testified that he drove into the ally because he was intending to get a haircut at the “Blessed Barber Shop”, although he did not have an appointment. The salon in question, which is actually called “Blessings Hairport”, is in the commercial building that runs along the north side of the alley. The salon itself faces east onto Weston Road. Mr. David testified that he had had a haircut at this establishment on a couple of occasions and that he knew the owner.

[81] Mr. David denied lowering his body or hunching over as he was driving south on Weston Road or in the alley. He kept both hands on the steering wheel at all times, including when he executed the right turn into the alley. He did not use his cell phone. He never reached towards the floor of his car. He did not drop any items while he was driving.

[82] Mr. David testified that he pulled into the parking space at the end of the alley because that was the only spot available on the north side. He acknowledged that there were empty parking spaces on the south side, which were closer to both the road and the hair salon. However, Mr. David explained that he preferred to park by the building that contained the salon and that he was not a customer of the auto body shop, which was in the building to the south. Mr. David denied driving into the alley in order to get away from the police or that he ended up parking at the end of the alley because there was no other place to go.

[83] Mr. David testified that after parking his car, he took the keys out of the ignition, opened the door and was in the process of getting out, which involved turning his body to the left, when he noticed for the first time that the police cruiser was right behind him. Officer White had gotten out of the cruiser and was running towards him. Mr. David was not entirely out of his car by the time White reached him but he was no longer sitting in the driver’s seat.

[84] Mr. David testified that White immediately told him he was under arrest for selling drugs and then put the handcuffs on his left hand. In order to cuff his right hand, White pulled Mr. David towards him and away from the car door. During this process, White elbowed him in the left jaw, although Mr. David did not sustain any injury. Mr. David did not resist arrest, but asked White if he had a search warrant and why he was being arrested. He told the officer that he had not done anything except put gas in his car and that he was on his way to get a haircut. White did not ask him any questions but advised him of his rights to counsel. At Mr. David’s request, White called Mr. David’s mother and allowed him to speak to her by holding the cell phone to his ear. Mr. David told his mother to call his lawyer. I note that parts of Mr. David’s version of events during his arrest, such as White’s alleged elbowing of his jaw, were not put to the officers during their cross-examination. It was not alleged by the defence during submissions that the manner in which the arrest and search were executed was unreasonable.

[85] Mr. David testified that after he was handcuffed, White sat him down on the north sidewalk. Morris patted him down and then proceeded to search the car from the driver’s door. After a while, Morris said that he saw some white tissue in the driver’s seat and that there was something in it. This was three to four minutes into the search. When Morris returned with the crack cocaine, Mr. David told him, “Not mine.”

[86] Mr. David testified that he was polite to White and White was polite to him, other than when he elbowed him in the jaw as he was handcuffing him. He had never met White prior to that day.

The law

[87] Section 495 of the Criminal Code permits an officer to arrest without a warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. This section requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must also be justified from an objective point of view. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, at paras. 15-17.

[88] On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest. As stated in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.) at 329, quoted in Storrey, at para. 15:

The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction.

[89] In R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18, the Court pointed out that information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest. The Court stated:

In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[90] In effecting an arrest, there must be some relationship or logical association of the accused to the crime. Otherwise there would be very little protection offered by the requirement that the police have reasonable and probable grounds before making an arrest. As stated in R. v. Hall (1995), 22 O.R. (3d) 289 (C.A.), at para. 31:

Both ‘articulable cause’ and ‘reasonable and probable grounds,’ as related to an investigative detention and an arrest without warrant respectively, are subject to an objective assessment. That is to say there must be a constellation of objectively discernible facts amounting to articulable cause for a lawful investigative detention and a constellation of objectively discernible facts amounting to reasonable and probable grounds for a lawful arrest without warrant.

[91] It is the “constellation of objectively discernible facts” that associates the person to be arrested to the crime.

[92] The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, as well as his or her experience. Because a trained officer is entitled to draw inferences and make deductions drawing on experience, a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50, at para. 4; R. v. Simpson (1993), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A) at 501.

[93] In R. v. Debot (1990), 52 C.C.C. (3d) 193, the Court provided a framework for analyzing whether reasonable and probable grounds exist when those grounds are based on a confidential informant’s tip. The Court held that the tip must be credible, compelling and corroborated by police investigation. At p. 215, Wilson J. stated:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

The issue

[94] The issue in this case is whether the Crown has established on the balance of probabilities that there were reasonable grounds to arrest Mr. David without a warrant. The Crown must establish that White subjectively believed that he had reasonable grounds to execute the arrest. The grounds must also be justified from an objective point of view.

Positions of Counsel

[95] The position of the defence is that White was neither a credible nor reliable witness and was prone to exaggerate in order to bolster his grounds for detaining and arresting Mr. David. It was submitted that White did not have sufficient grounds, subjectively or from an objective point of view, for an investigative detention or an arrest and that his evidence that he saw the white package in the torn seat cushion before he arrested Mr. David should be rejected. The arrest was unlawful and a violation of Mr. David’s s. 9 Charter rights. The searches incidental to arrest violated his s. 8 Charter rights.

[96] Crown counsel submits that White was a credible witness who understood and respected Mr. David’s Charter rights. White answered questions in a straightforward manner, although he tended to second guess himself and was prone to analyze his actions retrospectively. This led to his rather confusing answers at the preliminary hearing, upon which he was extensively cross-examined at trial. The Crown submits that many aspects of White’s evidence were supported by that of Morris. The fact that some of their observations differed, such as what Mr. David did or did not do at the gas station, indicates a lack of collusion between the officers. They simply reported and noted independently their best recollection of events. The Crown submits that both the subjective and objective branches of the test in Storrey have been met and that the arrest was lawful. Thus, the search of Mr. David’s car was also lawful and did not constitute a violation of Mr. David’s s. 8 Charter rights.

Findings and Analysis

[97] In assessing the grounds for arrest, I bear in mind that White had two-and-a-half years of experience working in a high crime area known for its guns, gangs and drug activity. He had made many arrests for offences involving cocaine. This reality informed the lens through which White viewed events, commencing with his receipt of the CI’s information. White did not have to be certain that Mr. David was in possession of cocaine when he arrested him; nor did he require a prima facie case for conviction.

[98] The court must also bear in mind that the flow of events, including the investigative detention, the arrest and the searches that followed, was a dynamic process. Events unfolded very quickly after White received the CI’s tip. White and Morris first observed Mr. David’s car at 6:00 p.m. Mr. David was arrested 15 minutes later. As stated in R. v. Amofa, 2011 ONCA 368, [2011] O.J. No. 2095 (Ont. C. A.) at para. 19, s. 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.

The information from the confidential informant

Was the tip compelling?

[99] The tip provided by the CI on September 3, 2011, was compelling by virtue of its detail and contemporaneity. According to the tip, there was a drug dealer in the area of the towers (an area known by White to have a high volume of illegal drug activity) who was dealing drugs from his small red car, licence plate ARCY 934. The CI had seen the transaction “now.” The CI knew the dealer and had bought crack cocaine from him in the past. The dealer, who was described as a black male of average height with a skinny build and wearing a blue chequer button-up shirt, was known to sell anywhere from a “20 piece” to an “8-ball” and to carry up to two 8-balls with him.

[100] No doubt, as counsel for Mr. David pointed out, there are gaps in the information provided by the CI. For example, there is no indication of how long ago the CI had bought crack cocaine from the male – whether it was two days or two years ago. The CI does not state what he/she actually observed that led to the conclusion that the male had sold cocaine from his car or how far away the CI was from the car when the transaction took place. There is no reference to the quantity of drugs sold or the purchase price. Despite such gaps or omissions, the tip was relatively detailed. The fact that the transaction was alleged to have just taken place made it particularly compelling.

Was the source of the tip credible?

[101] The information provided by the CI to White did not come from an anonymous tipster but from a carded CI. Sometime within the previous five months, the CI had provided White with a list of alleged drug dealers and their phone numbers. The CI did not receive any consideration for this information. White recognized one of the names on the list as a person known by him to be a drug dealer. When White called another number on the list, he was able to carry on a drug-related conversation with the male who answered the phone. This confirmed in White’s mind that the information provided by the CI was sufficiently reliable and credible that it should be passed on to the drug squad for further investigation.

[102] The fact that the CI was a carded informant who had relatively recently provided reliable information to White, albeit on only one prior occasion, speaks to the reliability of the CI and why, in White’s mind, he found the information given to him by the CI on September 3, 2011, to be credible.

Was the information corroborated by the police prior to White’s decision to arrest the accused?

[103] Almost immediately after receiving the tip, White and Morris drove to the towers in an effort to locate the male drug dealer. They had just exited the rear driveway of one of the buildings and were proceeding west when they spotted Mr. David’s car heading east on Wright Avenue. Mr. David immediately turned into the gas station. As he did so, White and Morris were able to confirm that he was a black male wearing a blue chequer shirt.

[104] I accept White’s evidence that he and Mr. David made eye contact as Mr. David turned into the station. Mr. David acknowledged that he noticed the police cruiser as soon as he turned left off Weston Road onto Wright Avenue and that he watched it through his rear view mirror while he was parked at the gas station. White thought that Mr. David may have turned into the gas station to avoid the police. He noted that had Mr. David not turned into the gas station, there were only two other places that he could have gone, one of which was the towers, which can be accessed from both Wright Avenue and Weston Road.

[105] At this stage of the investigation, the police had corroborated the CI’s information with respect to the description of the alleged dealer, the car he was driving and his presence in the area where the drug deal had allegedly taken place about 15 minutes earlier. This area was known by the police for its drug activity.

[106] Mr. David remained at the gas station for two or three minutes.

[107] The evidence of White and Morris as to what occurred at the gas station cannot be reconciled. As Crown counsel put it, somebody has to be wrong. White testified that Mr. David stopped his car on the west side of the pumps, got out and then walked around in the area between the pumps and the kiosk. Morris testified that Mr. David stopped his car on the east side of the pumps and remained in his vehicle. Mr. David agreed in his testimony with Morris’ version of events, but went on to testify that an attendant pumped $10 worth of gas into his car. This evidence conflicts with that of both Morris and White. Neither officer observed Mr. David buying gas.

[108] Morris stated that he had a clear and unobstructed view of the accused’s car and that no one, such as an attendant, approached it. White testified that he did not see anyone filling Mr. David’s car with gas. However, White also testified that his view was occasionally obstructed by pedestrians and other cars as it was a busy time of day – a Saturday night at 6:00 p.m. Given White’s testimony, both he and Morris could possibly have missed the presence of an attendant at Mr. David’s car, assuming that Mr. David did, in fact, buy gas as he has testified.

[109] The synopsis prepared by Det. Di Giacomo refers to Mr. David as pacing around and watching the officers “while the attendant pumped the gas.” The defence submits that White was the source of this information, which casts doubt on his evidence before this court that Mr. David did not buy any gas – behaviour that White says he found somewhat odd and would tend to confirm his suspicion that Mr. David only turned into the station after he saw the police cruiser and in order to avoid the police. Having considered the evidence in this regard, I find it unlikely that White told Det. Di Giacomo that he saw the attendant pumping gas. I note that the synopsis is intended as a summary and is not a verbatim account of events. Det. Di Giacomo testified that he probably did not show the synopsis to either White or Morris for their review or correction. Moreover, Det. Di Giacomo testified that there is room in the synopses for his own interpretation of events. Given White’s observation, mistaken or otherwise, that he saw Mr. David pacing outside his vehicle after parking it beside a gas pump, Det. Di Giacomo may very well have presumed that Mr. David bought gas at the station and that an attendant must have pumped the gas for him.

[110] I do not find, as the defence suggests, that White’s evidence regarding events at the gas station was contrived or “trumped up” in an effort to bolster his grounds for arrest. I am satisfied that the disparity between White’s and Morris’ evidence is the result of an honest mistake and that they both testified as to what they honestly believed they observed at the gas station. The disparity in their evidence is such that it negatives any suggestion of collusion on their part.

[111] In any event, the fact that White did not see Mr. David or anyone else pumping gas into the car did not play a large role in the overall investigation. White thought it somewhat odd that Mr. David did not buy any gas but that fact, in itself, was not particularly significant. The officers continued their observations of Mr. David after he left the gas station.

Exiting the gas station

[112] Mr. David testified that he entered the gas station from Wright Avenue rather than turning left off Weston Road because he wanted to avoid the heavy northbound traffic on Weston Road. However, when leaving the station, he decided for some reason not to exit the same way he came in, that is, via Wright Avenue, but to exit directly onto Weston Road. This necessitated his having to wait for a break in the northbound traffic before executing a left turn.

[113] Mr. David denied that he exited directly onto Weston Road in order to avoid the police cruiser parked on Wright Avenue. Even if Mr. David’s denial is accepted as true, the fact that he chose the exit that was the furthest distance from the scout car, after having made eye contact with an officer in that car, was a matter that could be taken into account by White, in terms of his subjective belief, and by the court, in determining whether the objective branch of the test in Storrey has been met.

Slow driving

[114] There is no question that Mr. David was driving well below the 50 km/h speed limit as he headed south on Weston Road. White, who was driving directly behind him, testified that he was only going about 10 km/h. Morris estimated his speed at somewhere between 30 and 40 km/h. Mr. David agreed in his testimony that he was driving below the speed limit.

[115] Counsel for Mr. David attempted to calculate Mr. David’s actual speed based on White’s estimate that it took Mr. David about ten seconds to travel 100 to 150 metres, where he turned into the alley between the two buildings. The difficulty with these calculations is that they are based on estimates only. Assuming that the ten-second time estimate is accurate, Mr. David was travelling between 36 and 54 km/h. However, if White’s time estimate is off by mere seconds – for example, if it actually took Mr. David 20 to 30 seconds to travel 100 to 150 kilometres, his speed would have been anywhere between 12 and 27 km/h.

[116] White’s estimate of speed may well be the more accurate since he was driving directly behind Mr. David and was in a position to check his speedometer. However, in the end, it is not necessary for the court to determine Mr. David’s exact speed. I am satisfied that he was driving slowly and noticeably below the speed limit.

[117] White took Mr. David’s slow speed as an indication that he was not concentrating on his driving. In light of the information he had received from the CI, White thought that Mr. David was either hiding drugs or thinking about what he should do next in terms of drugs in his car, given the fact that a police cruiser was following directly behind him.

[118] Mr. David testified that he did not notice the police cruiser following him as he drove south on Weston Road or as he turned right into the alley. According to Mr. David, he slowed down to execute the turn but did not glance in his rear view mirror to see what vehicles, if any, were behind him. He further testified that he drove the full length of the alley and parked his car without observing the police cruiser behind him. So intense was his focus on what was directly ahead of him that he even failed to observe the cruiser’s flashing lights until he turned his body in order to get out of his car.

[119] Mr. David’s testimony that he did not notice the police cruiser until he was getting out of his car is somewhat problematic. Based on his own evidence, Mr. David was aware of the presence of the cruiser from the moment that he turned onto Wright Avenue. He continued to glance at it through his rear view mirror while he was at the gas station. He also noticed it as he was leaving the station. Given his interest in the police presence, which could be for any number of reasons, including idle curiosity, it seems unlikely that Mr. David would fail to notice the cruiser as it followed him down Weston Road. Even if that were the case, he would surely have seen it as he slowed down to turn into the alley. Common sense dictates that he would not have turned without at least glancing in his rear view mirror in order to check what, if any, vehicles were behind him. As for the flashing lights that were activated by White just before or as Mr. David parked his car, I note that such lights are very bright and designed to alert the public to the presence of the police. They would have been hard to miss.

[120] In any event, whether or not Mr. David observed the cruiser following him on Weston Road and into the alley, it was certainly reasonable for White and Morris to assume that he saw them. There were no vehicles between the cruiser and Mr. David’s car.

The turn into the alley

[121] Mr. David testified that he turned into the alley because he intended to get a haircut at the salon. However, from the officers’ perspective, the turn was of some significance. White noted that the alley was one of the first opportunities that Mr. David had to turn off Weston Road. Based on the CI’s tip and his observations of Mr. David, including his slow driving, White suspected that Mr. David turned at that juncture in order to avoid the police and with the hope that the cruiser would not continue to follow him.

[122] Mr. David testified that he parked in the parking space at the end of the alley because that was the only spot on the north side. He agreed that there were empty parking spaces on the south side, which were closer to both the road and the hair salon. However, he preferred to park against the wall of the building where the salon was located.

[123] The officers, of course, were not party to the reasons why Mr. David chose to park where he did. From their perspective, Mr. David drove the length of the alley, passing by available parking spots, and only veered to the right or pulled into a parking space when he could go no further.

The alleged “fidgeting”

[124] Both White and Morris observed Mr. David fidgeting in his car, although their evidence differed slightly in their description of the fidgeting and when it commenced.

[125] Morris, who was not driving but remained focused on Mr. David, first observed Mr. David moving his right shoulder up and down as he was turning into the alley. This fidgeting continued as Mr. David drove slowly down the alley and parked his car, and as Morris approached the vehicle on foot. When Morris reached the rear passenger door, he saw that Mr. David’s hand was between his legs. By the time Morris took a couple of steps towards the front passenger door, Mr. David was exiting the car on the driver’s side – a move that Morris had not anticipated. It was at that time that Morris observed through the front passenger window the tear along the edge of the driver’s seat cushion. He did not notice the white crumpled paper protruding from the rip until he went around the car to the driver’s side.

[126] Morris testified that the first thing he thought of when he saw Mr. David fidgeting was that he was hiding drugs, although he could have been hiding a weapon. Morris believed that drugs, as opposed to a weapon, were secreted in the cushion because the cushion was quite flat.

[127] White first noticed the fidgeting after Mr. David turned into the alley. Mr. David was still driving very slowly. He was hunching over or moving his head and shoulders in a downward direction. As White approached the car, he saw Mr. David’s right shoulder dip down and his head lower. White, like Morris, believed that Mr. David was hiding drugs. He could also have been hiding a gun, but that thought was secondary in White’s mind.

[128] White was just behind the driver’s door when he saw that Mr. David’s right hand was between his legs. Again, White suspected that Mr. David was concealing drugs, either on his person or below where he was seated. Mr. David started getting out of the car on his own at that point.

[129] Mr. David denied lowering his body or hunching over as he was driving down Weston Road or in the alley. He insisted that he had both hands on the wheel in the “9 and 3 o’clock” position at all times until he parked and took the keys out of the ignition. In my view, it is highly improbable that Mr. David, after two years, can recall with such precision exactly where his hands were situated on the steering wheel and that he never took them off the wheel for any reason while driving from the gas station to the parking spot in the alley.

[130] I disagree with defence counsel’s submission that if Mr. David had been fidgeting, as alleged by White and Morris, they would have drawn their firearms and yelled at him to show them his hands as they approached the car. The officers strongly suspected that Mr. David was hiding drugs when he was fidgeting, although they recognized that his actions were also consistent with hiding or reaching for a weapon. Their concern about a firearm, although serious, was secondary. Moreover, they did take certain precautions. Morris had his hand on his firearm. Although Mr. David described White as running, I accept White’s evidence that he did not run but walked up to the car, which gave him slightly more time to observe the driver.

[131] In addition, events unfolded very quickly and not as the officers anticipated. They had not expected Mr. David to stop his vehicle of his own accord. White quickly pulled up behind him and approached the car. As he did so, he saw Mr. David’s right shoulder dip down. Seconds later, he saw Mr. David’s hand between his legs. It had been White’s intention, as a precaution, to order Mr. David out of the car so that he could see his hands. However, he had no time to give that order because Mr. David started to exit the car on his own. White would have seen his hands at that point and realized that he was not holding a weapon. It was also at that point that White says he saw the paper protruding from the torn seat cushion, which crystallized in his mind the grounds for arrest. He immediately arrested and handcuffed Mr. David. Any concern that Mr. David may have a weapon was thereby alleviated.

[132] Morris, during his testimony, did not categorically reject the suggestion that a demand that Mr. David show his hands was warranted in the circumstances. However, he went on to explain that because officers face potentially dangerous or risky situations so often when approaching unknown individuals, they sometimes “get a little complacent.”

[133] I am satisfied that Mr. David fidgeted or hunched over by lowering his head and shoulders while driving slowly down the alley. The officers’ belief that he was hiding drugs was reasonable in the circumstances, given the CI’s tip and their other observations of Mr. David up to that point in time.

White’s and Morris’ observation of the package of cocaine

[134] Mr. David testified that he never noticed the tear in the driver’s seat cushion. Whether or not Mr. David noticed the tear, there can be no doubt that the tear existed and that Morris removed the crack cocaine from it.

[135] White testified that when he was just behind the driver’s door, he saw that Mr. David had his right hand between his legs. As he got to the driver’s door, Mr. David was getting out of the car. When Mr. David stood up, White scanned the front seat as he was curious as to what Mr. David had been doing in the car. That is when he saw the tear in the cushion and the white piece of paper protruding from it. Mr. David agreed in his testimony that although he was not entirely out of the car when White reached the driver’s door, he was no longer sitting in the vehicle. White immediately arrested Mr. David after spotting the package.

[136] Morris was at the rear passenger door when he saw Mr. David’s right hand between his legs. By the time he took two steps forward and reached the front passenger door, Mr. David was exiting the car. As soon as Mr. David was out of the car, Morris saw the tear along the edge of the cushion. He immediately went around to the driver’s door, by which time White had already arrested and handcuffed Mr. David, or was in the process of handcuffing him. From the driver’s door, Morris was able to see the white paper sticking out from the torn cushion. He immediately pulled it out and discovered the cocaine. He told White what he had found but White never handled the drug. Morris then continued to search the front seat, where he located the three cell phones and the pre-ripped plastic strips. Morris kept the cocaine on his person. Only after searching the car did he conduct the search of the accused.

[137] Both White and Morris were cross-examined at length as to their exact locations when they first observed the tear in the cushion and the white paper protruding from it. I am satisfied that White was in a position to see the tear and the white paper when he says he saw it and that immediately thereafter, he arrested Mr. David. I also accept Morris’ evidence that he first spotted the tear when he looked through the front passenger side window. After he got to the driver’s side and observed the white paper, he immediately seized it and continued his search of the front seat. Morris testified that at the time that he seized the drugs, White and Mr. David were standing by the rear door panel. Morris did not recall what, if anything, they were saying because he was focused on the tear in the cushion.

[138] White and Mr. David testified that Morris searched Mr. David before he searched the car. However, I find that Morris’ testimony as to the order of the searches makes more sense and is the more reliable version of events. Some confusion on the part of White and Mr. David as to what and when Morris did certain things is understandable, given the speed at which events took place in and around the car. It was also, no doubt, a very traumatic and stressful situation for Mr. David.

[139] Morris was focused on the tear in the cushion from the time he spotted it through the passenger side window. He believed that the tear contained drugs. He immediately went to the driver’s side, where he was in a position to examine the tear more closely. He did not have to assist in the arrest because White had already arrested Mr. David, who was polite and co-operative. Morris then saw the white paper protruding from the tear. It makes sense that he seized it then and there, rather than ignoring it and proceeding first with a search of the accused. Mr. David was in handcuffs and did not pose a threat to either officer. White could not recall whether he pointed out the white paper to Morris. However, based on Morris’ evidence, which I accept, there was no need for White to bring it to Morris’ attention. Morris told White what he had found.

[140] Counsel for Mr. David queried the likelihood of White and Morris observing the tear in a car that was apparently very messy with lots of debris. However, there is no evidence that there was any debris on the cushion where Mr. David was sitting. In addition, White testified that he focused specifically on the driver’s seat because he was curious as to what Mr. David had been doing in the car. Both White and Morris observed that Mr. David had his hand between his legs just prior to his exiting the vehicle. The tear was at the edge of the cushion and where Mr. David’s knees would have been when he was sitting in the driver’s seat.

[141] White testified that he believed that he had grounds to conduct an investigative detention with respect to the offence of possession of cocaine prior to observing the white paper, but did not have grounds for an arrest. It was only after he saw the paper protruding from the torn cushion that he believed he had reasonable grounds to arrest Mr. David. At that point in his career, White had investigated about 70 cases involving crack cocaine and had seen the drug wrapped in similar paper or paper-based products on numerous occasions, although plastic is the more popular type of packaging. He immediately executed the arrest after spotting the white package.

[142] As noted earlier, White was cross-examined at length regarding his testimony at the preliminary hearing as to whether his purpose in pulling over the car was to arrest Mr. David. White acknowledged that his answers were confusing. It seems that White, for some reason, understood that he was being asked a hypothetical question, stating, “I’m not sure what I would have done had it not been for my observations” and “I can’t really answer … what I would’ve done if those things (referring to his observations, including the fidgeting) didn’t happen.” Although White’s answers were confusing, he also clearly stated at that juncture of his evidence at the preliminary hearing, as well as at this trial, that his intention in pulling over the car was to investigate Mr. David. Having carefully considered this aspect of White’s testimony, along with the rest of his evidence, I am satisfied that White intended to conduct an investigative detention of Mr. David when he boxed in his vehicle and that he did not intend to arrest him at that time. White did not subjectively believe he had the grounds to arrest Mr. David until he saw the white package.

Have the subjective and objective branches of the test in Storrey been met with respect to the investigative detention of Mr. David?

[143] White believed that he had reasonable grounds to conduct an investigative detention for the offence of possession of cocaine based on the following:

• The CI’s tip, which concerned a drug deal that was happening “now”, was detailed and compelling. The CI was a carded informant who had provided reliable information on one occasion to White in the recent past. White found that information to be sufficiently credible and reliable that he passed it on to the drug squad for further investigation.

• Within 15 minutes of receiving the tip, White was able to corroborate all the parts of the tip that could be corroborated. Mr. David and his car matched the descriptions given by the CI and he was in the area where the drug deal had allegedly occurred. That area was known by White for its drug activity. The drug transaction itself could not be corroborated because it had already taken place.

• After spotting Mr. David’s car, White made other observations of Mr. David’s activities which, by themselves, were not particularly noteworthy but, when viewed as a whole and in the context of the CI’s information, took on somewhat more significance in White’s mind. White noted that:

Mr. David was headed in the direction of the rear entrance of “the towers” off Wright Avenue at the time that he and Morris first observed his car;

After White made eye contact with Mr. David, Mr. David immediately turned into the gas station, causing White to wonder whether he had made the turn to avoid the police. White did not observe Mr. David buy any gas;

Mr. David exited directly onto Weston Road, the result of which was that he avoided the police cruiser parked on Wright Avenue;

Mr. David drove very slowly down Weston Road, which indicated to White that he was not concentrating on his driving. In light of the CI’s tip, White suspected that Mr. David may have been hiding drugs or thinking about what to do about drugs in his car, given the fact that a police cruiser was following directly behind him;

Mr. David turned into the alley, which happened to be the first opportunity that he had to turn off Weston Road after leaving the gas station. White suspected that Mr. David made the turn in order to avoid the police and with the hope that the cruiser would continue south on Weston Road and not follow him into the alley;

As Mr. David drove slowly down the alley, he was hunching over or moving his head and shoulders in a downward direction. In the context of the information he had been given and the observations he had made, White believed Mr. David was hiding drugs, although he recognized that he could have been hiding a weapon.

Mr. David did not pull into a parking space until he reached the end of the alley and could go no further, even though there were other parking spaces closer to the road.

[144] Based on the tip, his observations and his experience, White believed he had reasonable grounds to conduct an investigative detention of Mr. David for the offence of possession of cocaine. The subjective branch of the test in Storrey has clearly been met.

[145] The objective branch of the test has also been met. A reasonable person placed in White’s position would be able to conclude that there were reasonable grounds to detain Mr. David, even if one assumes that Mr. David turned into the gas station for the purpose of buying gas as opposed to trying to avoid the police. As White stated during his testimony, Mr. David’s actions at the gas station were “nothing” in themselves; they formed only a small part of the investigation prior to the detention. White and Morris continued to follow Mr. David and made further observations of him, including his slow driving and fidgeting, after he left the gas station. The “constellation of objectively discernible facts” available to White, in the context of all of the circumstances, was such that they amounted to reasonable grounds for the investigative detention.

Have the subjective and objective branches of the test in Storrey been met with respect to the arrest of Mr. David?

[146] After White boxed in Mr. David’s car and was approaching the vehicle, he saw Mr. David’s right shoulder dip down and his head lower. White thought that Mr. David was hiding drugs. When he got closer, he saw that Mr. David had his right hand between his legs. Again, White suspected that Mr. David was concealing drugs, either on his person or below where he was seated. When Mr. David stood up and was exiting the car, White saw the white paper protruding from the tear in the cushion. He had seen crack cocaine wrapped in paper during previous drug investigations. Based on his experience, the CI’s tip and his observations, he believed that the seat cushion contained crack cocaine. He believed he had reasonable grounds to arrest Mr. David. The subjective test has been satisfied.

[147] In my view, although White did not subjectively believe he had the grounds to arrest Mr. David when he boxed in his car, it could be argued that from an objective point of view, those grounds did, in fact, exist at that time. In any event, there can be no question that White’s further observations as he approached the car – Mr. David’s continued fidgeting, the fact that his hand was between his legs, and the white paper protruding from the tear in the cushion – strongly support White’s decision to arrest Mr. David. The constellation of objectively discernible facts available to White in the context of all of the circumstances was such that they amounted to reasonable grounds to arrest Mr. David. The arrest was lawful, as was the search of the car and Mr. David pursuant to the arrest. There was no violation of Mr. David’s ss. 8 or 9 rights.

[Section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[148] Even if there had been a violation of Mr. David’s ss. 8 and 9 Charter rights and his arrest was unlawful, I am of the view that the evidence ought not to be excluded pursuant to s. 24(2) of the Charter.

[149] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Court identified three lines of inquiry relevant to the determination of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. They are:

(1) The seriousness of the Charter-infringing state conduct (the admission of the evidence may send the message that the justice system condones serious state misconduct);

(2) The impact of the breach on the Charter-protected interests of the accused (the admission of the evidence may send the message that individual rights count for little); and

(3) Society’s interest in the adjudication of the case on its merits.

The seriousness of the Charter-infringing state conduct

[150] The police behaviour in breaching Mr. David’s ss. 8 and 9 Charter rights, if there were such breaches, cannot be categorized as either deliberate or egregious but is at the low end of the spectrum. After receiving the CI’s tip, the officers proceeded to investigate the matter. They dutifully made their observations of Mr. David after spotting his car, which matched the CI’s description of the drug dealer’s car. White acted in good faith and in a restrained manner in effecting the detention and arrest. He was respectful of Mr. David’s Charter rights following the arrest, and facilitated a phone call between Mr. David and his mother so that Mr. David’s lawyer could be promptly notified of the situation.

[151] Morris followed standard procedure with respect to searching Mr. David pursuant to his arrest. Morris also acted with restraint in searching the car, limiting his search to the front seat. A more thorough search by the canine unit was only conducted later on out of a concern that something might be missed because of the debris in the vehicle.

The impact of the breach on Mr. David’s Charter-protected interests

[152] The arrest and search had an impact on Mr. David’s liberty and privacy interests. Crown counsel pointed out that motorists have a lower expectation of privacy in their vehicles than they do in their homes. In this case, Mr. David did not own the vehicle. Nevertheless, as stated in R. v. Harrison, 2009 SCC 34, [2009] 2 SCR 494, at para. 31, as a motorist, Mr. David had a rightful expectation of liberty and privacy in a way that is much more than trivial.

[153] An unlawful arrest is never a trivial matter. The fact that Mr. David was arrested and handcuffed constituted a significant intrusion on his privacy interests.

Society’s interest in the adjudication of the case on its merits

[154] With respect to this third line of inquiry, the court must consider factors such as the reliability of the evidence and its importance to the Crown’s case. The evidence of the crack cocaine is highly reliable and essential to the Crown’s case; without it, there is no case. These considerations favour admission because to do so would promote the public interest in having the case adjudicated on its merits.

Balancing the factors under the three lines of inquiry

[155] The Court in Grant held that the balancing of the factors under the three lines of inquiry is qualitative in nature and not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favours 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. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[156] When the three-stage inquiry is applied to this case, a balancing of the factors favours admission of the evidence. The Charter-infringing police conduct was neither deliberate nor egregious and falls in the lower end of the spectrum in terms of seriousness. The impact of the Charter breaches on Mr. David’s protected interests was significant but certainly not at the most serious end of the scale. The crack cocaine constitutes highly reliable evidence and is essential to a determination on the merits.

[157] Taking into account and weighing all of these matters, I find that the admission of the evidence would not, on balance, bring the administration of justice into disrepute. The impact of the breach on Mr. David’s Charter rights weighs in favour of exclusion. However, society’s interest in having this case adjudicated on its merits strongly favours the admission of the evidence. This, plus the absence of egregious conduct on the part of the police, tips the balance in favour of admission. The repute of the justice system would not suffer from allowing the evidence to be admitted at Mr. David’s trial.

Conclusion

[158] For the reasons given, the application is dismissed. The crack cocaine is admissible as evidence.

GARTON J.

Released: November 7, 2013