ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12/40000740/0000

DATE: 20140219

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID DALEY, KEVIN BENONS and KEVIN GRIFFITH

Defendants

Sharna Reid and Sarah Loosemore, for the Crown

Stephen White, for the Defendant Daley
Nathan Gorham, for the Defendant Benons
Joseph Bloomenfeld, for the Defendant Griffith

HEARD: January 20 and 21, 2014

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] On December 18, 2011, three men (David Daley, Kevin Benons and Kevin Griffith) were sitting in a parked car in the parking lot of a Shopper’s Drug Mart in a Toronto shopping plaza. Suddenly, six Toronto police officers, driving six unmarked police vehicles, sped in and surrounded the parked car. The six officers approached the parked car with their weapons drawn, five of them with handguns and the sixth with an assault rifle. They ordered the three men out of their car and arrested them. Then they searched the car. They found: a quantity of cocaine in an opaque grocery bag on the rear seat behind the driver; a quantity of cocaine in a closed gym bag in the trunk; and a loaded prohibited firearm under the rear right passenger-side seat. All three men are charged with a variety of offences relating to possession of the firearm and cocaine. Mr. Benons and Mr. Griffith are also charged with possession of the proceeds of crime based on the cash they had in their pockets at the time of their arrest – $440.00 and $550.00 respectively. All of the charges flow directly from the search of the car.

[2] The defendants sought an order excluding the evidence on the grounds that it was obtained in breach of their Charter rights. One police officer was called by the Crown on the application. Upon the completion of that evidence and submissions of counsel, I held that the evidence was excluded, with reasons to follow. Without the evidence, the Crown cannot prove its case. Accordingly, acquittals were registered on all counts upon which the accused had been arraigned and pled not guilty (Counts 1, 3, 8, 9, 10, 11, 12 and 13) and the remaining counts on the indictment were withdrawn by the Crown.

[3] The reasons for my decision are set out below. Essentially, the police did not have reasonable grounds to arrest the three accused, and therefore no reasonable grounds to search their vehicle as an incident to their arrest. The evidence was obtained as a result of breaches of the Charter rights of the accused. The police conduct was deliberate and the intrusion on the rights of the accused significant. To admit the evidence would be to condone the conduct, which, in the circumstances, would not enhance the interests of justice.

B. BACKGROUND FACTS

[4] Detective Jim Brons was the officer in charge of the exercise resulting in the arrest of the three accused in this case. He has 24 ½ years’ experience with the Toronto Police Force.

[5] December 18, 2011 was a Sunday. Det. Brons testified that it was a slow day at the Toronto Drug Squad office where he was a team supervisor. Three members of the team were off for various reasons. He described it as an office day for doing paperwork and watching football.

[6] Det. Brons received a telephone call from another Toronto police officer. He had no prior knowledge of, or working relationship with, that officer. The officer told Det. Brons that he had received information from a confidential informant[^1] that a black Infiniti motor vehicle with several black male occupants would be coming into the Donlands and Lawrence area of Toronto that day and that there was a large amount of cocaine in the car.

[7] Det. Brons had only three other officers working with him that shift. However, he was able to obtain assistance from three officers on another team, bringing his squad up to seven officers including himself. Det. Bron testified that the police receive a lot of anonymous tips and it would be “very rare” for them to act on them without corroboration. However, he testified in chief that he decided to act on this particular tip because he considered it “compellable,” “detailed,” and from a source that had been “reliable in the past.” Also, the Donlands and Lawrence area was nearby and they were not doing anything else that day.

[8] At 6:33 pm Det. Brons conducted a briefing with his officers, advising them that they would be looking for the Infiniti and if it was located they would execute a high-risk take down, blocking the vehicle with their cars and removing the occupants at gunpoint. The seven officers headed out – each in plain clothes and in their own unmarked cars. They set up surveillance in the area of Donlands and Lawrence.

[9] At 8:12 pm one of the officers saw a black Infiniti enter a shopping plaza parking lot and park in front of a drugstore. The car remained stationary in the parking lot for 10 minutes. The surveillance team obtained a license plate number, which showed the registered owner of the car to be Diana Reed with a 1976 date of birth. This added nothing to their reasonable grounds. There were three men in the car. None of them got out. Nobody approached the car.

[10] After 10 minutes, the car left the drugstore parking lot and drove one block north, pausing for 15-20 seconds in front of the entrance to a condominium building. Nobody got out and nobody approached the car. The car then returned to the drugstore parking lot, and again parked.

[11] At this point, Det. Brons called for the takedown. He was held up in traffic for a few moments, but the other six cars entered the parking lot immediately, surrounded the suspect vehicle, and removed all of the occupants at gunpoint. The car was then searched as an incident to arrest.

[12] In cross-examination Det. Brons was asked why he took no steps to get a search warrant to search the vehicle. He responded that no justice of the peace or judge would issue a search warrant based on the information he had been given. He agreed that this was not a matter of the time or manpower required to get a warrant. Seeking a warrant was simply not an option he considered.

[13] When asked if he felt he had proper grounds to authorize a warrantless search, Det. Brons replied that this was not a warrantless search, but rather a search incident to arrest.

C. CHARTER INFRINGEMENT

The Test to be Applied

[14] This was a warrantless search. For a search to be authorized as an incident to arrest, there must first be reasonable and probable grounds to arrest. The burden is on the Crown to establish those reasonable and probable grounds. There were none. There was not even a basis to detain the car or the individuals in it. The police actions breached the Charter rights of the three accused under both s. 8 (unreasonable search and seizure) and s. 9 (arbitrary detention).

[15] Reasonable and probable grounds to arrest have a subjective and objective component. The police officer making (or authorizing) the arrest must believe he has reasonable and probable grounds to arrest. In addition, it must be established that a reasonable person standing in the same circumstances as the arresting officer, would believe there were reasonable and probable grounds to arrest.[^2]

[16] In this case, the existence of reasonable and probable grounds depends entirely on the information from the confidential informant. In R. v. Debot,[^3] the Supreme Court of Canada held that in determining whether such information can support a finding of reasonable and probable grounds, the court should consider the totality of the circumstances, including whether the information is: (1) compelling; (2) credible; and (3) corroborated. The Court stated (at p. 1168, para. 53):

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? Second, 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.

[17] In the case before me, the information relied upon by the police fails in all three respects.

The Information Was Not Compelling

[18] In considering whether a tip is “compelling” it is relevant to take into account the degree of detail in the tip. In this case, the only information provided that was that a black Infiniti with a number of black male occupants would be in a particular area of Toronto and it would have drugs in it. There was no information with respect to the identity of any of the occupants of the vehicle, nor their descriptions apart from gender and skin colour, nor even the precise number of occupants. The precise location of where the car would be attending was not provided, apart from it being in the area of the intersection of two busy Toronto streets. The only information about the car itself was that it was a black Infiniti. There was nothing further, such as the license plate, make, year, tinting of windows, number of doors, or any other unique or identifying characteristics. There was no indication of where the car was coming from or what it would be doing in the neighbourhood mentioned.

[19] There was no indication as to how the confidential source obtained the information. It could have been firsthand; or it could have been nothing more than a rumour he or she heard and decided to pass on. The nature of the information was itself vague – merely that a large quantity of cocaine would be in the car. There was nothing about the nature of this information that would make it compelling, as, for example, the manner of its packaging or some other information that might indicate the informant had actually seen it or had direct inside information about it.

[20] In short, the information provided was vague in the extreme with respect to where the information came from, the car involved, and the people involved. It cannot be said to be compelling.

The Source Was Not Shown to be Credible

[21] The second factor to be considered is the credibility of the source. Again, the evidence is completely lacking.

[22] Det. Bron was cross-examined on the extent of his information as to the nature of this confidential source. He did not know the name of the source, nor did he know how the source obtained the information about the Infiniti. He did not know if the source had a criminal record. He did not know why the source was passing on this information or whether he was receiving any consideration for it.

[23] Det. Bron testified in examination-in-chief that he had been advised by the officer who called him that this was a confidential source who had proven to be reliable in the past. However, he acknowledged that he did not actually know at the time if this was an official registered confidential informant, but rather had “assumed” this to be the case because the referring officer told him the source had proven reliable in the past.

[24] Det. Brons was cross-examined about the basis for his saying that the source had proven reliable in the past. He conceded that there was nothing in his notes to say that the informant had been reliable in the past. He also acknowledged that this was a significant point and that significant pieces of information should be in his notes. Det. Brons was also cross-examined about his evidence at the preliminary hearing at which time he testified that he had not asked the referring officer about the reliability of the informer or the reliability of the tip. At trial, he explained this discrepancy by stating that he was mistaken at the preliminary and that he must have misunderstood the question asked.

[25] I do not accept Det. Brons’ testimony at trial that he was told by the handler who called him that this confidential source had proven to be reliable in the past. The prior reliability of a source is a vitally important piece of information and, if it had been the subject of discussion at the time, I would expect it to be in the officer’s notes. However, Det. Brons reviewed his unredacted notes and confirmed that he had not recorded anything at all about the track record of this source. The fact that he gave conflicting evidence at the preliminary hearing on this point, is also of concern. I do not accept Det. Brons’ explanation that he must have misunderstood the question at the preliminary hearing. It was a very straightforward question. I do not believe Det. Brons deliberately lied to the court about this. He knew that this was important information about which he should have inquired. He did speak to the handler one week before trial and was told at that time that the source was a registered confidential informant. It may well be the case that Det. Brons therefore honestly believed that he must have had that information at the time. However, the evidence does not support that. At the preliminary hearing, which was closer to the event and prior to his recollection having been affected by his subsequent discussion with the handler, Det. Brons testified that he did not get any information from the handler about the reliability of the informant. In all of these circumstances, I find Det. Brons’s testimony at trial with respect to the track record of the confidential source to be unreliable. I am therefore treating this as a situation in which the reliability and credibility of the confidential source was unknown.

The Information Was Not Corroborated

[26] The third relevant factor is corroboration. There is none. The fact that a black Infiniti with three black men showed up in the neighbourhood later that day is not corroborative. There is nothing to indicate that this particular car was the one described by the confidential source. There is nothing unusual or distinctive about the car. The identity of the owner revealed nothing suspicious. Further, I do not accept that a car parked in front of a drugstore and then driving around the block and parking again in front of the same drugstore is an indication of criminal activity sufficient to warrant detention, much less arrest at gunpoint.

Conclusion on Charter Infringement

[27] Thus, the information was not compelling, there was no evidence that it was credible, and it was not corroborated. Even if the driving and parking conduct of the vehicle could be said to be to somewhat corroborative, it is extraordinarily weak and cannot compensate for the weakness on the other two factors.

[28] Therefore, I conclude that there was no objective basis upon which it would be said that there were reasonable and probable grounds to stop this car, arrest these men, and then search the car. Indeed, even the evidence of subjective grounds is weak. Det. Brons testified that the plan upon leaving the police station was that they were going to execute a high-risk take-down of the vehicle if they saw it. He also conceded that as of that point in time he knew he did not have sufficient information that would prompt a justice of the peace or judge to issue a search warrant. In other words, he did not at that time have reasonable and probable grounds to believe there would be evidence of a crime in the vehicle described. Nothing was different upon finding a vehicle that matched the general description of a black Infiniti with black men in it.

[29] Accordingly, I find that the evidence was obtained in breach of the Charter rights of the accused.

D. EXCLUSION OF THE EVIDENCE

The Test

[30] The Crown submits that even if the evidence was obtained as a result of a Charter infringement, it should not be excluded from evidence, relying on s. 24(2) of the Charter as interpreted by the Supreme Court of Canada in R. v. Grant.[^4]

[31] Section 24(2) of the Charter provides:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[32] In Grant, the Supreme Court held that the expression “bring the administration of justice into disrepute” refers to the long-term interest of “maintaining the integrity of, and public confidence in, the judicial system.” This is a systemic approach that is not only long-term, but prospective. It is less concerned with the immediate impact on a particular case than with the overall repute of the justice system.[^5]

[33] The Supreme Court summarized the test to be applied under s. 24(2) as follows (at para 71):

. . . When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission 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 court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of the Charter-Infringing State Conduct

[34] There is a wide range of police conduct that can result in a Charter breach. At one end of that range is conduct that is merely inadvertent. Minor breaches of this sort will be less likely to undermine public confidence in the justice system. At the other end of the scale is police conduct which is undertaken in blatant and deliberate disregard of the Charter or where the police have acted in bad faith. This type of conduct is more likely to bring the reputation of the justice system into disrepute, bringing with it a greater need for the court to distance itself from the conduct by refusing to admit the evidence obtained through that conduct.

[35] While the conduct of the police in this case is not the most egregious that can be imagined, it is nevertheless at the more serious end of the spectrum. By his own admission, Det. Brons knew he did not have reasonable and probable grounds to obtain a search warrant for any and every black Infiniti containing black males that entered the area of Donlands and Lawrence that day. Notwithstanding that, he instituted a plan whereby he would search such a vehicle without a warrant, by stopping the car at gunpoint, arresting the occupants, and then searching the car as an incident to the arrest. That is a blatant and deliberate disregard for the Charter rights of the individuals involved.

[36] The police took no reasonable steps to obtain further information from or about the confidential source with a view to determining the reliability of the tip, nor did they seek to establish any corroboration of the information. Instead, within minutes of seeing a black Infiniti with black men in it, they drew their weapons, arrested them all, and proceeded to search the car.

[37] In R. v. Harrison, a companion case to Grant, the Supreme Court of Canada considered the case of two young men who were pulled over by a police officer on a highway in Ontario. The police officer was approaching from the opposite direction and noticed that there was no front license plate, which would be a traffic violation in Ontario. He also found it suspicious that the car was being driven exactly at the speed limit. He decided to pull over the vehicle, turned around and began following it. Before stopping the vehicle, he discovered from the rear license plate that the car was registered in Alberta (where a front license plate is not required) and received information from dispatch that the car had been rented at the Vancouver airport. Notwithstanding that information, he decided to stop the vehicle anyway. The driver of the vehicle had a suspended license. The officer placed him under arrest. Once backup arrived, he searched the vehicle as an incident to the arrest and found a large quantity of cocaine.

[38] The trial judge found the conduct of the police officer in Harrison to be a breach of the s. 8 Charter rights of the accused, because there was no lawful authority for the search of the vehicle. He characterized the police conduct in that regard as “brazen and flagrant.” The Supreme Court of Canada agreed that the conduct was at the serious end of the spectrum, stating at para. 24:

Here, it is clear that the trial judge considered the Charter breaches to be at the serious end of the spectrum. On the facts found by him, this conclusion was a reasonable one. The officer’s determination to turn up incriminating evidence blinded him to constitutional requirements of reasonable grounds. While the violations may not have been “deliberate”, in the sense of setting out to breach the Charter, they were reckless and showed an insufficient regard for Charter rights. Exacerbating the situation, the departure from Charter standards was major in degree, since reasonable grounds for the initial stop were entirely non-existent.

[39] I consider the conduct of the police in the case before me to be more serious than the conduct of the officer in Harrison.[^6] Det. Brons authorized a high-risk take-down of a vehicle knowing full well that he did not have reasonable and probable grounds to obtain a search warrant for that vehicle. There was no traffic violation of any kind involved. All of the occupants were removed from the vehicle at gunpoint and the vehicle was searched in flagrant disregard for the Charter. Among the explanations offered for undertaking this exercise was the fact that the neighbourhood was close by and the officers had nothing else to do except for paper work and watching football. This goes beyond recklessness – it was deliberate.

[40] This is the type of conduct which the court will normally seek to distance itself. The conduct is serious, and cannot be condoned. This is a factor that weighs in favour of exclusion of the evidence.

Impact of the Breach on the Charter-Protected Rights of the Accused

[41] The focus at this stage is on the impact of the infringement on the accused. Some Charter breaches are more intrusive on an individual. For example, an improper strip search, or deliberately questioning an accused without giving him an opportunity to speak to a lawyer are highly intrusive. Likewise, entering unlawfully into a person’s home is a serious violation of privacy rights. On the other hand, some breaches are minimally intrusive on the rights of the accused.

[42] There is a lesser expectation of privacy as an occupant in a motor vehicle than in a home. However, the accused in this case were not pulled over on a traffic stop. They were sitting in the car in a parking lot. Further, the manner in which they were removed from the car was violent and frightening, even though nobody was injured. I hasten to add that I am not being critical of the police with respect to the manner of the takedown and the safety issues involved. Nevertheless it does have an impact on the accused, which it is relevant to take into account.

[43] In Harrison, the impact on the accused was less serious. The two men were simply detained briefly at the side of the road until backup arrived. No violence was involved. In the case before me, there was a high-risk takedown of the accused at gunpoint, far more serious than what happened in Harrison. Nevertheless, the Supreme Court in Harrison held that the impact on the accused in that case was on the serious end of the spectrum, stating as follows (at paras 31-32):

This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann, the relatively non-intrusive nature of the detention and search “must be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone — subject, as already noted, to valid highway traffic stops.

I conclude that the deprivation of liberty and privacy represented by the unconstitutional detention and search was therefore a significant, although not egregious, intrusion on the appellant’s Charter-protected interests.

[44] Based on this reasoning, the impact of the infringement on the accused in this case also weighs towards excluding the evidence.

Society’s Interest in an Adjudication on its Merits

[45] The evidence obtained from the illegal search is reliable physical evidence. Without that evidence, the Crown has no case. Cocaine is a serious drug that has caused serious harm in our society. Loaded handguns are an even more dangerous threat to public safety, particularly where, as here, they are found in combination with illegal drugs. It hardly needs to be said that there is a substantial public interest in ensuring that drug dealers, and particularly drug dealers with guns, are prosecuted and brought to justice. However, as noted by the Supreme Court in Grant, the seriousness of the offence involved “has the potential to cut both ways.”[^7] Although there may be a heightened public interest in ensuring that the truth-seeking role of the court take priority in a serious case, there is also a concomitant interest in “having a justice system that is beyond reproach, particularly where the penal stakes for the accused are high.”^8

[46] That said, I see this as a factor that favours the admission, rather than the exclusion, of the evidence.

Weighing the Factors and Conclusion

[47] The weighing of these three factors and the ultimate decision as to whether the evidence should be excluded cannot be done with scientific precision. Although two of the three factors favour exclusion of the evidence and one favours admission, this is not a mathematical exercise.

[48] In Grant, the Supreme Court found the conduct of the police officers to be a breach of the Charter, but not in a manner that was abusive, deliberate or egregious. The Court noted that the police were operating in circumstances of considerable uncertainty, distinguishing that situation from the circumstances of the police officer in Harrison. The Court found the impact of the infringement on Mr. Grant’s rights to be significant. The evidence obtained was a handgun, which the Court noted was reliable, physical evidence and involved a major public safety concern. On the other hand, the Court noted that the seriousness of the offence also makes it more important that the rights of the accused be respected. The Court therefore found that the third factor was not of much assistance in its analysis. Ultimately, while accepting that this was a “close case”, the Supreme Court held that the evidence should be admitted.[^9]

[49] In Harrison, the Supreme Court held that the evidence should be excluded. Again, the third factor did not seem to have played a vital role in the Court’s analysis. Rather, the Court’s main focus was on the flagrant violation of the Charter by the police officer and the impact on the accused, which was significant, although not egregious. The Court held that both factors supported exclusion of the evidence, the first more strongly than the second. Weighing all three factors, the Court held that the “the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards” and that the evidence should therefore be excluded.[^10]

[50] The case before me is more akin to that in Harrison. The police conduct was blatant. An experienced senior police officer, knowing that no judge or justice of the police would issue a search warrant based on the information he had, essentially attempted to circumvent the Charter by arresting three people with no reasonable or probable grounds, and using that arrest as a ruse to search the vehicle they were in. For me, this is the most serious factor influencing the s. 24(2) decision. The impact on the rights of the accused was not inconsequential. Indeed, it was towards the serious end of the scale. However, when all of the factors are looked at and weighed in the balance, in my view the scale tips towards excluding the evidence. Admitting the evidence in these circumstances would in effect be sanctioning warrantless searches by the police in circumstances where they know they do not have grounds and go ahead anyway. Respect for Charter values requires that the court disassociate itself from police conduct of this nature. In my opinion, the justice system would be more brought into dispute by the admission of the evidence than by its exclusion.

MOLLOY J.

Released: February 19, 2014

Footnotes

[^1]: There was no evidence at trial as to the identity of the confidential source, nor was the gender of the source revealed. References to the source in these Reasons using a masculine pronoun are solely for convenience.

[^2]: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at paras 16-17.

[^3]: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

[^4]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[^5]: Ibid, at paras 67‑70.

[^6]: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.

[^7]: Grant, supra, at para 84.

[^9]: Grant, supra, at paras 129‑140.

[^10]: Harrison, supra, at paras 35‑42.