Her Majesty the Queen v. James Rice
COURT FILE NO.: 1986/13
DATE: 2014-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
James Rice
Respondent
COUNSEL: S. McCartan / J. Strecansky, for the Crown J. Goldlist, for the Respondent
HEARD: August 18 and 19, 2014
THE HONOURABLE MR. P.B. HAMBLY
Judgment
Introduction
[1] James Rice (“Rice”) is charged with six criminal offences on December 22, 2012 in the City of St. Catharines. The crown alleges that he used an imitation firearm in uttering a death threat to Shawn Sigouin, that he was in possession of a handgun without a licence and contrary to a court order and that he was in possession of cocaine. The case is set for trial in the Superior Court with a jury commencing September 22, 2014. He brought an application to exclude from evidence at the trial two bags of cocaine, a digital scale and some money that the police found on his person. He submits that this evidence should be excluded pursuant to s. 24 (2) of the Charter based on an alleged breach of his rights by the police at the time that they apprehended him, guaranteed by sections 8 and 9 of the Charter. He also seeks exclusion from evidence at the trial statements that he made to the police at the time of his apprehension. He admits that he made the statements voluntarily. If the evidence of the discovery of the cocaine and the money on his person is admitted, there can be no basis for the exclusion of the statements. Conversely, if the evidence is excluded the statements must also be excluded. The position of the crown is that exclusion of the evidence would weaken but not defeat the crown’s case. Rice’s application was heard on August 18 and 19. At the end of the hearing I gave brief oral reasons dismissing Rice’s application. I undertook to provide further written reasons. These are my reasons.
The Evidence
[2] On December 22, 2012 at 9:11 p.m., Officer Walker (“Walker”) of the Niagara Regional Police Force received a message in his police car on his radio that a man had pointed a firearm in the face of a person at 360A Carlton Street in the area of Carlton and Vine Street. The suspect was armed with a handgun. He was a white male, approximately 5’9”, 160 lbs. and was wearing a black hoodie and black pants. He was proceeding on Carlton Street in an easterly direction toward the intersection of Carlton and Bunting Streets.
[3] Walker drove his police vehicle to the intersection of Carlton and Niagara Streets. He had activated the red emergency lights on his police cruiser. At 9:13 p.m. he observed a white man wearing a large black baggie coat and black pants running in a laboured manner in an easterly direction on the sidewalk, on the south side of Carlton Street towards Bunting Street, at a distance of about 150-175 metres from 360A Carlton Street. This man was James Rice.
[4] Officer Walker followed him in his police cruiser. Walker chirped his siren. Rice ignored this and kept running. Walker followed Rice in his police cruiser into a parking lot. Walker turned off Carlton Street onto Currrie Street, which is one block west of Niagara Street, and into the parking lot. He was blocked by a cement barrier in the parking lot from proceeding further in his police vehicle. He exited the vehicle and ran after Rice on foot. Rice ran through the parking lot and onto Niagara Street. Walker called out to Rice “police”, “don’t move” and “stop”. Rice ignored Walker and kept running onto Niagara Street. Walker caught up with Rice at the intersection of Niagara Street and Anderson Street, on the sidewalk on the west side of Niagara Street. Walker stopped running and the two men faced each other. Walker unholstered his police firearm and pointed it at Rice. In his other hand he had a can of pepper spray. Rice had a cell phone in his hand. Walker told Rice that he was under arrest. Walker ordered Rice to lie face down on the sidewalk. After a moment’s hesitation, Rice complied with this directive. Walker holstered his firearm and put down the pepper spray. Walker placed a handcuff on Rice’s right wrist. Rice struggled against Walker’s attempt to place the handcuffs on his left wrist. Rice was wearing a bulky winter coat. He attempted to grab something from the pocket of his coat and to reach into his waist area. Walker, in the struggle, kneed Rice in the ribs and punched him twice in the face in an attempt to subdue Rice. These blows did not injure Rice. Rice was able to get to his feet. Rice struggled with Walker while he was on his feet with his right hand in handcuffs.
[5] Officer Krajcovic arrived with a police dog. Walker rejected his suggestion that he let the dog bring Rice under control. Walker was able to get Rice to the ground again.
[6] Office Chambers arrived. With his assistance, Walker was able to place the handcuffs on Rice’s left wrist and bring him under control. This took place by 9:16 p.m. Officer Walker told Rice that he was under arrest for assault with a weapon.
[7] Office Bell arrived. He and Walker brought Rice to his feet and directed him to a position beside Bell’s police vehicle. Bell and Walker conducted a pat down search of Rice. Bell said that he felt something hard in a pocket of Rice’s coat. He thought that it could be a weapon. He located a cellophane bag that was knotted and contained another bag. In this second bag was powder that analyzed as cocaine. Walker also located a cellophane bag of powder that was cocaine. The bag that Walker located weighed 57 grams. The bag that Bell located weighed 14 grams. Walker also located, in Rice’s coat, a CD case which contained a digital scale and $270. After Walker and Bell located the items in the search, Walker informed Rice that he was under arrest for possession of cocaine for the purpose of trafficking.
[8] Officer Walker testified in cross examination by Ms. Goldlist as follows:
Q. Okay. And so officer, can you please articulate for me what your reasonable and probable grounds were for arresting Mr. Rice when you first encountered him at the corner of Niagara and Anderson?
A. Okay. The information that I received was that a male had put a gun in the face of a person and a description was provided of that male and a direction of travel. I was on scene at a relatively short amount of time. I observed a male matching that description travelling in the same direction. At the sight of the cruiser with lights going, the person continued to run. There was not a lot of foot traffic on that day so I did not mistake him for anybody else possibly running, jogging or anything like that. Even with the chirps of the siren the male continued to run in front of the cruiser. I believe at this point this was the male that had put the weapon in the person’s face with a means to, whether he had meant to do it or not to do it or do whatever, but he pointed a weapon in someone’s face. That is why I placed him under arrest when I saw him.
Q. Okay. So, your RPG for the specific charge of assault with a weapon is the result of the complaint that the complainant had a, had a gun put in his face?
A. Correct.
Q. That you were going on that piece of information in deciding to charge this person with assault with weapon...
A. I placed...
Q. ...is that fair?
A. ...I placed him under arrest for that, yes.
Q. You arrested him for assault with a weapon...
A. Correct.
Q. ...initially?
A. Correct.
Q. I’m talking about the initial arrest. Let’s leave aside what, the location of the cocaine and the charge...
A. Correct.
Q. ...for cocaine, okay. So, I’m, I’m...
A. Yeah.
Q. ...just focused very specifically on your arrest of Mr. Rice at the corner of Niagara and Anderson when you first arrest him.
A. Correct.
Q. Okay. Without any investigation into who he is, what he was doing, where he was coming from, you don’t question him at all, correct?
A. Correct, there’s no questioning at this time. There’s such a short amount of time that had transpired.
Q. Well, you’d agree with me that there’s no questioning? You don’t stop and say to Mr. Rice, I need to ask you a few questions, correct?
A. No, I do not.
Q. Okay. And you’ve already established, you know that in the course of your investigation, you are allowed to physically detain someone, correct?
A. Correct, I have that option.
Q. Okay. And, and you could pat, you can conduct a pat down search for officer safety during the course of that investigation, correct?
A. Correct.
Q. Okay. You don’t do that?
A. No, I do not.
Q. You do not ask Mr. Rice a single question about where he’s coming from, who he is, why he’s running because he was running certainly before you started following, correct?
A. Correct.
Q. Okay. And you don’t question that at all...
A. No.
Q. ...correct?...
[9] The officers placed Rice in the back seat of Bell’s cruiser. Walker and/or Bell read to Rice with respect to both charges of assault with a weapon and possession of cocaine for the purpose of trafficking the standard police cautions advising him of his right to counsel, the availability of legal aid duty counsel, that he need not say anything in answer to the charges but that anything that he did say could be given in evidence and that he should not be influenced by anything that the police may have said to him about the charges. Rice was placed in Bell’s cruiser and taken to the police station.
[10] At the scene where Rice was arrested the following dialogue took place:
After Rice was brought to his feet by Walker and Bell Rice said “What, I don’t have a gun.”
After the police cautioned Rice:
At 9:30 p.m.:
Rice: What am I arrested for?
Bell: You pointed a gun at someone. You threatened him and [sic]
Rice: I didn't have a gun, the guy threatened to have his dog attack me.
Bell: What kind of dog?
Rice: Rottweiler. It was huge. I'm telling you, I didn't have a gun. I pointed my phone at him.
At 9:33 p.m.:
Rice: I didn't have a gun, man. What was I suppose [sic] to do, it was a fucking Rottweiler.
Bell: Well you had a lot of drugs & cash.
Rice: Well, yeah, that's mine. But I didn't have a gun.
And continuously:
"What was I suppose [sic] to do he was gonna have that dog attack me."
Law
[11] 8. Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) 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.
Case Law
Police Power to Arrest
[12] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 3 Americans were returning to the United States at Windsor. They were viciously assaulted by two men who came from another car. They thought that the men who assaulted them were driving a blue Thunderbird, manufactured in about 1973. They identified a man in a police photo lineup, who had an unassailable alibi. The police located the accused through a composite photograph. He owned a 1973 blue Thunderbird. This man closely resembled the man whom the victims had wrongly identified. He was identified by the victims in a photo lineup as one of the men who had assaulted them.
[13] The Supreme Court of Canada in the judgment of Justice Corey held that the police had properly arrested the accused. He stated the following:
… It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. (Citations omitted)
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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. 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.
[14] In R. v. Dene, [2010] O.J. No. 5193; affirmed 2010 ONCA 796, [2010] O.J. No. 5012, two police officers in a cruiser attended at a subsidized housing development in a high crime area in Toronto. They observed two men in a taxi duck down when they saw the police cruiser. The police followed the taxi and stopped it. Both men ran from the police. Each officer gave chase to one of the men. Each man made motions that suggested he was trying to hide something. Each were apprehended and searched. One was found in possession of a loaded handgun. The other was found in possession of a handgun and ammunition. Further searches turned up crack cocaine, money and cell phones. Justice Hamilton found that each accused was validly arrested and searched. He admitted the items found in the searches as evidence in the trial. He held that even if he had found that the police breached s. 8 of the Charter that he would have admitted the evidence applying the principles in Grant. Each man was convicted and sentenced to lengthy penitentiary sentences.
[15] The Court of Appeal agreed with the analysis of Justice Hamilton. It found that at a minimum the police had grounds to detain the two men and search them. It stated the following:
[4] Assuming, without deciding, that the police did not have reasonable and probable grounds to arrest the appellants, there was still ample evidence to support a valid investigative detention of both appellants. Their behaviour in the taxi was suspicious and evasive. Their posture and body movements indicated that they could be carrying concealed weapons or drugs. Finally, and most significantly, their flight from the police when the taxi stopped, combined with their earlier behaviour, provided the police with grounds for an investigative detention.
[5] The trial judge found that the police conducted a "pat down" search of Telfer and a "cursory" search of Dene. These findings bring both searches within the category of "a protective pat-down search of the detained individual" to ensure officer safety that is permitted in the context of an investigative detention: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45.
Police Power to Search After a Valid Arrest
[16] In Cloutier v. Langlois, 1 S.C.R. 158, the complainant laid charges privately against police officers for assault. He alleged that the police had assaulted him when they conducted a frisk search of him after they had arrested him for unpaid municipal fines. Ultimately the Supreme Court of Canada in the judgment of Justice L’Heureux Dubé held that the police had the authority to conduct the search and the charges were properly dismissed. She stated the following:
[49] In general, despite certain comments in scholarly discussion, it seems beyond question that the common law as recognized and developed in Canada holds that the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him.
[17] She also held that the power to search was not unlimited. The police have a discretion as to whether to conduct a search after an arrest. The search must be for a valid objective such as police or public safety or the discovery of evidence. It must not be conducted in an abusive fashion (para. 60-62).
Police Power to Detain and to search pursuant to a lawful Detention
[18] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, two police officers received a message on their police radio of a break and enter in progress in downtown Winnipeg. “The suspect was described as a 21-year-old aboriginal male, approximately five feet eight inches tall, weighing about 165 pounds, clad in a black jacket with white sleeves …” (para.4). The police attended at the scene. They saw a man “walking casually along the sidewalk” who matched this description. They conducted a pat down search of the person. They noticed something in a pocket that was soft. They searched his pockets and discovered a quantity of marijuana and a number of small plastic bags. They charged him with possession of marijuana for the purpose of trafficking. The evidence was excluded at trial under the Charter and the accused was acquitted. The Manitoba Court of Appeal held that the evidence ought to have been admitted and ordered a new trial.
[19] The Supreme Court of Canada in the judgment of Justice Iacobucci restored the acquittal. He applied the test set out in the English Court of Appeal case of R. v. Waterfield, [1963] 3 All E.R. 659. The powers of the police to investigate crime are not unlimited. In assessing the legal significance of police action that interferes with individual liberty, it is first necessary to consider whether the actions of the police fall within a general police duty. Assuming that they did, it is then necessary to consider whether the police actions were justified. The police have a power to detain a person short of arrest where there is “…a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.” (Judgment of the Ontario Court of Appeal in the decision of Doherty J.A. in R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993 O.J. No. 308 at para. 61 approved in Mann at para. 27).
[20] Justice Iacobucci stated the following:
[34] The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
[35] Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
C. Search Powers Incident to Investigative Detention
[36] Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v.Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.
[43] The importance of ensuring officer safety has been recognized in obiter by this Court in R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615. Police officers face any number of risks every day in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J. in Cloutier, supra, at p. 185, a frisk search is a "relatively non-intrusive procedure", the duration of which is "only a few seconds". Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent "fishing expeditions" on the basis of irrelevant or discriminatory factors.
[44] A finding that a limited power of protective search exists at common law does not obviate the need to apply the Collins test for determining whether a warrantless search passes constitutional muster under s. 8 of the Charter. To recall, the search must be authorized by a reasonable law, and be carried out in a reasonable manner. The reasonableness of the search necessarily overlaps the second-prong of the Waterfield test, with the third factor under Collins. The officer must have reasonable grounds to search before the overall reasonableness of the search is considered on the totality of the circumstances.
[45] To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.
[21] Applying these principles to the facts of the case he held that the police had the power to detain Mann and to conduct a pat down search of him for weapons to ensure police safety. They did not have the power to search his pockets since police safety was not in jeopardy. The search of his pockets and the seizure of the marijuana violated his right under s. 8 of the Charter to be “secure against unreasonable search and seizure”. Because of the seriousness of the violation, the trial judge was correct in excluding the evidence from the trial under s. 24(2). He restored the acquittal.
[22] In R. v. MacDonald, 2014 SCC 3 the police responded to a complaint of noise emanating from an apartment in Halifax. A police officer attended at the apartment and knocked on the door. When the accused answered the door, the officer noticed something black and shiny in his hand behind his leg. The accused was uncooperative. The officer pushed the door open enough for him to see what was in the accused’s hand. It was a hand gun. The officer forced his way into the apartment. He seized the gun. It was loaded. The trial judge found that the officer performed a valid search. He did not breach the right of the accused to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter. He convicted the accused. The Court of Appeal upheld this finding.
[23] The Supreme Court of Canada in the majority judgment of Justice Lebel dismissed the accused’s appeal. He applied the Waterfield test. The officer was involved in the execution of his duty. In opening the apartment door and seizing the handgun he was conducting a valid search and seizure in the execution of his duty. In the circumstances, he was entitled to interfere with the liberty of the accused by conducting a safety search where there was reasonable grounds to believe that the accused was armed and dangerous. Justice Lebel stated the following:
[40] On balancing these factors, I am convinced that the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.
[41] But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).
[24] The minority decision of Justices Moldaver and Wagner concurred in the result. They were of the view that the majority judgment set the bar too high for an officer to conduct a safety search. They would substitute the words “reasonable grounds to suspect” for the words “reasonable grounds to believe” that a lawfully detained person is armed and dangerous to give the police authority to conduct a safety search of the person. They stated the following:
[86] … Mann recognized a protective search power predicated on reasonable suspicion.
[87] This case could have been -- and ought to have been -- resolved by extending the logic of Mann. First, Sgt. Boyd, while lawfully engaged in his duties, had a reasonable suspicion that Mr. MacDonald was armed and dangerous. Second, in response to that reasonable suspicion, Sgt. Boyd's conduct -- pushing Mr. MacDonald's door open a few more inches -- was "no more intrusive of liberty interests than [was] reasonably necessary to address the risk" (Aucoin, at para. 36, quoting Clayton, at para. 31). Accordingly, the search was reasonable for purposes of s. 8.
[25] Justice Spies applied the principles in the majority judgment in Macdonald in R. v. Green, [2014] O.J. No. 1030. On April 12, 2012, two police officers in an area in Toronto known for drug dealing, attended at a thre apartment house. They had attended there many times in the recent past to investigate alleged drug dealing. On this occasion they attended there on their own initiative to investigate drug dealing. They knocked on a door leading to an upstairs apartment. They knew the two tenants who lived in the apartment. They had been cooperative with the police in the past. One of the tenants opened the door and invited them into the apartment. When the police were part way up the stairs they saw the accused coming out of the bathroom at the top of the stairs. When he saw the police he went back into the bathroom. He appeared to be attempting to hide something on his person. The police went into the bathroom and took control of him. They conducted a pat down search of him. They felt something hard. They searched his pockets. They found a piece of crack cocaine and over $1,200 in cash. They read the standard police cautions to him including his right to counsel. He was eventually charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime.
[26] He brought an application to exclude from evidence the items seized in the search pursuant to s. 24(2) of the Charter based on a breach of s. 8. Justice Spies found that the police had a reasonable suspicion that the accused was involved in criminal conduct and that they lawfully detained him. The police did not testify that they believed that the accused was “armed and dangerous”. Because of this, she found that the police violated the accused’s rights under s. 8 of the Charter. However, she admitted the evidence under s. 24(2) of the Charter by searching in his pockets. She considered the factors in Grant. She did not consider the breach of the accused’s Charter rights to be serious. The police acted in good faith. The crown had no case without the evidence. Admission of the evidence would not bring the administration of justice into disrepute.
Exclusion of Evidence Resulting from Charter Breaches
[27] In R. v. Grant 2009 SCC 32, 2009 2 SCR 353, the Supreme Court of Canada reformulated the test for the exclusion of evidence that the police obtained in violation of the accused’s Charter rights. The majority judgment of Chief Justice McLachlin and Justice Charron stated the following:
[85] To review, the three lines of inquiry identified above - the seriousness of the Charter - infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
Application of the Law to the Facts
[28] The information which dispatch provided to the police at 9:11 p.m. was very specific and focused – a white male, armed with a handgun approximately 5’9”, 160 lbs., wearing a black hoodie and black pants. He had pointed a gun in a person’s face at a location near the intersection of Carlton on Vine street and was proceeding east on Carlton street. Two minutes later, Walker observed a person matching this description running in a labored fashion east on Carlton street at a short distance from the scene of the crime. When he followed the person in his police car, he ignored him in spite of his having activated his red emergency light and his chirping of his police siren. When Walker gave chase to him, he ignored his command to stop. Although he complied with Walker’s command made at gun point to lie on the pavement of the sidewalk, he resisted Walker’s attempt to place handcuffs on him. In my view, Walker had both subjective and objective reasonable and probable ground to arrest Rice for assault with a weapon. In the circumstances, with information that the person had committed an offence with a gun, Walker had both a right and a duty to search him on police and public safety grounds and for evidence. The facts are stronger than they were in Storrey. The right of the police to search incident to arrest on safety grounds and for evidence set out in Cloutier applies.
[29] Assuming that I am wrong on the right of the police to arrest Rice, these same “objectively discernable facts” gave the police the right to detain him and search him on police and public safety grounds, pursuant to the principles set out in Mann, Dene, Simpson and Macdonald.
[30] Even if the police had neither the power to arrest or detain Rice, I would apply the principles in Grant and admit the evidence pursuant to s. 24(2) of the Charter. The reasoning in Green applies. There was at most a minimum breach of Rice’s rights under s. 8 and 9 of the Charter. The police were acting in good faith. There was no impact on Rice’s Charter protected rights. The evidence is important to the Crown’s case. These are serious charges involving a gun and possession of cocaine. There is a strong public interest in a trial on the merits.
Conclusion
[31] The application is dismissed. The items found in the possession of Rice by the police and the statements that he made to the police upon his arrest will be admitted at the trial.
P.B. Hambly, J.
Released: September 12, 2014
COURT FILE NO.: 1986/13
DATE: 2014-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES RICE
REASONS FOR JUDGMENT
P.B. Hambly, J.
Released: September 12, 2014