ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-40000617-0000
DATE: 2014/11/21
BETWEEN:
Her Majesty the Queen
– and –
Nathaniel Cadienhead
Accused
Paul Leishman, for the Crown
Jennifer Hue, for the Defence
HEARD: September 15 to 19, 2014
REASONS FOR DECISION
(Ruling on a voir dire under Charter of Rights, s. 8, 9, 10(a) and 10(b))
B.A. ALLEN J.:
THE PROCEEDING
[1] The parties agreed that the decision on the Charter application will be dispositive. If the application is granted and the firearm excluded the Crown agrees an acquittal should be entered on all charges. If the application fails or the firearm is found admissible, the defence agrees the admissible evidence would be sufficient proof beyond a reasonable doubt on all charges.
[2] This proceeding proceeded over five days. The accused, Mr. Cadienhead testified. The Crown called the two officers who arrested him.
BACKGROUND
[3] The accused, Nathaniel Cadienhead, is charged with possession of a firearm with ammunition, unauthorized possession of a firearm, possession of a firearm knowing it is unauthorized, carrying a concealed weapon, possession of a firearm with a defaced serial number and failure to comply with conditions. He was found on Fernando Rd. in Toronto carrying a loaded firearm. The defence concedes that the firearm is a prohibited weapon which the accused is not licensed to possess.
[4] On December 4, 2012, P.C. Paul Canning and Sgt. Patrick Meehan from 31 Division of the Toronto Police Service were out in a marked patrol car on a community policing detail. Officer Canning was driving and Officer Meehan was the passenger. P.C. Canning is a member of the community safety unit charged with developing a close relationship to the community with the view to finding out about criminal activity and helping to rid the community of crime. When they arrested Mr. Cadienhead they were driving along Fernando Rd. which is located south of Finch Ave. and immediately east of Weston Rd.
[5] The background to the officers being on Fernando Rd. involves the simultaneous execution of search warrants on 36 Fernando Rd. and 3101 Weston Rd. on December 3, 2012, the day before Mr. Cadienhead’s arrest. The police were investigating armed robberies in the neighbourhood and obtained the warrants to search for firearms and to arrest the targets of the search warrants, two black men, Shaquille Potts and Shakeem Beckford. Mr. Potts resided at 3101 Weston Rd. and Mr. Beckford at 36 Fernando Rd. The two men were not arrested on December 3. Mr. Potts and Mr. Beckford had outstanding warrants for robbery with a firearm. The officers were in the neighbourhood the next evening looking to arrest them. Mr. Cadienhead resided in the basement of 22 Fernando Rd.
[6] The community where Fernando is located is plagued with incidents of street crime involving robberies and drug dealing. It is a high pedestrian traffic area with a school and a strip mall that houses a club where altercations frequently occur. The officers testified they are frequently called to respond to complaints about drug dealing and robberies in the neighbourhood. P.C. Canning testified he enjoyed talking to the people in the community and feels he has developed a good rapport with community members. He testified with some conviction about his role in meeting the police’s obligation to keep the innocent people in 31 Division safe from crime.
[7] P.C. Canning was familiar with Mr. Potts’ appearance from his involvement in a 2010 firearm investigation that led to a previous search warrant on 3101 Weston Rd. The officers also had mug shots of the two suspects which were made exhibits. Mr. Potts is 5′ 10″, 165 pounds with a narrow face. Mr. Beckford is a much larger man with a round face and larger facial features than Mr. Potts.
[8] In addition to descriptions of the two suspects, P.C. Canning testified he accessed the Push Pin crime report, an electronic analysis of the criminal activity in the area covered by 31 Division, prepared by a 31 Division crime analyst. Entries on the Push Pin report involving robberies in the Weston Rd. area caught P.C. Canning’s eye on December 4 before he left the station. The Push Pin report, entered as an exhibit, covers the period from November 10 to November 28, 2012 and records four incidents of robberies in the area of Weston Rd.
[9] The Push Pin printout contains information the police had collected from victims of crime. This information is then entered into the police computer data base. These reports set out where and when the crimes have occurred and the types of crimes and descriptions of suspects. P.C. Canning testified he did not have the Push Pin report with him in the patrol car on the evening of December 4. In testimony, he recalled the descriptions of the four suspects as: black males, about age 20, 5′ 8″ to 6′ and 5′ 9″ to 5 10″ tall, thin to medium build, some with thin faces. The four Push Pin suspects were also described as wearing dark clothes. There were no names for the four suspects. P.C. Canning acknowledged that those descriptions are not uncommon.
[10] The officers left 31 Division around 6:00 p.m. Before arriving on Fernando Rd., they did a general patrol of four other areas. The officers drove around a housing unit just south of York University and around a bar in the Jane St. and Lawrence Ave. W. area to investigate a person in an unrelated matter. They also drove around the area of Chalkfarm Rd. in the Jane St. and Wilson Ave. area. The officers then proceeded to Fernando Rd.
[11] A further piece of background information is that Mr. Cadienhead had been charged with theft under $5,000 for merchandise he stole from an LCBO. He was sentenced on the morning of the day he was arrested, on December 4. He received a conditional discharge. One of the conditions is a firearms prohibition. Mr. Cadienhead was prohibited from being in possession of a firearm as defined in the Criminal Code. He received that sentence just hours before he was arrested on Fernando Rd. for possession of a firearm. Prior to his theft conviction, Mr. Cadienhead did not have a criminal record. His current charge for breach of condition arises from his breach of the firearm prohibition.
THE EVIDENCE ON DETENTION AND ARREST
[12] The Crown and defence offered accounts of Mr. Cadienhead’s detention and arrest that are materially different.
The Police Officers’ Evidence
[13] The Crown argues the officers had reasonable grounds to suspect Mr. Cadienhead had possession of a firearm when they detained and arrested him on Fernando Rd.
[14] The officers testified they entered Fernando Rd. with the capture of Mr. Potts and Mr. Beckford on their minds. They were concerned with community safety and the fact two armed persons wanted for armed robbery were at large in the community. There was also the Push Pin report detailing four recent street robberies in the area. They were now pulling onto the street where one of the suspects lived and where the search warrant had been executed the night before.
[15] The officers estimated that the patrol car was going about 20 km./hr. Its headlights were on. There were no other cars on the street at the time. It was dark out. Only artificial lights lit up the street. P.C. Canning pulled the patrol car onto Fernando Rd., a street of semi-detached homes. They observed a male walking at a normal pace southbound on the west side of the street coming from the area of 20 Fernando. The officers testified they did not see the male come from a particular address.
[16] Sgt. Meehan prepared the synopsis of the occurrence when he returned to the police station. Defence counsel cross-examined him as to why the synopsis states “… officers from 31 Division Neighbourhood Safety were on general patrol near 12 Fernando Road in the City of Toronto.” Defence counsel suggested that this is inconsistent with P. C. Canning’s testimony that Mr. Cadienhead was walking and not seen coming from any specific address.
[17] P.C. Canning explained that events were fast moving as Mr. Cadienhead moved southbound and the cruiser moved northbound. According to the officers’ view what they observed was not a static situation. Mr. Cadienhead was moving along Fernando Dr. and would have passed near a number of addresses. I accept this seeming inconsistency is of little consequence.
[18] P.C. Canning said he saw no one else on Fernando Rd. at that time except the male. Sgt. Meehan testified in addition to seeing the male he also saw a woman walking northbound on the east side of the street. He said there was nothing remarkable about the woman’s presence on the street. Defence counsel pointed to this as a notable inconsistency between the officers’ testimonies. I find that not to be the case. P.C. Canning was driving and it is reasonable to attribute his not seeing the woman to his attention to driving. I find this difference in their evidence is of no consequence.
[19] The officers observed the male to be black, about 5′ 10″, 165 lbs. wearing a black jacket, grey jeans and white runners. The officers say their minds immediately turned to the two suspects at large, especially Mr. Potts, due to P.C. Canning’s familiarity with him and the similarity of his build and description to the black male walking toward them on Fernando Rd. The black male looked up and made eye contact with the patrol car as it approached him.
[20] The police then observed the black male slow his pace when looking at the police cruiser. P.C. Canning said in his experience when people see a patrol car, they do not usually slow down. They usually look and keep walking. The slowing pace drew his attention to the male. As the male slowed down, at about 20′ to 30′ from the officers, the male moved his hand down towards his right groin and placed it near the upper right thigh area. P.C. Canning testified that at this point the male was on the east side of the street and the patrol car was on the west side of the street. He could not tell whether the male was Mr. Potts.
[21] The officers’ evidence is that their police training on recognizing the characteristics of an armed person alerted them that the action by the male might mean he was carrying a weapon. The police described that action as a “safety pat”, a subconscious act by a person carrying a weapon to make himself aware of the gun being on his person. This raised safety concerns. The slowing of the male’s pace together with the safety pat near the thigh increased their focus on him.
[22] P.C. Canning was cross-examined about the possibility that what he calls a safety pat could be someone reaching for a cellphone or reaching to adjust a back pack. He responded it was the other actions by Mr. Cadienhead – fixing on the police car and then slowing down that preceded the safety pat that together made him think a gun could be involved.
[23] After the safety pat, the officers observed the male walking so that his right arm was not swinging alternatively with left arm as it had been before the safety pat. Now the right arm was no longer swinging but the left arm continued to swing.
[24] P.C. Canning testified that at this point he decided he wanted to talk to the black male. He wanted to close the gap between them. So he accelerated the car and swung it over from the east side of Fernando Rd. to the west side close to where the black male was still walking southward. He stopped the car and immediately jumped out to engage with the male. He testified it is safer for police to be outside the cruiser in the event something dangerous arises.
[25] P.C. Canning testified that when he got close to the male and detained him, he realized then that the male was not Mr. Potts.
[26] P.C. Canning testified everything was moving rapidly. He testified he observed Mr. Cadienhead for about 15 seconds before he exited the cruiser. He testified that as he was emerging from the car he was talking to the male. He asked him his name. He explained that he had been involved with the search warrant on 36 Fernando Rd. the night before and two wanted males were still at large. The male replied that his name was Nathaniel.
[27] P.C. Canning explained that on the suspicion Mr. Cadienhead might be armed, he used conversation with him as a way to calm any nervousness Mr. Cadienhead might be experiencing. As he got closer to the Mr. Cadienhead, Mr. Cadienhead began to blade or angle the right side of his body away from P.C. Canning. P.C. Canning explained that blading is also a characteristic of an armed person where the person subconsciously angles the side of his body where the gun is, away from the other person.
[28] P.C. Canning testified Mr. Cadienhead then did another safety pat in the same area near his upper right thigh. P.C. Canning now was convinced he had a firearm. He grabbed Mr. Cadienhead’s right hand which was on his upper right thigh area where he had done the safety pat. He removed Mr. Cadienhead’s shoulder bag and passed it to Sgt. Meehan who was now outside the patrol car. P.C. Canning placed his hand down on the upper right thigh area where Mr. Cadienhead had placed his right hand and felt a heavy metal object in that area.
[29] P. C. Canning testified that as he was removing the shoulder bag he told Mr. Cadienhead he was going to do a pat down search and would handcuff him for safety. Mr. Cadienhead complied and cuffs were applied to the rear. He then asked Mr. Cadienhead what is in his pocket. Mr. Cadienhead said it is a gun. When P.C. Canning checked his right jeans pocket, he did not find a gun. Mr. Cadienhead told him the gun is inside his boxer shorts pocket. P.C. Canning testified Mr. Cadienhead told him to be careful, the gun is loaded. Defence counsel did not contest the admission of Mr. Cadienhead’s utterances.
[30] P.C. Canning then reached into the boxer shorts right pocket and retrieved a gun from near his right upper thigh. It was wrapped in a Jamaican flag bandana. He passed the gun to Sgt. Meehan. P.C. Canning denied putting his hands into Mr. Cadienhead’s underwear and feeling around his private parts. He said that was not necessary because the firearm was in a pocket at his right upper thigh.
[31] P.C. Canning testified that events unfolded very quickly and fluidly from the time he first saw Mr. Cadienhead until his arrest. At 6:50 p.m. P.C. Canning advised Mr. Cadienhead he is under arrest for possession of a firearm. He did a further pat down incident to the arrest for safety and retrieved a beer, his keys and a wallet. P.C. Canning gave him his rights to counsel and cautioned him about his right to silence. He asked Mr. Cadienhead if he understood to which he said he did. P.C. Canning asked if Mr. Cadienhead wanted to contact a lawyer to which he responded he did. Mr. Cadienhead was able to call his lawyer after he was taken to the police station. P.C. Canning testified his communication with Mr. Cadienhead about his rights took place at the scene of the detention and arrest just outside the patrol car.
[32] P.C. Canning explained that his exit from the police car, the detention, the first pat down, the seizure of the gun, the explanation of the arrest, the arrest, the further pat down and giving the rights to counsel happened as a quick dynamic process and was completed within seconds.
[33] Sgt. Meehan testified the firearm was loaded with five bullets in the magazine and one bullet in the chamber. The serial number had been removed.
Mr. Cadienhead
[34] Mr. Cadienhead tells a different story. He testified he left his house at 22 Fernando Rd. on the evening of December 4, 2012 with a plan to visit a friend on Weston Rd. He testified he reached the end of the driveway of his home when he saw a police cruiser a few houses away driving northbound on Fernando Rd. He testified the cruiser was moving slowly with its headlights off and trailing very closely behind a white minivan.
[35] Mr. Cadienhead testified the police cruiser pulled up to where he was stopped near a tree at the end of his driveway near the curb. He denied walking down Fernando Rd. He asserted that the police pulled up to him in front of his home and that the cruiser stopped and was parked in the middle of the road.
[36] Mr. Cadienhead testified the officer driving the car hopped out of the car and asked him his name, and stood in front of him with the car door open. The passenger officer got out of the cruiser and stood at the front passenger door. Mr. Cadienhead stated that at this point he felt he could not walk away because he was being blocked by being positioned between the officers. He stated he thought if he tried to leave the police would stop him.
[37] About five seconds after the police officer got out of the car, an officer, who I take to have been P.C. Canning, asked him to remove his bag. The bag was passed to Sgt. Meehan who then searched it at the scene. He testified that P.C. Canning unzipped his jacket and felt all over his body. Then he felt around his crotch. He was then put him in handcuffs. According to Mr. Cadienhead the officer then unbuttoned his pants and pulled them down a little and folded the waist band over and felt around his genital area. The gun was found in the right pocket of his boxer shorts. Mr. Cadienhead insisted in testimony that the gun was not loaded, that the bullets were wrapped in the bandana with the gun but they were not in the gun.
[38] Mr. Cadienhead testified he was not told why he was under arrest until he was placed in the squad car. He testified he was not told why he was searched and he did not consent to it. He said he was permitted to call his lawyer at the police station.
[39] Crown counsel challenged Mr. Cadienhead’s credibility in relation to the weapons prohibition he received earlier on December 4. He was asked whether he understood the weapons prohibition. Mr. Cadienhead stated he did not know how a weapon is defined under the Criminal Code and therefore he did not know a firearm was a weapon. On further questioning he said he thought a crossbow and a club were weapons. He acknowledged he understood weapons to be things that can cause harm. Even under intense questioning Mr. Cadienhead would not admit that he knew the firearm was a weapon when he hid it in his boxer shorts that night.
[40] Crown counsel asked Mr. Cadienhead how he felt, his state of mind, when after receiving a weapons prohibition that day he encountered the police on his street that night while he was carrying a gun in his pants. Mr. Cadienhead testified seeing the police did not change his mood nor have any effect on his nerves.
[41] It was also put to Mr. Cadienhead that it would be a natural instinct under the circumstances of having a loaded gun in his pants near his crotch to reach down and touch the gun. Mr. Cadienhead denied this. Crown counsel also questioned him about the precarious situation he was in with a loaded firearm in his pants near his genitals with a bullet in the chamber. Crown counsel questioned Mr. Cadienhead as to whether as he walked along, which would cause the gun to move, would Mr. Cadienhead not have to reach down and touch the gun to ensure it stayed safely positioned. Mr. Cadienhead denied reaching and touching the gun as the police approached.
THE LAW
Detention
[42] Section 9 of the Charter provides everyone has the right not to be arbitrarily detained or imprisoned.
[43] Police must have reasonable and probable grounds to arrest. It is not enough that a police officer personally believes reasonable and probable grounds exist. There must be an objective basis for the belief. A reasonable person standing in the shoes of the officer must believe there are reasonable and probable grounds to detain the person [R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, (S.C.C)]. The test is also expressed as “reasonable grounds to suspect”.
[44] A police officer may briefly detain for investigative purposes where, in the totality of the circumstances, the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence. The officer is not permitted to operate on a mere "hunch" in detaining a person [R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)]. The purpose of the power of investigative detention is the preservation of peace, the prevention of crime and the protection of life and property [R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)].
[45] To be reasonable a detention must be based on a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation [R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)]. R. v. Simpson highlights the importance of the grounds to detain being firmly rooted in objective factors:
A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as a detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a “hunch”.
[R. v. Simpson, supra]
Arrest, Search and Right to Counsel
[46] Section 8 of the Charter provides protection from unreasonable search and seizure. The police conducted a warrantless search of Mr. Cadienhead.
[47] A search must be authorized by law and carried out in a reasonable manner. Absent a warrant a police search or seizure is presumed to be unreasonable. It is the Crown’s burden to prove the warrantless search was reasonable [R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.)].
[48] Provided the arrest is lawful, the police may conduct a search incident to an arrest on a number of grounds such as to guarantee the safety of the police and the public, to prevent the escape of a suspect, to obtain evidence against a suspect and to prevent the destruction of evidence. The search must be related to the purpose of the arrest [Cloutier v. Langlois (1990), 1990 122 (SCC), 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 320 (SCC), 118 C.C.C. (3d) 405 (S.C.C.)].
[49] Section 10(a) of the Charter requires that a person who is arrested or detained be promptly informed of the reason for their arrest or detention. The purpose of Section 10(a) is to ensure those arrested or detained are aware of the gravity of the situation [R. v. Latimer 1997 405 (SCC), [1997] 1 S.C.R. 217 (S.C.C.)]. A person is not obliged to submit to an arrest without knowing the reason for it and therefore it is essential that the person be informed promptly of the reason [R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 (S.C.C.) and R. v. Kelly (1985), 1985 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.)].
[50] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of that right has been expressed by the Supreme Court of Canada as ensuring “that a suspect is able to make a choice whether to speak to the police investigators that is both free and informed” [R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (S.C.C.)]. Section 10(b) gives effect to that right by “ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations” [R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 (S.C.C.)].
ANALYSIS
[51] Defence counsel argues the police arbitrarily detained Mr. Cadienhead on December 4 and therefore unlawfully arrested and searched him.
[52] Defence counsel argues the description the police had of Mr. Potts, black male, 5′ 10″, 165 lbs., thin face, is a common description for many black men. She pointed out there are many black people living in the catchment area for 31 Division. She submitted that for the police to pick out Mr. Cadienhead for detention and arrest him based on a common description for a black male in a neighbourhood where many black people live was to arbitrarily detain Mr. Cadienhead.
[53] Defence counsel embarked on a rather unusual line of questioning in view of the law on detention. That is, she posed questions to the officers about whether they had detained any other black men that night who met the common description for Mr. Potts and for the black males on the Push Pin report. She alluded to the fact the officers had gone on general patrols of other communities and along Weston Rd. before they got to Fernando Rd. and must have seen many black males who met the common description.
[54] The officers testified they had seen other black males during their patrols that night but they did not take note of every black male they saw in the other neighbourhoods because they were out to arrest Mr. Potts and Mr. Beckford who lived in the Fernando Rd. area.
[55] The officers’ explanation was reasonable, but more importantly, in accord with the law. I find what defence counsel was asking in her line of questions is why with a general description, and no more, the officers did not stop other black males meeting the general description.
[56] Those questions ignore the fact the officers had information in addition to the general description that drew their attention away from every black male that met the description. The police were out to arrest two black males who had been targets of warrants on Fernando Rd. and Weston Rd. the night before and who they thought might be armed. A black male who met that general description who was on or near Fernando Rd. on the night of December 4 would reasonably be of more interest.
[57] Defence counsel seems to invite the police to do what the R. v. Simpson poignantly warned against, to make a subjectively based assessment, the type of assessment that can, as the court cautioned, too easily mask discriminatory conduct based on irrelevant factors such as race or ethnic origin. To give reasonable grounds to suspect, there must be an objective basis to the assessment.
[58] As the Court of Appeal held, officers cannot operate on a mere whim or a hunch when seeking to detain a suspect. The police cannot act only on a general description that could apply to many people. There must be more. They must have reasonable grounds to suspect a person has been involved in or is involved in an unfolding crime. There must be a nexus between the suspect and a criminal offence. A reasonable detention is based on a constellation of discernible facts that give the officers reasonable cause to suspect that the suspect is criminally implicated in the activity under investigation.
[59] The police officers’ evidence is that they spotted a black male walking along Fernando Rd. who they later found to be Mr. Cadienhead. They watched him walk along the street for several seconds. He met the general description as to race and body build. He appeared to meet the description of Mr. Potts and the general descriptions of the four suspects on the Push Pin report. P.C. Canning testified he could not see the male’s features to determine whether it was Mr. Potts until he exited the patrol and got close to him. They did not learn his identity until they detained him.
[60] Crown counsel argues the officers operated on reasonable grounds to suspect the male was carrying a firearm. He argues the police were directed in their action by a constellation of factors that took their reason to detain outside the realm of a hunch or a whim. The police were looking for black males they expected might be armed. When they saw the black male walking along Fernando Rd., they observed him display certain behaviour as he walked toward the patrol car.
[61] Mr. Cadienhead denies walking along Fernando Rd. He says the police encountered him at the foot of his driveway. He denies displaying the behaviour the police allege. However, I believe the officers’ evidence that Mr. Cadienhead was walking along Fernando Rd. and displayed the characteristics they described. I believe the officers’ evidence over Mr. Cadienhead’s because I have grave concerns about Mr. Cadienhead’s credibility.
[62] Mr. Cadienhead’s assertion that he did not know the firearm was a weapon and therefore he did not know he was in breach of the firearm prohibition is frankly absurd. He went to great lengths to hide the gun in a place that could have put him in danger. I ask why he would hide the gun at such risk if he did not think it was an illegal weapon that should be hidden away.
[63] I also find it very unlikely that when he encountered the police hours after he received the firearm prohibition, he would not have felt nervous. He had just received a conditional discharge and had no past criminal record. In the circumstances, carrying a gun that night if found by the police would have a serious impact on his life. I find it quite within reasonable expectation because of his nervousness and the fact that the gun could move to a dangerous position as he walked, that he would place his hand on his upper right thigh where the gun was hidden to check on the gun. I also do not accept his denial that the gun was not loaded, that the bullets were wrapped up in the bandana outside the gun. I accept Sgt. Meehan’s evidence.
[64] The officers’ evidence was on the whole consistent with each other. I accept their evidence over Mr. Cadienhead’s about Mr. Cadienhead’s behaviour before the detention, about their reasons for the detention and about their actions before and after the detention and arrest. The police operated within the law in doing an initial pat down search for safety upon detention and in conducting a further search after the arrest.
[65] I accept the officers’ evidence that the following facts satisfy reasonable grounds to suspect:
a) Mr. Cadienhead was walking on Fernando Rd.
b) Mr. Cadienhead met the general description of one of the suspects
c) Mr. Cadienhead slowed down when he saw the police cruiser moving toward him.
d) Mr. Cadienhead then did a safety pat in the area where he had hidden the gun near his upper right thigh.
e) When P.C. Canning was standing in front of Mr. Cadienhead, he bladed the right side of his body, where the gun was hidden, away from the officer.
f) Mr. Cadienhead did a second safety pat.
[66] P.C. Canning testified about how swiftly things developed after he exited the patrol car. I find he testified credibly about how he continued talking to Mr. Cadienhead as he got out of the car to calm the situation down − explaining why he was there; that he was going to cuff him and do a pat down search for safety; telling him he was arresting him; advising him he was charged with possession of a firearm; and that a further search for safety was being done.
[67] I have no reason to disbelieve P.C. Canning gave Mr. Cadienhead his rights to counsel and caution on the spot as part of the unfolding scenario. I do not believe Mr. Cadienhead’s evidence of the overly invasive search of his private parts. I believe P.C. Canning placed his hand where Mr. Cadienhead had patted on his upper right thigh and once he found the gun he did not have to search all over his private parts. I accept P.C. Canning’s evidence that the searches were conducted reasonably. P.C. Canning did not read the rights to counsel and caution from his memo book. But this cannot be reasonably expected in a dynamic and unfolding situation when the law requires promptness in advising detainees of their rights.
CONCLUSION
[68] I find no breach of Nathaniel Cadienhead’s rights under Sections 8, 9, 10(a) or 10(b) of the Charter. I find the police operated lawfully on December 4, 2012 when they detained, searched him, seized the firearm and arrested him.
DISPOSITION
[69] The application is dismissed. The firearm is admissible in evidence.
B.A. Allen J.
Released: November 21, 2014
COURT FILE NO.: 13-40000617-0000
DATE: 2014/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Nathaniel Cadienhead
Accused
REASONS FOR JUDGMENT
B.A. Allen J.
Released: November 21, 2014