ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F)2329/12
DATE: 20141007
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ORVILLE PALMER
J. Leising, for the Crown
D. Holt, for Mr. Palmer
HEARD: October 1 & 2, 2014
RULING ON CHARTER MOTION
Baltman J.:
Background
[1] Mr. Palmer is charged with the possession of various narcotics for the purpose of trafficking. He alleges that his arrest and subsequent search violated his ss. 8 & 9 Charter rights and merited the exclusion of the drugs from evidence under s. 24(2) of the Charter.
[2] The arrest occurred on August 12, 2011 at a large outdoor shopping plaza in Mississauga. After observing what they believed was a “hand to hand” drug transaction, police arrested Mr. Palmer and two other males in his company. At the time he was arrested, Mr. Palmer was carrying a bag containing a range of narcotics, including crack cocaine, marijuana, and oxycontin pills.
[3] The parties agree the pivotal issue is the validity of the initial arrest. If the arrest was valid, the subsequent search was incidental to the arrest and lawful. Conversely, if the arrest was not valid, the subsequent search was not lawful and the admissibility of any evidence from the search is subject to a s. 24 analysis.
[4] There are therefore two issues before me:
- Was the initial arrest of the applicant valid?
- If not, should the evidence discovered during the search be excluded under s. 24 (2) of the Charter?
[5] On October 3, 2014, I ruled that the initial arrest was not lawful, and that the evidence discovered during the search should be excluded under s. 24, with reasons to follow. These are my reasons.
The Evidence
[6] Two police officers were involved in the arrest, Ryan Hails and Matt Pekeski. Both are experienced officers who had been involved in numerous drug arrests before this case.
[7] On the night in question they were on a special patrol targeting areas known to be frequented by drug traffickers (“hot spots”). They were in an unmarked vehicle, with Hails at the wheel. Around 8 p.m., a few hours after their shift began, they stopped for dinner at Wendy’s, located in the middle of a large shopping plaza. The plaza contained numerous big box stores and a large parking area in the middle. This area was not one of the locations police were targeting that evening.
[8] To give context to the analysis that follows, I have set out below a brief review of the three different versions I received of what occurred that night – two from the officers and one from the accused.
Constable Hails
[9] Hails testified that while they were sitting in their car eating dinner, Pekeski alerted him to two men (Palmer and another male now known to be Jonathan Kerr) who were walking in a suspicious manner. Hails testified the two men appeared to be doing a “heat check” while walking across the parking lot, i.e. looking over their shoulders to see if police were nearby. The men headed toward a nearby Honda where a third man (now known to be Brandon Roach) was sitting in the driver’s seat. Palmer was carrying a bag over his shoulder.
[10] Because of this “suspicious” activity, Hails drove around and pulled up right behind the Honda. As he pulled up, he saw Kerr kneeling down beside the open car door with cash in his hand, and Palmer standing beside Kerr. The three men were within a few feet of each other. As soon as Hails stopped his car, Pekeski instantly jumped out and yelled out to the men that they were under arrest. Hails got out immediately after Pekeski to assist him with the arrest. While Pekeski was dealing with Kerr and Roach, Hails took custody of Palmer; after a pat down search he found a series of narcotics in Palmer’s bag.
Constable Pekeski
[11] Pekeski testified that the first indication of any suspicious activity was when he and Hails were driving by the Honda, where he saw three men by the driver’s door in close proximity. As two of them were doing “heat checks”, he became suspicious that a drug deal was underway, so Hails turned around and drove up right behind Roach’s vehicle.
[12] Pekeski testified that he immediately got out of his car and placed all three men under arrest. Hails emerged from the car almost immediately after. Pekeski stated that no more than one to two seconds elapsed between when they pulled up beside the Honda and when he yelled out to the men that they were under arrest. In that very brief interlude Pekeski claims to have seen the following:
• Roach sitting in the car with a $50 dollar bill, a pill bottle, and a baggie with drugs in his hands;
• Kerr kneeling down beside Roach, in front of a black scale, holding a $50 dollar bill in his hand;
• Palmer standing nearby, holding a backpack.
[13] In cross-examination Pekeski stated that all the property seized from the suspects was recorded on the Exhibit List prepared by Hails after the arrest. When asked why the Exhibit List contained no reference to the $50 dollar bills allegedly involved in this drug transaction, he stated that rather than seizing the money he “gave it back” to the suspects. In retrospect, he said, that was “an error on my part.”
[14] Pekeski noted that the Prisoner’s Property record sheet, which logs a suspects’ possession when he is first brought into the station, may confirm that Roach and Kerr had that money in their possession. During a break in the evidence he retrieved the record relating to Roach, but was unable to locate any record relating to Kerr.
[15] The record relating to Roach indicates that when he was brought into the station he was carrying $218.57 in cash, which included three $50 dollar bills. However, the form is unsigned and incomplete. The boxes indicating “Seized – yes” [or] “no” are blank, as are the spaces requiring the “prisoner’s confirmation signature” as to what he brought in to the station and what he was released with.
Orville Palmer
[16] Palmer testified that he and Kerr had gone out earlier that day for pizza and beer. Kerr was supposed to be driving Palmer back home, but told him that he had to stop off on the way “to drop off tools” for his friend Roach. He knew that Kerr and his father both worked in vehicle repairs and so he accepted Kerr’s explanation.
[17] They pulled into a parking lot at a plaza in Mississauga. He and Kerr headed over to Roach’s car, with Kerr carrying a bag. As they approached Roach’s vehicle, Kerr handed the bag to Palmer, and then bent down to “tie his shoe or something”. Suddenly two police officers were upon them and they were arrested.
[18] Palmer stated that there was no scale present and no money changed hands. He claimed that the bag containing drugs that he was left holding belonged to Roach, even though his two cellphones were found inside.
Analysis
Issue #1: Was the arrest lawful?
[19] The legal framework for this case is well established in the jurisprudence. For the arrest to be lawful, the officers must have had reasonable and probable grounds. This involves both a subjective component – an honest belief by the officer that the suspect committed the offence – and an objective component, such that the officer’s belief must be supported by objective facts.
[20] The requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at para. 17; R. v. Bush 2010 ONCA 554, paras. 36 - 39. That said, a mere hunch is insufficient: R. v. Mann 2004 SCC 52, para. 35; R. v. Brown 2008 SCC 18, paras. 76, 165 and 192.
[21] In assessing whether or not there are reasonable and probable grounds in any given case, trial judges should not engage in an after-the-fact dissection of the officer’s grounds by looking at each ground in isolation; judges must appreciate that these arrests are often made in a fast-moving, dynamic situation without the benefit of lengthy reflection: R. v. Bush, para. 5; R. v. Pavlovsky, 2013 ONSC 6800, para. 4.
[22] With that framework in mind, I turn now to consider the evidence. I can state at the outset that I did not find Mr. Palmer’s evidence credible. Some examples include:
• It seemed strange that he needed Kerr to drive him home when he had earlier used public transport to meet up with Kerr;
• His explanation as to why Kerr transferred the bag to him just seconds before the arrest seemed farfetched;
• If, as he states, Kerr was there to give Roach some tools, why did they neither carry the tools over with them as they were walking to Roach’s car, or park their car close to Roach’s to facilitate the transfer?
• Most significantly, if, as he stated, the bag containing drugs that he was holding at the point of arrest did not belong to him, why were his two cellphones found inside?
[23] I have little doubt Mr. Palmer was there to participate in a drug transaction, as a buyer or a seller. This substantially undermines his credibility, and it follows that I am not prepared to rely on his evidence in this application. However, the fact that I cannot rely on his evidence does not mean that by default I should accept the evidence of the police officers involved.
[24] The officers in this case believed they had reasonable and probable grounds based on the following information they claim to have had at the time:
• Palmer and Kerr were doing “heat checks” in the parking lot;
• Palmer was carrying a bag;
• Kerr was kneeling in front of a scale, holding a $50 dollar bill;
• Roach was sitting in the car holding a $50 dollar bill, a pill bottle, and a baggie with drugs inside;
[25] The difficulty is that in my view, many of those observations are highly unreliable. In particular:
a) The two officers gave highly inconsistent accounts about where and how they were alerted to this event: Hails says they were stationary in their car, eating their dinner when Peteski alerted him to two men walking across the lot in a suspicious manner; Peteski says they were driving in the lot when they passed by a Honda with three men acting in a suspicious manner;
b) The money the police claim to have seen has disappeared. It is astonishing, to say the least, that a police officer would return the proceeds of crime to an accused. This currency was an important piece of evidence that could have corroborated the drug purchase that the police claim to have witnessed. Moreover, there is no realistic basis whatsoever to assume that the $50 bills Peteski allegedly viewed during the drug transaction are the same bills identified on Roach’s unsigned and incomplete property sheet. Where did the money go?
c) It seems highly implausible that men engaged in a drug deal would weigh their product out in the open in a public parking lot. The officers testified that it was still light out and there were several cars parked in the lot. At 8:15 p.m. on a Friday night it is reasonable to believe that many of the restaurants and box stores in the plaza were still open. How likely is it that drug dealers would weigh their product outside the car where they could be easily seen by shoppers coming to and from their vicinity? Significantly, under the heading “Location Found” in the Exhibit List, the scale is noted as “Jonathan Kerr possession”; there is no reference to it being on the ground, where Peteski testified he saw it.
d) Even if the scale was on the ground outside the Honda, it strikes me as very unlikely that Peteski was able to observe the scale in the two seconds that elapsed between when Hails pulled their car up beside the Honda and when Peteski effected the arrest. Both officers said the three men were huddled within a few feet of each other. Kerr, who was supposedly crouched over the scale, had his back to Peteski. Although Peteski testified that Hails would have seen the scale as well, Hails did not recall seeing the scale.
e) In the same vein, I find it implausible that in that very brief time frame Peteski managed to view Roach several feet away holding a pill bottle and bag with drugs while in a huddle with two other men.
[26] I recognize that in arrest situations, where events are unfolding rapidly, one cannot expect the police officers involved to accurately recall every detail. Moreover, given human nature, minor variations amongst witnesses to the same event are to be expected, and may in fact indicate that the evidence is forthright and not scripted. However, the evidence gaps I have identified are, in my view, significant and troubling, and go well beyond the normal discrepancies one expects to find.
[27] I am left with the impression that the officers operated here essentially on a hunch; instead of setting up a post nearby and watching for grounds, they charged in prematurely. Hence their reports about what they saw and when are not reliable.
[28] The result is that I am not satisfied that the police had, on any objective basis, reasonable and probable grounds to arrest Palmer. It follows that the arrest was unlawful and the search incidental to the arrest violated s. 8 of the Charter.
Issue #2: Should the evidence be excluded under s. 24 of the Charter?
[29] Pursuant to R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), I must consider a) the seriousness of the Charter infringing conduct; b) the impact of the breach on the Charter protected interests of the accused; and c) society’s interest in the adjudication of this case on its merits.
[30] Dealing first with the seriousness of the conduct involved, in this case I am persuaded the officers knowingly arrested someone based solely on suspicious circumstances. Both constables were experienced officers who can be expected to understand the importance of reasonable grounds. I recognize that in a drug transaction an officer’s decision to arrest must be made quickly. However, here they failed to wait even briefly to properly observe what was transpiring, but instead barrelled in and then attempted to use the evidence they discovered after the arrest to bolster their lack of due diligence before.
[31] Moreover, their handling of the evidence in this case was remarkably sloppy. I find it very disturbing that they cannot properly explain what happened to the cash they reported seeing during the drug transaction. If, as Peteski claims, the money was returned to the prisoners, his admission that doing so was an “error” is a gross understatement.
[32] For those reasons I consider the breach to be serious, pointing toward exclusion of the evidence.
[33] The impact of the breach on the applicant’s Charter-protected rights also supports exclusion of the evidence. He was grabbed, pushed against the Honda, searched and handcuffed, all in a highly public area. This was a significant intrusion on his Charter rights.
[34] As for society’s interest in adjudication on the merits, obviously the drugs that were seized are reliable and objective evidence, which favours their admission. However, when balancing all three factors, I am satisfied that given the serious nature of the breach and its impact on the applicant’s protected Charter rights, to admit the evidence in this case would bring the administration of justice into disrepute.
[35] For all those reasons, the drugs were excluded.
Baltman J.
Released: October 7, 2014
COURT FILE NO.: CRIMJ(F)2329/12
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ORVILLE PALMER
ruling on charter motion
Baltman J.
Released: October 7, 2014