ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MERON SOLOMON
Defendant/Applicant
David Morlog, for the Crown
Richard Mwangi, for the Defendant/Applicant
HEARD: October 14-17, 2014,
at Toronto, Ontario
MICHAEL G. QUIGLEY J.
Amended Reasons for Ruling
Re: Charter, s. 8, 9, 10(a), 10(b) and 24(2)
Correction Notice: The text of the original Reasons for Ruling was corrected on March 19, 2015, and the description of the correction is appended.
Overview
1On March 29, 2011, two uniformed members of Toronto Police Service (TPS) responded to a call regarding an “unknown threat” at 550 Kingston Rd. in Toronto, a building that was inhabited by persons with mental disability who were receiving Ontario Disability Payment. The TPS computer “ICAD” report, sent out verbally and on the police scout car computers, recorded that a complainant in the building had called at about 1:41 p.m. to report that there was a drug dealer in Apt. 320, and that a man “armed with a lead pipe” had answered the door of that apartment. Descriptions were provided of the drug dealer and the man alleged to be armed with the pipe. Police Constables Doyle and Harpell immediately made their way in their separate scout cars to that location, met and both reported that they were on scene at about 1:50 p.m.
2When they entered the lobby of the building just after 2:00 p.m., they learned that the caller, Charmaine Walker, had not personally witnessed the two suspects associated with Apt. 320. She was a caseworker who lived in the building, and her information was second hand. A tenant of the building had reported the occurrence to her. Ms. Walker identified that person, but his/her identity has remained confidential in these proceedings.
3According to Ms. Walker, the tenant saw a white male answer the door with a piece of pipe in his hand. She reported that there were possibly four or five people in that unit. Ms. Walker was concerned because the tenant of that apartment, one Daniel Thibadeau, was a person with a history of mental health issues. Ms. Walker was concerned for his safety and the safety of others in the building. Further, Apt. 320 had an ongoing history of issues. It was described as “an ongoing problem.”
4P.C.s Doyle and Harpell immediately and quickly made their way from the lobby up to Apt. 320. They wanted to investigate to ensure that the occupants of that apartment were safe. They knocked on the door. A white male answered. He had nothing in his hands. He identified himself as the tenant, Daniel Thibadeau. P.C. Harpell announced that they had received information from the complainant about an unknown male having answered the door of the apartment armed with a lead pipe. P.C. Harpell announced that they were there to investigate everyone’s safety. P.C. Doyle was right behind him and looking over his shoulder into the apartment.
5The tenant, Daniel Thibadeau, was told to move to the back of the bachelor apartment where three others were seated and conversing. All, including the defendant, Meron Solomon, were told to keep their hands visible. Mr. Solomon was seated to the right, but had not initially been in view from the doorway of the apartment. The two P.C.s acknowledged in their testimony that all four individuals were (i) under investigative detention, and (ii) not free to leave, once they had entered the apartment.
6As they entered the apartment, the P.C.s observed that none of the occupants was holding a lead pipe, nor could a lead pipe be seen in plain view. Shortly thereafter, P.C. Harpell started to conduct pat-down searches of the tenant and two other individuals looking for that lead pipe or other weapons. P.C. Doyle was engaged with the defendant at the same time. He obtained his name and then conducted a pat-down search on him looking for potential weapons. He did not find any weapons, but upon investigating, he felt a hard object in the back pocket of the defendant’s jeans. The hard object, which P.C. Doyle removed to ensure that it was not a weapon, turned out to be a baggie of crack cocaine.
7The defendant was immediately arrested and handcuffed. He was charged with possession of cocaine for the purposes of trafficking. Further searches incident to the arrest yielded two other small baggies of crack cocaine in his jacket pocket. The defendant was read his rights to counsel and he was cautioned. He was reported to be in custody at 2:43 p.m., that is, about 45 minutes after the two P.C.s arrived on scene. Later, the defendant was also charged with breach of probation since he was on probation and prohibited from possessing illegal drugs at the time of his arrest.
8The defendant claims to have been arbitrarily detained contrary to s. 9 and illegally searched contrary to s. 8 of the Charter. He further claims that the police failed to advise him as to his right to retain and instruct counsel on a timely basis, as required under s. 10 of the Charter. Moreover, he claims to have been subjected to an abusive search at the hands of P.C. Doyle. Although he was a mere visitor in that apartment at 550 Kingston Rd., he argues under s. 24(2) that these Charter violations should cause this court to exclude the drugs found on his person as evidence on this trial.
9Stated simply, I disagree. The individuals present in Apt. 320, including the defendant, were detained pursuant to a lawful investigative detention that meets the requirements established in R. v. Mann, 2004 SCC 52. Further, having regard to “the constellation of objectively discernible facts” that was before the P.C.s at the time they attended at the building and Apt. 320, P.C.s Doyle and Harpell were entirely within their proper powers as police officers to enter the apartment, to try to locate the alleged lead pipe, and to ensure that all present there were safe, especially the tenant, Daniel Thibadeau. They were entitled to conduct pat-down searches for weapons further to that authority, and as such, the crack cocaine found in the defendant’s jeans pocket in the course of that pat-down search was the product of a valid search undertaken in the course of a valid investigative detention.
10While the inability of P.C. Doyle to recall much of what was said between himself and the defendant caused me concern and is the subject of comment further in these reasons, I am satisfied on the whole of the evidence on the voir dire that there was every reason for the P.C.s, acting together, to conduct themselves as they did. They had an objectively reasonable suspicion that a lead pipe, capable of being used as a weapon, was present in that apartment. They were entitled to conduct pat-down searches of the occupants of that apartment in the interests of their own safety, and that of those individuals. On the other hand, I do not accept the defendant’s evidence, and it does not cause me to conclude on a balance of probabilities standard that his Charter rights were violated. I reject his claim that he was subjected to an abusive search that violated his s. 7 rights.
11I dismiss the defendant’s application, but in the event that I am mistaken in dismissing his application, and even if there was a violation of his s. 8 or s. 9 Charter rights, I would not exclude the evidence under s. 24(2). The defendant had no privacy interest in the apartment, even if he did have a personal privacy interest not to be searched except pursuant to a lawful authority. However, as I explain, the violation was not a serious one, and the interest of the public in seeing offences such as these tried satisfies me that the balance of the three analytical steps mandated by R. v. Grant, 2009 SCC 32 favours inclusion of the evidence. As a result, the evidence will be admissible on the defendant’s trial. By prior agreement of counsel, that will necessarily result in convictions being entered against the defendant on both charges.
Issues
12Section 9 of the Charter provides everyone with the right not to be arbitrarily detained or imprisoned. If a person is detained or arrested, s. 10 guarantees the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay. Section 7 guarantees the security of the defendant and his right not to be subjected to excessive force by police authorities, and s. 8 ensures that his right to be free from unreasonable search or seizure is maintained.
13Here, the defendant claims that all of these rights were violated (i) by the defendant being arbitrarily detained by P.C.s Doyle and Harpell and allegedly not given a reason as to why nor read his rights to counsel upon detention; (ii) by the unlawful entry made by the P.C.s into the residential premises of Apt. 320 in the building at 550 Kingston Rd.; and (iii) by the excessive force and unlawful search allegedly employed by P.C. Doyle on the defendant prior to his arrest.
14The burden of proving that a Charter breach has occurred rests on the defendant on a balance of probabilities standard. To succeed, the applicant must show that he was detained. If he does, the onus shifts to the Crown to demonstrate on that same balance of probabilities standard, (i) that the detention was not arbitrary and in breach of the Charter guarantee; (ii) that the defendant was informed of the reasons for his detention and permitted to contact, retain and instruct counsel as soon as possible in the circumstances; (iii) that the defendant was not subjected to arbitrary force or an unlawful search; and (iv) that any search of his person was reasonable.
15The Supreme Court of Canada established the threshold for a lawful investigative detention in R. v. Mann, 2004 SCC 52. The detention must be reasonably necessary on an objective view of the totality of the circumstances, which must inform the officers’ suspicion of a nexus between the subject and the alleged criminal activity. The power to detain cannot be exercised on the mere basis of a hunch. More recently, the Supreme Court has affirmed that standard in R. v. Grant, 2009 SCC 32.
16Where an individual is detained, the Crown must show that the police had reasonable grounds to suspect that the individual in question was criminally implicated in the activity being investigated in order to establish that the detention was not arbitrary. That reasonable suspicion must have been based on “a constellation of objectively discernible facts”: see R. v. Simpson (1993), 1993 3379 (ON CA).
17However, as R. v. Suberu, 2009 SCC 33 makes clear, a request for identification by a police officer does not, in and of itself, prove that an individual is detained. Not every interaction with the police amounts to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.
18In addition to the question that arises here as to the credibility and reliability of the evidence of the witnesses, two P.C.s and the defendant, the core issue on this application is whether the police were engaged in a valid investigative detention. If they were, then the defendant was not arbitrarily detained and his s. 9 Charter rights were not violated. The legality of the scope of their actions hinges on that question.
19The subsidiary questions that arise on this application include:
(i) whether the police had a reasonable suspicion that formed a legal foundation for detaining and searching the occupants of Apt. 320 or was that detention arbitrary;
(ii) whether the police were entitled to conduct a pat-down search of the defendant and whether the drugs were found incident to a lawful investigative detention; and
(iii) whether the police violated the defendant’s ss. 7, 8, 9, 10(a) or 10(b) Charter rights?
20Finally, in the event that a Charter violation is made out, the inquiry would focus on whether the illegal drug evidence seized from the defendant should be admissible on his trial under s. 24(2) of the Charter, or whether its admission would bring the administration of justice into disrepute. These questions are addressed in the analysis that follows.
(Sections continue verbatim exactly as in the source…)
Michael G. Quigley
Released: November 25, 2014
CORRECTION EXPLANATION
March 19, 2015:
Paragraph 1: The date March 29, 2012 was replaced by March 29, 2011.
Paragraph 38(d): The date March 29, 2012 was replaced by March 29, 2011.
Paragraph 42: The date March 29, 2012 was replaced by March 29, 2011.
Paragraph 47: The date March 29, 2012 was replaced by March 29, 2011.
Paragraph 49: The date March 29, 2012 was replaced by March 29, 2011.