COURT FILE NO.: 5-378/14

DATE: 20141126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GARFIELD GRAHAM

Defendant

David Tice, for the Crown

Edward J. Royle, for the Defendant

HEARD: November 17, 18, 20, 21 and 24, 2014

SPIES J.

RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9, 10(a) AND (B) AND 24(2) OF THE CHARTER

Overview

[1] The defendant, Mr. Graham, asserts that his rights under ss. 8, 9, 10(a) and 10(b) of the Charter have been infringed. The voluntariness of an utterance alleged to have been made by Mr. Graham is also in dispute although counsel asked to defer that issue. Counsel agree that the central issue to be decided in order to determine the merits of the Defence application is whether or not I believe the evidence of Officer Joshi who testified on the voir dire that he detected a strong smell of fresh marijuana coming from a small Ziploc baggie found inside a zippered pouch of an old Coach purse (“bag”) belonging to Mr. Graham and Officer Crawford who testified that he detected a strong smell of fresh marijuana coming from eight small Ziploc baggies found inside Mr. Graham’s pants pocket.

[2] When Officer Joshi searched the bag, in addition to the marijuana, he located cash and a loaded handgun. He advised his two escorts that he had found a gun; Officers Crawford and Ahluwalia, who then arrested Mr. Graham for possession of a firearm. Once the marijuana in Mr. Graham’s pocket was found he was also charged for possession of marijuana.

[3] Mr. Graham now stands charged on a 12-count indictment for various offences related to his alleged possession of that loaded, prohibited firearm, breach of three separate s. 109 prohibition orders, and breach of an undertaking to an officer in charge to not possess weapons. Further, Mr. Graham is charged with possession of marijuana for the purpose of trafficking and possession of proceeds of crime. All offences are alleged to have occurred on August 26, 2013 when he was arrested.

[4] The Crown called all three officers who were involved in the search and arrest of Mr. Graham and the Defence called Mr. Cruikshank, an employee of the Elmbank Community Centre, who witnessed the arrest. Mr. Graham did not testify. Evidence was also called with respect to a lost evidence issue that arose during the trial when counsel realized that a DVD of video surveillance from the Community Centre, which may have recorded this event, had been lost by police and never disclosed to the Crown or the Defence.

[5] The lawfulness of both the search of Mr. Graham’s bag and the search of his person are challenged by the Defence. As both searches were without a warrant, the onus is on the Crown to satisfy me on a balance of probabilities that the police were lawfully justified in conducting these searches. Although various Charter breaches are alleged, the central issues raised are whether or not Officer Joshi had reasonable and probable grounds to arrest Mr. Graham for possession of marijuana and search Mr. Graham’s bag incident to arrest, or alternatively whether or not Officer Crawford independently had reasonable and probable grounds to arrest Mr. Graham for possession of marijuana and then search his person and his bag incident to arrest. As I have already stated, counsel acknowledge that the outcome of this application depends largely on my assessment of the credibility of the witnesses.

[6] If I am satisfied on a balance of probabilities that Officer Joshi smelled fresh marijuana, Mr. Royle concedes that the search of the bag and the arrest of Mr. Graham were lawful and there was no breach of his s. 8 and s. 9 Charter rights. If I am not satisfied of this, the search and arrest of Mr. Graham would likely still be lawful if I accept the evidence of Officer Crawford that he smelled fresh marijuana although Mr. Royle argued that in that event Officer Crawford would have needed to investigate further before he could reasonably have concluded that Mr. Graham was in current possession of fresh marijuana. If I conclude that Officer Crawford had reasonable grounds to believe that Mr. Graham was in possession of marijuana, a lawful search of Mr. Graham and his bag incident to arrest would have occurred had Officer Joshi not found the gun first.

[7] If, however, I make adverse credibility findings with respect to either or both officer(s) and find that either or both officer(s) did not smell marijuana and as a result had no basis to arrest and search Mr. Graham and his bag, there would be a clear breach of his s. 8 and s. 9 Charter rights. If I find that either or both of the officer(s) were not truthful, that will obviously have a significant impact on the s. 24(2) Charter analysis.

The Chronology and Preliminary Findings of Fact

[8] The officers were from 23 Division of the Toronto Police Service (“TPS”) and commenced their shift on August 26, 2013 at 2 p.m. They were in plainclothes and driving an unmarked black Dodge Caravan. It was the first day of the Humber Valley Project, which had been initiated as a result of increased gun violence in the northern part of the Division. As a result, the officers were on general patrol investigating gun violence.

[9] At about 5:20 p.m., the officers observed a black male, dressed in black, on a black bicycle, coming from 256 John Garland Blvd., crossing Martin Grove Road from west to east across four lanes of traffic. Officer Ahluwalia, who was driving the van, was travelling at 50-55 km per hour and he had to brake hard and reduce his speed to about 20 km to avoid hitting the bicyclist. The van at this point was one to one and a half car lengths from the bicycle. There is no dispute that the person on the bicycle was Mr. Graham.

[10] Officer Ahluwalia said that the traffic was heavy but he did not recall seeing other vehicles swerving or braking to avoid hitting Mr. Graham but he added that he was very focused on avoiding hitting him himself. Officer Crawford was in the front passenger seat and he did not observe any other traffic although he said there probably would have been light traffic but he made no note of it. Officer Joshi was sitting in the middle of the backseat and he testified that when Mr. Graham crossed the four lanes of traffic he had no regard for his safety or the safety of others on the road. Given the time of day I am prepared to accept that there would have been at least light traffic on the road. All the officers agree that Mr. Graham was riding his bicycle at a very fast pace across the street through the lanes of traffic and onto Rampart Road, a dead end street, towards 10 Rampart Road where the Elmbank Community Centre is located.

[11] Officer Ahluwalia testified that Mr. Graham was not looking around at all but rather looking straight ahead and that Mr. Graham made no eye contact with him as he continued to ride very fast even when Officer Ahluwalia braked hard. Officer Ahluwalia testified that he did not recognize the male on the bicycle but he said that Officer Joshi announced that he was familiar with this male and that he had arrested him prior for drugs and knew him as “Bush”. In his notes Officer Ahluwalia stated that Officer Joshi said Mr. Graham was a known drug dealer and that he had been arrested in the past for drugs. The fact that the male was carrying a dark bag was also noted. Officer Joshi testified that when they were directly in front of Mr. Graham, Mr. Graham looked directly towards them and he looked at Mr. Graham. On this point I prefer the evidence of Officer Ahluwalia that Mr. Graham looked only straight ahead, as he was the one driving and Officer Joshi was in the backseat.

[12] In any event, Officer Joshi agreed that he could not assume Mr. Graham realized that they were police as he crossed in front of them. Officer Joshi testified that although he had seen Mr. Graham riding his bicycle several times before he had never seen him riding at this speed and so carelessly. He admitted there were a thousand different reasons as to why Mr. Graham might be riding his bicycle this way.

[13] Officer Joshi recalled telling the others “hey that’s Bush” but he did not recall saying anything else. He did not recall if there was or wasn’t a conversation. Officer Joshi admitted that he had had prior dealings with Mr. Graham and he saw him quite often in the Jamestown community. On January 17, 2012, Officer Joshi arrested Mr. Graham for possession of marijuana. Officer Joshi said he also knew that Mr. Graham had served time for manslaughter and that he had been arrested previously for firearms, concealed weapon, assault and trafficking in a controlled substance.

[14] Officer Crawford testified that when he saw the black male on the bicycle ride directly in front of the van he recognized the male as Mr. Graham, known by the nickname “Bush”. From Officer Crawford’s understanding everyone recognized him at that point. He said that Mr. Graham was known to police as someone who had committed manslaughter in the past and that because of various officer safety bulletins and word of mouth, Mr. Graham was well known as a drug dealer. He recalled a conversation in the van but he couldn’t recall exactly what was said. Officer Crawford admitted that they were all in agreement that they would stop Mr. Graham and talk to him.

[15] Although I can understand that the officers may not have a complete recollection of their discussion, given the evidence of Officers Joshi and Crawford I find that all of the officers, including Officer Ahluwalia, knew that the person on the bicycle was Mr. Graham and that there was some discussion of Mr. Graham and the fact that he had a serious criminal record including convictions for manslaughter and drugs.

[16] Officer Ahluwalia made a U-turn and drove southbound on Martin Grove and then turned left onto Rampart Road where Mr. Graham was headed. Officer Ahluwalia admitted that he was driving fast and possibly speeding. He did not activate the lights of the police van. He was driving to catch up to Mr. Graham as he wanted a chance to investigate the Highway Traffic Act (“HTA”) offence; failure to yield to traffic, and he did not want to lose Mr. Graham in the Community Centre.

[17] As they were driving on Rampart Road the officers saw that Mr. Graham was going towards the front entrance doors of the Community Centre. He had a dark coloured bag around his chest. Officer Joshi testified that when they were about 20 feet behind him, Mr. Graham looked back at them as they were coming up behind him. He was the only officer to make this observation and I wonder why, if this happened, the other officers and in particular Officer Ahluwalia did not notice this. In any event Officer Joshi testified that the closest he remembers the van getting to Mr. Graham was 20 feet. He denied that they would have caught up to Mr. Graham before he got off his bike. I have difficulty with this evidence but whether or not it is true does not in my view impact the determination of the application.

[18] While still in the van, the officers observed that Mr. Graham got off his bicycle on the ramp that leads to the front doors of the Community Centre and he walked up the ramp with his bicycle towards two other males standing on the ramp. The officers saw Mr. Graham hand the bag he was carrying to the heavier of the two males standing on the ramp. There is no dispute that this was Mr. Cruickshank. Officer Crawford didn’t observe anything unusual about how Mr. Cruickshank was holding the bag, which he held at about waist height. Officer Ahluwalia also testified that as he approached Mr. Graham he did not have any reason to suspect anything suspicious was in the bag. As I will come to, Officer Joshi made much of how Mr. Cruickshank was holding the bag.

[19] Officer Crawford said that the purpose of talking to Mr. Graham was to charge him under the HTA for failing to yield. He continued: “but that being said, there are other reasons.” Officer Crawford added that he was a known criminal, a known drug dealer and Mr. Graham had been involved in serious criminal activity such as manslaughter. He was “someone we would want to talk to as police.” As such he admitted that the decision to follow Mr. Graham was made not just because of how he was riding his bicycle but also because of who he was. Officer Crawford admitted that they wanted to find out what he was up to and wanted to know if he was trafficking or committing another crime. That is one of the reasons that they stopped him; they were suspicious that he might be involved in criminal activity.

[20] Officer Crawford would not agree that as Mr. Graham crossed the street on his bicycle that he had no reason to believe that he was involved in a Criminal Code offence, given what he knew of his criminal record, but he admitted that he hadn’t witnessed a Criminal Code offence and that at best Mr. Graham had committed a HTA offence. Officer Crawford admitted that the bag Mr. Graham had been carrying had nothing to do with the HTA violation but he said he was suspicious of why Mr. Graham had a bag and why he would hand it to someone else. Officer Crawford admitted that the bag that Mr. Cruickshank had was of interest even before the handgun was found.

[21] Officer Joshi testified that he was thinking “what is going on?”, and that Mr. Graham “almost got killed”. He was thinking “thank God we didn’t hit him” and that he could have “suffered some serious injuries”. Officer Joshi said his intention was to speak to Mr. Graham to determine if everything was OK, find out what was going on and whether there was something they could do for him. Officer Joshi testified that he had no interest in investigating Mr. Graham to see if he was engaged in any criminal activity.

[22] Officers Ahluwalia and Crawford admitted that they were not on traffic duty and were not there to conduct HTA investigations; that was not their primary duty. Their primary duty was to investigate gun violence. Although I believe, in light of the candid evidence of Officer Crawford on this point, that the officers were particularly interested in Mr. Graham because of his criminal record, I find that investigating what they believed was a HTA violation was at least one of their purposes in deciding to talk to Mr. Graham. The fact that they had a secondary purpose does not render their pursuit of Mr. Graham unlawful.

[23] Mr. Cruickshank recalled this incident. He testified that he and another employee were on a break and they were standing against the railing on the main pathway or ramp to the doors of the Community Centre. The Community Centre was closed at this time of year and there were no programs and nothing else was going on.

[24] Mr. Cruickshank saw Mr. Graham riding his bike down Rampart Road; he said at a normal speed. He recognized Mr. Graham when he reached the end of the street. Mr. Cruickshank flagged him down to stop him so he could greet him and have a conversation, as he had not seen him for some time. After he hailed Mr. Graham he got off his bicycle and they had a general friendly conversation. Mr. Cruickshank said that he was two to three feet from Mr. Graham when he was having their conversation. He said they had done a fist bump and so they were close enough for that.

[25] Mr. Cruickshank noticed the black Dodge Caravan on Martin Grove Road turning onto Rampart Road and increasing in speed. He knew it was police when he first saw the van as he knew that particular van is used a lot for both plainclothes and uniformed officers. He confirmed that the van was travelling much faster than normal on Rampart Road. It stopped just short of the entrance to the park next to the Community Centre. He asked Mr. Graham if they were “here for him?” and Mr. Graham said “no”.

[26] Mr. Cruickshank said that it was hot outside and Mr. Graham was wearing a hooded sweatshirt and sweating. As he was taking off the sweatshirt he handed his bag to Mr. Cruickshank and he said “hold this for me real quick and be careful” which Mr. Cruickshank interpreted as “don’t drop it”. He believed he was being handed the bag because Mr. Graham needed to free up his hands so he could take his sweatshirt off. Mr. Cruickshank believes that he was handed the bag when the police van was halfway between the intersection of Martin Grove and the Community Centre on Rampart Road.

[27] Mr. Cruickshank described how he held the bag. He had both arms crossed across his chest and simply moved his index finger out and was holding the bag with that finger at the end of the strap of the bag. He estimated that the bag itself was hanging just below his waist/hip area. Mr. Cruickshank is six feet, three inches tall. He said that he held it this way because Mr. Graham had said it was going to be quick; he assumed it was just going to take as long as it took Mr. Graham to take his sweatshirt off. Significantly Mr. Cruickshank testified that he only had the bag for maybe 30 seconds before it was grabbed by Officer Joshi.

[28] Officer Ahluwalia parked the van on a walkway just east of the Community Centre that leads into a nearby park. Officer Joshi exited the rear passenger side of the van and was the first officer out of the van. He testified that he started walking towards Mr. Graham and his intention was to talk to him and find out if anything was wrong. Mr. Royle submits that he walked directly toward Mr. Cruickshank and the bag, which is denied by Officer Joshi. I will come back to this.

[29] Officer Crawford was right behind Officer Joshi as he walked towards Mr. Graham. Officer Joshi said that when he was about 20 feet away he yelled “hey Bush what’s going on?” and Mr. Graham looked at him and responded “hey big man”. Officer Joshi then asked him why he was riding so fast and that he almost got killed. Mr. Graham responded that “all is good”. As he was having this conversation with Mr. Graham he continued walking up to him and he jumped over the railing along the ramp in front of the building and as he did so he asked Mr. Graham “why did you give him your bag?” According to Officer Joshi, Mr. Graham responded “it’s not my bag”. He then said to Mr. Graham: “I don’t know why you’re lying. I saw you ride your bicycle with the bag slung across you.”

[30] Officer Crawford confirmed some of Officer Joshi’s evidence. He recalled Officer Joshi saying “hey Bush what’s up? Why were you going so fast? Why did you pass your bag?” Officer Crawford did not hear a response from Mr. Graham. Significantly he did not recall Mr. Graham saying that the bag was not his even though he was right behind Officer Joshi and he also jumped over the railing.

[31] Officer Ahluwalia did not confirm the evidence of Officer Joshi as to his conversation with Mr. Graham. Although Officer Ahluwalia walked around the railing he testified that all three of them ended up on the ramp at the same location. I find that given the fact that Officers Joshi and Crawford jumped the railing they may have been seconds ahead of him but Mr. Cruickshank testified that all of the officers came up at the same time. I accept that evidence. I would therefore have expected Officer Ahluwalia to hear what Officer Joshi testified he and Mr. Graham were saying. In fact Officer Ahluwalia testified that as he was walking up the ramp he believed there was no conversation between the officers and the men who were standing on the ramp, one of whom he recognized as Jason [Cruickshank] as he had dealt with him in the past.

[32] However Officer Ahluwalia also testified that after he spoke to Mr. Graham explaining why he was there, Mr. Graham said “that’s not my bag” but he then later said he couldn’t say when this utterance was made. As I will come to he only gave this evidence about the utterance when he noticed the reference to it in his notes and so I do not place much weight on this evidence particularly as he can’t say when he heard the alleged utterance.

[33] When the officers exited the van, according to Mr. Cruickshank, they approached casually and there was no urgency. The three police officers initiated what he described as a “nonchalant conversation” with Mr. Graham and since they were dealing with him he started to step back. Initially Mr. Cruickshank testified that the only conversation he recalled between the officers and Mr. Graham was “hey Garfield how are things going?” Mr. Graham responded “fine” and then he was asked if he was “up to his old tricks” and he said “no”. Mr. Cruickshank didn’t pay attention to the rest of the conversation. Mr. Cruickshank did not recall any conversation between the officer [Officer Joshi] and Mr. Graham about the bag before Officer Joshi took the bag from him.

[34] Mr. Cruickshank was also asked about the exchange Officer Joshi testified to. He was taken to his evidence at the preliminary inquiry by Mr. Royle. At that time he recalled the officer saying “How’s your day”, “What’s going on” and “is this your bag?” His response at the preliminary inquiry was not clear because he agreed with the suggestion that he i.e. Mr. Cruickshank was the one who answered the question and said “No”. After reviewing his earlier evidence Mr. Cruickshank said he thought he was referring to the bag being “his” referring to Mr. Graham but not surprisingly Mr. Cruickshank was clearly having trouble recalling this exchange.

[35] In cross-examination by the Crown, Mr. Cruickshank was also taken to evidence he gave at the preliminary inquiry where he testified that the officer who took the bag, which would be Officer Joshi, said to Mr. Graham “is this yours?” and Mr. Graham said “no”. Mr. Cruickshank adopted this evidence but he made it clear again that he was not paying attention to everything the officers were saying to Mr. Graham and he started to withdraw because they were clearly there to speak to him and he didn’t want to be involved.

[36] There is therefore an issue as to whether or not the utterance was made by Mr. Graham that it was not his bag and an issue with respect to the voluntariness of this utterance, but given that Officer Joshi claims to have heard Mr. Graham say this and that it was part of the grounds he relied upon for his decision to grab the bag from Mr. Cruickshank, I am prepared for the purpose of this application to accept that this statement was made by Mr. Graham and that it was voluntary.

[37] The evidence was not clear as to where everyone was on the ramp once they were all together. Officer Joshi testified that when he hopped the railing, Mr. Cruickshank was to his right, about two feet away and Mr. Graham was to his left, three to four feet away. He was therefore in the middle. Directly beside Mr. Cruickshank was a skinnier male. They were all on the ramp and the two males were leaning up against the railing and Mr. Graham was looking towards them. The skinny male was closest to the Community Centre, then Mr. Cruickshank, then Officer Joshi, then Mr. Graham. Officer Joshi said he didn’t move after he hopped over the railing and he did not make any effort to get closer to Mr. Graham as his escorts had come around by this time. Officer Ahluwalia said that he was standing closest to the road of all of the men. I do not believe Officer Crawford was asked about this. If Officer Joshi’s evidence is correct that would put him closest to Mr. Cruickshank.

[38] Mr. Cruickshank testified that as the officer [Officer Joshi] approached him and the bag the other two officers were standing next to Mr. Graham and not touching him but he was not paying attention. When the officer said there was a gun then they put their hands on Mr. Graham and told him to get down.

[39] This is consistent with the evidence of the officers and so I find that Officers Ahluwalia and Crawford were standing closest to Mr. Graham and interacting with him while Officer Joshi was nearest to Mr. Cruickshank. As I will come to however, what I cannot reconcile is that the evidence of Officers Ahluwalia and Crawford suggests that they acted independently in speaking to Mr. Graham. Officer Ahluwalia went so far that he said he was the only officer speaking to Mr. Graham, that he knew Officer Crawford was there but he couldn’t recall where or what he was doing.

[40] Officer Joshi said that he didn’t know who Mr. Cruickshank was at the time and he was not there to investigate him or the bag. He agreed that he jumped over the railing closer to Mr. Cruickshank but insisted that he didn’t know where he was going to land as that would depend on his momentum. He denied intending to speak to Mr. Cruickshank or going directly to Mr. Cruickshank.

[41] Officer Ahluwalia testified that he went to speak to Mr. Graham and that he was the first officer to speak to him. He testified that he introduced himself by name and told Mr. Graham that he was a police officer, that Mr. Graham had failed to yield to their vehicle on the highway and that he had had to brake to avoid hitting him. Officer Ahluwalia said that he was the only one talking to Mr. Graham at this point and he made no mention of Officer Crawford being with him. In fact Officer Ahluwalia testified that no one else was close to him, i.e. Officer Ahluwalia, and he did not know what the other officers were doing. Officer Ahluwalia testified that Mr. Graham did not say anything in response and before he could say anything further he heard Officer Joshi say “gun”.

[42] Officer Ahluwalia testified that he was standing about one and a half to two feet from Mr. Graham and that he smelled a “strong odour” of marijuana coming from him. He also noticed that Mr. Graham had red eyes and that he was calm, smiling and cooperative. When asked by Mr. Tice if he intended to do anything about the fact that he had smelled marijuana and had seen Mr. Graham’s red eyes, before he heard Officer Joshi announce that there was a gun, Officer Ahluwalia said that he would have found out why he was riding his bike the way he was and taking the risks that he did and educate him on the HTA or possibly give him a HTA ticket for failing to yield. He said the reason he was investigating Mr. Graham was because of his red eyes which could mean he was impaired on some drug or alcohol and his failure to acknowledge their vehicle.

[43] Obviously not happy with this answer Mr. Tice asked a follow up question; specifically what Officer Ahluwalia intended to do given he had smelled marijuana and seen bloodshot eyes. Mr. Tice asked if that changed anything and whether or not he had any intention of doing anything with that information. Despite this more pointed question Officer Ahluwalia said “no”. Officer Ahluwalia agreed in cross-examination that the only basis to arrest Mr. Graham was the finding of the gun and that that was the reason he was arrested.

[44] This is significant since it is clear that Officer Ahluwalia would not have proceeded to arrest Mr. Graham for possession of marijuana if the gun had not been found. As such he personally would have had no grounds to search Mr. Graham’s person or opportunity to seize the marijuana in his pocket or to search his bag.

[45] In cross-examination Officer Ahluwalia agreed that it was an overpowering smell and when he was challenged on this he answered that he never said even once that the marijuana smell was unburnt marijuana. He testified that what he smelled could have been burnt marijuana. Officer Ahluwalia admitted that he failed to note whether the marijuana that he says he smelled was burnt or fresh. At this point Mr. Royle put to Officer Ahluwalia that he didn’t know what “script” to write and that he had to confer with the other officers. Officer Ahluwalia denied this and testified that no other officer said that he smelled the marijuana and Officer Ahluwalia did not share the fact that he did with anyone.

[46] After admitting that no burnt marijuana was found on Mr. Graham, Officer Ahluwalia denied that the smell must have been of unburnt marijuana and said that Mr. Graham could have finishing smoking a marijuana cigarette in which case the smell would be on his clothes for a long time.

[47] When Mr. Royle then put to Officer Ahluwalia the facts of how the marijuana in Mr. Graham’s pocket was packaged and challenged again his ability to smell it, Officer Ahluwalia admitted it was most likely burnt marijuana that he smelled. Mr. Royle pounced on this answer and Officer Ahluwalia began to resile from it eventually stating that you probably could smell the marijuana in the bags because it is a very strong smell. Officer Ahluwalia then said he smelled the marijuana after he seized the marijuana even before he opened the baggie.

[48] Officer Crawford testified that as soon as he jumped over the railing he looked at Mr. Graham and asked him “what’s up?” and Mr. Graham responded “just riding”. Officer Crawford said that he noticed that Mr. Graham’s eyes were red and bloodshot and he also smelled unburnt marijuana; the smell was strong enough that he detected it. He noticed as well that Mr. Graham had unkempt braids and a beard. Officer Crawford testified that his intention first of all was to charge Mr. Graham under the HTA and he was also going to arrest him for possession of marijuana “once he noticed all these things”. Officer Crawford admitted that he did not have time to arrest Mr. Graham because Officer Joshi “went so fast to the bag”. Officer Crawford didn’t tell any other officer that he had smelled marijuana.

[49] Officer Crawford testified that he based his decision to arrest Mr. Graham on the smell of marijuana, the fact Mr. Graham’s eyes were red, the fact that he knew him be a convicted drug trafficker and the fact that the area was riddled with drugs. He stated that in the Jamestown area there is a lot of drug dealing and criminal activity. The fact that Mr. Graham rode in front of their van suggested he might be impaired and the fact he handed off his bag was suspicious. Had he arrested Mr. Graham for possession of marijuana Officer Crawford would have searched him and the bag.

[50] Coming back to Officer Joshi, he testified that he also noticed that Mr. Cruickshank was holding the bag in a peculiar position and that he had never seen anyone hold a bag like this. According to Officer Joshi, Mr. Cruickshank had his left arm across the front of his chest and his right arm was out at a right angle with his index finger sticking out and the bag was slung over that finger. He said that it almost looked like Mr. Cruickshank was forced to hold it and didn’t want to hold the bag.

[51] Officer Joshi testified that the bag came down to Mr. Cruickshank’s knees and was a few inches off the ground. Officer Joshi said that he was standing one to two feet from the bag at this point and focused on the bag. He testified that he then smelled fresh marijuana and that it was coming from the bag. He testified that he took the bag because he knew this was fresh marijuana and he had reasonable and probable grounds to believe there was marijuana inside the bag. He did not have to move other than turn to take the bag from Mr. Cruickshank. He said that as he got the bag closer to him the smell was stronger.

[52] I have already set out Mr. Cruickshank’s evidence describing how he held the bag and his description was fairly close to Officer Joshi’s. The only difference is that Mr. Cruickshank said his arm did not move out at a ninety degree angle from his body but rather stayed against his chest. That would have kept the bag close to his body. He testified that the officer who grabbed the bag [Officer Joshi] was moving and having a conversation with Mr. Graham as he approached. Mr. Cruickshank testified that he came straight to him and grabbed the bag and he didn’t say anything before he took it. Mr. Cruickshank said the officer who came towards him came in one smooth motion, jumping over the railing and walking towards him and taking the bag. Mr. Cruickshank was very clear that the officer who took the bag didn’t hesitate before he did so. He was not challenged on this evidence.

[53] When asked, Officer Crawford admitted that Officer Joshi was ahead and that after jumping the railing, Officer Joshi went directly to Mr. Cruickshank. He admitted that Officer Joshi was interested in the bag that Mr. Cruickshank was holding as was Officer Crawford. He also agreed that it seems reasonable that Officer Joshi went straight to search the bag. He admitted that Officer Joshi took the bag from Mr. Cruickshank at the point that he, Officer Crawford, was beginning to have his conversation with Mr. Graham.

[54] Officer Ahluwalia testified that he did not see Officer Joshi do anything prior to saying “gun” because he was concentrated on Mr. Graham. He would not agree that Officer Joshi went straight to the bag and said he didn’t see what he did.

[55] Officer Joshi testified that once he had the bag in his possession he searched it. He did not check the first compartment with the buckle. He remembered unzipping the second compartment in the middle and he saw Canadian currency in that compartment. He took out the cash and under it saw a baggie with red faces on it filled with marijuana. He did not count the money at that point. He put it back in the compartment that he found it in and made no comment. He was facing Mr. Graham at this point. There was nothing else in the middle compartment.

[56] Officer Joshi then unzipped the larger compartment and looked inside and saw the butt of a handgun. His escorts were standing beside Mr. Graham and he looked up to them and said “hey, there’s a gun in here”. He guesses that he didn’t say it loud enough and so he said it again. At that point his escorts took Mr. Graham to the ground.

[57] Officer Joshi testified that when he smelled marijuana and seized and searched the bag he did not tell Mr. Graham that he was under arrest but “in his mind” he was arrested. At that point he wanted the bag in his possession in order to locate and secure the evidence and make sure everything was fine. Once that was done he would tell Mr. Graham that he was under arrest. Officer Joshi also testified that he didn’t know Mr. Cruickshank or the other guy and he didn’t know what he could do with the bag; he could pass it to the skinny male or toss it. When he took the bag from Mr. Cruickshank and as he got closer to it, it smelled stronger. Officer Joshi admitted that Mr. Graham could see that he was taking the bag, that they did not have control over him at that point and that Mr. Graham could have run. Officer Joshi said that maybe he should have told the other officers that he smelled fresh marijuana. He admitted that a lot could have happened to the bag and anyone could have run. He said it was most important to seize the bag and locate the evidence. Officer Joshi never told the other officers that he smelled marijuana or that Mr. Graham should be arrested for possession of marijuana.

[58] Officer Joshi was then asked why, once he had the bag in his possession, he didn’t tell Mr. Graham he was under arrest then. His answer was that he wanted to look through the bag and locate the evidence. When asked again why he would need to search the bag before arresting Mr. Graham he said there were two other people there. His explanation did not make sense.

[59] When asked what his grounds were to grab the bag Officer Joshi said there were a “bunch of factors”. He saw Mr. Graham ride the bicycle the way he did and had never seen him ride this way. Mr. Graham jeopardized his life and it was clear that he wanted to get from A to B without being stopped. Secondly, Mr. Graham saw their van coming up behind him and then jumped off the bike quickly and the first thing he did was pass his bag to Mr. Cruickshank as if he wanted to distance himself from the bag. Third, the way Mr. Cruickshank was holding the bag was very odd. Fourth, Mr. Graham lied to him when he told him that it was not his bag. Finally he started smelling fresh marijuana from the bag. He said it was the “constellation of these events together” that gave him reasonable and probable grounds to believe there was fresh marijuana inside the bag.

[60] Officer Joshi testified that he never smelled marijuana coming from Mr. Graham because he was “distracted” with the smell of marijuana coming from the bag.

[61] Mr. Cruickshank testified that he knows what burnt and fresh marijuana smells like. He did not smell either from the bag that he was holding or from Mr. Graham. Significantly this evidence was not challenged in cross-examination.

[62] Officer Crawford testified that Officer Joshi was with Mr. Cruickshank and he walked towards the black posts closer to where he was standing [these are car barriers near the bottom of the ramp] and he heard him say quietly “he’s got a gun”. He was talking to Mr. Graham at that point and understood that Officer Joshi meant there was a gun in the bag that Mr. Graham had passed off. Officer Joshi had the bag when he said this. Officer Crawford said that Officer Ahluwalia was beside him at this time. He paused as he was surprised and it took him a minute to register. Officer Joshi said it again. Officer Joshi never said that he smelled marijuana or that Mr. Graham was arrestable for possession of marijuana.

[63] Once Officer Joshi announced there was a gun, Officer Ahluwalia realized that Mr. Graham was to be arrested for possession of a firearm and he grabbed Mr. Graham by the left arm. Officer Crawford testified that he grabbed Mr. Graham by his right arm and Mr. Graham turned quickly and took a step as if he was going to run away. He couldn’t and he and Officer Ahluwalia took him to the ground holding his hands behind his back. Officer Crawford had his knee on his shoulder. He yelled at him that he was under arrest for possession of a firearm. Mr. Graham complied at that point. He yelled at the other two males to get back. There is no suggestion that at any point prior to his arrest that Mr. Graham made any effort to run away or that the officers had any concern that he might. Officers Ahluwalia and Crawford did a quick pat-down search of Mr. Graham while he was being held down and no other weapons were located.

[64] Officer Joshi ran back to the van and made a radio call at 5:23 advising that they needed a unit to bring handcuffs. He then ran back towards the railing and the two men were still standing there. The units were now on scene and Mr. Graham was being handcuffed and taken into custody. Officer Joshi took the handgun over to the grassy area, and there he proved the gun safe. The gun was loaded with five more rounds in the magazine.

[65] Once the handcuffs arrived Officer Ahluwalia handcuffed Mr. Graham to the rear and stood him up. At 5:27 p.m. Officer Ahluwalia testified that he advised Mr. Graham that he was under arrest for possession of a firearm and he read the rights to counsel from the back of his memo book to Mr. Graham. Mr. Graham said he understood and when he was asked if he wanted to call a lawyer he said that he wanted to call Ted Royle. He was given the primary and secondary caution and each time he said he understood. He was very cooperative.

[66] Officer Ahluwalia testified that at 5:29 p.m., as a result of a further pat-down search, he located a clear Ziploc bag with a picture of a red apple on one side, that contained several small bags of a leafy substance that appeared to be marijuana. The bag was found in Mr. Graham’s left pants pocket. He turned the baggies over to Officer Crawford. There was also some money in the right pocket but he did not seize it at that time. It is significant that it was at this time that he told Mr. Graham that he was also under arrest for the possession of marijuana.

[67] Back at the station Officer Joshi turned over a small baggie of marijuana that he had found in Mr. Graham’s bag to Officer Crawford.

[68] Although it has taken me several pages to summarize the evidence of the officers and Mr. Cruickshank as to what they observed, said, heard and did from the time they first observed Mr. Graham to the time of his arrest, the time between those two events was not more than two minutes. According to Officer Crawford’s notes, the first observation of Mr. Graham was at 5:20 p.m. and the takedown and arrest was at 5:22 p.m. Officer Crawford said about a minute of those two minutes would be attributed to the time it took for the officers to get out of the van and to the interaction with Mr. Graham and his arrest. At the preliminary inquiry he said it was approximately 45 seconds to a minute. He adopted the accuracy of that answer. He agreed that it was seconds from the time that Officer Joshi jumped the railing to the arrest. This is consistent with the evidence of Mr. Cruickshank. He was able to have a conversation with Mr. Graham before the officers arrived and during that conversation saw the van first when it was turning onto Rampart Road. Some amount of time after 5.22 p.m. would already have elapsed for Officer Ahluwalia to make the U-turn and speed down Rampart Road.

The Evidence Seized From Mr. Graham

[69] The firearm found in the bag and seized by Officer Joshi was a mini Glock, 36.45 calibre, similar to what police officers carry but smaller. As already stated, when he seized the gun it was loaded with one bullet and there were five rounds in the magazine. Counsel have agreed that Mr. Graham’s DNA was on the grip of the handgun.

[70] The Ziploc bag of marijuana seized by Officer Joshi was just a little larger than one-inch square. It weighed 1.25 grams. The bag it was found in was a very old Coach bag made from a heavy twill material. The gun was found inside a zippered pouch. The inside of the pouch had a suede-like backing that does not look very breathable.

[71] In Mr. Graham’s pocket Officer Ahluwalia found eight other small Ziploc bags of marijuana inside a larger Ziploc bag. Officer Crawford randomly selected one and weighed it at 0.79 grams. He put all seven into a bulk exhibit and they weighed 4.54 grams. Accordingly the total weight of all the marijuana was 6.85 grams. There is no dispute that all Ziploc bags were sealed when they were seized.

[72] Back at the station Officer Ahluwalia was told that Mr. Graham would also be charged with possession of proceeds of crime and so he took the money that was in Mr. Graham’s possession when he was booked in and seized that; $85. The cash seized by Officer Joshi totaled $210.

Officer Training in the Smell of Marijuana

[73] Officer Ahluwalia testified that he knows the difference in the smell between fresh versus smoked or burnt marijuana. He described training he received at the Ontario Police College where he was exposed to the smell of unburnt marijuana and to the smell of burnt marijuana. He also testified that he has made numerous arrests with respect to marijuana and has seized marijuana but he gave no particulars of how the marijuana in those cases was packaged and where it was seized from.

[74] Officer Crawford testified that the smell of marijuana is an uncommon odour but he knows it well from his experience and training at the Ontario Police College where he was exposed to a controlled burn. Officer Crawford also testified that he had experience when he was with the TAVIS Team where he took a two week course and did several seizures of marijuana. He also gained experience as a member of the Toronto Drug Squad where he was involved in seizures of marijuana. He also did a lot of vehicle stops where there was the odour of marijuana and he has been an exhibits officer in cases where a lot of marijuana has been seized. Officer Crawford gave no particulars of how the marijuana in those cases was packaged or where it was seized from.

[75] Officer Joshi described his training with the smell of marijuana and it would appear it was similar to the other officers. At the Ontario Police College he smelled fresh marijuana and then a controlled burn of marijuana inside a room. Prior to this arrest, when he had previously arrested Mr. Graham, he had 200 grams of fresh marijuana in Ziploc bags. Officer Joshi had also arrested several other defendants for anywhere from smoking a joint, to rolling a joint, or to having individual baggies on their person. Some of these arrests were based on smelling the marijuana but again he gave no particulars of how the marijuana was packaged or where it was seized from.

[76] It was clear from the evidence of the officers that their training involved only the smell of marijuana in a confined space where the marijuana was not packaged in any way. Although they testified they had experience with arrests and other handling of marijuana they did not say that they had previously smelled marijuana while packed in Ziploc bags or that they had had any training with marijuana packaged in this way.

The Lost Evidence

[77] On the third day of the trial I was advised that it had come to the attention of counsel that on August 28, 2013, Officer Crawford had requested that a copy be made of video from surveillance cameras located at the Community Centre for, I presume, the time in question, and that counsel did not know what had happened to this request. Inquiries were being made and on November 21, 2014, I heard evidence from Officer Colucci, who was asked to pick up the DVD by Officer Crawford on August 28, 2013. He did so and brought the DVD back to the station and put it in Officer Crawford’s drawer in the Community Response Office. Officer Colucci had no further knowledge about the DVD but did admit that he did not log it in as he should have. He expected that Officer Crawford would do so.

[78] Detective Galant, the officer in charge, then testified. He was unaware of the DVD until the issue arose during the trial. He testified about the many inquiries he had then made trying to find the DVD. He also gave evidence about how the DVD should have been logged in to avoid it being lost and to ensure that it be disclosed. Detective Galant spoke to Mr. Cruickshank and testified that Mr. Cruickshank was “300% sure” that the three cameras that were out front of the Community Centre were not working and the incident would not have been captured on video. Officer Crawford testified by conference call as he was now on holiday in Florida. He recalled ordering the DVD and asking Officer Colucci to pick it up but he did not recall Officer Colucci telling him that he got it. He assumed that Officer Colucci would have submitted the DVD as evidence or told Detective Galant about it. He said that if he had seen it he would have submitted the DVD to the officer in charge or to evidence.

[79] I am very concerned about how this DVD was handled by police particularly given the evidence of Detective Galant as to how it should have been logged and safeguarded. Although I was very impressed with Detective Galant’s evidence I am disturbed by some of what he said as to how often the protocols are not being followed.

[80] However, Mr. Royle advised that he would not bring a lost evidence application because even though he submits that there was unacceptable negligence in the safeguarding of the DVD, he could not prove that the incident had been captured on video. In fact in my view given the evidence from Mr. Cruickshank it is likely that it was not. Accordingly I need not say more about this issue save to consider Mr. Royle’s argument that this issue impacts on the credibility of Officer Crawford which I will come to.

Preparation of the Police Notes

[81] The officers prepared their notes sometime after they were back at 23 Division. They all admitted that they did so in in the presence of each other although they denied collaborating with each other.

[82] Officer Ahluwalia said he prepared his notes shortly after 9:16 p.m. He admitted that they confirmed with each other about some of the times and locations, for example, which way the doors of the Community Centre faced.

[83] Officer Crawford said he prepared his notes between 10:30 and 12 a.m.; considerably later than Officer Ahluwalia but he too admitted that they consulted with each other in terms of the time of events. Officer Crawford also admitted that they discussed “officer safety aspects” which he said was the fact that they had no handcuffs. He testified, however, that his notes were made up with his independent recollection.

[84] Officer Joshi was not questioned about his notes apart from the usual questions to permit him to refer to them to refresh his memory.

[85] Suggestions were put by Mr. Royle to Officers Ahluwalia and Crawford that they collaborated on their notes which they denied. Without having copies of all of the notes to compare, based on the evidence I do have, I do not conclude that the officers improperly collaborated on making their notes. This is despite the concerns I have about the evidence of Officer Ahluwalia that I will come to and the fact that the evidence of Officer Crawford, which I accept, that officer safety issues were discussed could be interpreted broadly to include the entire incident since I presume even just talking to someone like Mr. Graham, given his criminal record, would be concerning from an officer safety point of view.

[86] However, I do agree with Mr. Royle that this practice of the officers writing their notes in the presence of each other is far from what I would consider to be best practices. The evidence on this issue is similar to virtually every criminal case I have tried and even though fortunately the issue of officers collaborating on their notes is not usually raised, it is certainly not uncommon. When it is raised, as it was in this case, it puts the Court in a very difficult position. It requires the Court to consider an issue that the officers could avoid if they wrote their notes up in separate locations and without consulting with one another. Surely times could be obtained from records at the station such as the ICAD which I believe records the radio calls. If it is necessary to consult another officer or an outside source for a particular point, in my view that should be stated in the notes.

Analysis and Findings of Fact

Assessment of credibility of Officer Ahluwalia

[87] Officer Ahluwalia has been a police officer for over five years and has spent all of his time in 23 Division. He was the most junior of the three officers. He seemed nervous when he testified and in cross-examination he was very defensive. I have concerns about some of his evidence.

[88] Officer Ahluwalia had obviously carefully prepared before giving evidence by reading the transcript of his evidence from the preliminary inquiry on May 2, 2014, which is commendable, but he was so familiar with his evidence he used it to defend alleged inconsistencies in his evidence that would normally be done by the Crown in re-examination.

[89] While I found that strange, what is concerning is that Officer Ahluwalia used this strategy to deal with factual issues that would only be important to the officer if he was carefully considering the issues that I would be dealing with on this application. For example, at trial he said he could not recall if he made the U-turn before or after Officer Joshi mentioned knowing that the person was Bush. However, at the preliminary inquiry he testified that Officer Joshi made that statement before he made the U-turn. When this evidence was put to him in cross-examination by Mr. Royle, he testified that shortly after answering this question at the preliminary inquiry, he clarified this answer somewhere else in the transcript. He then repeated his evidence that he could not say if Officer Joshi’s comment was before or after the U-turn. I can only presume that this answer was not qualified elsewhere as Mr. Tice did not take Officer Ahluwalia to such a passage in re-examination.

[90] This factual issue was also addressed when Officer Ahluwalia was cross-examined on his notes. He agreed that he would try to make his notes chronologically and that in his notes he wrote that Officer Joshi said Mr. Graham was a known drug dealer, that he had been arrested in the past for drugs, that the male was carrying a dark bag and that the next entry was his making a U-turn. Once again Officer Ahluwalia did not admit that his notes were accurate in terms of chronological order.

[91] As I will come to, Officer Ahluwalia is aware of the basic principle that one’s memory is usually better closer to an event. The only reason that I can think of as to why Officer Ahluwalia would be so insistent in not adopting his earlier evidence, as confirmed by his notes, is that he realized that if he made the U-turn before any conversation about Mr. Graham that would give more credence to his evidence that he only wanted to investigate him for an HTA violation.

[92] Another example where Officer Ahluwalia would not accept that his notes were chronologically accurate is with respect to his note that Officer Joshi took a bag from Jason. At trial, once Officer Ahluwalia noticed this in his notes he testified that when he approached Mr. Graham, Mr. Graham made an utterance and said “that’s not my bag”. He volunteered this information; no questions had been asked of him. Officer Ahluwalia admitted that his notes refreshed his memory on this. Although Officer Ahluwalia states in his notes that Officer Joshi took the bag from Jason and that Mr. Graham then said: “that’s not my bag” he testified that he made his notes seven to eight hours later (in fact it was four hours on his evidence) and that he can’t always get his notes down in chronological order. He could not say if Mr. Graham said it was not his bag before or after Officer Joshi took the bag. He was sure, however, that it was the first thing that Mr. Graham said. Furthermore, although he noted that Officer Joshi took the bag he said that he did not see that happen. He testified that he made the note because Officer Joshi handed the bag to him and so he must have taken the bag at some point. This is an area where I wondered if Officer Ahluwalia was putting information in his notes that he received from other officers.

[93] Another inconsistency in Officer Ahluwalia’s evidence is that at trial he said he didn’t want to lose sight of Mr. Graham and there was a sense of urgency in that he wanted to talk to him and there was still a sense of urgency after he stopped the van. He testified that as Mr. Graham was walking towards the front door of the Community Centre there was urgency in that if Mr. Graham entered the Community Centre there would be a lot of other things to consider. Officer Ahluwalia was taken to the evidence he gave at the preliminary inquiry when he agreed that there was no real sense of urgency when he was parking the van. Officer Ahluwalia would not admit that there was an inconsistency between his evidence at trial and at the preliminary inquiry and gave a very convoluted explanation to try and reconcile this evidence, which included a suggestion that his use of the word “urgency” and its meaning was different at the preliminary inquiry than at trial. This exchange also suggested to me that Officer Ahluwalia and at least Officer Joshi had collaborated on notes but as I have said I do not have enough evidence to make that finding.

[94] At the preliminary inquiry Officer Ahluwalia did not recall if Officer Joshi went around the railing or hopped over it. In cross-examination at trial he agreed that he had just testified that Officer Joshi hopped over the railing. When this was put to him, Officer Ahluwalia volunteered that the events were fresher when he gave his evidence at the preliminary inquiry than they were now so he adopted his earlier evidence. I found it interesting that Officer Ahluwalia did not apply this principle to other examples of inconsistencies. Furthermore, it is not usual for a witness to make this admission without any prompting.

[95] Apart from these types of issues I also have a great deal of difficulty with the fact that Officer Ahluwalia professed to be the only one talking to Mr. Graham and that he did not know what Officer Crawford was doing. This evidence makes no sense given all the other evidence. Clearly Officers Ahluwalia and Crawford were dealing with Mr. Graham together. It was as if he did not want to have to answer questions about what Officer Crawford was doing. The same is true when he maintained that he did not see Officer Joshi take the bag. The officers were very close together and Officer Ahluwalia’s professed ignorance of what his fellow officers were doing, certainly at least with respect to Officer Crawford, was incredible.

[96] For these reasons I do not have the confidence in the evidence of Officer Ahluwalia that I would hope to have in the evidence of a police officer. That said, as I will come to, there are aspects of his evidence that I do believe are true, and that I rely upon.

Assessment of credibility of Officer Joshi

[97] Officer Joshi has been with TPS for seven years and he too has spent his entire time at 23 Division. He admitted that he was convicted of discreditable conduct as a police officer for impaired driving. He was suspended for 17 days without pay. Although not a crime of dishonesty, this conviction is concerning and certainly is what I would consider discreditable conduct.

[98] I found Officer Joshi to be the least credible of the officers and overall I would reluctantly have to say that his evidence was incredulous. I will come to my conclusions with respect to his evidence justifying the search of Mr. Graham’s bag. Even apart from that evidence I found, for example, his professed and repeated worry over how Mr. Graham was doing and how he could help him, as a result of what he observed when Mr. Graham recklessly crossed on his bicycle in front of the police van, to be untrue. He made quite a production of stressing this, presumably hoping I would accept his evidence that he had absolutely no interest in investigating Mr. Graham for any possible criminal activity and that he had absolutely no interest in the bag Mr. Graham had been carrying until he smelled marijuana coming from the bag while it was being held by Mr. Cruickshank. I also have trouble with the fact that he alleges that Mr. Graham looked at the police van twice, both as the van braked to avoid him and again on Rampart Road. Officer Joshi was in the backseat and neither of these observations were made by the other officers. Officer Joshi referred to this observation as one of his grounds in justifying his seizure and search of the bag, I presume on the basis that this evidence could support an inference that Mr. Graham knew he was being followed by police and that is why he handed his bag to Mr. Cruickshank.

[99] For these and other reasons I will come to, I have unfortunately come to the conclusion that much of Officer Joshi’s evidence is fabricated in order to justify his seizure and search of the bag.

Assessment of credibility of Officer Crawford

[100] Officer Crawford has been with the TPS for nine years and is the most experienced of the three officers. In many respects I found him to be a fair and honest witness. His demeanour did not change when he was being cross-examined and he was not argumentative or evasive. He seemed thoughtful but firm in his answers.

[101] Unlike Officer Joshi, Officer Crawford was honest in admitting that the decision to follow Mr. Graham was made not just because of how he was riding his bicycle but also because of who he was and the fact that the officers were suspicious that he might be involved in criminal activity. Officer Crawford also fairly admitted that he was suspicious of why Mr. Graham had a bag and why he would hand it to someone else and that the bag that Mr. Cruickshank had was of interest even before the handgun was found. These admissions are consistent with common sense and the information the officers had about Mr. Graham. I also see nothing wrong with this. In fact provided the police did not violate Mr. Graham’s Charter rights, I would expect them, as part of their general duties, to monitor the behaviour of someone like Mr. Graham when they come into contact with him when on patrol, or as Officer Crawford put it, see what he is up to. The courts have accepted proactive policing as a legitimate police function provided it is limited to steps which do not interfere with individual freedoms; see, for example, Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3rd) 223 (C.A.).

[102] Mr. Royle argued that the fact the DVD of the surveillance from the Community Centre was not produced impacts adversely on Officer Crawford’s credibility. He submitted that Officer Crawford’s evidence that he never thought about following up on the DVD could simply not be true. I do not accept that submission. Although I have no reason to accept the evidence of Officer Colucci, which means the DVD was placed in Officer Crawford’s drawer, I accept that he may have forgotten to follow up on the DVD at the time and as such had no recall about it. There is no evidence to suggest that he destroyed or held back the DVD or any other evidence that could impact on his credibility. The fact he may have been negligent in my view does not assist me in assessing his credibility on this application.

[103] I will come to my findings with respect to the crucial part of Officer Crawford’s evidence that he smelled marijuana coming from Mr. Graham when I consider the totality of the evidence and make my findings of fact.

Assessment of credibility of Mr. Cruickshank

[104] Mr. Cruickshank was and is an employee for the City of Toronto Parks and Recreation, responsible for designing recreation programs for Elmbank Community Centre. He testified that he had come to know Mr. Graham – Bush - since he had started working there 15 years ago. Mr. Graham would bring his daughter there as well. Mr. Cruickshank liked him and said Mr. Graham was friendly and had never given him any problems at the Community Centre. That said I did not get the impression that Mr. Cruickshank would not be honest or would in any way try to tailor his evidence to help Mr. Graham. One thing that was clear, particularly as the questioning of Mr. Cruickshank continued, was that he was not happy to be called as a witness. Mr. Tice fairly conceded that he was an honest witness but questioned whether his evidence was reliable because he had no interest in the bag and no reason to pay attention to what was happening.

[105] There were understandably some details that Mr. Cruickshank was no longer firm on as his memory had clearly faded. For example at trial, Mr. Cruickshank testified that while the officers were standing with Mr. Graham that they did not touch him until Officer Joshi found the gun. This evidence is consistent with the evidence of all three officers who testified that they had no physical contact with Mr. Graham and no one patted him down before the bag was seized by Officer Joshi. Evidence Mr. Cruickshank gave at the preliminary inquiry, which was that while Officer Joshi was searching the bag, the other two officers were doing a pat-down search of Mr. Graham was brought to his attention. He agreed with this evidence but said that he couldn’t testify now if the pat-down search occurred before or after the officer took the bag. In cross-examination by Mr. Tice, Mr. Cruickshank agreed that he had not mentioned the pat-down search in his statement to police and he admitted that he could not say if it happened at all.

[106] The evidence that Mr. Cruickshank gave at the preliminary inquiry on this issue would have helped the Defence and so this exchange assisted in my determining that Mr. Cruickshank was simply doing his best to be a truthful witness and that where he could not be sure of his evidence he would say so. On the key details Mr. Cruickshank was firm and I do not accept Mr. Tice’s submission that the fact he had forgotten these types of details suggests his evidence is unreliable. I therefore find that the evidence that he did give is reliable.

[107] In any event, on two key points the evidence of Mr. Cruickshank was not challenged. His evidence that Officer Joshi immediately went to the bag was not challenged by Mr. Tice in cross-examination. Furthermore, one of the most critical parts of Mr. Cruickshank’s evidence was his evidence that he knows how fresh and burnt marijuana smells and that he did not smell either smell when he was having his conversation with Mr. Graham or while he was holding his bag. He was firm on this and notably this evidence was also not challenged in cross-examination by Mr. Tice.

[108] For these reasons I find that Mr. Cruickshank’s evidence is credible and reliable and to the extent it differs from the evidence of the officers I prefer his evidence.

The Law

[109] Because the central issue on this application comes down to a credibility assessment, it is not necessary to consider the usual cases relied upon when ss. 8 and 9 of the Charter are alleged to have been breached. Mr. Royle drew my attention to the decision of R. v. Polashek, 1999 CanLII 3714 (ON CA), [1999] O.J. No. 968 which was of assistance on the question of smell as a basis for reasonable and probable grounds. At paragraph 13 of that decision Rosenberg J.A. commented that:

The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an “unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace.

[110] Justice Rosenberg then went on to quote from Justice Doherty’s decision in R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. No. 308 where Doherty J.A. observed at p. 202 that “subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.” Rosenberg J.A. then stated at paragraph 14, that he would not go so far as to say the presence of a smell of marijuana could never provide the requisite reasonable and probable ground for an arrest and that in some cases the trial judge might be persuaded that there was sufficient evidence to conclude that the officers had accurately detected the odour of marijuana.

[111] This has been confirmed more recently by the Court of Appeal in R. v. Valentine, 2014 ONCA 147, [2014] O.J. No. 876 where at paragraphs 53-57 the court referred to this passage form Polashek and stated: “While this court has cautioned against placing undue reliance upon evidence of smell, it has also recently confirmed that ‘there is no legal barrier to the use of such evidence’ [citations omitted]”.

Findings of Fact

The seizure and search of the bag

[112] I turn then to my findings of fact, dealing first of all with the evidence of Officer Joshi, since it is his evidence that he smelled marijuana and that this led to his seizure and search of Mr. Graham’s bag that led to the discovery of the handgun. The fact that Officer Joshi decided to seize the bag before actually arresting Mr. Graham does not mean that it could not be a lawful search incident to arrest; see R. v. Debot 1986 CanLII 113 (ON CA), [1986] O.J. No. 994 (Ont. C.A.) if Officer Joshi had reasonable and probable grounds to arrest Mr. Graham for possession of marijuana as he said. However, I have already set out some of my concerns with the evidence of Officer Joshi. Considering all of the evidence I have concluded that I do not believe his evidence that he smelled marijuana coming from the bag when he approached Mr. Cruickshank. As such he did not have reasonable and probable grounds for arresting Mr. Graham and as such his seizure and search of the bag was not lawful. My reasons are as follows and are in no particular order.

[113] I accept the evidence of Mr. Cruickshank that he did not smell either fresh or burnt marijuana when he was in conversation with Mr. Graham and when he held his bag. As I have already stated this evidence was not challenged by the Crown. Furthermore, given Mr. Cruickshank’s position at the Community Centre and the area where he works, given the evidence of the officers about drugs in the neighborhood, I am not surprised that he would have experience in smelling fresh and burnt marijuana. The “training” the officers had was really just exposing them to the smell of marijuana and so I find that special training is not necessary to be able to identify the smell. Furthermore I do not accept Mr. Tice’s submission that the officers’ senses were “more turned on”. Officer Crawford said the smell of marijuana is uncommon and I do not believe that Mr. Cruickshank could have “missed” what the officers described as a strong odour of marijuana coming from the bag and Mr. Graham’s person.

[114] The significance of this finding is obvious. Mr. Cruickshank had a conversation with Mr. Graham while Mr. Graham was holding the bag and then for some seconds while he held the bag for Mr. Graham. He testified that they gave each other a fist bump greeting and that they then stood about two to three feet apart. If there was a strong smell of marijuana coming from the bag and/or Mr. Graham he would have smelled it and I accept his evidence that he did not.

[115] Furthermore, the only opportunity that Officer Joshi had to smell the marijuana that was in the bag was once he was close to Mr. Cruickshank. I asked Officer Joshi, who is six feet tall, to demonstrate how Mr. Cruickshank, who is six feet three inches tall, was holding the bag. When he did so, counsel agreed that the distance from his nose to the top of the bag was about four feet. Having seen Mr. Cruickshank describe how he was holding the bag, I find it would have been closer to Officer Joshi’s nose than four feet but it would have been closer to Mr. Cruickshank’s body as he was not holding the bag away from his body as Officer Joshi had demonstrated.

[116] I also do not accept Officer Joshi’s evidence that he could tell that the smell was coming from the bag. When it was put to Officer Joshi in cross-examination that he would not be able to tell where the smell of marijuana was coming from, Officer Joshi said he thought it was from the bag from the way Mr. Cruickshank was holding the bag in front of his body because the bag was “nowhere close to his body” and it was dangling around his knees. Given the evidence of Mr. Cruickshank, I do not accept this evidence. Based on Mr. Cruickshank’s evidence the bag was higher; near his waist/hip area but it would not have been far from his body. Furthermore, I find that it does not make common sense that if there was a smell coming from the bag that Officer Joshi could instantly determine that it was coming from the bag as opposed to Mr. Cruickshank or for that matter from some other source.

[117] I also am not satisfied that the small Ziploc baggie of marijuana could even have been smelled by Officer Joshi. There is no dispute that the baggie was closed and that it was inside a pouch of the bag that was also closed by a zipper. Ziploc bags are common household bags and although I do not find that the baggie was a high end Ziploc bag or even one made by the manufacturer that gives these bags sizes their name, the idea of a Ziploc bag is to make a seal to keep air from coming into the inside of the bag. Common sense would say that as such, it also keeps or at least minimizes air and hence smell coming from the bag.

[118] Furthermore, the quantity of marijuana in this case was small-just 1.25 grams. I inspected the bag and as I have already stated, the bag is lined with a material that does not appear to be particularly breathable. Furthermore, they were outdoors on a summer’s day, not in a confined room. I note that the training the officers receive is in a room; a confined space and does not include training to smell marijuana coming from closed Ziploc bags.

[119] I also do not accept Officer Joshi’s denial that he did not want to find out what was in the bag. He said it was just a black bag on its own and that is all that it meant to him. He repeated that the bag meant nothing to him and that before he smelled the marijuana he had no intention of going to the bag and that he was not the least bit interested in what might be in the bag even after seeing Mr. Graham pass it. When he was asked this again he said “no, not at all”. This evidence is simply incredible. I prefer the evidence of Officer Crawford that I have already summarized and find that the bag must have been of interest to Officer Joshi at least once he observed Mr. Graham pass it to Mr. Cruickshank.

[120] My conclusion that Officer Joshi was in fact interested in what was inside the bag is reinforced by the evidence of Officer Crawford and Mr. Cruickshank. It is clear, particularly from the evidence of Mr. Cruickshank, which I accept, that Officer Joshi jumped the railing in one smooth motion and walked towards him and took the bag and that he didn’t hesitate before he did so. This evidence is consistent with the evidence of Officer Crawford as to what he observed.

[121] This conclusion is also reinforced by the fact that Officer Joshi did not immediately announce that he smelled marijuana and arrest Mr. Graham for possession of marijuana. Even if I accept his evidence that he “arrested Mr. Graham in his head,” he was not able to explain why he would not have actually arrested him for possession of marijuana once he had the bag. The fact he made no mention of smelling marijuana and that Mr. Graham was only initially charged with possession of a firearm corroborates this conclusion as well.

[122] For these reasons I accept the position of the Defence that Officer Joshi went straight to the bag and seized it and that he is not being truthful when he states that he smelled marijuana. As such the Crown has not persuaded me that the search of the bag was lawful. In fact it was clearly an unlawful seizure and search of a bag that Officer Joshi believed belonged to Mr. Graham.

The search of Mr. Graham

[123] I turn then to the evidence of Officers Ahluwalia and Crawford that they both smelled marijuana coming from Mr. Graham’s person. Officer Crawford testified that burnt marijuana has a very distinctive smell and he was clear that he did not smell that. He agreed that the ability to smell unburnt or fresh marijuana depends on various factors. They were outdoors rather than in a confined space but he said that there was no wind. He agreed that the packaging of the marijuana would make it smell less but he said there was still a smell. When it was put to Officer Crawford in cross-examination, whether he recognized how “convenient” this sounded, he was firm in his response and said that those were the observations he made. As I have already stated, Officer Ahluwalia did not note if the smell was burnt or fresh marijuana.

[124] I had more difficulty in making my determinations of fact on this issue since there was clearly more marijuana involved – 5.33 grams and as I have already stated I found Officer Crawford in particular to generally be an honest witness. However, having carefully considered all of the evidence, I have reluctantly come to the conclusion that I do not believe that either Officer Ahluwalia or Officer Crawford smelled fresh marijuana coming from Mr. Graham’s person. My reasons are as follows. Many are the same or similar to my reasoning with respect to the evidence of Officer Joshi.

[125] As already stated I accept the evidence of Mr. Cruickshank that he did not smell either fresh or burnt marijuana when he was in conversation with Mr. Graham and when he held his bag. Although the times are not precise, given where the van was when he first saw it and given that he was in conversation with Mr. Graham at that time, Mr. Cruickshank had more of an opportunity to smell the marijuana on Mr. Graham’s person, even assuming that marijuana packed that way would have a smell, because he was with Mr. Graham for longer than the officers. At the very least he had as good an opportunity as the officers to notice the smell. If there was a strong smell of marijuana coming from the bag and/or Mr. Graham he would have smelled it.

[126] In addition the officers did not explain how they could tell that the marijuana was coming from Mr. Graham as opposed to Mr. Cruickshank. Mr. Cruickshank would have been close to Mr. Graham until the officers started up their conversation and when he withdrew, he did not move very far. If as Officer Crawford said the smell was strong, I do not know how he could have ruled out the possibility that the smell was coming from Mr. Cruickshank so quickly. The fact Mr. Graham had red eyes and other signs of impairment would suggest he had been smoking marijuana, but that would make the smell of burnt marijuana more likely if that is what was causing these signs. Officer Crawford, however, was clear that what he alleges he smelled was fresh marijuana.

[127] I also do not believe that given the way the marijuana was packaged that the officers would have been able to smell it. I have already commented on the fact the marijuana was in Ziploc baggies and I won’t repeat those comments as they apply equally to the eight small baggies of marijuana found on Mr. Graham’s person. In fact, they apply even more since those eight baggies were inside a larger Ziploc bag that was also sealed.

[128] In this regard I found the evidence of Officer Ahluwalia helpful. He made a clear admission that given the way the marijuana was packaged that it was likely burnt marijuana that he smelled. This in my view makes sense and was a truthful answer. It was only when Mr. Royle asked him to confirm that it was not possible for an officer to smell fresh marijuana in these circumstances that he began to resile from this admission and in my view give false evidence. I did not accept his evidence that you could probably smell marijuana despite the way the marijuana was packaged particularly when he agreed that it was an overpowering smell. I find it likely that if Officer Ahluwalia smelled marijuana it was after he removed the marijuana from Mr. Graham’s pocket and even then it is more likely that he would not have smelled it given how it was packaged. For these reasons I have concluded that Officer Ahluwalia did not smell marijuana and as such his evidence does not corroborate the evidence of Officer Crawford that there was a strong odour of fresh marijuana coming from Mr. Graham’s person.

[129] Officer Ahluwalia testified that he did not share the fact that he smelled marijuana with anyone. He also made it clear that if there had been no gun he would not have arrested Mr. Graham for possession of marijuana. This is significant because even if I were to accept all of Officer Ahluwalia’s evidence, on his evidence alone, if the search of the bag was illegal, as I have found, the evidence would not otherwise have been discoverable as a result of a lawful arrest of Mr. Graham.

[130] Officer Crawford said that he did not announce that he smelled marijuana because there was no time but I find that is inconsistent with his evidence that he smelled marijuana. When Mr. Graham was arrested the reason given was possession of a firearm. It was only after the marijuana in his pocket was found that he was also arrested for possession of marijuana. There would have been no reason for Officer Crawford to wait to arrest Mr. Graham for possession of marijuana if he truly smelled marijuana before the gun was found.

[131] For these reasons I do not accept Officer Crawford’s evidence that he smelled fresh marijuana coming from Mr. Graham’s person before Officer Joshi found the handgun or at all. As such there were no reasonable and probable grounds to arrest Mr. Graham for possession of marijuana and accordingly the Crown has not persuaded me that the search of Mr. Graham incident to arrest was lawful. In fact it too was clearly an unlawful search of Mr. Graham’s person and unlawful seizure of the marijuana in his pocket.

Section 24(2) Charter Analysis

[132] Counsel agreed that if I concluded that the search and seizures of evidence were unlawful because of a finding that all of the officers were not telling the truth about smelling fresh marijuana that a s. 24(2) analysis would result in exclusion of the evidence. I find in the circumstances there can be no doubt about that.

[133] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, sets out the factors I must consider and balance in order to make this determination. With respect to the first factor, the seriousness of the Charter breach, I must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law. (Grant at para. 72) This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed "willful or reckless disregard for Charter rights" (at para. 74). The court must also consider whether the police acted in good faith, (at para. 75).

[134] In light of my findings that the officers have not been truthful and that they attempted to persuade me that their actions were all lawful, knowing that they had no grounds to arrest and search Mr. Graham, this was clearly a very serious breach not only of Mr. Graham’s Charter rights at the time but also each officer’s oath to tell the truth. Although Mr. Graham has a serious criminal record, that did not permit them to take shortcuts – he had Charter rights that they willfully disregarded and attempted to hide from this Court in their evidence. This serious and deliberate breach and bad faith conduct strongly favours, if not compels, exclusion of the evidence.

[135] The second factor in Grant, requires a consideration of the impact of the breach on the defendant. When considering the impact of the breach on the accused person's Charter protected interests, it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was "fleeting and technical" or "profoundly intrusive" and consider the effect of the breach on the accused's human dignity: paras. 76, 78.

[136] The majority of the court in R. v. Mann, 2004 SCC 52, found that the evidence obtained as a result of the unlawful search during a detention short of arrest should be excluded. Although the court determined this issue under the earlier test prescribed by R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, the case is still instructive, given its factual similarity. Iacobucci J. said (at para. 56):

The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant's protection against unreasonable search and seizure. [Emphasis added]

[137] In R. v. Mellenthiln, 1992 CanLII 50 (SCC), [1992] S.C.J. No. 100 the court came to the same conclusion at paragraphs 26 and 27 where, even though there was no bad faith on the part of the officers, the court concluded that the evidence seized; marijuana, be excluded.

[138] Although a person's pocket may be a place where there is a relatively high expectation of privacy, the pat-down search in this case was minimally intrusive in that it was done over Mr. Graham's clothing. It was not profoundly intrusive nor did it seriously impact his human dignity.

[139] As for the unlawful search of the bag, the Crown did not assert that Mr. Graham had abandoned it or that he did not have a privacy interest in the bag. The facts of this case are unlike the facts in cases like R. v. Nesbeth, 2008 ONCA 579, [2008] O.J. No. 3086 (Ont. C.A.) where the court found that the accused had attempted to divest himself of possession and control when he threw a bag away. In this case on the evidence, the bag belonged to Mr. Graham, he had passed it to Mr. Cruickshank but he was still standing by the bag. On the evidence of Mr. Cruickshank which I accept, Mr. Graham had handed him the bag so he could remove his sweatshirt. Although Officer Joshi may not have realized this, he was clear in his evidence that he believed the bag belonged to Mr. Graham notwithstanding that it was being held by Mr. Cruickshank and Mr. Graham said the bag was not his; he considered that a lie. The alleged statement by Mr. Graham therefore does not diminish his ownership of the bag.

[140] Considering the seven factors in R. v. Edwards (1996), 104 C.C.C. (3d) 135 (SCC) at para. 45, most if not all apply. I disagree with Mr. Tice that Mr. Graham passed some control in the bag to Mr. Cruickshank. He only passed the bag to him so he could take off his sweater. I find that Mr. Graham had an expectation of privacy in the bag and its contents. Although his privacy interest would not be as high as, for example, his privacy interest in his home, this too was a serious breach of his s. 8 Charter rights.

[141] For these reasons I conclude, although these searches were not the most serious of breaches, in terms of their impact on Mr. Graham, they were both sufficiently serious breaches of his s. 8 Charter rights so as to favour exclusion of the evidence.

[142] Finally, considering the third Grant factor; society's interest in the adjudication of the case on its merits, the handgun and the drugs are real evidence and clearly very reliable evidence. The Crown's case depends upon this evidence. Furthermore, as Mr. Tice submitted, the fact that Mr. Graham’s DNA was found on the gun enhances the strength of the Crown’s case. Without this evidence the Crown has no case. Possession of a loaded handgun is a very serious offence, particularly when that handgun is in a bag outside a community centre and is passed to someone who is unaware of its contents. This is a strong factor favouring inclusion of the evidence or at least inclusion of the handgun. This, however, has the potential to "cut both ways" in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high; Grant at para. 84.

[143] At this stage of the analysis I must weigh the various factors. I do so understanding that there is no overarching rule governing how the balance should be struck; Grant at para. 86.

[144] Although the evidence is reliable and important to the Crown's case and the charges are serious, the breach of Mr. Graham’s s. 8 Charter rights was deliberate and serious. The officers had no regard for Mr. Graham’s Charter rights. Based solely on his serious criminal record they decided not only to talk to him to see what he was up to, but also to search his bag and his person knowing they had no basis to do so. Essentially the officers behaved as if he had no Charter rights because of his criminal record. That of course is not the case and the Court cannot condone such conduct; this was a serious and flagrant breach of Mr. Graham’s Charter rights.

[145] What makes this breach even more serious is that I have found that the officers have acted in bad faith. They came to this Court and gave false evidence in an attempt to persuade me that they smelled a strong odour of marijuana which would, if true, have justified the search of the bag, the seizure of the handgun and the search of Mr. Graham’s person. This was a clear attempt to mislead the court and the officers must have realized they had no lawful basis to act as they did at the time. Given my findings, they must have had some discussion at least about fabricating the notion that they had smelled marijuana from the bag and/or Mr. Graham as it is extremely unlikely that they would each independently come up with this fabrication. They all wrote in their note books that they smelled marijuana and came to court at the preliminary inquiry and then again this Court and gave this evidence under oath, knowing that their evidence was false. Although they may have been suspicious that Mr. Graham was up to something, the end does not justify the means.

[146] Mr. Royle provided a copy of the Court of Appeal’s decision; R. v. L.B., 2007 ONCA 596, [2007] O.J. No. 3290 on the s. 8 issue but it is also of assistance on the s. 24(2) analysis. In that case, Moldaver J.A. speaking for the court emphasized the seriousness of possession of a loaded handgun and the consequences of such behaviour. He stated at paragraphs 81and 82:

That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for purposes of s. 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing potentially dangerous people without a trial on the merits.

Viewed that way, I believe that absent egregious conduct on the part of the police, most Canadians would find it unconscionable for L.B. to be set free without a trial on the merits. By egregious conduct, I have in mind conduct that the community simply would not countenance, even if this meant allowing a potentially violent criminal to escape punishment. Without being specific, it would involve conduct that showed disdain for the rights and freedoms guaranteed by the Charter and that struck at the core values of those rights and freedoms were meant to protect. [Emphasis added]

[147] In my view the conduct of the police officers in this case was egregious and would not be countenanced by right thinking people in the community.

[148] For these reasons, balancing all of the factors as required by Grant, I find that despite the fact a loaded handgun was found in a bag belonging to Mr. Graham, the other Grant factors tip the balance of the s. 24(2) factors strongly in favour of the exclusion of the evidence. Admission of this evidence in this trial would bring the administration of justice into disrepute. This Court cannot condone the serious misconduct of the officers in this case notwithstanding the seriousness of these charges.

Disposition

[149] For these reasons I grant the Defence application. All evidence seized from Mr. Graham’s bag and his person is not admissible in his trial.

­­­­­ ___________________________

SPIES J.

Released: November 26, 2014

Edited Decision Released: December 4, 2014

COURT FILE NO.: 5-378/14

DATE: 20141126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GARFIELD GRAHAM

Defendant

RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 8, 9, 10(A) AND (B) AND 24(2) OF THE CHARTER

SPIES J.

Released: November 26, 2014