CITATION: R. v. Jinje, 2015 ONSC 2081
COURT FILE NO.: 14-40000338-0000
DATE: 20150331
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
M. Bloch, for the respondent
Respondent
- and -
SAMATAR JINJE
Applicant
J. Miglin, for the applicant
HEARD: March 24, 25, 26 & 27, 2015
Nordheimer J. (orally):
[1] On Saturday, January 12, 2013, Mr. Jinje was arrested for illegal possession of a firearm. The arrest took place in Varna Park which is bordered by Ranee Avenue and Varna Drive in the general area of the Yorkdale Shopping Centre.
[2] Mr. Jinje challenges the admissibility of the firearm as evidence in this case on the basis that it was obtained by the police through an unreasonable search and seizure, contrary to Mr. Jinje’s rights under s. 8 of the Charter of Rights and Freedoms, that followed on an unlawful detention, in contravention of Mr. Jinje’s rights against arbitrary detention under s. 9. While Mr. Jinje also asserted a breach of his s. 10(b) rights to counsel, given the view I take of this matter, I do not need to address that latter assertion.
[3] It is necessary to set out the various versions of the events in some detail, both because the facts are obviously important to the Charter analysis but also because the facts reveal a troubling picture, regardless of whose version of the events one chooses to accept.
[4] The incident began in the evening of January 12 as Mr. Jinje and two of his friends were walking through Varna Park. In terms of the few facts that are not in dispute, it is clear that the incident began around 7:20 in the evening. It was dark out. The incident took place along the path that runs in a diagonal fashion through Varna Park in a southeast to northwest direction. There are no lights along this path but there is artificial lighting along both Varna Drive, that borders the park to the east, and Ranee Avenue that borders the park to the north. It is of some importance to note that, at the time, Mr. Jinje was wearing a sleeveless puffy black vest.
[5] I begin with what Mr. Jinje says happened. According to him, as he and his friends started along the path in Varna Park, a uniformed police officer emerged from an unmarked vehicle stopped on Varna Drive and called to him and his friends that he wanted to speak to them. Mr. Jinje and his friends stopped and the officer approached them. The officer said that he was investigating a robbery that had occurred at the Rainforest Café at the Yorkdale Shopping Centre, in which a person had been robbed of an iPhone. While it would appear, based on Mr. Jinje’s description, that this was Officer Correa, based on the evidence of the officers, it seems that the officer who spoke with Mr. Jinje was Officer Correa’s partner, Officer Toms. Nothing much turns on this point but I accept that the officer who spoke to Mr. Jinje was, in fact, Officer Toms.
[6] Regardless of which officer it was, it is of some importance that Mr. Jinje says that, throughout his dealings with these officers, and the other officers who subsequently became involved, he always had both of his hands out of his pockets and by his sides. Mr. Jinje says that he has been stopped by the police numerous times in the past. He says that this is a constant occurrence in the area in which he lives, namely Lawrence Heights, because of the amount of criminal activity that takes place in that area. Mr. Jinje says that he knows from these prior encounters with the police that police officers do not like people to have their hands in their pockets and, indeed, will immediately order people to take their hands out of their pockets when they stop them. Consequently, Mr. Jinje says that he was careful to have his hands out of his pockets when the officers approached.
[7] Officer Toms told Mr. Jinje that he and his friends matched the description of the robbers that the police had. In that regard, I note that the description that the police had of the robbers was simply that they were three black males. Mr. Jinje and his two friends are black and they are males and together they number three. To that extent, the officers were accurate in what they said.
[8] Officer Toms asked if any of them had an iPhone. Mr. Jinje reached into his left pocket and pulled out his iPhone. He told Officer Toms that it was his iPhone. Mr. Jinje says that he unlocked the phone to show that it was his. Officer Toms does not recollect this happening but he does not deny that it could have happened. Officer Toms said ok, can I have your name. Mr. Jinje gave him his name, date of birth and height.
[9] It was at this point that two other officers showed up. It appears clear that these officers were Officer Sabadics and Officer Bilton. Officer Toms stepped away and Officer Sabadics took over. Officers Sabadics was the more senior officer and was also the team leader for these officers, who were all part of TAVIS.[^1]
[10] Officer Sabadics is a female officer. Mr. Jinje says that she approached him and said that she wanted a description. Mr. Jinje told her he had already given his information to the other officer. Mr. Jinje had returned his iPhone to his left pocket. The officer pointed at Mr. Jinje’s stomach and asked what he had there. Mr. Jinje reached into his pocket, produced his iPhone a second time and showed it to her. At this point, Officer Sabadics asked what Mr. Jinje had in his other pocket.
[11] Mr. Jinje responded by asking why the officer was harassing him and his friends. Mr. Jinje also asked why there were so many police officers arriving but did not get answer. At this point, there were at least four officers present and there were four more who would shortly arrive.
[12] Officer Sabadics stepped towards Mr. Jinje. He responded by putting up his hands and stepping back. He said to Officer Sabadics, why are you in my space? At this point, Mr. Jinje says that he felt another officer put his hands on Mr. Jinje’s shoulders and try and turn him in a fashion that Mr. Jinje believed was leading to him being arrested. Mr. Jinje does not know who this officer was.
[13] At this point, Mr. Jinje admits that he started to resist the officer. He says that another officer jumped on his back. Mr. Jinje says that this caused him to collapse such that he had one knee on the ground. Yet another officer jumped on him and Mr. Jinje then went to the ground. Mr. Jinje says that an officer was hitting him in the face while another officer was hitting him on the arms with a baton. Mr. Jinje says that his hands were out from his sides at this point. Mr. Jinje was then handcuffed.
[14] By this point, Mr. Jinje says that the handgun, which he fully admits that he had in his right pocket, was out on the ground. Mr. Jinje says that he does not know how it got onto the ground. In particular, Mr. Jinje says that no one reached into his pocket to remove the handgun.
[15] After being handcuffed, Mr. Jinje was stood up. It was obvious that he was bleeding from his head and an ambulance was called. Both Officer Correa and Officer Toms say that they called for the ambulance, which is just one of the many things upon which this group of officers does not agree. However, it is of no particular importance who called the ambulance. An ambulance did arrive and Mr. Jinje was taken to hospital and treated. Photographs of the injuries to Mr. Jinje’s head, taken subsequently by one of his sisters, were put into evidence.
[16] Officer Sabadics’ evidence regarding these events contrasts markedly with Mr. Jinje’s evidence. Officer Sabadics says that she arrived at the park, along with her partner Officer Bilton, after Officers Correa and Toms were already there. She went directly to the three males and told them about the robbery that they were investigating. Officer Sabadics admits that she did not first speak to either Officers Correa or Toms to determine what they had told the males or what the males had told the officers. She says that Mr. Jinje immediately removed an iPhone from his left pocket and told her that it was his. Officer Sabadics looked at the iPhone. She says that Mr. Jinje told her that he knew the passcode for the phone.
[17] At this point, Officer Sabadics asked her partner, Officer Bilton, to go back to their scout car and check for any updates on the robbery, including any update on the description of the robbers. She says that, immediately after Officer Bilton walked away, Mr. Jinje became very nervous. In particular, Officer Sabadics says that Mr. Jinje’s body language and demeanour changed. She says that he was looking around including glancing at his right pocket. Officer Sabadics says that she noticed Mr. Jinje’s right hand was in his right pocket. In fact, she says that Mr. Jinje had both of his hands in his pockets. Officer Sabadics acknowledges that she did not ask Mr. Jinje to remove his hands from his pockets. Officer Sabadics also says that she noticed that the right pocket appeared to be heavier than the left pocket.
[18] Officer Sabadics says that she concluded from Mr. Jinje’s nervousness, from his looking around, and from the fact that he had “bladed” or turned his right side away from her, that Mr. Jinje had a gun in his right pocket. Officer Sabadics says that she was figuring out how to deal with the situation, including how to get the attention of one or more of the other officers who were with the other males. She says, as a way of buying herself some time, that she asked Mr. Jinje if he had another phone in his right pocket. Mr. Jinje said no but she says that he then shoved his right hand deeper into his right pocket.
[19] Officer Sabadics says that she made eye contact with Officer Toms. She mouthed the word “gun” to him. Officer Toms moved towards Mr. Jinje and, as he did so, Officer Sabadics moved to Mr. Jinje’s left and behind him. Officer Sabadics says that she grabbed Mr. Jinje’s right arm while Officer Toms grabbed his left arm. Officer Sabadics says that it was only at this point that she finally told Mr. Jinje to take this hand out of his pocket, whereas Officer Toms says that he was the one who told Mr. Jinje to take his hand of his pocket and he did so more than once. According to Officer Sabadics, Mr. Jinje did not remove his hands from his pockets and a struggle commenced.
[20] Officer Sabadics says that, as the struggle began, she felt a metal object in Mr. Jinje’s right pocket and this caused her to shout “gun”. Officer Bilton, who had yet to reach the scout car, immediately ran back to the scene. Officer Correa also came over and yet another officer who had arrived on scene, Officer Howard, joined in the struggle. It is not clear where Officer Howard came from. Indeed, Officer Sabadics does not remember Officer Howard even being there.
[21] Officer Bilton says that the other officers had Mr. Jinje down on his hands and knees, when he got back to the area, so he pulled Mr. Jinje’s legs by the ankles and this caused him to go down to the ground. It appears that at this point yet another officer, Officer Censoni, arrived at the scene, thus bringing the total number of officers up to six. The officers continued to struggle with Mr. Jinje whose arms were now underneath him. One officer got his left arm out, Officer Censoni says it was him, and Officer Bilton placed his handcuffs on the left arm. Another officer then got Mr. Jinje’s right arm out, Officer Howard says it was him, and that arm was also handcuffed.
[22] During this struggle, Officer Toms admits that he took out his baton and struck Mr. Jinje four or five times in the head with the butt end of the baton. Officer Toms says that he struck Mr. Jinje “with as much force” as he could. Officer Toms quite openly stated that his intention in inflicting these blows was to either obtain what he called pain compliance from Mr. Jinje or to render him unconscious. After these strikes, Officer Toms says that Mr. Jinje said “ok” and appeared to give up. It was at this point, according to Officer Toms, that the other officers were able to get Mr. Jinje’s arms out from underneath him and handcuff him. None of the other officers admitted to seeing these blows inflicted on Mr. Jinje, but there is no doubt that the blows were struck, as the injuries sustained by Mr. Jinje clearly establish.
[23] On this same point, Officer Correa says that he punched Mr. Jinje several times in his arms and back as the struggle on the ground took place. Officer Correa says that he did not punch Mr. Jinje in the head. Officer Correa also says that he saw another officer, who he did not identify, strike Mr. Jinje with his baton on Mr. Jinje’s right arm.
[24] Two of the other officers, who were involved in this struggle, also gave evidence. Officer Howard says that he arrived at the scene after the four other officers were already engaged with the three males. In particular, Officer Howard says that Officer Sabadics was already talking to Mr. Jinje. Officer Howard stood near to them while that conversation went on. Officer Howard does say that, at one point, Mr. Jinje turned towards him and asked “why are you guys harassing us?”.
[25] Officer Howard says that Mr. Jinje produced his iPhone from his left pocket in response to a request from Officer Sabadics. After he did so, Officer Howard says that Officer Sabadics pointed to Mr. Jinje’s right pocket and asked what was in there. Officer Howard says that Mr. Jinje had his right hand in his right pocket. It was at this point that Officer Howards says that the situation changed. He says that Mr. Jinje took a step back into a defensive stance or fighting stance. Officer Sabadics walked behind Mr. Jinje and asked him to take his hand out of his pocket. Officer Howard says that, at this point, Officer Toms was right in front of Mr. Jinje. Officer Howard says that he had no doubt that Mr. Jinje had something in his pocket. Officer Sabadics reached for Mr. Jinje’s right arm but Mr. Jinje pulled away from her. Officer Howard then grabbed Mr. Jinje’s right arm. It was around this time that Officer Sabadics yelled “gun”.
[26] A struggle ensued and eventually Mr. Jinje was taken to the ground. After some further struggling, Mr. Jinje was handcuffed.
[27] Finally, there is Officer Censoni, who arrived on the scene and was approaching the other officers and the three males, when he heard Officer Sabadics yell “gun” and the struggle broke out. Officer Censoni says that he ran up and joined in the struggle. Officer Censoni says that he assisted in getting Mr. Jinje to the ground after which he says that he delivered four knee strikes to Mr. Jinje’s left ribs in order to get him to release his left arm. Once that was done, Officer Bilton produced handcuffs and the left arm was handcuffed followed thereafter by the right arm being handcuffed.
[28] Having set out the competing evidence, I begin my analysis with a general observation and that is that I find the evidence of the police officers involved in this incident to be fundamentally problematic. My problems begin with the fact that three of the officers admitted that all of the officers involved had prepared their notes back at 32 Division in the lunchroom in the presence of each other. Officer Bilton, in particular, quite candidly admitted that all of the officers discussed what had happened as they wrote up their notes.
[29] This situation is concerning on two fronts. One is that an officer’s notes are supposed to be a record of that officer’s independent recollection of the events in which the officer is involved. If officers make their notes in a group, and discuss what occurred, then no one can have any faith that any officer’s notes represents that officer’s independent recollection as opposed to simply being an amalgam of what other officers remember. The other is that it raises the spectre of collusion having occurred in the recording of the events. All of this serves to undermine the credibility and reliability of these officers as witnesses in terms of their recollection of the events in issue.
[30] I appreciate the Crown’s point that there were differences in the notes, and in the recollections of all of the officers, and those facts suggest that no collusion occurred. I will say two things in response to that point. One is that the fact that the officers may not have been very successful in their collusion does not mean that it did not occur. The other is that the potential for collusion does not require each officer to have participated. Only some may have done so or they may have done so only on a particular point. The result is still problematic.
[31] A further concern arises from this conduct and that is that the one officer who claimed not to remember where she made her notes, or who else was present when she did, is Officer Sabadics, who is the officer who is central to the events in issue. The failure of Officer Sabadics to be upfront about this issue is an additional factor that detracts from her credibility and reliability as a witness. Put bluntly, if Officer Sabadics was not prepared to be honest about this issue, then one must ask what else she was not prepared to be honest about.
[32] As may be apparent from the recitation of the facts, the question of whether what the officers did, that lead to the discovery of the handgun, constituted a reasonable and defensible search of Mr. Jinje, almost entirely depends on the evidence and actions of Officer Sabadics. All of the other officers clearly were relying on Officer Sabadics’ belief that Mr. Jinje had a gun in his pocket as justification for what they did. If Officer Sabadics’ belief is found to be without adequate foundation, then any justification for the actions of the other officers falls away.
[33] On that point, I will say that I do not accept the defence position that Officer Sabadics did not tell the truth about believing that Mr. Jinje had a gun, and that both her and Officer Toms did not tell the truth about her mouthing the word “gun” to Officer Toms. While I will have more to say about Officer Sabadics’ belief about the presence of a gun, I have difficulty accepting that the events would have unfolded as they did if Officer Sabadics created them solely for the reason of wanting to search Mr. Jinje’s pocket for the possible presence of the stolen iPhone, as suggested by the defence. If all the officer was interested in was a phone, there were many other ways of accomplishing that goal without instigating a free-for-all with Mr. Jinje. Further, it is hard to see why Officers Toms and Howard would have jumped into the fray in the manner that they did if the objective was simply to check Mr. Jinje’s pocket for a phone.
[34] I proceed, therefore, on the basis that Officer Sabadics did think that there was a gun in Mr. Jinje’s pocket. The question is whether that belief was reasonably held – both on a subjective and objective basis. I find that it was not.
[35] My starting point for that conclusion is that I do not accept the evidence of Officer Sabadics and I do not do so for the following reasons. First, and foremost, is the number of contradictions or inconsistencies between the evidence of Officer Sabadics and that of the other officers.
[36] Officer Sabadics said that Mr. Jinje had both of his hands in his pockets, a fact that Mr. Jinje denies. Mr. Jinje not only denied that he had his hands in his pockets, he gave a very good reason why he would not have his hands in his pockets. Mr. Jinje has been stopped by the police numerous times before (a fact that is not contested) and, as a result, he knows that police officers do not like it when people, who they are in contact with, have their hands in their pockets. That is a reality that was confirmed by both Officer Toms and Officer Bilton. I note, on this point, that Officer Bilton confirmed Mr. Jinje’s evidence that he had both of his hands out of his pockets, when the officers were first talking to him. Other officers say that Mr. Jinje had at least his left hand out of his pocket during their encounter with him. Yet Officer Sabadics maintains that Mr. Jinje had both of his hands in his pockets.
[37] At the same time, Officer Sabadics maintains that she was not concerned with the fact that Mr. Jinje had both of this hands in his pockets while she was talking to him – a position that is diametrically opposed to what the other officers said about their general practice and is, in addition, contrary to common sense. It is self-evident that a police officer approaching someone will want to see the person’s hands to ensure, among other things, that the person does not have a weapon. That will be particularly so when encountering a person in a dark area.
[38] Officer Sabadics also says that, immediately after Officer Bilton left to return to the scout car, which he did at her express request, Mr. Jinje immediately became nervous and his body language and demeanour changed. There were other officers in the area and no one else saw this change. Indeed, Officer Toms, who appears to have been the officer next closest to Mr. Jinje at this point, after Officer Bilton left, said that he saw no such change in Mr. Jinje. Indeed, Officer Toms went further and said that he would have had no concerns about Mr. Jinje, but for the fact that Officer Sabadics mouthed the word “gun” to him.
[39] There is no logical reason, to which anyone can point, why Mr. Jinje would suddenly become nervous at this point in time. He cannot have been concerned about Officer Bilton returning to the scout car to find out more details about the robbery because Mr. Jinje was not involved in the robbery. And there is no other apparent reason. While the Crown suggests that Mr. Jinje became nervous because Officer Sabadics asked what was in his other pocket, Officer Sabadics’ evidence was that Mr. Jinje had already displayed this change in behaviour by the time that she asked him that question. Indeed, Officer Sabadics says that she had already formed her belief that Mr. Jinje had a gun by that point, and that she asked him about the other pocket as a way of buying some time while she figured out what she should do.
[40] What the departure of Officer Bilton did do, of course, was leave Officer Sabadics alone in terms of the officer most directly dealing with Mr. Jinje. It means that neither Officer Bilton, nor any other officer, was directly present with Mr. Jinje to see, or not see, these behavioural changes upon which Officer Sabadics almost exclusively relied for her belief that Mr. Jinje had a gun.
[41] Another contradiction arises from Officer Sabadics’ evidence that, after she moved behind Mr. Jinje, she grabbed Mr. Jinje’s right arm and then asked him to remove his hand from his pocket. Officer Toms does not recall any such demand by Officer Sabadics but does say that he gave multiple commands to Mr. Jinje to take his hands out of his pockets. No other officer recalls these multiple demands. Officer Howard does say that Officer Sabadics asked Mr. Jinje to take his hand out of his pocket but Officer Howard says that this demand was made before any attempt by Officer Sabadics to take Mr. Jinje’s right arm.
[42] Further, in terms of contradictions, we have three officers who each claim to have grabbed Mr. Jinje’s right arm. Officer Sabadics says that she grabbed Mr. Jinje’s right arm. Officer Howard says that Officer Sabadics tried to grab Mr. Jinje’s right arm, but that Mr. Jinje pulled away from her before she could do so. Officer Howard says that he then grabbed Mr. Jinje’s right arm. In addition, Officer Toms says that he was the one who grabbed Mr. Jinje’s right arm. It will be obvious that only one of these officers can be correct about who grabbed Mr. Jinje’s right arm.
[43] Still further on the subject of contradictions and inconsistencies, Officer Sabadics says that, when she grabbed Mr. Jinje’s right arm, she could feel something hard in the right pocket. This, of course, could only be true if Officer Sabadics actually grabbed Mr. Jinje’s right arm as opposed to it having been done by either Officer Howard or Officer Toms. In addition, although Officer Sabadics was not asked this question, it would seem logical that, if she grabbed Mr. Jinje’s right arm, she would have used both hands to do so. I say that because, if Officer Sabadics honestly believed that Mr. Jinje had a gun in his right pocket with his hand on it, she would want to ensure that she had absolute control over that right arm. Indeed, that is exactly what Officer Howard said he was concerned about when he grabbed Mr. Jinje’s right arm. Officer Sabadics was a great deal smaller than Mr. Jinje, so there is even more reason for her to use both of her hands to grab Mr. Jinje’s arm. If that is correct, then neither of her hands were free to feel a hard object in the right pocket.
[44] In addition to the contradictions and inconsistencies, a second reason that leads me to disbelieve the evidence of Officer Sabadics is that I do not accept her evidence that she observed the right pocket to be heavier than the left pocket. This was the other central reason that she relied upon for her belief that Mr. Jinje had a gun, in addition to his alleged nervousness and body language. Mr. Jinje was wearing a puffy black vest at the time of his encounter with these officers. During the course of his evidence, Mr. Jinje was asked to put the same vest on. He then put the same handgun into his right pocket. To my observation, there was no readily apparent difference in the appearance of the right pocket to the left pocket, after the handgun was placed inside it. In addition on this point, I note that I had the benefit of observing the vest and the pockets in a bright, well-lit, courtroom. Officer Sabadics was observing the pocket on a pathway, in a park, in darkness, with little to no artificial lighting.
[45] A third reason for my disbelief of Officer Sabadics’ evidence is that she began her analysis of Mr. Jinje’s actions based on her assumption that Mr. Jinje and his two friends were walking away from Yorkdale Mall because of their positioning on the pathway. This reinforced the possibility, in her mind, that these males could have been involved in the robbery that the police were investigating. However, we know from Mr. Jinje, and from Officers Correa and Toms who first observed him and his friends, that Mr. Jinje was actually walking towards the Yorkdale Mall, at the time that the officers stopped them. Consequently, not only was Officer Sabadics’ mind set towards Mr. Jinje based, at least in part, on a faulty assumption, the fact that she made that assumption, without any effort to consult with her fellow officers to determine the true facts of what had occurred, says a great deal about the officer’s general approach to her dealings with Mr. Jinje.
[46] In the end result, the central events began with Officer Sabadics drawing the conclusion that Mr. Jinje had a gun in his right pocket. She said that she based this conclusion on Mr. Jinje’s nervousness and body language and the heavier right pocket. Officer Sabadics said that her belief in that regard lead to her decision to arrest Mr. Jinje for unlawful possession of a handgun.
[47] The fact is that Officer Sabadics did not have a proper basis to arrest Mr. Jinje for that offence. In order to arrest a person, a police officer must have reasonable and probable grounds to believe that the person has committed a criminal offence. Not only were there no reasonable and probable grounds to believe that Mr. Jinje had committed that offence, there were no reasonable grounds to suspect that Mr. Jinje was involved in the robbery that the police were investigating. There was nothing to connect Mr. Jinje to the robbery, other than the fact that the robbers were three black males and Mr. Jinje and his friends were also three black males. That fact is meaningless in terms of any grounds to believe or suspect: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45.
[48] Rather, based on the evidence that I have heard, Officer Sabadics, had, at best, only a hunch that Mr. Jinje was in possession of a handgun. I do not know what lead Officer Sabadics to this view which was, in essence, nothing more than a guess, but it matters not. A hunch is not good enough to undertake either a search or an arrest. Not only must a police officer have a subjective belief in reasonable and probable grounds for those actions but that belief must be objectively reasonable. As Doherty J.A. said in R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (C.A.), at p. 501:
A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be.
[49] There is nothing in the evidence before me that would sustain, even on a subjective basis, Officer Sabadics’ belief that Mr. Jinje had a gun. Perhaps it was some instinctive reaction, or some form of premonition, or some other feeling that lead Officer Sabadics to act as she did. Regardless, the discernable facts do not lead to any basis for a conclusion that Mr. Jinje had a gun other than a wild, but ultimately correct, guess. That result does not amount to a reasonable subjective belief and it certainly does not amount to an objectively reasonable belief. I would add that, even accepting that there was a legitimate reason to believe that Mr. Jinje had something in his pocket that he did not want the police to find, that something could have been any number of items, and not all of them would necessarily have to be illegal.
[50] The bottom line is that Officer Sabadics had no legitimate grounds to arrest Mr. Jinje and, consequently, she, and the other officers, had no proper basis to take control of Mr. Jinje and then conduct a search incident to arrest. In the result, the search of Mr. Jinje’s pocket, and the discovery of the gun, was an unlawful search in violation of Mr. Jinje’s rights against unreasonable search and seizure under s. 8 of the Charter.
[51] In addition to that conclusion, I have already mentioned that the officers did not have sufficient reason to engage in an investigative detention of Mr. Jinje in relation to the robbery. The officers were free to ask Mr. Jinje and his friends if they would speak with them, and Mr. Jinje and his friends could consent to stop and do so, as they did. That voluntary acquiescence, however, changed to an unlawful detention when four or more officers surrounded Mr. Jinje and Officer Sabadics started to make demands that Mr. Jinje did not consent to. At that point, Mr. Jinje would have been entirely within his rights to simply walk away, but that option was no longer realistically open to Mr. Jinje given the police presence around him and the nature and tenor of the demands then being made by Officer Sabadics. Mr. Jinje’s continued presence was then a detention that was arbitrary, and in violation of his rights under s. 9 of the Charter.
[52] With those conclusions reached, the issue becomes whether the evidence of the gun should be excluded under s. 24(2) of the Charter.
[53] The appropriate test to be applied under s. 24(2) is set out in a trilogy of cases decided by the Supreme Court of Canada, with the lead case being R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. However, for the purposes of this case, the most relevant decision is the companion decision in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494. I say that because the facts in Harrison more closely mirror the facts here.
[54] There are three factors to be considered under the dictates of these three cases: (1) the seriousness of the infringing conduct; (2) the impact on the rights of the accused and (3) society’s interest in an adjudication on the merits.
[55] It may be evident, from my reasons to this point, that I view the seriousness of the police conduct in this case to be high. A twenty year old man is walking through a park with his friends and winds up, not only being falsely arrested, but beaten in the process. The fact that the police actually found a handgun does not change the proper analysis – the ends cannot justify the means. The reality is, of course, that had the police not found a gun, this entire situation would likely have never seen the light of day. That reality illustrates the invidious nature of improper police conduct. When an illegal act is discovered through improper police conduct, and a charge is then laid, a court will ultimately have the opportunity to review and address any such misconduct. However, when police misconduct leads to no such discovery, no charge is laid and no court ever has the opportunity to review and rule on that conduct.
[56] While Officer Sabadics may not have set out with the intent to violate Mr. Jinje’s rights, the fact is that her conduct in this matter was not justified by the facts, regardless of what personal judgments she might have formed. Indeed, her conduct demonstrated a complete disregard for Mr. Jinje’s constitutional rights.
[57] I do not fault, given the circumstances, the decision of Officers Toms and Correa to stop Mr. Jinje and his friends to make inquiries. As I have said, they were entitled to do so if Mr. Jinje and his friends agreed to cooperate. Whatever voluntary compliance Mr. Jinje may have initially offered to those officers, however, did not warrant the actions of Officer Sabadics, in particular, her demand to see what was in Mr. Jinje’s right pocket.
[58] Finally, as I have already outlined, I find the evidence of Officer Sabadics to be suspect in many respects. Indeed, I conclude that her evidence was constructed for the sole purpose of attempting to justify her hunch that Mr. Jinje had a firearm. Her lone evidence regarding the alleged change in Mr. Jinje’s demeanour would be the most obvious example of that.
[59] The impact on Mr. Jinje’s Charter rights is significant. While it may not be the most egregious invasion of a person’s privacy, such as, for example, an unlawful search of a person’s home would be, it was nonetheless an invasion of Mr. Jinje’s personal privacy, conducted in a public area, in full view of his two friends. The conduct of the police will also, undoubtedly, only serve to reinforce Mr. Jinje’s perception of unequal treatment at the hands of the police. Mr. Jinje could hardly be faulted for having such a perception given the numerous times that Mr. Jinje has been stopped by the police, as outlined by him in his evidence. That evidence was confirmed, at least in part, by Officer Censoni who said that police records show twenty-seven instances of encounters between Mr. Jinje and the police. I should add, in that regard, that Mr. Jinje has no criminal record. He is employed and he goes to school. He deserves the same respect from the police as any other citizen of this city ought to receive.
[60] Still further, on this factor, is the disturbing fact that, in the course of his arbitrary detention, unlawful arrest and unlawful search, Mr. Jinje was beaten by these officers to the extent that he had to be taken to hospital and have three separate wounds treated with either stitches or staples. It should be remembered, in this regard, that when this excessive force was used, there were six police officers dealing with Mr. Jinje. I note that, of those officers, four of them admitted to striking Mr. Jinje in some fashion or another. Almost all of those blows were inflicted on Mr. Jinje after he was down on the ground. Conversely, none of the officers suffered any injuries in the course of this incident, other than Officer Correa’s loss of his glasses.
[61] In my view, the nature of the unlawful search, coupled with the use of excessive force, inflicted on a presumptively innocent citizen, greatly increases the impact of these events on the constitutional interests of Mr. Jinje.
[62] Lastly, in terms of society’s interest in an adjudication on the merits, I am fully aware of this city’s concern about the prevalence of handguns and the indiscriminate use to which they have often been put. Every effort must be made to remove such weapons from our streets. However, those efforts must be lawful ones, undertaken with full respect for the constitutional rights of every citizen. There will be little to commend our free and democratic society, if we permit police officers, on a whim or a hunch, to detain, arrest and search any citizen in the speculative hope that a firearm will be found and, in the process, administer personal injury to the person who is the subject of their interest.
[63] In this case, just as was the situation in Harrison, the first two factors favour exclusion of the evidence and the third factor favours admission. However, as set out in Grant, the appropriate analysis under s. 24(2) is not simply a mathematical exercise of adding up the pluses and minuses. Rather, it requires a qualitative balancing of the various factors. It also requires, in the long term interests of the administration of justice, for courts to distance themselves from improper police conduct. If courts do not do that, and if courts do not impose the appropriate remedies, then citizens are left without any real recourse when such improper conduct occurs.
[64] In the end result, I view this case in the same way that McLachlin C.J.C. viewed Harrison when she said, at para. 39:
To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion.
[65] I conclude, therefore, that the evidence of the gun must be excluded.
NORDHEIMER J.
Released: March 31, 2015
CITATION: R. v. Jinje, 2015 ONSC 2081
COURT FILE NO.: 14-40000338-0000
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SAMATAR JINJE
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: The acronym stands for “Toronto Anti-violence Intervention Strategy”.