OVERVIEW

[1] In the early afternoon of November 27, 2012, Mr. Anang was arrested at gunpoint by plainclothes members of the Toronto Police Service. He had been driving alone in a rented Ford Focus when he was stopped. Among the items found inside the car were the following:

(i) approximately $3,290.00 in cash;

(ii) a black leather satchel or shoulder bag;

(iii) inside that black bag a large quantity of heroin wrapped in clear plastic bags;

(iv) two aerosol spray cans found to have modified false bottoms that could be unscrewed and removed; and

(v) inside those false bottoms a further quantity of heroin.

[2] The applicant applied to exclude the items recovered from the car based on sections 8, 9 and 24(2) of the Charter. On March 10, 2015 I dismissed the application. These are my reasons.

EVIDENCE ON THE APPLICATION

[3] Detective Constable Adam Hockaday has been a member of the Toronto Police Service since 2007. On November 27, 2012, he was working in plainclothes out of the Major Crime Unit. He had received information from a confidential informant that possibly linked Mr. Anang to the selling of heroin. Checks on police data banks associated Mr. Anang with an apartment at an address on Goreway Drive in Mississauga, as well as to two vehicles, a BMW and a grey Ford Focus.

[4] At approximately 11:30 a.m., Detective Constable Hockaday was conducting surveillance on the Goreway Drive location. He observed both of the vehicles that were associated with Mr. Anang. He alerted other members of the surveillance team to attend the area. The plan was to follow Mr. Anang if he was seen to enter one of the vehicles and drive away. At 12:30 p.m., Mr. Anang left the apartment building and drove away in the grey Ford Focus. Detective Constable Hockaday relayed that information to other members of the team who were parked nearby.

[5] Detective Keith Osbourne and Constable Andrew Pak were plainclothes members of the surveillance team and partners that day. Based on information they received that Mr. Anang was mobile from the Goreway Drive address, they followed him to the parking lot of a C.I.B.C. at the intersection of Martingrove Road and Rexdale Boulevard in Etobicoke. Mr. Anang parked his car in the corner of the parking lot at approximately 12:41 p.m.

[6] From their vehicle, both Detective Osbourne and Officer Pak observed a black man come out of the C.I.B.C building carrying a black bag. They both say that the man approached the front passenger door of Mr. Anang’s vehicle. Officer Osbourne says that he saw a red object sticking out of the bag.

[7] Detective Osbourne testified that he saw the unknown male open the passenger door and place the black bag onto the front passenger seat beside Mr. Anang. Within moments, the unknown male picked up what appeared to be a black bag and went back into the C.I.B.C. Detective Osbourne did not see a red object sticking out of the black bag that the unknown male carried back into the bank. Although both Detective Osbourne and Officer Pak were in the same car, Detective Osbourne believes that he had a better view of the passenger side of Mr. Anang’s car.

[8] Officer Constable Pak has a different recollection. He saw the unknown male approach the passenger door of Mr. Anang’s car with a black bag, open the front passenger door and get into the car. The passenger door was then closed. Moments later, the unknown male got out of the front passenger seat and re-entered the C.I.B.C. He was carrying what looked like a black bag. Officer Pak could not say whether this was the same black bag that the man was carrying when he came from the C.I.B.C. Officer Pak did not mention that he saw a red object sticking out of the black bag.

[9] Mr. Anang then drove out of the C.I.B.C. parking lot. He was followed by surveillance officers until he pulled into the driveway of a residence at 32 Summerfield Crescent in Etobicoke.

[10] Detective Osbourne and Officer Pak remained in their car in a position to observe Mr. Anang’s car in the driveway. There is a fence on both sides of the property that runs from the sidewalk to the house. Exhibits two and three are photos that show the fence as an escalating height with the lowest level nearest the sidewalk. Neither Detective Osbourne nor Officer Pak recalls seeing that fence on November 27, 2012. It is agreed between the Crown and the defence that the fence on both sides of the property has been there since 2007. Neither officer disputed that the fence was there that day. In any event, they both say that they had an unobstructed view of Mr. Anang’s car as it sat in the driveway. Detective Osbourne estimated that they were 100 metres away.

[11] Detective Osbourne testified that shortly after Mr. Anang parked in the driveway, a black male came out of 32 Summerfield Crescent. That man appeared to be carrying a small green object, perhaps two to three centimeters in length, in his right hand. Detective Osbourne believed that it might be money. The black male went to the front passenger side of the car and entered Mr. Anang’s vehicle. Detective Osbourne suspected that this was a drug transaction. The black male exited the passenger side after a minute or so and re-entered the residence. Mr. Anang’s car then reversed out of the driveway and drove away.

[12] The various officers involved in the surveillance team were calling out their observations so that they could be heard by the other officers over their communication system. This information was later reduced to “central notes” and adopted by the various officers. There is no mention in the central notes of Detective Osbourne seeing a green object in the hand of the man who came out of 32 Summerfield Crescent.

[13] Officer Pak observed the black male come out of the residence and walk to Mr. Anang’s car. The man entered the front passenger door of Mr. Anang’s vehicle. The man then exited by the same door a minute or two later and went back into the residence. Mr. Anang’s car then reversed from the driveway and drove away.

[14] Sergeant Brian Kay has been a member of the Toronto Police Service since September of 1988. In November of 2012, he was a detective in the Major Crime Unit. He had been involved in numerous drug investigations over the years.

[15] Prior to November 27, 2012, Detective Kay had received information from Detective Constable Hockaday that linked Mr. Anang to possible trafficking in heroin. That information and checks of police databanks linked Mr. Anang to an address on Goreway Drive in Mississauga and to two specific motor vehicles.

[16] In the morning of November 27, 2012, Detective Kay received information from Detective Constable Hockaday that the two cars linked to Mr. Anang were parked at the Goreway Drive address. As the officer in charge, Detective Kay directed that surveillance officers set up in the area.

[17] Detective Kay was working with Officer Jason Davis that morning. In the early afternoon, they received information that Mr. Anang had come out of the apartment and driven away in the grey Ford Focus. Members of the surveillance team had followed Mr. Anang until he arrived at the parking lot of the C.I.B.C. at Martingrove Road and Rexdale Boulevard.

[18] Detective Kay did not personally observe the movements of Mr. Anang at the Goreway Drive address, the C.I.B.C. parking lot and at 32 Summerfield Crescent. However, he received ongoing live reports from the various surveillance officers who observed those events. Based on all of the information he had received, he directed the takedown of Mr. Anang as he drove away from 32 Summerfield Crescent.

[19] Mr. Anang’s car was stopped by police a short distance from 32 Summerfield Crescent. Mr. Anang was arrested at gunpoint by officers, including Hockaday and Kay.

[20] Detective Constable Hockaday observed the following items inside the grey Ford Focus after Mr. Anang was removed from the car.

(i) a stack of $20.00 bills on the floor of the driver’s seat;

(ii) a cell phone on the driver’s floor;

(iii) a black bag on the front passenger seat;

(iv) the bag was open and contained the following items: elastics, small clear plastic bags, a silver digital scale and a yellow and red spray canister.

[21] Detective Constable Hockaday shook the spray can. The weight did not seem right to him. There was no spray in the can. He found a false bottom. Inside the false bottom he found a clear plastic bag. It contained smaller bags with substances that appeared to be heroin.

[22] Detective Constable Hockaday also found on the floor in the back seat a canister with a small hose attached. The canister was labelled as a “tire fixer.” It also had a false bottom, which contained a bag with a substance that appeared to be heroin.

[23] Detective Constable Hockaday did not remove any items from the car. Officer Pak arrived and took control of the items.

[24] The items seized by Officer Pak were as follows:

(i) a Blackberry cell phone which was found on the driver’s floor;

(ii) a second Blackberry on the front passenger seat;

(iii) a quantity of $20.00 bills, totalling $400.00, on the driver’s floor;

(iv) a black shoulder bag with a foot spray canister inside. Officer Pak could not recall whether the black shoulder bag was found in the front or the back area of the car;

(v) inside the black bag a digital scale, plastic baggies, elastics and several clear plastic baggies with substances inside that appeared to be heroin; and

(vi) a tire repair can with a spout found on the back seat.

[25] Mr. Anang did not testify on the application.

POSITION OF THE PARTIES

[26] The applicant submits that the Crown has failed to show that there was an objective basis for the arrest. The drugs were located on a warrantless search incident to the arrest. Based on violations of ss. 8 and 9 of the Charter, he submits that the drugs should be excluded pursuant to s. 24(2).

[27] The respondent submits there were reasonable and probable grounds on both a subjective and an objective basis for the arrest. In the alternative, the respondent submits that if there was a breach of the Charter the drugs and cash recovered should not be excluded pursuant to s. 24(2).

ARREST WITHOUT WARRANT

[28] A peace officer may, without warrant, arrest a person who on reasonable grounds he believes has committed an indictable offence. See Criminal Code, s. 495(1) (a).

[29] The arresting officer must subjectively believe that he or she has reasonable and probable grounds to arrest and those grounds must also be justified on an objective basis. A reasonable person placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest. See R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at paras. 15 and 16.

[30] Information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest. See R. v. Golub, [1997] O.J. No. 3097, 1997 6316 (ONCA) at para. 18.

[31] The test for reasonableness does not require that the matter be viewed from the perspective of a reasonable layperson but rather from the standard of a reasonable person “standing in the shoes of the police officer.” The reasonable person must be deemed to have the same level of experience as the officer whose actions are being scrutinized. An objective assessment of the grounds will thus include consideration of the officer’s experience as well as the dynamics within which he or she acted. See R. v. Hanson, [2009] O.J. No. 4152, at paras. 58 and 59 (SCO); and R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341, at para. 12.

[32] The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment. See R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50, at para. 4.

[33] Officers may form the grounds to arrest based on information from other sources, including other officers, as well as their own observations. Officers on an investigative team are not silos restricted to act only on what they personally observe or information they receive. See R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

ANALYSIS

[34] The gunpoint arrest in this case was ordered by Sergeant Kay. He has been involved in many prior drug investigations. Some of those prior investigations involved drug dealing from a car rather than a specific premise. He referred to cars as “the territory of the drug dealer” in those cases.

[35] The arrest in this case was based on the following information received by Sergeant Kay:

Unspecific information received indirectly from a confidential source that the applicant was possibly trafficking in heroin from a car. The respondent conceded that this information is close to the level of an anonymous tip.
The activity observed in the C.I.B.C. parking lot. The applicant remained in his car while another man, carrying a black bag, exited the bank and approached the passenger side of the car. Surveillance officers saw the man place the bag inside the applicant’s car and very shortly thereafter walk away from the car with a black bag. Sergeant Kay viewed this as an “odd” incident but not grounds to arrest the applicant.
The second incident shortly thereafter at the residence on Summerfield Crescent. The applicant parked his vehicle in the driveway. A man came out of the house with something small and green in his hand. He entered the car by the front passenger door. One or two minutes later, the man exited the car and walked back to the house.

[36] Based on his experience in drug investigations Sergeant Kay viewed the second incident at Summerfield Crescent as a typical drug transaction.

[37] The applicant does not dispute that the officers had a subjective belief in grounds to arrest. However, he points out discrepancies in the observations of various members of the surveillance team as undermining an objective basis for the arrest. He further submits that the information available to Sergeant Kay at its highest falls short of an objective basis for the arrest.

[38] In my view, the objective test has been met in this case. A reasonable person in the position of Sergeant Kay would be able to conclude that there were reasonable and probable grounds to arrest the applicant for trafficking in a drug. I take into consideration Sergeant Kay’s extensive experience in drug investigations. He was appropriately cautious in not directing the takedown after the first incident in the C.I.B.C parking lot, even though it seemed odd to him. However, the second incident had the appearance of a drug transaction. It also added a layer of significance to the first incident. The totality of circumstances was such that there were objective grounds to believe that the applicant was involved in a drug transaction.

[39] The arrest was lawful, as was the search conducted incidental to arrest.

SECTION 24(2) OF THE CHARTER

[40] Even if Mr. Anang’s s. 8 Charter rights were violated and his arrest was unlawful, I am of the view that the evidence ought not to be excluded pursuant to s. 24 (2) of the Charter.

[41] In R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada articulated a revised approach to the s. 24(2) analysis. To determine whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute, the court must engage in three avenues of inquiry, each rooted in the public interests engaged by s. 24(2). These lines of inquiry are to be viewed from a long term, forward looking, and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(i) the seriousness of the Charter-infringing state conduct (the admission of the evidence may send the message the justice system condones serious state misconduct);

(ii) the impact of the breach on the Charter protected interest of the accused (the admission of the evidence may send the message that individual rights count for little); and

(iii) society’s interest in the adjudication of a case on its merits.

[42] The court’s role on a s. 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

(1) SERIOUSNESS OF THE CHARTER INFRINGING STATE CONDUCT

[43] According to Grant, the first line of inquiry requires an assessment of whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. See Grant, at para. 72.

[44] In this case, the police conduct cannot be categorized as either deliberate or egregious, even if it had breached the applicant’s s. 8 rights. The police reacted to a situation in which they honestly believed that a drug transaction had occurred. It is significant that the police did not act precipitously based on the first interaction in the parking lot at the C.I.B.C. While that interaction appeared odd, it did not reach a level so as to form a basis to make an arrest. The police followed the applicant and ultimately arrested him upon observing the second interaction in the driveway of the home on Summerfield Crescent. The decision by the police to arrest the applicant cannot be categorized as capricious or frivolous in the circumstances. Rather, it was based on discernable facts that were available to the police at the time. The police were not acting on mere suspicion but on a constellation of evidence that led them to the conclusion that they had the grounds to arrest.

[45] I conclude that the effect of admitting the evidence in this case would not greatly undermine public confidence in the rule of law.

(2) IMPACT ON THE CHARTER PROTECTED INTERESTS OF THE ACCUSED

[46] This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It requires the court to identify the interests engaged by the infringed right and to evaluate the extent to which the breach actually undermined those interests. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. See Grant, at para. 76.

[47] In this case, the actions of the police in arresting the applicant at gunpoint, pulling him out of his car and onto the ground and then handcuffing him constitute a significant intrusion on his privacy interest. This was not a fleeting or technical breach. However, it should also be noted that there was no suggestion that gratuitous or unreasonable force was used by the police in the execution of the arrest. The arrest of a citizen by plainclothes officers who are brandishing firearms can readily be seen to have a great potential for danger to the officers as well as the person being apprehended. There is an obvious premium in such circumstances to get the suspect under control quickly and safely. In this case, Mr. Anang was fully compliant from the time he was removed from the vehicle. He did not testify on this application. I have no specific evidence as to the impact of these events on him. I have no doubt that it would be startling and stressful for a person to be arrested at gunpoint in broad daylight, whether or not the arrest was in fact a lawful one.

[48] Taking into account all of the circumstances, and bearing in mind that the alleged infringement of the applicant’s rights in this case involved an arrest – as opposed to, for example, momentary detention – I find that the impact of the infringement is significant.

(3) SOCIETY’S INTEREST IN AN ADJUDICATION ON THE MERITS

[49] The third and final factor for consideration in the s. 24 (2) analysis is the effect of admitting the evidence – in this case a significant quantity of heroin – on the public interest in having the case adjudicated on its merits. This third line of inquiry asks whether the truth seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. See Grant, at para. 79.

[50] The concern for truth seeking is only one of the relevant considerations under s. 24 (2) of the Charter. The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the wording of s. 24 (2), which mandates a broad inquiry into all of the circumstances, not just the reliability of the evidence. See Grant, at para. 80.

[51] However, the reliability of the evidence remains an important factor in this line of inquiry. If a breach undermines the reliability of the evidence, this militates in favour of excluding the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. See Grant, at para. 81.

[52] The importance of the evidence to the Crown’s case is another factor to consider and is related to the inquiry into the reliability of the evidence. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. See Grant, at para. 83.

[53] In this case, the evidence in issue – the heroin and cash seized in the vehicle – is not only highly reliable but is essential to a determination of the case on its merits. Without this evidence, the Crown has no case. The charges here are very serious given the public concern about crimes related to trafficking in a drug as dangerous as heroin. There is a significant societal interest in adjudication on the merits.

(4) THE BALANCING PROCESS IN S. 24(2)

[54] The Court in Grant acknowledged that the balancing of the factors under the three lines of inquiry is qualitative in nature and not capable of mathematical precision. See para. 86.

[55] At paragraph 127, the Court expressed the likely practical results of the reformulated test as follows:

As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s protected interest, the trial judge may conclude that it should be admitted under s. 24 (2). On the other hand, deliberate and egregious police conduct that severely impacted the accused’s protected interest may result in exclusion, notwithstanding that the evidence may be reliable.

[56] I have determined that the police conduct in this case was not capricious, arbitrary or egregious. The impact of the Charter breach on the applicant’s protected interest was significant. The value of the evidence, which is both reliable and crucial to the Crown’s case, is considerable. Taking into account and weighing all of these factors, I find that the admission of the evidence would not, on balance, bring the administration of justice into disrepute. The impact of the breach on the applicant’s Charter rights weighs in favour of exclusion. However, society’s interest in having this case adjudicated on its merits strongly favours the admission of the evidence. This, plus the absence of the egregious conduct on the part of the police, tips the balance in favour of admission. The repute of the justice system would not suffer from allowing the evidence to be admitted at the applicant’s trial.

RESULT

[57] For the reasons given the application is dismissed. The drugs and money recovered in the vehicle operated by the respondent are admissible as evidence at trial.

B. P. O’Marra, J.

Released: June 5, 2015

CITATION: R. v. Anang, 2015 ONSC 3463

COURT FILE NO.: CR-14-90000314-0000

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ROBERT ANANG

Applicant

CHARTER RULING

B. P. O’Marra, J.

Released: June 5, 2015

R. v. Anang, 2015 ONSC 3463

Case Summary

OVERVIEW

POSITION OF THE PARTIES

ARREST WITHOUT WARRANT

ANALYSIS

SECTION 24(2) OF THE CHARTER

(1) SERIOUSNESS OF THE CHARTER INFRINGING STATE CONDUCT

(2) IMPACT ON THE CHARTER PROTECTED INTERESTS OF THE ACCUSED

RESULT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1