ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-30000101-0000
DATE: 20150611
BETWEEN:
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
JERMAINE SMITH
Defendant/Applicant
C. Lindo-Butler, for the Crown/Respondent
P. Seymour, for the Defendant/Applicant
HEARD: April 13-17, May 25-26, and June 11, 2015
J. WILSON J.
REASONS FOR JUDGMENT
The Charter Application and Trial
The Issues in the Charter Application.
The Positions of the Parties on the Charter Application.
The Witnesses and the Assessment of Their Evidence.
Crown Evidence.
Detective Redman.
PC Thompson.
PC Staunton.
Defence Evidence.
Mr. Smith.
Icy Mae Smith.
Kerry Ann Smith.
Rene Smith.
Crown Reply Evidence.
The Facts.
Background.
When did Det. Redman observe the driver of the Vehicle?.
How was Mr. Smith driving on the day in question?.
Did Mr. Smith see PC Thompson motioning him to pull over?.
What took place between Mr. Smith and the officers before he was detained and arrested?.
Was Mr. Smith given a reasonable opportunity to identify himself, or did Mr. Smith refuse to identify himself prior to the arrest?.
What was the purpose and scope of the search of the Vehicle by PC Thompson?.
Was the Vehicle locked prior to PC Thompson’s search?.
Was the Vehicle packed with the Smith family’s personal and household items?.
Was the purse visible from the time the search began?.
Was Mr. Smith offered the opportunity to speak to his counsel of choice, or to duty counsel? Was Mr. Smith questioned at the police station?.
Analysis.
Legal Overview..
Did the police have “articulable cause” to stop Mr. Smith’s Vehicle pursuant to s. 216 of the HTA for careless driving, or was the HTA stop a racially motivated “pretext” or “ruse”?.
Law..
Analysis.
Was Mr. Smith’s Arrest for Careless Driving Lawful?.
Was Mr. Smith’s Arrest for Fail to Identify Lawful?.
Law..
Analysis.
Was the search of the Vehicle contrary to s. 8 of the Charter?.
Law..
Analysis.
Did the police breach their obligations under s. 10(b) of the Charter in failing to allow Mr. Smith to speak to duty counsel or counsel of choice at the police station at the first opportunity and before being questioned?
Law..
Analysis.
If there were Charter breaches as a result of the stop, the arrest, and the ensuing search of the Vehicle, applying the three-part test in Grant, should the evidence of the loaded firearm be excluded from the evidence at trial?
- The Seriousness of the Charter-Infringing State Conduct
- The Impact of the Breach on the Charter-Protected Interests of the Accused.
- Society’s Interest in the Adjudication of the Case on its Merits.
Conclusions on the Merits.
Law..
Analysis.
The Charter Application and Trial
[1] On November 11, 2010, Mr. Jermaine Smith, a 23 year old black male driving his mother’s 2000 SUV Mercedes (“the Vehicle”), was arrested for careless driving and failure to identify himself, contrary to ss. 130 and 33 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), respectively. He was handcuffed and placed in a police stealth cruiser. The Vehicle was searched as “an incident to the arrest” for the HTA offences, and a loaded firearm was located in a purse found tucked in the back seat passenger footwell. Mr. Smith is charged with an array of firearm, ammunition, storage and licensing offences.
[2] Mr. Smith brings this application pursuant to sections 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (“the Charter”). He seeks a declaration that his rights were violated and that the firearm should be excluded from evidence pursuant to section 24(2) of the Charter in accordance with the three-part test outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[3] This matter proceeded before me in a blended Charter application and a judge-alone trial. The findings of fact will apply to both the Charter application and the trial. I will consider the Charter issues, followed by a review of the case on the merits.
[4] In the trial, the Crown asserts that there is cogent evidence that Mr. Smith had the requisite elements of knowledge and control of the firearm, as personal papers and his wallet were located in the purse. The defence challenges the elements of knowledge and control and relies on the evidence of Mr. Smith that the wallet and personal papers were in the center console of the Vehicle at the time of the stop, not in the purse with the firearm.
[The remainder of the judgment continues exactly as provided in the source, preserving the full text, paragraphs, and structure verbatim.]
J. Wilson J.
Released: June 11, 2015
COURT FILE NO.: 12-30000101-0000
DATE: 20150611
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
JERMAINE SMITH
Defendant/Applicant
REASONS FOR JUDGMENT
J. Wilson J.
Released: June 11, 2015