ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-93
DATE: 2015/10/30
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
OSAZE ERIBO
and
SUNDAY JESUROBO
Applicants
Robert Zsigo, counsel for the Crown
Neha Chugh, counsel for the Respondent, Osaze Eribo
Clifford Sunday, counsel for the Respondent, Sunday Jesurobo
HEARD: October 26, 27 and 28, 2015
RULING ON PRE-TRIAL CHARTER APPLICATION
LALIBERTE, J.
INTRODUCTION
[1] The accused, Osaze Eribo has brought a pre-trial Charter Application seeking the exclusion of evidence. The parties have agreed that the Court’s ruling will apply to the co-accused, Sunday Jesurobo, who has not filed a Notice of Application. (They will be referred to as the Applicants in this ruling).
[2] The Applicants are jointly charged with the following three counts:
Knowingly organize, induce, aid or abet the coming into Canada of less than 10 persons who were not in possession of a visa, passport or other document required by the Immigration and Refugee Protection Act, contrary to section 117(1) of the Act committing thereby an offence pursuant to section 117(2) of the Act;
Conspire together, the one with the other and with a person or persons unknown, to commit the indictable offence of organizing, aiding or abetting the entry into Canada of one or more persons who were not in possession of a visa, passport or other document required under the Immigration and Refugee Protection Act and did thereby commit an offence pursuant to section 465(1) (c) of the Criminal Code and section 117 of the Immigration and Refugee Protection Act;
Conspire together, the one with the other and with a person or persons unknown to commit the indictable offence of counselling, inducing, aiding or abetting the entry into Canada of one or more persons who failed to appear for an examination by an officer as required by section 18 of the Immigration and Refugee Protection Act and did thereby commit an offence pursuant to section 465(1) (c) of the Criminal Code and section 124 of the Immigration and Refugee Protection Act.
[3] It is alleged that the offences were committed on November 20, 2012 in the City of Cornwall.
[4] The Application revolves around the circumstances leading to their arrests by the police at 10:51 p.m. on the evening in question. Specifically, the issue is whether the police had the required reasonable grounds to proceed with the arrests.
[5] The Court is asked to find that the arrests were unlawful and therefore arbitrary as provided for in section 9 of the Charter. In turn, the subsequent gathering of evidence would amount to an unreasonable search and seizure under section 8.
[6] It is argued that allowing the introduction of the evidence would bring the administration of justice into disrepute. Therefore, it should be excluded pursuant to section 24(2) of the Charter.
[7] The Crown (hereinafter referred to as the Respondent) opposes the Application and submits that the totality of circumstances is such that the police had reasonable and probable grounds to proceed with the arrests of these individuals.
[8] The Respondent’s view is that if the Court finds that the arrests were arbitrary, the evidence should not be excluded.
[9] Properly articulated, the questions for the Court are as follows:
Did the police have the required reasonable and probable grounds to proceed with the arrests of the Applicants?
If the Court finds that the police did not have the required grounds, should the evidence obtained by the police, subsequent to the arrests, be excluded pursuant to section 24(2) of the Charter?
THE EVIDENCE
[10] The evidence in this Application was led by the Respondent. The Applicants did not adduce any evidence.
[11] The Respondent called three witnesses, namely:
− Sergeant Vincent Foy;
− Retired Sergeant Louis Legault;
− Corporal Claude-Michel Cimbert.
[12] Sergeant Foy was the directing mind leading to the arrests. He was not present but directed Sergeant Legault and Corporal Cimbert to proceed with the arrests.
[13] He is a member of the R.C.M.P. since 1996 and was stationed in Cornwall in April 2007 and assigned to cross-border issues such as smuggling between Canada and the United States. In 2010, he became a member of a specialized task force known as B.E.S.T. who focused on cross-border crimes such as human smuggling and illicit drugs.
[14] On November 20, 2012, Sergeant Foy was on duty. At 5:00 p.m., he received information from Corporal Stéphane Lafontaine to the effect that the American authorities had advised that they were watching subjects at the Comfort Inn/Casino located on Akwesasne territory on the American side some 15 miles east of Massena, New York. The belief was that these individuals were waiting to illegally cross into Canada.
[15] At 6:30 p.m., he attended the port of entry in Massena where he met U.S. border patrol Agent Jay Stiles. He was advised that the Tribal Police were doing surveillance as noted above. He testified that he could hear this information on both the U.S. authorities and Tribal Police radios.
[16] He was advised at 6:39 p.m., that a taxi had attended the Comfort Inn/Casino and picked up the three subject females then proceeded onto Route 37 in a northerly direction and Cook Road. The taxi was heading to the Canadian portion of Akwesasne. This area is known as Snye which is northerly bordered by the St. Lawrence River.
[17] Sergeant Foy stated that this area is known to him as a path used for smuggling. He was involved in several investigations such as tobacco or marihuana being transported from the Snye area to the north shore of the St. Lawrence. He described this as “a common occurrence”.
[18] He then heard that the taxi had stopped just before it entered the Canadian territory. There was a marked Mohawk Police vehicle in this area. The taxi was observed turning around now travelling southbound to Route 37 where it was intercepted by the U.S. Border authorities. This interception occurred at 7:10 p.m.
[19] He was advised that three females Nigerian Nationals had been apprehended and were brought to the Massena Border Patrol station. He arrived at this location at 7:45 p.m.
[20] Sergeant Foy testified that he believed that the information provided to him by the U.S. authorities was reliable. He had been involved in 4-5 cases that same year where information given by them had been confirmed.
[21] He testified having been present during the questioning by Agent Stiles and U.S. Border Agent Ashley Cuccia of the two adult females who had been apprehended. The third female was a 4 year old who was not interviewed.
[22] The first female, Endurance Ukhueduan, born October 20, 1990 was interviewed from 8:25 p.m. to 9:20 p.m. She was noted as being a bit nervous but appeared to be of sound mind. There were no inducements such as promises or threats.
[23] Sergeant Foy noted the following relevant information:
− She was in the U.S.A. on a visa;
− She intended on entering Canada illegally but not staying; this was part of her Master’s degree on woman immigration; entering Canada was part of her thesis;
− She referred to an individual Evans whom she had met a few days prior in Plattsburgh, N.Y.; she had paid him $1,500.00 and was to pay the $1,500.00 balance once in Canada; she described Evans as Nigerian;
− Agent Stiles produced a cell phone which had been seized from her; Sergeant Foy looked at the number on the cell phone; the contacts on the cell phone were as follows:
• Evans – Canada;
• Evans – USA.
− Other significant numbers were:
• 613-932-1136: Sergeant Foy testified knowing that this is connected to a residence in Cornwall by reason of the 613 prefix;
• 647-920-5390: Sergeant Foy knew this to be linked to the Toronto area because of the 647 prefix;
• A number with the 905 prefix to which he did not pay much attention at the time;
• 613-571-4309.
− He noted several text messages mostly from the 647 and 905 prefix numbers; the 905 number provided instructions and referred to 5 o’clock followed by there would be more instructions later;
− Endurance explained that the 647-920-5390 number belonged to Evans and that Evans was waiting for her in Cornwall;
− Sergeant Foy felt that the 613-932-1136 number was significant in that it is connected to a residence in Cornwall and not a cell phone; he noted that there were two calls on November 20, 2012; the first one was an outgoing call at 6:42 p.m.; the officer noted that the three females were picked up at the Comfort Inn/Casino at 6:39 p.m. by taxi; the other call was in coming at 3:12 p.m. and lasted for 7 minutes;
− Following the receipt of this information, Sergeant Foy proceeded to search the 613-932-1136 on the internet (Google search). This revealed that the number was connected to a residence in Cornwall, namely 28 Leonia Street. This street was known to him and was seen as significant for the following reasons:
• Its proximity to the St. Lawrence River;
• It is close to Montreal Road and Monte Carlo Hotel which was known to him to have a dock allowing access from the St. Lawrence River;
• By experience, he knew how entry in Canada was gained from the Snye area by boat;
• He knows this not to be a business and/or tourist area; he noted that the St. Lawrence College is approximately half a kilometer away;
• He knows of four human smuggling incidents which occurred in this area of Cornwall, namely:
▪ February 2012: three Nigerians were intercepted around McConnell Avenue close to the St. Lawrence College; the two smugglers were Michael Street (Jamaican) and Stan Omoghan (Nigerian);
▪ May 2012: two Nigerian families were observed arriving by boat at the Monte Carlo Hotel with two smugglers who were waiting; the smugglers were identified as the Ali brothers from the Toronto area;
▪ June 2012: a Nigerian family was located in the East end area close to St. Felix Street; there were three children, a father and pregnant mother;
▪ June 2012: three individuals arrived by boat at the Monte Carlo dock and then transported to another hotel where they were arrested.
− He indicates that individuals being smuggled into Canada would usually stay at hotels in the Massena area.
[24] Sergeant Foy testified that once he had identified the 28 Leonia address, he contacted Corporal Cimbert with a view of having the police drive by this residence. This request was made at 9:00 p.m. He also communicated with Sergeant Legault.
[25] At 9:36 p.m., he was contacted by Corporal Cimbert and advised that there was a vehicle parked in a front of 28 Leonia described as a black Lumina with a plate number registered to Enterprise-Rent-A-Car from the Toronto area.
[26] The second female was Loveth Ugiagbe, born February 2, 1998. She was the mother of the 4 year old child. The interview was from 9:21 p.m. to 10:07 p.m.
[27] Sergeant Foy describes her as more nervous and emotional. However, she appeared to be of sound mind. There were no inducements.
[28] The officer noted the following relevant information:
− She was a refugee claimant;
− She had arrived in New York City on October 2, 2012 and her intention was to enter Canada and stay with her daughter;
− She referred to an individual named Anna whose number was 647-920-5390; the officer noted this to be the same number provided by Endurance for Evans;
− She had been told to meet with Endurance in Plattsburgh;
− She hadn’t paid any money as of yet but the amount of $3,000.00 and she was expected to “work off” this debt.
[29] At 10:25 p.m., Sergeant Foy left the U.S. Border Patrol Station. While on route to Canada, he heard Corporal Cimbert stating that the vehicle was now moving. Sergeant Foy requested that the vehicle be stopped.
[30] His intent, at this point, was for the vehicle to be stopped and gather information from the occupants. He wanted to know if the occupants were Nigerian since Endurance had indicated that Evans was Nigerian.
[31] Sergeant Foy testified that once the vehicle was stopped, he asked Sergeant Legault if the occupants were the type of people he was looking for. He is unsure of the words used by Sergeant Legault in response but recalls that he confirmed that they were.
[32] He then directed the officers to arrest the occupants of the vehicle for conspiracy in regards to illegal entry in Canada.
[33] His initial intent was to attend to the location where the vehicle had been stopped but he directed the arrest once he received confirmation from Sergeant Legault. He arrived some 15-20 minutes after the arrests.
[34] Sergeant Foy provided the following inventory of factors in support of his belief that the two individuals were involved in the smuggling into Canada of the three Nigerian females intercepted by the U.S. authorities:
The vehicle parked in front of 28 Leonia Street was registered to Enterprise Rent-A-Car from Toronto; it was parked in a residential area;
He was involved in similar cases involving smugglers from the Toronto area;
Endurance stated that Evans was waiting for her in Cornwall;
Two calls were associated to 28 Leonia, one of which was minutes prior to the attempt entry in Canada;
There were three females who were not from Canada nor the U.S.A. with no apparent connection to this residence;
The residence is located in close proximity to the St. Lawrence River and known area where there have been a number of human smuggling occurrences;
He knew the 647 prefix was linked to the Toronto area;
He referred to Endurance having paid $1,500.00 which was half of the $3,000.00 price;
He relies on his experience of how human smugglers operate in the Cornwall area.
[35] In cross-examination, Sergeant Foy is questioned on the following points:
− His experience as a police officer;
− His understanding of what is a conspiracy;
− His understanding of the standard to arrest someone;
− His involvement in prior cases of “human smuggling” and the fact that not all individuals were of Nigerian descent;
− His knowledge of Nigerian people and the basis for his belief that they are of black colour;
− He had no prior knowledge of any incidents at 28 Leonia Street;
− The possibility that the individuals in the vehicle were linked to the St. Lawrence College.
[36] In the end, Sergeant Foy’s evidence in cross-examination is that he directed Sergeant Legault to arrest the occupants after being told by him that they were the type “was looking for”. In his mind, this meant black Nigerians.
[37] Sergeant Louis Legault testified that he was now retired and had been a member of the O.P.P. for 30 years. During the period of November 20, 2012, he was a team leader for the Cornwall Regional Task Force who was tasked with preserving border integrity.
[38] On November 20, 2012, at 6:40 p.m., he received information from Sergeant Foy in regards to three Nigerian Nationals were being smuggled into Canada from the United States. He advised his officers to patrol the shore lines of the St. Lawrence River. He referred to the Monte Carlo Hotel on Montreal Road and to his knowledge that this was an area known for entry by boat.
[39] At 7:45 p.m., he was advised by Sergeant Foy that three individuals had been intercepted by the U.S. authorities. Further information was obtained from Sergeant Foy at 9:05 p.m. Specifically, he was told of a residential number in Cornwall linked to 28 Leonia Street and a contact in Canada known as Evans.
[40] Sergeant Legault testified that he was aware that 28 Leonia Street had been involved in prior incidents of human smuggling. He referred to the “Omaghan file”. He directed Corporal Cimbert to attend this address.
[41] At 9:45 p.m., he was advised by Corporal Cimbert that a black Chevrolet vehicle bearing a plate registered to Enterprise Rent-A-Car from Toronto was parked in front of the said residence. This was significant to him in part because of its proximity to the Monte Carlo Hotel. He directed Corporal Cimbert to maintain surveillance on the vehicle.
[42] At 10:45 p.m., Corporal Cimbert reported that the vehicle was now moving and that he was following it on Second Street. This information was conveyed to Sergeant Foy. As he was driving while communicating this information to Sergeant Foy through his cell phone, Sergeant Legault did not make any notes of these exchanges. His notes were made later once back at the police station.
[43] Sergeant Legault testified having pulled behind the vehicle and activating roof lights on his marked police cruiser. It was now 10:51 p.m. He arrested the accused Eribo. Corporal Cimbert arrested the passenger, Sunday Jesurobo.
[44] The events which led to the stopping of the vehicle and the actual arrests are subject of much uncertainty from Sergeant Legault’s perspective. The passage of time and his limited notes make it such that he has very little recollection of the information going back and forth between him and Sergeant Foy.
[45] He recalls telling Sergeant Foy that the vehicle was moving and being asked to stop the vehicle to identify the occupants.
[46] He has no recollection of the information conveyed by him to Sergeant Foy prior to being instructed to proceed with the arrests for human smuggling. He does remember if he did or did not relay information in regards to the ethnicity of the occupants.
[47] In cross-examination, he makes the point that he cannot describe the sequence of events. He has no recollection if he went to the vehicle to identify the occupants before being directed by Sergeant Foy to proceed with the arrests. He states not being able to remember specifics.
[48] Sergeant Legault confirms having arrested the driver Mr. Eribo for conspiracy. He cautioned and searched him at the scene. Corporal Cimbert arrested the passenger. He is unsure whether he directed Corporal Cimbert to proceed with this arrest.
[49] Corporal Claude-Michel Cimbert is a member of the R.C.M.P. In November 2011, he was assigned to the Cornwall Regional Task Force.
[50] On November 20, 2012, at the start of his shift at 7:00 p.m., he was advised by Sergeant Legault that B.E.S.T. had relayed information of possible human smuggling into Canada.
[51] At 9:23 p.m., he was asked to attend 28 Leonia Street and look for a suspicious vehicle from the Toronto area. He was also provided with the name “Evans”.
[52] He observed a black Chevrolet Lumina on the street parked in front of 28 Leonia Street. The vehicle was registered to a rental company from Scarborough in the Toronto area. This was reported to Sergeant Legault. He also spoke to Sergeant Foy who stated that he wanted the driver to be identified.
[53] He noted that the car was moving at 10:30 p.m. but had not seen who had entered the vehicle. He followed the vehicle.
[54] Corporal Cimbert describes how Sergeant Legault got involved in the pursuit and ultimately intercepted the vehicle.
[55] He recalls being asked by Sergeant Foy, over the radio, if the occupants had been identified and responding “hold on” as Sergeant Legault was busy “doing the traffic stop…”. This exchange was over the radio. He then recalls being told by Sergeant Foy that they could go on and arrest the individuals. He doesn’t recall any description being given before the direction to arrest.
[56] He confirms having arrested the passenger, Sunday Jesurobo.
[57] Exhibit Number 3, which is reproduced below, provides an inventory of the evidence gathered by the police in this investigation. This is the evidence sought to be excluded by the Applicants.
POSITION OF THE PARTIES
Applicants
[58] The Applicants argue that while the evidence establishes that Sergeant Foy subjectively believed that there was a basis for the arrests, it does not meet the objective component of the reasonable and probable grounds threshold.
[59] The arrests are seen as premature and at best, the officer had reasonable suspicions which would have allowed for investigative detention.
[60] Reference is made on the following points:
− There was nothing to connect the individuals in the vehicle to the investigation;
− While the vehicle, the house and the phone numbers were suspicious, there was nothing to link the Applicants;
− At the time of the traffic stop, the police were looking for one individual identified as Evans; there was nothing to suggest that Evans was two males;
− There was no description provided for Evans other than he was Nigerian;
− There is no indication to suggest that Sergeant Foy’s internet (Google) search was reliable;
− Some of the individuals involved in prior cases of human smuggling were not from the Toronto area;
− There were many other possible explanations for the vehicle being parked in front of 28 Leonia Street;
− The issue revolves around the six minutes period from 10:45 p.m. and 10:51 p.m. and the lack and/or unreliability of the officers’ evidence in regards to the information conveyed to Sergeant Foy prior to his directive to arrest;
− The issue of possible racial profiling is raised by counsel and the fact that Sergeant Foy associated the descriptor “Nigerian” with black people; the suggestion is that a reasonable objective observer would not believe that every Nigerian is black;
[61] Counsel for the Applicants are of the view that the admission of the evidence would bring the administration of justice into disrepute. In speaking to the section 24(2) of the Charter analysis, the following arguments are made:
Seriousness of the breach
− It is extremely serious for officers to make this type of unfounded arrest;
− There was a lack of investigation;
− Police are trained to properly investigate;
− There was a “big step” missing in this investigation.
Impact on Charter-protected right
− Individuals have the right to drive down the streets without being immediately arrested;
− They have the right to be black and Nigerian; this should not make individuals the “type of person” on the police radar;
Society’s interest in adjudication
− The suggestion is that there are very little aggravating factors in this fact scenario;
− The Applicants were arrested, searched, the vehicle was searched, statements were obtained; this amount to significant intrusive and invasion of their right to privacy;
Respondent (Crown)
[62] Crown counsel submits that Sergeant Foy had reasonable and probable grounds to direct the arrests. He did not act arbitrarily. His view is that the Applicants are asking the Court to look at the grounds separately. They should be looked at in totality.
[63] When looked at in the context of the phone numbers, the vehicle and the residence of Leonia Street, the colour of the skin can form part of this totality.
[64] Reference is made to the following grounds which were weighed by Sergeant Foy:
− His clear knowledge that a crime involving human smuggling was being committed;
− It was reasonable for him to believe that more than one individual was involved;
− The significance of the information provided by the Nigerian females during the interviews;
− The phone numbers linked to a residence in Cornwall and the Toronto area;
− Sergeant Foy’s experience and knowledge of how and where smugglers operated in Cornwall;
− The Toronto area vehicle parked for an hour in front of 28 Leonia Street;
− Sergeant Foy’s evidence is that he recalls being told by Sergeant Legault that the occupants of the vehicle were the type he was looking for;
− There is a close temporal connection between the attempt crossing to Canada and the arrests;
− Sergeant Foy acted with caution in his investigation; he did not precipitate the arrests;
[65] In regards to the 24(2) analysis, should the Court find a Charter breach or breaches, the Respondent relies on the following considerations:
− He rejects the suggestion that this is a racial profiling case;
− The grounds would be close to the reasonable grounds threshold;
− There were exigent circumstances in that there was a risk of loss or destruction of evidence;
− Sergeant Foy acted in good faith;
− Human smuggling is by definition a very serious crime;
− The evidence seized by the police is reliable;
− The Crown cannot proceed if the evidence is excluded.
THE LAW
[66] In ruling on the issues raised in this Application, the Court will be guided by the following relevant principles:
Charter of Rights and Freedoms
− Section 8: Everyone has the right to be secure against unreasonable search or seizure.
− Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.
− Section 24(2): Where, in proceedings under subsection (1), a court concludes that the evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
− Section 495(1): A peace officer may arrest without warrant
(a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.
Jurisprudence
− The Criminal Code requires that an arresting officer must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
• R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241.
− The Court must consider the totality of the circumstances to determine whether the constellation of factors taken together supports the officer’s reasonable and probable grounds.
• R. v. Abdul-Hamid [2015] O.J. No. 1256.
− As a matter of law, a trial judge must appreciate the significance of police experience and training when evaluating the probative value of evidence.
• R. v. Wu [2015] O.J. No. 5106.
− The sequence of events must be measured against the knowledge and experience that the police officer brings to the investigation in informing the inferences to be drawn from the observations. The objective reasonableness of the arresting officer’s grounds must be assessed from the standpoint of the reasonable person “standing in the shoes of the police officer”.
− In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
• R. v. GoLub, 1997 6316 (ON CA)
− Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay (1985) 1985 112 (ON CA), 18 C.C.C. (3d) 289, have been overtaken by R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59. A detention not authorized by law is arbitrary and violates section 9 of the Charter.
− The inquiry under paragraph 24(2) of the Charter as to whether evidence obtained in a manner which violated a Charter right should be excluded is objective. It asks whether the reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2) starts from the proposition that the breach has already damaged the administration of justice and seeks to ensure that evidence obtained through the breach does not do further damage to the repute of the justice system.
• R. v. Grant, Op. cit.
− There are three avenues of inquiry in a section 24(2) analysis, namely:
The seriousness of the Charter-infringed 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.
• R. v. Grant, Op. cit.
− In a Charter Application, the burden of proof is on the Applicant to establish a breach on a balance of probabilities.
− It is the Applicant who seeks the exclusion of evidence under section 24(2) who must ultimately satisfy the Court on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.
DISCUSSION
[67] As noted, there is no issue that Sergeant Foy subjectively believed that there was a lawful basis for the arrest of both Applicants. The question for the Court is whether the grounds identified by Sergeant Foy are verified on an objective basis. Would a reasonable person standing in his shoes come to the conclusion that the Applicants had conspired to allow the illegal entry into Canada of the three Nigerian females apprehended earlier by the U.S. authorities?
[68] Having considered all of the circumstances and the relevant principles, the Court finds that the arrests were lawful and based on proper objective grounds.
[69] The Applicants have not met the burden of proving otherwise on a balance of probabilities.
[70] The Court’s conclusion is that the cumulative effect of all the factors considered by Sergeant Foy raises to the level of reasonable probability of involvement in the said conspiracy.
[71] Specifically, the Court has considered the following factors:
− Sergeant Foy is found to be an experienced police officer; he was part of a special task force which focused on cross-border offences;
− He had been involved with a number of similar cases in 2012;
− He was familiar with how human smugglers operated in the Cornwall area;
− He knew of the locations in Cornwall where human smuggling had occurred;
− He was aware of historical connection of smugglers and the Toronto area;
− A number of cases he was aware of involved individuals from Nigeria;
− There can be no doubt when one considers their apprehension and statements to the authorities that the three Nigerian females were part of a plan to illegally cross the Canadian border;
− Experience and common sense suggests that more than one individual would be involved in this plan;
− There is an objective connection (phone number) between these females and 28 Leonia Street in Cornwall; this is an area known for human smuggling;
− The vehicle which is seen parked for at least one hour in front of 28 Leonia Street is connected to Toronto;
− It is logical and reasonable to believe that the individuals occupying this vehicle are connected to the Toronto area, the residence, the phone number and in turn, the three Nigerian females;
− This proposition is seen as logical and reasonably probable;
− The Court is mindful of the dynamics involved in these arrests; once the vehicle was on the move, this became a volatile and changing situation; the Court finds that Sergeant Foy made a reasonable decision based on available information;
− The Court accepts, on balance, the evidence of Sergeant Foy that Sergeant Legault had confirmed that the Applicants were the type of individuals he was looking for; it was reasonable for him to believe that this confirmed the information provided by Endurance that Evans was Nigerian;
− There is a logical flow in the events which led to the arrests.
[72] Therefore, the constellation of factors identified by Sergeant Foy in the context of his experience supports his reasonable and probable grounds.
[73] Even assuming that the officer’s belief is not objectively verified, the Court would not have excluded the evidence pursuant to section 24(2) of the Charter. The Applicants have not shown that the admission of the evidence gathered by the police would bring the administration of justice into disrepute.
[74] The following considerations are found to weigh in favour of admission:
Seriousness of the breach
− At a minimum, the grounds articulated by Sergeant Foy would have allowed for investigative detention;
− His actions were not deliberate;
− He did not wilfully or recklessly disregard the Applicants right to privacy;
− There were exigent circumstances requiring steps to preserve evidence;
− The Court rejects the suggestion that this may have been racially motivated; Sergeant Foy is found to have acted in good faith.
Impact on Charter-protected interests
− There is very little details provided to the Court on what transpired following the arrest other than the Applicants and the vehicle being searched; there is no indication that the police acted in a “profoundly intrusive” way; exhibit number 3 suggests that no actual statements were obtained from the Applicants;
− There is no evidence before the Court to suggest that the police intruded on an area where there is a high expectation of privacy;
− There is no evidence as to the impact of these arrests on the Applicants.
Society’s interests in an adjudication on the merits
− Exhibit 3 discloses that the evidence gathered by the police is real and reliable evidence;
− It is crucial to the Crown’s case;
− Human smuggling is a serious offence; this case involved a young 4 year old child coupled with the expectation that Loveth would work off the money she hadn’t paid; it was done for financial gain; the evidence shows that it is a significant concern in the Cornwall area.
CONCLUSION
[75] The Charter application is therefore dismissed.
Justice Ronald M. Laliberte Jr.
Released: October 30, 2015
COURT FILE NO.: 13-93
DATE: 2015/10/30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
OSAZE ERIBO
and
SUNDAY JESUROBO
Applicants
RULING ON PRE-TRIAL CHARTER APPLICATION
Justice Ronald M. Laliberte Jr.
Released: October 30, 2015