RULING ON LEGALITY OF ARREST

C. MCKINNON J.

[1] The accused is charged with committing aggravated assaults on five women between November 29, 2010 and October 22, 2013. All assaults were committed with a weapon, namely a hammer or some other unknown hard object. All women were attacked from behind. All women were unknown to the assailant. All women were walking alone at the time they were attacked.

Facts

[2] On October 22, 2013, a male approached a 27 year old woman and hit her in the back of the head with a hammer. The attack was captured on video. The hammer was thrown away and subsequently recovered. The investigating officer was Detective Brenda Kerr of the Ottawa Police Service. Detective Kerr put out a general broadcast to the Ottawa Police Service. The broadcast stated:

Short video and still (sic) attached below. BOLO for suspect described as male, 5’6 to 5’8, thin to medium build, olive/light tanned skin (maybe Hispanic or Middle Eastern), scruff unshaven facial hair (possibly a goatee growing out), dark hair showing under a ball cap, black jacket (bomber style, maybe leather), greenish baseball cap (back does up with metal loops), black sneakers.

On October 22, 2013 at 14:00 the above male approached a 27 year old woman (5’6, 130, dark hair tied up, black jacket and green nap-sac) from behind on north side (84) Bayview at the O-Train station and hit her on the back of the head with a hammer (recovered). More video/photos pending.

[3] The broadcast type was “special attention” and directed to the “central district”. Attached to the broadcast were two videos, together with a number of still photographs of the male suspect taken from the videos.

[4] Detective Fay Zouroudis is a sixteen year veteran of the Ottawa Police Service and was on duty on October 28, 2013, together with her partner, Detective Owen Carroll. Detective Zouroudis and Detective Carroll were operating in the central district of the City of Ottawa. They had gone in an unmarked vehicle to George Street located in the City’s Market area to pick up a video relating to another case. Detective Carroll was in the driver’s seat and Detective Zouroudis in the passenger seat. They were parked on the south side of George Street facing east.

[5] At approximately 11:55 a.m., Detective Zouroudis observed a male on the south side of George Street walking toward their unmarked vehicle. She immediately recognized him as the man she had observed in the broadcast that she had accessed on her computer earlier that morning. She told Detective Carroll, “That’s the hammer guy.” She testified that Detective Carroll asked her, “Are you sure?” And she replied, “Absolutely.” She and Detective Carroll followed the man on foot and stopped him on Rideau Street. Both she and Detective Carroll were in plain clothes. She produced her I.D. and identified herself. At 12:01 p.m., Detective Carroll informed the suspect that he was being detained temporarily in order to confirm his identity. The man produced a Permanent Residency Card and a second card which Detective Zouroudis described as being “maybe a union card.”

[6] Detective Carroll called for another police vehicle equipped with a computer. His unmarked vehicle did not have a computer. Sergeant Mallet arrived within minutes. Detective Carroll went and spoke to Sergeant Mallet, during which time Detective Zouroudis engaged in conversation with the suspect.

[7] Detective Zouroudis testified that the suspect was very cooperative. Among the many questions that she asked and answers she received, she asked if he was subject to any conditions and the suspect admitted that he was. One condition was to keep the peace. He informed her that the charge he was facing was one of public mischief for slashing tires. In due course Detective Carroll returned and informed the suspect that he was under arrest for aggravated assault and assault with a weapon. That was at 12:09 p.m.

[8] In cross-examination, Detective Zouroudis agreed that she had not used the word “absolute” certainty in her notes concerning her discussion with Detective Carroll. She stated that during the time the suspect was under investigative detention, she was noting his appearance, including his hat with orange writing, his clothing, his height and his face. Her continuing observation of him made her even more certain that he was the individual that she had viewed in the broadcast. She was asked if she gave any thought to releasing the individual rather than arresting him so that she could continue her investigation, and she testified that she would not consider that option because of the “significant charges” facing the male.

[9] With respect to the photos which were attached to the broadcast, she testified that she was struck particularly by the bright orange lettering on the dark background of the hat, which exactly matched the hat worn by the suspect when she observed him. She testified that the pictures that she saw matched the person she detained.

[10] Detective Owen Carroll was on duty on October 28^th, 2013 with Detective Zouroudis. He was in the driver’s seat of the vehicle. He noticed a male walking towards him on George Street when Detective Zouroudis said, “That looks like the hammer guy.” He testified that at one point he could have touched the individual as he walked by their unmarked vehicle. He recollected seeing a broadcast concerning this individual and particularly recalled watching the video more than once. He was struck by the hat worn by the suspect and the construction boots he wore, because Detective Carroll had worked in construction. In the video the individual was running and Detective Carroll thought to himself that running in construction boots could not be easy. The boots stuck in his mind, along with the general physical characteristics of the individual as seen in the videos and in the photos.

[11] Detective Carroll testified that he and Detective Zouroudis followed the person to Rideau Street where they stopped him. Both he and Detective Zouroudis were in civilian clothes. He took his police badge from his belt and showed it to the male and informed him that he was being detained for investigative purposes.

[12] Detective Carroll wished to confirm the identification of the individual and so he called for a marked cruiser equipped with a computer that can access the police database. The cruiser arrived within minutes, driven by Sergeant Claude Mallet. Detective Carroll went to see Sergeant Mallet and asked him to bring up the broadcast. After looking once again at the broadcast and the photos of the individual, Detective Carroll felt satisfied that “without a doubt, it was the same person”. He returned and arrested the suspect at 12:09 p.m. for aggravated assault, assault with a weapon and breach of recognizance. He read the accused his rights. He participated in seizing certain items from the accused following his arrest, including a cap with orange writing. The writing spelt “LiUNA!” in large orange letters, under which are smaller orange letters spelling “Local 527 & 527A”.

[13] In cross-examination, Detective Carroll testified that after Detective Zouroudis stated that the male person “looks like the hammer guy”, he and Detective Zouroudis talked further, as a result of which Detective Carroll determined that the person should be detained.

[14] Detective Carroll recollected that he watched the video contained in the broadcast “more than once” and that he was struck by both the hat and the boots, which he independently recollected. He testified that the video supplied him with more information than the still photos. He testified that when he looked at the suspect, he was struck by “the whole image” of the suspect, not just the hat and boots. After looking once again at the still photographs, he was satisfied “one hundred percent” that the person being detained was the person who was the subject of the broadcast.

[15] He was directed to the portion of the broadcast which alerted officers to “black sneakers” and he said that he had not considered that; rather he simply relied on the pictures that he had looked at and was satisfied that the individual was wearing construction boots. He testified that given the severity of the offences facing the accused he would not consider releasing him instead of bringing him to the police station.

[16] Sergeant Claude Mallet is a veteran officer, having served twenty-six years with the Ottawa Police Service. He was on duty on October 28, 2013 when he received a call from Detective Carroll to meet him at the corner of Nicholas Street and Rideau Street. Detective Carroll wanted to look at the computer in his automobile, and in particular, a general broadcast. Sergeant Mallet called up the broadcast and he recalled Detective Carroll looking at the clothing worn by the suspect. He testified that the photos were in color. He recollected that he was with Detective Carroll for approximately twenty minutes during which time Detective Carroll arrested the individual, handcuffed him and placed him in a cruiser for conveyance to the Ottawa Police Station.

[17] Constable Jacky Lord was on duty in the market area on October 28, 2013 when he received a call to transport an arrested person to the Ottawa Police Station. He was dispatched at 12:14 p.m. He went to Nicholas Street and Rideau Street where he saw Detectives Carroll and Zouroudis who were with a male individual. The accused was turned over to Constable Lord for conveyance to the Police Station. Constable Lord once again read the accused his rights and lodged him in the back of the cruiser, giving him the secondary caution at 12:20 p.m. The accused said he understood his rights.

[18] Constable Lord described the accused as a Middle Eastern male with dark curly hair, 5’6 to 5’7, tanned skin, dark eyes, hair unshaved, with a goatee, who was wearing a black leather jacket, black pants with another pair of pants of camouflage color underneath the black pants, brown sports boots, and a black and orange ball cap.

[19] He arrived at the Central Station at 12:32 p.m. where he participated in the handling of the accused and in ensuring that the accused had the opportunity to obtain independent legal advice. The accused was calm throughout his dealings with him.

Issues and Analysis

[20] No issue was taken with the investigative detention of the suspect, nor could it, in my view: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. However, it was argued by the accused and amicus curiae that the arrest of the accused was unreasonable on an objective basis because the video in the broadcast together with the stills do not assist in identifying the accused. It was submitted that the photos of the suspect were generic and would embrace numerous individuals of similar appearance. It is submitted that the identification of the accused was tainted by the observations relating to clothing and in particular, the hat and construction boots. It was submitted that the broadcast itself did not mention boots, but rather sneakers, and that the hat was described as “greenish” in color, not black. It was submitted that the video and still photos do not assist in identifying the accused, as his eyes cannot be seen. It was submitted that the accused should have been released so that the police could further their investigation before arresting the accused.

[21] Having listened to the testimony of Detective Zouroudis and Detective Carroll, I conclude that they had reasonable and probable grounds to arrest the accused, both subjectively and objectively. It is clear that Detective Zouroudis immediately recognized the suspect and informed Detective Carroll, “That’s the hammer guy.” Although there was no mention of “absolute certainty” in her notes, I believe that the discussion she had with Detective Carroll lends credence to her assertion that she was certain of the identity of the accused as being the person in the video and still photos. Detective Carroll testified that as a result of their discussion, he was not about to permit the person to proceed without being detained. In light of Detective Carroll’s testimony, I infer that Detective Zouroudis must have informed him that she was certain of her identification. Detective Carroll himself recognized the hat and construction boots. I was also impressed with the evidence of Detective Zouroudis when she testified as to her continuing confirmation of the certainty of her identification when interacting with the accused.

[22] The fact that Detective Carroll went the extra step to confirm his own identification before arresting the accused buttresses the fact that this officer was acting in good faith and wanted to be sure that the individual in the photos was the same as the individual whom he had detained. I am satisfied that his identification was not “tainted” by preconception. On the contrary, Detective Carroll took steps to ensure that his identification was not tainted.

[23] Having observed the video and the still photos myself, I can say that the hat is a striking feature and I can understand how Detective Zouroudis and Detective Carroll would both be drawn to it. The hat is somewhat unique. While the eyes of the individual cannot be seen, the general physique and clothing appear to be identical to those worn by the accused at the time of his arrest. The video of the actual attack is quite grainy, and not helpful to me in identifying the accused. However, I can see how Detective Carroll noted construction boots. To my own eyes, I find the still photographs more helpful in identifying the accused and in particular, the hat, clothing, physique and facial hair.

[24] I find that a reasonable person standing in the shoes of Detective Zouroudis and Detective Carroll would have believed that reasonable and probable grounds existed to make an arrest. Police need not go further and establish a prima facie case. An arrest which is lawfully made does not become unlawful simply because the police intend to continue their investigation after the arrest, nor does the arrest thereby constitute a violation of section 9 of the Charter: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241. As for the reliance upon the broadcast, this was an entirely reasonable action on the part of the arresting officers. Officers should take into account all information available to them, including hearsay: R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.).

[25] In the circumstances, I find that both officers had the subjective and objective grounds to arrest the accused, acted in good faith, and, given the serious charges facing the accused, together with a breach of his recognizance, cannot be faulted for arresting the accused as opposed to releasing him pending further investigation. In the circumstances of this case, it would have been irresponsible of the police officers to release the accused rather than arrest him.

[26] The arrest of the accused was lawful.

C. McKinnon J.

Released: December 17, 2015

COURT FILE NO.: 13-2319

DATE: 20151217

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

-HER MAJESTY THE QUEEN

– and –

NABIL BENHSAIEN

REASONS FOR DECISION

C. McKinnon J.

Released: December 17, 2015

Her Majesty the Queen v. Nabil Benhsaien, 2015 ONSC 7926

Case Summary

RULING ON LEGALITY OF ARREST

Facts

Issues and Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2