Court File and Parties

Date: 2016-05-25 Court: Superior Court of Justice - Ontario

Between: HER MAJESTY THE QUEEN Counsel for the Crown: Phil Tsui, Elizabeth Jackson and Scott Clarke

And: DELLAN MCMORRIS Counsel for the Defendant: Jillian Carrington and Brian Ross

Ruling No.: 1 Subject: The Admission by McMorris (Cell Phone Number) Before: Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

A. Introduction

On May 10, 2012, Delano Coombs was shot to death at the housing complex located at 4020 Dundas Street West, Toronto. Three perpetrators were involved in the shooting. One of them was Jerome Bent who has entered a plea of guilty to first degree murder. Dellan McMorris is alleged to be another such perpetrator. The third one is unknown.

The case for the Crown against McMorris includes some calls between Bent's cell phone and a cell phone with the number (647) 267-5977 at times proximate to the murder. Those phones may have been used by Bent and another perpetrator when they were on the way to, or leaving, the scene of the crime. It is alleged by the Crown that the defendant was the person who used (647) 267-5977.

This is a voir dire to determine the voluntariness of a statement by the defendant to Detective Constable Sgroi of the TPS on April 28, 2012 that (647) 267-5977 was the number of his cell phone. The defendant was a passenger in a car driven by Mohamud Farah that was stopped for speeding. That investigation included a conversation with the defendant and the preparation of a Field Information Report ("FIR") where that number is noted.

This is also an application by the defence under s. 24(2) of the Charter for an order excluding the alleged statement on the basis of violations of s. 8, s. 9 and s. 10 of the Charter.

B. The Circumstances of the Case

B.1 Introduction

Let me begin with the circumstances of this aspect of the case as found by the court.

The fact-finding has been more difficult because of the absence of comprehensive notes of the material aspects of the HTA stop, by Detective Constable Sgroi and the other officers who assisted in the investigation, Constable Mignardi, Constable Mattos and Constable Cordova. They treated the investigation as an HTA investigation, which it was, in part. However, what happened in April 2012 is now relevant to the issues of voluntariness and detention in a murder trial in May 2016. The memories of all of the officers of the events at the scene of the investigation are now understandably less than complete, if they exist at all. Much of their testimony was based upon the usual practice in such investigations and the absence of the notes of an event leading them to the conclusion the event did not happen. Fortunately, the computer printouts of the searches of the TPS databases by Detective Constable Sgroi and Constable Mignardi and some other business records of the TPS relating to the HTA investigation have been made exhibits. The videorecording of the events at the scene of the investigation taken from Detective Constable Sgroi's cruiser, assuming he activated it as he sometimes does, was destroyed by the TPS in the usual course of purging its system of records one year after the investigation, May 2013.

With those observations in mind, I will now describe the circumstances as they related to the stopping of the car, the computer search of its licence plate, the first approach of the car by Sgroi, the searches of the database for the driver (Farah), the assessment of the circumstances by Detective Constable Sgroi, the arrival of Constable Mignardi, the searches of the databases for the passenger (McMorris), the arrival of Constable Mattos and Cordova and the second approach of the car by Detective Constable Sgroi. The testimony of Detective Constable Sgroi and the defendant relating to the investigation by Sgroi into the possibility the car was stolen will be summarized, and commented upon. This will lead to the result of the voir dire and the application.

B.2 The Stopping of Farah and McMorris

Around 7:15 am on April 28, 2012, Detective Constable Sgroi was on duty as the uniformed traffic officer for No. 12 Division of the TPS near the intersection between Jane Street and Weston Road. He was situated in a parking lot on the northwest corner of the intersection in an unmarked cruiser operating a laser device which can determine the speed of a vehicle. His attention was directed to a southbound car which appeared to be speeding. Sgroi pointed the device at the car. It was driving 73 km/h in an area where the speed limit was 50 km/h.

Consequently, Sgroi followed the car southbound through the intersection. He activated the lights on the cruiser. The driver stopped in the curb lane of Jane Street, near the intersection with Emmett Avenue. Its licence plate was BKBE 893.

B.3 The Computer Search of BKBE 893

Sgroi checked the licence plate on the terminal in the cruiser. It was a rental vehicle owned by Enterprise Rent-A-Car Canada Limited. As such, the database did not identify the driver. A CPIC search did not reveal any police interest in the car. Sgroi's cruiser was stopped about one car length behind the car. There were two occupants, the driver and the passenger. It was about 7:20 am.

B.4 The First Approach of the Car by Sgroi

Sgroi approached the car at the driver's door. He had a conversation with the driver and the passenger. He told the driver he was speeding, in a rented car, and asked the driver to produce his driver's licence, and the registration and insurance documents for the vehicle. No such documents were produced by the driver. However, he did give a rental agreement to Sgroi. The driver also identified himself verbally, by name, Mohamud Farah, and provided Sgroi with an address and date of birth. The rental agreement was not in the driver's name. Sgroi then asked the passenger his name. He identified himself as Dellan McMorris and said he was not on the lease. He gave his driver's licence to Sgroi which included his name and date of birth. Sgroi returned it immediately, and confirmed both Farah and McMorris were not named on the lease. This exchange between Sgroi and the occupants was a polite one.

B.5 The Searches of the Database for Farah

Detective Constable Sgroi returned to his cruiser where he searched the TPS databases for the name of Mohamud Farah with the date of birth provided by the driver. These searches revealed that Farah was:

• wanted in Alberta under a warrant for arrest relating to an alleged mischief over $5,000;
• released in Toronto on an undertaking, with conditions, relating to an alleged laundering proceeds of crime;
• released in Alberta on a recognizance, with conditions, relating to, amongst several charges, an alleged identity fraud, complemented by the words "Caution Violent"; and
• prohibited from possessing a firearm for 10 years, up to June 2020;

The databases also disclosed Farah's criminal record for trafficking in cocaine and breach of a recognizance, entered by the RCMP in Alberta. The Farah referred to in this information was the Farah who was the driver of the car. The last information revealed by these searches was Farah's status as a driver who was suspended because of unpaid fines, as of October 2011. All of this information was available to, and considered by, Sgroi around 7:25 am.

B.6 The Assessment of the Circumstances by Sgroi

In those circumstances, Sgroi was concerned about the possibility that the car was stolen and, further, that either or both of the occupants may be implicated in the possession of a stolen car. Farah was to be approached with caution because he was described as a violent person, who had a criminal record relating to cocaine and who was now facing a charge of identity fraud, a crime of dishonesty. The theft or possession of a stolen car is a crime of dishonesty. Sgroi was concerned the car may have been stolen. He decided to ask the occupants some questions about the car and their presence in it. Otherwise, Sgroi intended to complete the investigation of the driver under the HTA, for speeding and drive under suspension. He also knew that he would have to arrange for the towing of the car, unless one of the occupants could contact the person who rented the car and arrange for that person to come to the scene and take possession of the car. Therefore, Sgroi decided, out of an abundance of caution, to broadcast the fact that he had stopped a vehicle with two occupants near Jane Street and Weston Road. This investigation did present some risks to his safety, and others, including the occupants. It was around 7:30 am.

B.7 The Arrival of Mignardi

Constable Mignardi responded to the broadcast and attended at the scene. He arrived shortly after 7:30 am. Sgroi likely briefed him on the investigation, as it then was.

B.8 The Searches of the Databases for McMorris

Searches of the TPS databases under the name of Dellan McMorris, with a date of birth of March 29, 1990, were conducted on Mignardi's terminal more or less immediately after he arrived. That date of birth was obtained from the defendant's driver's licence. These searches were likely done by Mignardi at Sgroi's request to further Sgroi's investigation and concern about the possible theft of the car. Some information of significance was obtained through these searches. A photograph confirmed the passenger was Dellan McMorris. One of the searches disclosed information that, as of August 2007, a file was opened for McMorris with a description of "violence, theft and other Criminal Code ". The database did not elaborate upon that information by, for example, describing the nature or extent of the violence. Nor did the database use the word "caution" in this context. The information did not reveal any criminal record, or outstanding charges, bail, probation or court orders. He did have a valid driver's licence. These searches were completed around 7:35 am. This information was likely given by Mignardi to Sgroi to be used as he saw fit in the investigation of the possible theft of the car.

B.9 The Arrival of Mattos and Cordova

Meanwhile, Constable Mattos and Constable Cordova arrived at the scene, in response to the broadcast by Sgroi. They arrived around 7:35 am. They testified that they were not involved in this investigation, other than to ensure the safety of the scene, officer safety and, further, that they likely left their cruiser and stood in its immediate vicinity until they left around 8:05 am.

Respectfully, I reject that evidence as unreliable.

It is inherently implausible. An officer who attends the scene of an investigation to ensure officer safety would likely make some inquiries of the other officers at the scene about the nature of the investigation and the nature and extent of the risks facing the investigators. Having obtained that information, the officer would likely determine whether he should remain at the scene and, if he should, how to deal with any such risks. Cordova and Mattos did not recall any such conversations. They did stay for about 30 minutes. In my view, it is likely that Mignardi and/or Sgroi told them the HTA investigation included an investigation into the possibility the rented car was stolen. They were also likely given some information about Farah and McMorris obtained from the search of the databases, including the descriptions of violence referred to earlier in these reasons. That information likely led them to stay at the scene until about 8 am when the car was towed and the occupants left. They assisted in the investigation by situating themselves near McMorris after he was directed by Sgroi to wait on the sidewalk. They were not consulted about, nor did they have any input into, Sgroi's HTA or theft investigations.

B.10 The Second Approach of the Car by Sgroi

Sgroi approached the car a second time, for the purpose of:

• serving the driver with the summons relating to the alleged offences under the HTA, speeding and drive under suspension;
• arranging for the towing of the car; and
• talking to the occupants about the possible theft of the car.

Although Sgroi appeared reluctant to testify that he approached the car, in part, in connection with the possible theft of the car, it is clear that he was lawfully entitled to ask some questions of the occupants, short of a "detention" under the Charter. See R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (SCC), R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (SCC), R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 (Ont. C.A.), R. v. Humphrey, 2011 ONSC 3024, [2011] O.J. No. 2412 (SCJ), R. v. Daley, [2015] O.J. No. 7156 (SCJ) and R. v. Graff (1987), 36 C.C.C. (3d) 267 (Ont. C.A.) where the courts expressly state that such questioning may in some cases be done without compliance under s. 10(a) and s. 10(b) of the Charter, even where the questioning is focused on a possible crime and even where it is focused on the possible involvement of the person questioned in the possible crime. Detective Constable Sgroi had a duty to ask some such questions. The occupants had a moral, but no legal, obligation to assist in that aspect of the investigation. Thus, Sgroi approached the car as Mignardi searched the databases for information about McMorris. Sgroi served the summons on Farah, and explained the alternative processes open to him. He had some conversation with Farah and McMorris about the towing of the car and the possibility the car was stolen.

B.11 The Testimony of Sgroi and McMorris

B.11.1 Introduction

What happened next is the subject of conflicting evidence, Sgroi's testimony and the defendant's testimony.

Let me summarize their testimony and then comment on its reliability, in the context of the burden of the Crown to prove voluntariness beyond a reasonable doubt and the burden on the defence to prove a Charter breach on a balance of probabilities.

B.11.2 The Testimony of Sgroi

Sgroi testified that he told the occupants of the need to return the car to the person who rented it from Enterprise, or to Enterprise itself. He gave them the choice of contacting that person to make such arrangements or of leaving the car so it could be towed by the TPS and returned to Enterprise – the latter alternative would add to the cost of that person, whereas the former would not. No such arrangements were made by either of the occupants. Sgroi arranged for a tow at 7:50 am. The vehicle was towed from the scene around 8 am.

Sgroi also testified that, after he served the summons on the driver, he then asked the occupants some questions relating to the possibility that the car may have been stolen and they may have been in possession of a stolen vehicle. Sgroi did not believe the car was stolen. Nor did he believe he had probable cause to support any such belief. Nor did he "suspect" that any such crimes had been committed by the occupants, or anyone else. However, he wanted some information from the occupants to record on a FIR in case a subsequent investigation was conducted by the TPS into the possibility of a theft. Sgroi asked them questions about where they came from, who gave them permission to use the car, who rented the car and when it was to be returned. None of their answers changed Sgroi's belief that the car could have been stolen. He did not record any of the answers, whatever they were, but did obtain information to complete the FIR. This included the defendant's phone number. He completed those cards in handwriting when he was near the car, and then entered all of that information on his terminal, at 7:46 am.

It was then that Sgroi arranged, at 7:50 am, for the towing of the car. He directed the occupants to leave the car and to stand on the sidewalk for safety reasons. Jane Street is a major street near Weston Road, with two lanes southbound and two lanes northbound. He offered them the items in the car; neither of them took any of them – a jacket, a hoodie, some protein and some cds. He searched the car comprehensively in order to prepare an inventory of its contents. The search included all of the pockets in the doors, the console, the arm rests, the areas under the seats and the floor mats and the trunk, all of its spaces. The vehicle was towed around 8 am. The tow card prepared by Sgroi described the items in the car. The occupants and the four officers left the scene around 8:05 am.

B.11.3 The Testimony of McMorris

The defendant testified that he has been stopped by the TPS so many times throughout his life that he cannot estimate the number, or remember all, of them. He believes he and his friends have been mistreated by many officers. He does not trust the TPS. He is, to some extent, angry with the TPS. He and his friends are young, black men.

The defendant's version of the events once Sgroi returned to the vehicle for the second time is very different. The officer looked skeptical when he discovered that neither Farah's name nor McMorris' name was on the rental agreement. At some time after the officer approached the car the second time, there was a conversation with McMorris as follows:

Sgroi: Get out of the car.

McMorris: Why?

Sgroi: If you don't cooperate, you will be charged for a stolen vehicle.

McMorris decided to cooperate because he did not want to go to jail. He was searched. It was a patdown search. His property, including his cell phone, was taken and placed on the car. He was escorted to the sidewalk where a couple of officers stayed in his immediate vicinity. Farah came to the sidewalk too. McMorris gave his cell phone number to the officer when he was on the sidewalk, because the officer said "…if you do not cooperate you will be charged…". The phone rang; the officer arranged for someone to call the phone in order to satisfy himself the number was correct. The car was then searched. After the tow truck came, his belongings were returned to him, including the cell phone. The officers permitted them to leave. It was cold. Farah and McMorris walked to a friend's apartment on Trethewey Drive. Farah was driving McMorris to that apartment when he was stopped by the police. Farah had McMorris' cousin's permission to drive the car. McMorris believed the rental agreement was in his cousin's name, but it was not. He did not know how his cousin came into possession of the car.

B.11.4 The Comments of the Court

Looking at the evidence as a whole, I am not satisfied beyond a reasonable doubt that the defendant's statement to Detective Constable Sgroi on April 28, 2012 was voluntary. Accordingly, the statement is inadmissible.

There are several observations to be made in support of this conclusion.

First, the notes of Sgroi, Mignardi, Cordova and Mattos are incomplete. Those difficulties would be of no significance in the prosecution of the HTA offences, but they are of real significance in this trial. Proof beyond a reasonable doubt of the voluntariness of a statement requires reliable evidence of all of the material circumstances surrounding the statement. See R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) at para. 67 where the court said:

The decision in Lapointe does not stand for the proposition that all issues of accuracy and completeness of recording are left to the triers of fact. Such an interpretation would run contrary to centuries of jurisprudence that require careful scrutiny of the circumstances surrounding the taking of a statement by persons in authority. And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed. [Emphasis in original.]

In this case, none of the officers had any notes, or recollection, of the exchanges between Sgroi and the occupants relating to Sgroi's investigation into the possible theft of the car. Those exchanges are the context of the defendant's testimony that Sgroi threatened to charge him for a stolen car if he did not cooperate in the investigation. The absence of the notes of an event, such as a threat or search by an officer, is not evidence the event did not occur in a case like this one. These observations about the notes lead me to give less weight to the officers testimony.

Second, the defendant testified that Sgroi threatened to charge him with the possession of the stolen car if he did not cooperate in the investigation. This led him to disclose the phone number. The defendant's testimony on this point may or may not be truthful. However, in my view, looking at the evidence as a whole, he is sufficiently credible on this point to raise a reasonable doubt on the issue of voluntariness.

The defendant is a young, black man who believes that he and his friends have been frequently mistreated by the TPS throughout his life. He does not trust the police. He is, to some extent, angry at the TPS. This experience and its effect on him may or may not motivate him to fabricate, or give otherwise unreliable evidence about, police misconduct. Yet, it is clear that he is not disposed to help the police in any investigation, or to volunteer any information to them. He would not likely give the TPS his phone number absent a circumstance that could make it advantageous for him to do so. A threat of a charge under the Code if such information was not provided may be such a case. To him, it would be better for the TPS to have his phone number than to be jailed in connection with a crime he did not commit. He could always get another phone.

Detective Constable Sgroi was correct to investigate the possibility that the car was stolen, and to proceed with caution in doing so. But there were limits on his authority to investigate it. Both of the occupants were described in the databases as violent. Caution was urged in regard to Farah, especially in connection with the other information about him – trafficking in cocaine and a firearms prohibition for 10 years. This caution was manifested by the collaborative presence of Mignardi, Mattos and Cordova for about 30 minutes, until the car was towed away and the occupants left. By 8 am there was no risk to any officer, or anyone else in the area.

However, Sgroi's legitimate concern about safety and the possible violence of Farah and McMorris may have led to the threat described by the defendant, and the related searches of the defendant and the car. There was no lawful basis to search his person, as this was not an investigative detention, under R. v. Clayton (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 (SCC) and other like authorities, or a search incidental to an arrest. The search of the car was described by Sgroi as an inventory search but, in my view, its scope tends to show a different purpose – the search for evidence, of some crime, such as drugs, weapons or theft. Directing the defendant to the sidewalk may have been in furtherance of a possibility of discovering such evidence in the search of the car and the further possibility that it may lead to an arrest of the defendant, rather than to ensure his safety pending the towing of the car. Some other officers were in the defendant's vicinity, as he described, as if to keep him in the area until Sgroi completed the theft or other investigation. Neither Farah nor McMorris had any interest in waiting for the removal of the car, as is implicit in Sgroi's version of the second exchange. They may have believed they had no choice but to stay at the scene. Nor is it likely that Sgroi permitted them to take any of the items in the car when he thought it may have been stolen.

B.11.5 Conclusion

That completes my comments on the testimony of Sgroi and the defendant. The incomplete notes of the officers about the investigation into the possible theft of the car and the related questioning of the defendant, and all of my comments about the defendant's credibility in the context of the rest of the investigation, including the presence of Mignardi, Mattos and Cordova for safety purposes until 8 am and the information obtained by Sgroi through the database searches, have led to this conclusion.

B.12 Conclusion

That completes my description of the circumstances of the case, to the extent that findings of fact can be made in my view.

C. Conclusion

In conclusion, looking at the evidence as a whole, I am not satisfied beyond a reasonable doubt that the defendant's statement to Detective Constable Sgroi on April 28, 2012 was voluntary. Accordingly, it is inadmissible.

It is not necessary for me to rule upon the defence application under s. 24(2) of the Charter. I decline to do so. However, had my findings of fact been based upon the testimony of Detective Constable Sgroi and the rejection of the defendant's testimony as false, I am inclined to the view that the defendant was not detained in the circumstances of this case.

May 25, 2016 Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.