CITATION: R. v. Yusuf, 2016 ONSC 514

COURT FILE NO.:15-5/041

DATE: 20160121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MUSTAF YUSF

Defendant

Nicos Fassler, for the Crown

Chris Angelini, for the Defendant

HEARD: December 7-11, 14, 2015

SPIES J.

RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE AND JUDGMENT

Introduction

[1] Following about one hour of active surveillance during the evening of July 10, 2012, several members of the Toronto Police Service (“TPS”) Guns and Gangs Task Force, under the direction of Det. Balint, believed that they were watching and following Ahmed Yusuf (“Ahmed”), the older brother of the defendant Mustaf Yusuf. After arresting the person they believed was Ahmed, who was wanted pursuant to a warrant in the first in connection with Project Marvel; a lengthy firearms investigation, it was determined that, in fact, it was Mustaf Yusuf who had been arrested. During the search incident to his arrest a loaded revolver was found in the pocket of Mr. Yusuf[^1]’s shorts. As a result, Mr. Yusuf is charged with possession of a loaded prohibited firearm without being the holder of an authorization, licence or registration certificate as well as related charges. Mr. Yusuf re-elected trial by judge alone and pleaded not guilty to all of the charges.

[2] Mr. Angelini brought an application on behalf of Mr. Yusuf for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, excluding the firearm, asserting that it was seized in violation of the Mr. Yusuf’s rights as protected by ss. 8, and 9 of the Charter. In addition, it is asserted that an utterance made by Mr. Yusuf that the gun was loaded, which was made before he was given his rights to counsel and caution, was given in breach of Mr. Yusuf’s s. 10(b) Charter rights. Mr. Fassler does not seek to rely on this utterance but Mr. Angelini submitted that if this utterance was given in breach of the Charter that this is relevant to the appropriate Charter remedy if I find other breaches of the Charter.

[3] By agreement the Charter application proceeded by way of a voir dire blended with the trial. Mr. Fassler called most of the officers involved in the surveillance and the arrest of Mr. Yusuf. Mr. Yusuf elected not to testify or call evidence. This decision deals with both the Charter application and the merits of the Crown’s case.

The Issues

The Charter Application

[4] Mr. Angelini raised some issues in his cross-examinations of the officers but in his closing submissions he conceded that if the arrest of Mr. Yusuf was lawful, the search of his person was lawful as a search incident to arrest. Mr. Fassler concedes that if the arrest of Mr. Yusuf was not lawful that the search was not either.

[5] Accordingly, the central issue on the Charter application is whether or not the Crown has proven on a balance of probabilities that Det. Balint, who ordered the arrest, had reasonable and probable grounds to believe that Mr. Yusuf was Ahmed. I accept the position of Mr. Angelini that what is relevant is what was in Det. Balint’s mind as he is the one who ordered the arrest. I will, therefore, focus on his evidence. It is Mr. Angelini’s position that Det. Balint had no more than a suspicion that Mr. Yusuf was Ahmed and that, in any event, his belief was not objectively reasonable and as a result the arrest was unlawful.

[6] Depending on my conclusion as to the lawfulness of the arrest, I may have to consider whether or not the firearm should be excluded pursuant to s. 24(2) of the Charter.

The Charges Related to Possession of the Firearm

[7] If the Charter application is successful, the Crown’s case necessarily fails. If not, although there is little doubt that Mr. Yusuf was in possession of the firearm, Mr. Angelini questions whether or not the Crown has proven beyond a reasonable doubt that he knew the firearm was loaded and whether or not he was carrying it in a careless manner as alleged in Count #4. In this respect the observations of some of the officers that Mr. Yusuf was displaying characteristics of an armed person are relevant.

The Evidence Relevant to the Arrest and Preliminary Findings of Fact

[8] During the afternoon of July 10, 2012, certain members of the TPS Guns and Gangs Task Force, Team 2A, were briefed by Det. Balint. One of the tasks assigned by Det. Balint to his team of officers was locating and arresting Ahmed Yusuf.

[9] Det. Balint gave the officers information about Ahmed. Some of this information was contained in a handout called “Project Marvel POI” (POI being short for Person of Interest). This handout included a photo of Ahmed and information which can be summarized as follows:

Born on September 17, 1991.

Male, black, 6 feet 2 inches tall, 181 pounds, brown eyes, black hair in cornrows.

Currently resides at 5 Ardwick Blvd., #20 in Toronto.

Ahmed does not have a criminal record but in addition to Project Marvel he had been charged on February 3, 2010 for Robbery x3 and Threaten Death and those charges were still before the court.

[10] There was no information in the POI package about any vehicle associated with Ahmed but according to the evidence of DC Small, DC Tan, Sgt. Storey (then a Detective Constable) and DC Grewal, the team was advised orally by Det. Balint that Ahmed was associated with a 2005 black Nissan Altima with licence BESA 739 (the “Nissan”). Although Det. Balint did not have this information in his notes or have any recollection of this, given the unchallenged evidence of the other officers, I find that this was information Det. Balint must have known at the time. This arrest occurred over three years ago and to the extent I can find that Det. Balint knew of certain facts at the time he made the decision to arrest the person he believed to be Ahmed, in my view I can and should consider that information as well even if Det. Balint does not recall it now because he did not make a note of it in his memo book.

[11] The black and white photo police were provided of Ahmed as part of their POI package is reproduced below, although it was likely larger; approximately three by four inches. This photo shows Ahmed’s hair pulled to the back in a bushy ponytail, not the cornrows mentioned in the description. The photo is dated August 12, 2011 and so would have been 11 months old at the time of the arrest.

[12] According to Sgt. Storey the team also received information from a 23 Division officer that Ahmed may have been involved in a shooting on July 8, 2012. Sgt. Storey is the only officer who mentioned this information coming from an officer but some of the officers testified that they were also advised at the briefing that Ahmed was being investigated in relation to a shooting that had taken place northwest of Toronto just two days earlier which must be the same information. It is not material if this information came directly from an officer or not.

[13] When asked about this information in examination-in-chief Det. Balint did not recall it but in cross-examination he testified that there would have had a CPIC check done before the briefing and he would have ensured that Ahmed had not yet been arrested. He also testified that he was made aware, although he could not recall how, that 23 Division was investigating Ahmed in relation to a shooting and a firearms investigation, which I presume is a reference to this shooting two days earlier. Det. Balint testified that he would have given this information to the team during the briefing which, based on the evidence of the officers, it seems that he did. In light of all of this information I find that this is information that Det. Balint had at the time even though he did not recall it when first asked about it by Mr. Fassler.

[14] DC Grewal, who had attended the briefing as a member of Team 2A, attended the area of 5 Ardwick Blvd. (“Ardwick”) in the northwest area of the City of Toronto. Det. Balint went to Scarborough for the purpose of another investigation. It is not clear what the other officers reporting to Det. Balint were tasked to do but they were each in plainclothes and in unmarked police cars. Once they were in their cars the officers were able to communicate with each other via the in-car radios.

[15] DC Grewal testified that he was on foot and believed that he had located Ahmed at around 7:30 p.m. that evening. He testified that this person met the description in the POI Package and matched the photograph of Ahmed. Unbeknownst to him, he had in fact located Mustaf Yusuf, the defendant. DC Grewal gave detailed evidence about his observations of the possible target that led him to believe that he was armed with a firearm. He then communicated over the radio was that he had located the “possible POI” and that he believed he was armed. DC Grewal was not certain of the exact words he used when he communicated over the radio but testified that he would have said that the possible POI was displaying characteristics of an armed person. This is confirmed by the other officers who heard this.

[16] At this time DC Grewal was in the Ardwick area by himself. Det. Balint was still in Scarborough. As a result, Det. Balint directed the other officers from Team 2A to go to the Ardwick area to assist with the surveillance and he went there as quickly as he could, arriving around 8:00 p.m.

[17] DC Small testified that on the way he decided to take on the role of Central Note Taker and this was communicated to the Team. Although, as I will come to, there was a problem resulting from the fact that the officers reviewed the Central Notes at a debrief before making their personal notes, there was no suggestion that the typed Central Notes differed from the rough Central Notes taken by DC Small which I find is the most reliable record of what various members of the Team observed at the time they communicated their observations over the radio.

[18] DC Ceresoli and DC Askin were members of a different team; Team 2B, under a different detective in the Guns and Gangs Task Force and were conducting some other investigation in an unmarked police vehicle. They had not attended the briefing. DC Ceresoli testified that DC Askin was driving and he was a passenger and while they were driving Det. Balint communicated with them over the police radio and called them into the Ardwick area and told them that their assistance was needed. DC Ceresoli also testified that Det. Balint told him that DC Grewal had told them that he was at a location where the POI was displaying the characteristics of an armed person and that on route Det. Balint gave them the name and date of birth of the POI why the POI was wanted and a general description.

[19] DC Grewal testified that he observed the possible POI get into the Nissan and he communicated this over the radio. This was confirmed by DC Small who followed the Nissan to a McDonalds where he made certain observations. DC Small testified that he believed the person he saw there was their target and that he was displaying characteristics of an armed person. He voiced his observations over the radio. In his Central Notes at 8:10 p.m., DC Small also referred to the target as the “possible POI”. DC Small testified that even though he was not able to say “100% that’s our guy”, he would not say the person was a possible POI unless it was a very good likeness.

[20] Det. Balint testified that on route to Ardwick, he heard over the radio that the possible POI had gotten into a vehicle and gone to McDonalds with other people and then returned to Ardwick. Given the communications by DC Grewal and DC Small, I find that at the time Det. Balint must have known that the possible POI had gotten into the Nissan. Det. Balint did not give evidence that he heard the rest of the communication from DC Small about the possible POI being armed.

[21] By the time Det. Balint arrived in the Ardwick area he believed the possible POI was back at the Ardwick address. On arrival he began to familiarize himself with the neighborhood and the complex in order to decide what to do but a short time later he was advised by radio that the possible POI was seen outside again as part of a group of several persons, that he was observed clutching his side and showing signs of an armed person and that he got into a four-door car; a white Kia, with other persons and that other persons from the group entered another vehicle; a grey Ford and both vehicles were then on the move “in tandem”.

[22] Both vehicles were followed by the officers as they travelled to a gas station; an Esso gas station at Islington and Bergamont at approximately 8:15 p.m. The Ford pulled up to a pump and the Kia parked.

[23] Det. Balint drove into a driveway right beside the gas pumps and he testified that he personally observed the possible POI get out of the Kia and walk to the Ford and get into the front passenger seat of the Ford. Det. Balint communicated this over the radio. The Central Notes record his observation as “poss T1 out of rear passenger seat of Kia and walks over to Ford and poss T1 into front passenger seat of Ford”.

[24] Det. Balint testified that he thought that the person he saw was Ahmed. At this point he was driving past, slowly, while other officers were getting into position to make observations. He believed his best observations were made when he was about 40 feet away when the target was getting out of the Kia. The vehicles were about 20 feet apart so the total distance was 60 feet once the POI was at the Ford. Det. Balint admitted it was a quick look for four to five seconds while they were both moving but he said it was more than one glance. Det. Balint did not make any note of the possible target walking in an unusual manner; he testified that he was focusing on confirming identity at that point. He did not make any note of his clothing as he was trying to identify his face.

[25] DC Ceresoli testified about what he observed at this Esso gas station. He said that it had been a beautiful day and the sun was still out. He could not recall if the lights of the station were on but he did not recall any reflection from lights that adversely impacted his ability to see. DC Askin parked in a parking lot to the south of the gas station seconds after the arrival of the Kia and Ford. DC Ceresoli immediately announced over the radio that he would go out on foot to make observations. He noticed DC Grewal parked within walking distance and since he did not have a photo of the target he testified that he walked over to his vehicle and obtained a photo of the POI. He could not recall if the photo was colour or black and white but thought the photo he got was bigger than the photo in Ex. 1; i.e. about four inches tall and three inches wide, but it was of the same person. The photo he had did not have all the writing that is found on Ex. 1.

[26] DC Ceresoli testified that when he received the photo he looked at it for a bit and took it with him while he walked towards the store portion of the gas station that was away from the pumps. He saw the Ford parked in the aisle to get gas and the Kia was parked to the south; he passed by about one car length away. He could see the vehicles but then his back was to them. He remained inside the store for a few seconds and when he turned around to return to his car he got a better look at the Ford through the front windshield, which he did not recall being tinted, and then through the front passenger side window, which was down, that lasted for five to ten seconds. Once he passed the target he did not look back. DC Ceresoli testified that he got a “pretty good” look at the person in the front passenger seat and he was 100% sure it was the person in the photo. He returned to his car and over the radio he advised the team that he had “confirmed” the person in the front passenger seat was the POI. He could not recall the exact words he used and testified that he may have said “that’s him” or “that’s the guy”.

[27] In cross-examination DC Ceresoli admitted that he was never closer to the target than a distance of 20 to 30 feet. He denied that he would not be staring to get a good look but would not want the target to notice that he was being watched. He admitted that the last information he heard was that the possible target was in the Kia since he must have already been out of his car when Det. Balint communicated that the possible target had walked over to the Ford. He did not see this happen either. He was questioned about why he did not communicate that change but what he said is not clear. If he said what Det. Balint recalled as I set out below, when DC Ceresoli confirmed that identification of the target he did say he was in the front passenger seat of the Ford. In any event, the fact that DC Ceresoli was out of his car and did not hear Det. Balint announce that the possible target had switched cars strengthens his identification evidence as he identified the POI as Ahmed even though he was no longer seated in the Kia as he would have expected.

[28] Although the evidence DC Ceresoli might not meet the standard of proof of identity beyond a reasonable doubt, he admitted the limitations without hesitation and I have no reason to doubt that his evidence that he was sure the person he saw was Ahmed was not true.

[29] Det. Balint testified that at this time, while he was at the Esso station, he remembered hearing DC Ceresoli communicate over the radio that he saw the person believed to be Ahmed in the front passenger seat of the Ford and that DC Ceresoli “confirmed that it was Ahmed”. His note is that “Ceresoli identifies male in front passenger seat as T1.” He knew DC Ceresoli was on foot at this time and that he did so to get a better look. He admitted he was not aware of DC Ceresoli’s vantage point or his basis for making that observation or whether or not he had a photograph. Once this was confirmed by DC Ceresoli, Det. Balint testified that he now “felt pretty good about it” in that he had three people who had seen the POI who “thought this is our guy”; i.e. himself, DC Grewal and DC Ceresoli.

[30] Det. Balint was cross-examined on the fact that part of surveillance is keeping track of the target but he denied that he was merely tracking the movement of target. He admitted that he personally did not confirm it was Ahmed over the radio. However, he testified that when he saw him it looked like Ahmed “for my own peace of mind” and he was “reasonably certain” that the POI was Ahmed. Det. Balint was cross-examined about the fact that when the Central Notes were reviewed during the de-brief he did not correct his observation of the POI which was recorded as “possible.” Det. Balint responded that he was satisfied with the accuracy of the word “possible” in the Central Notes and that he had never testified that he was certain it was Ahmed and that he personally had not made a positive identification. He was not 100% certain that the person he saw was Ahmed and admitted that it “could be him” but he added that it was “closer to him than it wasn’t” and that he felt “pretty good” that they had Ahmed.

[31] DC Small recorded in the Central Notes that DC Ceresoli said “I’m jumping”; i.e. he exited his vehicle and conducted foot surveillance and that DC Ceresoli was able to make a positive identification of the person as the target and confirmed this over the radio. This evidence corroborates the evidence of both DC Ceresoli and Det. Balint.

[32] DC Grewal testified that DC Ceresoli identified the person sitting in the passenger seat as their target and he trusted this information. He made a note that DC Ceresoli “ID male in front passenger Ford as T1.” He denied this was the lynchpin because it was his position that the target would have been arrested for possession of a firearm even if the identification had been negative. Significantly, after this, DC Grewal no longer referred to a “possible” T1 in his notes.

[33] Both DC Ceresoli and DC Grewal were cross-examined in an effort to undermine their evidence that DC Grewal gave a photo to DC Ceresoli. DC Ceresoli was not able to produce the photo he received from DC Grewal. He testified that he kept it but it was misplaced which may have happened when he moved to Guns and Gangs and he could not find it. Significantly, DC Ceresoli does have a note in his memo book that he obtained a photo of the POI from DC Grewal.

[34] When DC Grewal was shown Ex. 1 he confirmed it was the photo that he received but he could not say if this was the POI package he received. He confirmed that he gave a photo to DC Ceresoli. He could not say if it was an extra one he had on a blank sheet or the “package photo”. DC Grewal recalled that he was parked near to DC Ceresoli and he recalled giving a photo to DC Ceresoli although he did not note it in his notes. He did not think it significant. In cross-examination it was suggested to DC Grewal that given he did not put the fact he gave a photo to DC Ceresoli in his notes that it did not happen and that he learned between the Preliminary Inquiry and the trial that the position of DC Ceresoli was that he obtained a picture from him. DC Grewal denied this. DC Grewal admitted that he did not testify about giving a photo to DC Ceresoli at the Preliminary Inquiry but he said that he was only cross-examined by Defence counsel and was not asked about this although he did testify to his own observations at the Esso station.

[35] I have no difficulty in accepting the evidence of DC Ceresoli and DC Grewal on this point. It was never suggested to DC Ceresoli that he was lying about this. Furthermore, it would make no sense for DC Ceresoli to attempt to make any meaningful observations without getting a photograph first given that he did not have a photograph.

[36] Det. Balint testified that he now wanted to arrest the POI and the fact that the cars were stopped was ideal for an arrest. However, he still needed to get his officers in position and before he could get everyone set up to make an arrest the vehicles were on the move again.

[37] The 401 highway is near the Esso station and once the two cars were moving again they went onto the 401 travelling eastbound with the officers following. Det. Balint let his Team know over the radio that he was there too and he was the first to pick up the two cars on the 401. Det. Balint kept pace with the cars as they travelled to the DVP and then southbound to Wynford Drive. During this time Det. Balint was trying to determine a plan to complete the arrest. He had six or seven officers in unmarked cars to assist at this time.

[38] As they were travelling southbound on the DVP, Det. Balint called dispatch for 51 Division and asked for a marked scout car to stop the rear car; the Kia. His goal was to disrupt this car and take it out of the equation. He told DC Askin and DC Ceresoli to stay with the Kia and assist the uniformed officers while the other officers remained in pursuit. Det. Balint received confirmation that the Kia had been stopped while he was travelling southbound at Woodbine. At this point Det. Balint along with at least four officers in four other cars continued to follow the Ford. Det. Balint believed that the people in the Ford saw their friends get pulled over since that is when they turned off onto Mortimer and then went southbound on Coxwell near East General Hospital. In the meantime he was keeping his officers informed of his plans.

[39] Once Det. Balint received confirmation that the Kia had been stopped, he looked for an opportunity to stop the Ford. At approximately 8:41 p.m., when the Ford came to a stop at a traffic light at Salmon Avenue, Det. Balint decided to call for the takedown over the police radio. Det. Balint knew he had a lead car stopped in front and he was behind the Ford as tight to the bumper as he could get. The officer in the front car reversed to the front bumper of the Ford and the two other cars pulled along each side so that the Ford was “boxed” in and could not leave. This is something his officers train to do.

[40] Once the Ford was stopped, Det. Balint knew another officer was dealing with the person he believed was Ahmed so he went to the driver’s side of the Ford and dealt with a boy in the rear seat who he turned over to DC Small. He then handcuffed and searched the driver, Livan Yusuf.

[41] DC Tan testified that he went to the front passenger side of the vehicle and ordered Mr. Yusuf to show his hands. When Mr. Yusuf hesitated, DC Tan then opened the door and took Mr. Yusuf out of the vehicle and onto the ground. There was a slight struggle and Sgt. Storey assisted. Sgt. Storey testified that when he got out of his vehicle DC Tan was already out of his vehicle and had the front right passenger out of the vehicle. He was struggling with him and he assisted DC Tan in taking him to the ground, face down. Mr. Yusuf was not giving them his arms and because it was awkward for the officers to move, given how close the cars were together, when Sgt. Storey was eventually able to get Mr. Yusuf’s right arm he pulled him to a more open area where he was able to handcuff him. After Sgt. Storey handcuffed Mr. Yusuf, he stood him up, and escorted him to a nearby bus shelter. DC Tan stayed by the car to assist with other individuals and had no interaction with Mr. Yusuf after this. DC Grewal dealt with the female driver.

[42] Sgt. Storey testified that at the bus shelter, he advised the person he believed to be Ahmed that he was under arrest in relation to a warrant for two counts of conspiracy to commit an indictable offence. He then commenced a pat-down search for the safety of the officers and the person he believed was Ahmed. Sgt. Storey located a piece of photo ID; he could not recall the type, in the name of Mustaf Yusuf with a birthdate of July 8, 1994, in one his cargo shorts pockets which were at the mid-thigh area of his leg.

[43] Upon looking at the photo ID Sgt. Storey testified that although the photo looked like the male he was talking to he remained unsure as to the identity of the person he had arrested given the similarity in appearance between the defendant and the photo of Ahmed provided at the briefing. From the picture he saw at the briefing and the male he arrested Sgt. Storey testified that they appeared to be the same to him and Sgt. Storey believed that the person he handcuffed was Ahmed. The information he received from DC Ceresoli at the gas station confirmed his belief. He admitted that he was aware that Ahmed had brothers but was unsure of their names.

[44] Sgt. Storey then searched the other pockets of the cargo shorts and he could see there was something heavy in the right cargo pocket of his shorts given the material was sagging. From the outside he felt something hard that, based on his experience, he believed was a firearm. He could feel the handle and the barrel when it was still in the pocket and he knew it was not a long barreled firearm. He reached in and pulled out a firearm wrapped in a red bandana.

[45] Upon discovering the firearm, Sgt. Storey testified that he was concerned about their safety and so he asked Mr. Yusuf if it was loaded. Mr. Yusuf responded that it was. Sgt. Storey thanked him for letting him know and then proceeded to unwrap the firearm. Sgt. Storey testified that he asked if the gun was loaded as this affects how he will handle it because he does not know what shape the gun is in and if it might go off.

[46] When the bandana was removed Sgt. Storey observed the firearm to be a snub nose stainless steel revolver with a rubber grip. He then opened the cylinder and confirmed that it was loaded with five rounds of .357 calibre ammunition in the cylinder. Sgt. Storey could see that the gun was in good repair so he put it back in the bandana and put it in one of his pockets and later secured it in a gun box in the rear of his car.

[47] Although by the time of submissions there was no issue with the search, when the firearm was introduced into evidence I had an opportunity to handle it. I have no difficulty in concluding that Sgt. Storey would have been able to tell this item was a firearm when feeling it through the cloth of the cargo pocket. It is heavy, even without the ammunition in it, and the handle and barrel are clearly identifiable and the cylinder is round and protrudes on each side of the firearm.

[48] Sgt. Storey testified that he notified the other officers that a firearm had been located by yelling “bingo” which is a term he used when there is no danger. Had there been any danger he would have yelled “gun, gun, gun.” Det. Balint testified that he knew that Sgt. Storey was with the person he believed was Ahmed at the bus shelter that was to his right and that while he was searching Livan Yusuf he heard Sgt. Storey yell out “bingo” which he understood was the discovery of a firearm and he saw him holding a red handkerchief. DC Small recalled hearing this as well. DC Tan did not recall the words used by Sgt. Storey but he was advised that he had located a firearm. DC Grewal did not recall any announcement at the time although he heard about the firearm later over the radio he had on his person. He recalled, however, that this was a term used in the past by Sgt. Storey. Although all of the officers did not hear Sgt. Storey yell “bingo” I accept his evidence that he did so and that he discovered the firearm as he described. They were in a public area where there was traffic and pedestrians and yelling something like “bingo” makes sense as one would not want civilians in the area to become alarmed unnecessarily.

[49] Upon discovery of the firearm Sgt. Storey advised the person he believed was Ahmed that he was also being arrested for the firearm. He testified that notwithstanding the photo ID he still believed he was arresting Ahmed. Mr. Yusuf was then read his rights to counsel for the first time.

[50] Even at this point DC Storey testified that he remained uncertain as to whether he was dealing with Ahmed or Mustaf Yusuf. Mr. Yusuf advised him that he had been arrested a few days earlier and had only just been released from court at 2201 Finch Avenue West that same day. It was only once DC Storey was able to independently confirm this information with the help of another officer that he was satisfied that he was indeed dealing with Mustaf Yusuf and not his brother Ahmed.

[51] Det. Balint received information while still at the scene that they may have arrested Mr. Yusuf and not Ahmed but he was not certain of this until Mr. Yusuf was fingerprinted later that evening because Mr. Yusuf looks like his brother Ahmed. He was cross-examined about the differences in the description of Mr. Yusuf from Ahmed. At this point, in error, Mr. Angelini put to Det. Balint that Mr. Yusuf is only 5’11” tall[^2] and at the time of his arrest weighed 141 pounds whereas the person they were looking for; Ahmed, was 6’2” tall and 180 pounds. Det. Balint explained that it is pretty difficult to tell height when driving in a car and that Mr. Yusuf’s hair was puffier or up. The difference in two to three inches in height is not huge. He also said that he is not an expert at guessing weight and they were looking for a thin male. Det. Balint was focused on the face and comparing it to what he had.

[52] DC Grewal testified that he dealt with the female driver and then searched the Ford. He did not find a firearm but he did seize a ball cap found in the vehicle, which was turned over to a detective at 23 Division because Det. Balint told him that this cap might have been worn by one of the shooters. He could not recall if this had been mentioned at the briefing.

[53] All persons were released except Mr. Yusuf who at 9:19 p.m. was turned over to two uniformed officers and DC Grewal read him his rights to counsel. At the time of his arrest the description of Mustaf Yusuf was:

18 years old

6’ 1” tall, weighs 141 pounds

[54] Counsel agreed that this was Mr. Yusuf’s height and weight at the time. The photo reproduced below was the photo taken of Mr. Yusuf upon his arrest and booking on July 10/11, 2012, although there is no dispute that when he was seen by police that night his hair was back in a ponytail:

[55] In police database records, Mr. Yusuf’s description is male, black, slim build, with a dark complexion, curly afro hair, brown eyes, moustache and thick eyebrows.

The Evidence Relevant to Possession of a Loaded Firearm

[56] It is admitted that the firearm found on Mr. Yusuf is a prohibited firearm as defined in the Criminal Code, that the rounds found in it are ammunition, that the firearm was operational and the ammunition could be fired from this firearm when it was seized. It is also admitted that Mr. Yusuf knew he was not the holder of an authorization or licence or a registration certificate permitting him to possess this firearm.

[57] DC Grewal was asked about the details of his observations that led him to believe the possible POI was armed. DC Grewal was on foot and said that he had an unobstructed view of the possible POI coming out of the complex with two other males and walking down some steps. He testified that he saw the possible POI “blade” his body; which he said was turning his body in a defensive position, and place his right hand on his waistband in response to seeing another vehicle slowing to make a turn. The possible POI was wearing baggy shorts and a baggy shirt that was not tucked in which hung lower than the waistband of the shorts. The possible POI was looking “hard” at this car while he gripped something in his waistband which DC Grewal believed to be a firearm. It was as if it was tucked in to the front of his pants. DC Grewal said that based on these actions it was obvious to him that the possible POI was armed with a firearm. He admitted that he never saw a firearm but the actions were consistent with a firearm. At that point, in his mind, the possible POI was arrestable for possession of a firearm. DC Small testified that DC Grewal communicated over the radio that the possible POI was clutching his waistband in a fashion that exhibited the characteristics of an armed person.

[58] At this time, approximately 8:10 p.m., another officer, DC Small, observed the possible POI to be exhibiting characteristics of an armed person while he walked through the McDonalds parking lot. In particular, he observed the possible POI swinging his left arm freely while his right arm was pressed to his body. According to DC Small, the possible POI was being careful to not move his right hand off his body. It looked like he was grasping something in his waistband area between his belt and hip with his right hand. DC Small admitted that he also considered that Ahmed was wanted for a shooting and Project Marvel but he said that he was making independent observations. At no time did he think this person was just holding his baggy shorts up. These observations were communicated over police radio.

The De-Brief and the Police Notes

[59] After the officers returned to the station there was a de-brief between 10:23 and 10:30 p.m. that Det. Balint and the other officers participated in. The officers made the notes in their own police books after this de-brief which included a review of the rough Central Notes made by DC Small. What transpired was discussed to ensure that everything was covered in the Central Notes and that there were no errors in the notes.

[60] The Central Notes made by DC Small were not introduced into evidence although I did see a page of the notes he made in his note book that were clearly made while he was on the move; given they are not very neat as compared to the notes he made back at the station which are very neat. In other words, I am satisfied that he did make notes for the purpose of the Central Notes while events were unfolding and before returning to the station. Also, from time to time in response to a question asked by counsel, I learned what a particular note in the Central Notes was.

[61] Det. Balint admitted that he made all of his notes after the de-brief since there was not a lot of down time during this investigation given the events that occurred before the arrest. He admitted that he would have needed the Central Notes and might have gone back to the Central Notes for a reference, for example to a licence plate. He could not recall if he needed to this time. Det. Balint testified that his observations in his notes are his own observations only and then when information is received he writes “IR” for “Information Received.”

[62] Det. Balint was cross-examined about the similarities in his notes and the Central Notes. He admitted that he might have used much of the Central Notes to assist him in recalling what he heard but his own observations are his own observations. When he prepared his notes Det. Balint had a memory of what occurred and he would not have put anything in his notes that was false or not accurate. He admitted he copied the route the vehicle was taking into his memo book after the gas station even if he did not observe it all but he said he would want to put that route in his notes since he was part of the surveillance by this point. He did not put the trip to McDonalds in his memo book because he was not there then.

[63] Mr. Angelini reviewed with the other officers who testified as to how the Central Notes impacted their personal note taking. He argues that this procedure was improper and relies on R. v. Jinje, 2015 ONSC 2081, [2015] O.J. No. 1590 where, at paras. 28-32, Nordheimer J. commented on the problems resulting from the fact that several officers admitted discussing what had happened as they wrote up their notes. As he pointed out, this practice means that no one can have faith that any officer’s notes represents that officer’s independent recollection as opposed to simply being an amalgam of what other officers remember. The other is the concern about collusion having occurred in the recording of the events. Both of these concerns undermine the credibility and reliability of these officers as witnesses in terms of their recollection of the events in issue.

[64] I agree with these observations and have considered these concerns in making my findings of fact in this case. The one significant difference in the case at bar is that DC Small was acting as a Central Note Taker and I have seen an excerpt of his rough notes and am satisfied that they were made at the time he was hearing the various communications over the police radio. Those communications have been the primary focus of my findings of fact. Furthermore, a determination of this application depends largely on the evidence of Det. Balint and the information he received. The issues that have arisen with his evidence have more to do with what is not in his notes. Where I have relied on personal observations of an officer, it is in cases where only one officer has given evidence about a particular observation which means there is no real possibility of the evidence of that observation being tainted by what another officer observed of the same event, save to the extent the officers heard what other officers were observing through communications on the police radio.

Findings of Credibility/Reliability and Fact

Credibility/Reliability Assessments

[65] Mr. Angelini’s primary attack was on the credibility of Det. Balint. He submitted that Det. Balint did not interpret the communication from DC Ceresoli as confirming the identity of their target, that he exaggerated the degree to which he believed that the target was Ahmed and that he merely suspected this. I do not accept this submission. Much of this submission depends on how the communication made by DC Ceresoli about “confirming” that the possible target was Ahmed was in fact interpreted and, for reasons I will come to, I accept Det. Balint’s evidence on that point which is corroborated not only by DC Ceresoli but also DC Small.

[66] Overall I found Det. Balint to be a very fair witness. His demeanour and responsiveness to questions did not change from his examination-in-chief to his cross-examination. He clearly did not use the Central Notes to fill holes in his own notes. The most obvious example is that he had no note of Ahmed being associated with the Nissan even though I have found that information must have come from him. He readily admitted that his memory now was largely dependent on his notes and did not give evidence that he recalled information about the Nissan which he could have done if he was not inclined to be honest. He also did not exaggerate his own personal observations of the target and readily admitted that he was not certain that the target was Ahmed.

[67] As for the other officers, no issue was really taken with their credibility save for a few specific points I have already reviewed. I found DC Small in particular to be a very fair witness and I noticed that he was very careful in giving his evidence to ensure it was accurate. That observation has enhanced by belief that the Central Notes are reliable to the extent he recorded communications over the radio.

Findings of Fact - What Det. Balint Knew When He Ordered the Arrest

[68] Since Det. Balint lead the briefing I obviously have no difficulty in concluding that he knew at the time all of the information that was conveyed to the officers who attended the briefing. For the reasons already given, in addition to what is set out in the POI package, I have concluded that Det. Balint knew that Ahmed was associated with the Nissan and that Ahmed may have been involved in a shooting on July 8, 2012 in 23 Division.

[69] In cross-examination Det. Balint was challenged as to whether or not he in fact heard DC Grewal communicate over the radio that he believed that target was armed. Det. Balint admitted that he might have had difficulty recalling what was said on the radio when he made his notes and, as I have already said, he admitted that he referred to the Central Notes when making his notes. He testified that it was his job to make a mental note of what was being said. Det. Balint had some independent recollection of this communication because he testified that in terms of DC Grewal’s tone of voice, DC Grewal was fairly certain of what he had seen and Det. Balint testified that this is what drew his attention causing him to leave Scarborough and head for Ardwick. Although Det. Balint fairly admitted that he would have gone to Ardwick whether or not he heard that the possible POI was possibly armed, he also testified that this information was important to him because for safety purposes, when planning to arrest a person believed to be armed, police awareness is heightened and this information would have helped him to formulate how to arrest Ahmed. In other words, he had a reason to note this information at the time. Furthermore, there is no reason why Det. Balint would only have heard part of DC Grewal’s communication at this time.

[70] Furthermore, the evidence of DC Ceresoli also corroborates this evidence of Det. Balint. He testified that Det. Balint told him over the radio that his assistance was needed and that DC Grewal had told him that he was at a location where the POI was displaying the characteristics of an armed person. He was certain that this information came from Det. Balint and not the Central Notes and I note he used the term IR in his notes for information received. This clearly confirms that Det. Balint heard at the time the communication from DC Grewal.

[71] Det. Balint’s evidence that he heard the communication from DC Small that he had also observed the possible POI and that he was displaying characteristics of an armed person was not challenged. In addition Det. Balint had his own personal observations of the target at the Esso station.

[72] Much of the attack on Det. Balint was with respect to his interpretation of what DC Ceresoli communicated over the radio and in particular whether or not DC Ceresoli in fact confirmed the identification of the target as Ahmed or was only confirming that the target was now in the front passenger seat of the Ford. In cross-examination Mr. Angelini tried to get Det. Balint, DC Ceresoli and DC Small to agree that all that was being confirmed was the current location of the target but they all disagreed with that suggestion and maintained that DC Ceresoli had confirmed the identity of the target as the person they were looking for; Ahmed. I note that the fact Det. Balint testified that he heard the communication by DC Ceresoli was not challenged. In any event there was no evidence from Det. Balint that he left his vehicle so there would have been no reason why he would not have heard this communication.

[73] I have already reviewed the evidence of DC Ceresoli. He denied that he was just calling out the change in position of the target and testified that the reason he got out of his vehicle was to identify the person in the Ford. I accept that evidence. This evidence is confirmed by DC Small and what he recorded in the Central Notes. He recorded that DC Ceresoli “jumps” and after noting the observation by Det. Balint that their possible target was on the move he recorded that DC Ceresoli “confirms ID T1 in the front passenger seat of the Ford.” He interpreted this as DC Ceresoli confirming that the person in the front passenger seat was their target – he was no longer a possible target. Although this was not asked of DC Small at the time, had he not believed this at the time he made his rough Central Notes, he would not have needed to say that the ID of T1 was confirmed but rather simply record that DC Ceresoli “confirms T1 is in the front passenger seat of the Ford.” Mr. Angelini admitted that it was also significant that after the observations by DC Ceresoli the possible POI/target is just referred to as T1.

[74] The only officer who agreed with this line of questions was Sgt. Storey but the context in which he was asked these questions left open in my mind what he would have said if he had been asked what he understood the entire communication from DC Ceresoli meant. In any event, I accept the evidence of DC Ceresoli that even though he could not recall his exact words that he was sure that the target was Ahmed and that this is what he communicated. His words were interpreted in this manner by DC Small and all of this corroborates the evidence of Det. Balint.

[75] The other issue raised in support of this theory that DC Ceresoli had not in fact confirmed the identity of the target was evidence suggesting that it would have made no sense for him to be the officer to do this. DC Ceresoli admitted that he had never met Ahmed before nor seen him before. He admitted it was possible that some of the other officers had dealt with Ahmed before. He also assumed that these other officers had actually seen a photograph of the target.

[76] As I heard the evidence of DC Ceresoli I did wonder why he was the one to go out on foot as he had not attended the briefing and needed to get a photo of the target from DC Grewal. In cross-examination it was suggested that he was the least likely person to take on this role. Save for DC Grewal, he did not know where the other officers were but he believed that he and his escort were the closest ones. He pointed out that people pump gas and leave quickly. They might have left quickly and might not have made the ID if they waited. He also said that the reason DC Askin did not jump out was probably because he was driving.

[77] In considering this evidence I accept the submission made by Mr. Fassler that in all of the circumstances it made sense that DC Ceresoli was the one to “jump” as he was the only surveillance officer who was not driving a vehicle. Had the vehicles they were following suddenly left the station DC Askin could have pursued them without waiting for DC Ceresoli to get back to their vehicle.

[78] Det. Balint admitted that it is always a concern that you have the right person and that they always try to get a better look until they confirm identity. In cross-examination he admitted to a number of facts that affect the strength of his belief that the person he saw was Ahmed. Specifically Det. Balint admitted that he expected the POI to be in the rear right passenger seat of the Kia based on observations made by other officers. He agreed that the occupants of both cars, around eight male black persons, were milling around. Det. Balint also admitted that he only had a black and white mug shot of Ahmed and that he had never dealt with him before. However, he said that he did not have any reason to believe that the physical description in the text of the POI package or the photo of Ahmed was out of date although he admitted that he knew that Ahmed could look different in that the photo had been taken some months earlier and people can change their appearance. He testified that the fact Ahmed was described as last having cornrows in his hair did not matter to him as they could be taken out in a day in which case Ahmed would look like he does in the picture. He also pointed out that at the time Mr. Yusuf’s hair was bushy and pulled back in a ponytail. He was not asked whether or not he knew that Ahmed had similar looking brothers and if so, if and how this affected his decision to call for the arrest.

Findings of Fact – Has the Crown Proven the Elements of the Offences?

[79] There is little doubt that Mr. Yusuf was in possession of the firearm and Mr. Angelini did not suggest otherwise. Given the other admissions, if the evidence of the firearm is admissible, there is no doubt that the Crown has proven beyond a reasonable doubt that Mr. Yusuf is guilty of Counts #2 and #3. The outstanding issue with respect to Count #1 is did Mr. Yusuf know the firearm was loaded and with respect to Count #4, was he was carrying it in a careless manner.

[80] In this respect the observations of some of the officers that Mr. Yusuf was displaying characteristics of an armed person are relevant. I have the evidence of what DC Grewal observed and then what DC Small observed. Based on that evidence which I accept and my own observations of how heavy the firearm is, I have no difficulty finding that the firearm was in Mr. Yusuf’s waistband or pocket when he was first observed by DC Grewal and DC Small. I, therefore, have no difficulty in concluding that Mr. Yusuf knew the firearm was loaded and that if the firearm is admissible, the Crown has proven Count #1.

[81] Mr. Angelini objected when Mr. Fassler attempted to get evidence from Sgt. Storey as to how loaded firearms should be safely transported. Mr. Fassler agreed that he had not qualified Sgt. Storey as an expert and so he did not pursue that line of questioning. Sgt. Storey did testify, however, that the firearm was loaded, there was a bullet in the chamber and if Mr. Yusuf had somehow put his finger on the trigger, while the loaded firearm was in his pocket, it could have gone off.

[82] Section 86(1) of the Criminal Code makes it an offence to carry a firearm in a “careless manner”. I see no reason why the term “careless” should not be given its usual meaning which in this context would mean ill-considered, imprudent, irresponsible, negligent, reckless, etc. In my view carrying a loaded firearm in a bandana in one’s shorts pocket constitutes carrying a firearm in a careless manner. If the firearm is not excluded Mr. Yusuf is also guilty of Count #4.

Analysis

The Charter Application

[83] Turning to the issues on the Charter application, I will consider those issues in light of the findings of fact that I have already made.

[84] As I have stated, the central issue on the Charter application is whether or not the Crown has proven on a balance of probabilities that Det. Balint, who ordered the arrest, had reasonable and probable grounds to believe that Mr. Yusuf was Ahmed.

[85] Mr. Fassler fairly conceded that he must rely on the arrest that was made and that he was not making an alternative argument that Mr. Yusuf was lawfully arrested because of the observations made by various officers that he was displaying the characteristics of an armed person. He submitted, however, that this fact would be relevant to any s. 24(2) analysis. It is his position that Det. Balint had reasonable and probable grounds to order the arrest of the person identified as Ahmed.

[86] Section 495(1)(a) of the Criminal Code provides legislative authority for a police officer to arrest a person without a warrant if the officer, on reasonable grounds, believes the person has committed an indictable offence. Reasonable grounds have both a subjective and objective component. As Cory J. wrote in R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.):

… an arresting officer must subjectively have reasonable and probable 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 and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case. (at para. 17)

[87] In R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (Ont. C.A.), the Court stated that in considering the lawfulness of an arrest, “[t]he totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience: see R. v. Golub (at para. 4 citations omitted).

[88] In R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), a case involving the requirements for an investigative detention, Doherty J.A. referred to Storrey and stated that the requirement that the facts must meet an objectively discernible standard:

…serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Such subjectively based assessment can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which proves accurate becomes in hindsight a “hunch”. (at para. 61)

[89] Mr. Fassler also referred to the recent decision of this court; R. v. Aguas, 2015 ONSC 3462, [2015] O.J. No. 2726, where at para. 56 Justice Campbell summarized some of the principles surrounding the practical application of the objective branch of this legal standard. I will come back to this.

[90] With respect to the subjective branch of the test, it is Mr. Angelini’s position that Det. Balint had no more than a suspicion that Mr. Yusuf was Ahmed and that by their own admission, the police only believed that it was "possible" that Mr. Yusuf was Ahmed and that "possible" does not equate to reasonable and probable grounds. This position, however, presumes that DC Ceresoli did no more than confirm the location of the possible POI and that he did not confirm the identity of the POI as Ahmed. For the reasons I have already given, I do not accept that position. I have found as a fact that DC Ceresoli confirmed the identity of the target as Ahmed and that this is how Det. Balint interpreted his communication over the radio.

[91] Det. Balint testified that his grounds for arrest were as follows:

a) DC Grewal said he had possibly seen Ahmed;

b) he personally had observed a person he believed to be Ahmed;

c) he heard DC Ceresoli confirm that this person was Ahmed; and

d) this person was found in same housing complex as where Ahmed resided although Det. Balint admitted that Ardwick is a fair sized housing complex.

[92] Although Det. Balint made no reference to the fact that the target was associated with the Nissan, which is not surprising since he had not recorded this information in his notes, for the reasons already stated I find that he must have also known that the target had been seen in this vehicle early on during the surveillance.

[93] Having found as a fact that Det. Balint reasonably believed that DC Ceresoli had confirmed the identity of the front passenger in the Ford as Ahmed and that he had all of the other information set out, I find that the Crown has proven that Det. Balint subjectively believed that had reasonable and probable grounds to order the arrest of Mr. Yusuf, believing him to be Ahmed.

[94] Before turning to the objective branch of the test, I will review some of the cases relied upon by counsel. Both counsel advised me that they had not found any similar cases where the wrong person was arrested. I find that surprising as I would not expect cases of mistaken identity to be so rare. However, accepting this is correct, I have reviewed the cases referred to me to obtain what assistance I can.

[95] Mr. Angelini submitted that the facts of this case are similar to those of R. v. Charley, [1993] O.J. No. 1248, where the Ontario Court of Appeal reversed the trial judge's s. 24(2) ruling and conviction of the appellant of carrying a concealed weapon; a revolver, that was discovered by the police when the appellant was arrested on a charge of robbery that was not proceeded with. The arresting officers had been told at their morning briefing that a robbery had occurred at 6:45 a.m. that day and they were given the following description of the robbery suspect:

male, black, 5'8" to 5'11", with a short afro, wearing a dark jacket, armed with a knife and a gun

[96] The Court held (at paras. 2 and 3) that the “physical description of the suspect matched any number of persons in downtown Toronto,” that the appellant was doing nothing suspicious at the time of his arrest which was about three and one half hours after the robbery, that he merely refused to answer questions put to him by the officers and that “[b]y no stretch of the law can it be said that the police had what amounted to reasonable and probable ground for arresting the appellant for robbery.”

[97] I agree with Mr. Fassler that the facts of this case are not at all similar to the facts of the case at bar. The police had much more than a physical description. They had a photograph of their target and both an address and a vehicle to which the target was associated. These same officers then observed a person at this address and drive away in this exact vehicle.

[98] Mr. Angelini also referred me to a decision of the Quebec Court of Appeal; R. v. Burke, [2009] Q.J. No. 222 (Que. C.A.), affirmed 2009 SCC 57, [2009] SCJ No. 57 (SCC) which he submits is similar factually to this case. In Burke the Court upheld an acquittal on charges of possession of cocaine for the purpose of trafficking in similar circumstances. In the reasons of Côté J.A.,(as she then was) she stated:

51. The respondent was arrested while riding his bicycle during the evening. The officer believed that he was the person he had arrested the week before who had managed to escape. There was a warrant of arrest against that person, and two more charges were brought against him after he escaped. In fact, the respondent was that person's brother. The evidence reveals that the two brothers look alike.

52. After having reviewed the contradictions between the testimony given by the officer at trial and at the preliminary inquiry, as well as the testimony of the respondent, the trial judge concluded that there were no objective grounds to arrest the respondent, especially since he had informed the officer that he was the brother of the person in question and that this was a case of mistaken identity.

53 She concluded as follows:

In the circumstances of this case, the Court cannot conclude that the officer had objective grounds for the arrest. He did not investigate when the identification of the accused was contested, even though he was told that the person being sought after by the warrant was the brother. The contradictions between his evidence at trial and at preliminary inquiry do not reinforce his reasons for arresting the accused; his subjective belief was not sufficient.

54. After an analysis of the factors relating to the exclusion of evidence obtained through a violation of constitutional rights, the trial judge concluded that the officer's actions in the circumstances were not in good faith and excludes from the evidence the drugs (eight rocks of crack cocaine) found on the respondent during the search.

[99] The Crown's appeal was dismissed by the Supreme Court of Canada. Although this case does seem to be similar to our case, as submitted by Mr. Angelini, I note that at paras. 61 to 64 it appears that the trial judge did not believe the evidence of the officer and found that the officer did not subjectively have reasonable grounds to make the arrest. This finding of fact was given deference by the Court. As I have already stated, I accept the evidence of Det. Balint that he subjectively believed that the person he had ordered be arrested was Ahmed. Furthermore, Sgt. Storey did some further investigation when Mr. Yusuf said he was not Ahmed but by that time he had already been arrested and subjected to the pat down search that revealed he was in possession of the firearm. The issue in the case at bar is whether or not at the time he called for the arrest, Det. Balint had objective reasonable and probable grounds.

[100] In R. v. Hall, 1995 CanLII 647 (ON CA), [1995] O.J. No. 544 the Ontario Court of Appeal dismissed an appeal from conviction in similar circumstances and held as follows:

41. Although the description of the appellant was general, when those features of the description which matched the appellant are combined with the fact that he was hitchhiking alone in a westerly direction while wearing jewellery, including a woman's ring, it seems to me that the objective requirement for arrest without warrant set out in Storrey is satisfied. To put it in the language of Storrey, a reasonable person in Constable Clarida's position would conclude that there were reasonable and probable grounds to arrest the appellant for the unlawful possession of stolen property.

[101] The only other case I was referred to that is of some assistance is R. v. Boston, [2014] O.J. No. 394 (Ont. S.C.). In that case the police arrested the defendant for breach of recognizance, believing that he was in breach of the house arrest condition of his bail. In fact, however, the defendant was no longer on bail and the officers only learned of their error after the arrest. Justice Code upheld the decision of the trial judge and found that the police did not have an obligation to investigate and negative an exception to the “house arrest” term of bail before they could lawfully arrest the defendant for breach of recognizance.

[102] At para. 12, Justice Code stated:

Where the police rely on information that turns out to be false or unreliable, the lawfulness of the antecedent arrest depends on whether it was reasonable, in the circumstances that existed at the time, to rely on the particular information and/or the particular source.

[103] Furthermore, as Justice Code pointed out at paras. 19 and 20 of his decision, in Storrey, Cory J. noted that it has long been the rule in Canada and the United Kingdom that the police can continue their investigation subsequent to an arrest. Furthermore, the Court in Storrey adopted a flexible common law approach to determining when the police should make further inquiries prior to making an arrest and that the police do not need a prima facie case for conviction before arresting someone.

[104] In light of these cases, which are clearly fact dependent, I turn then to the question of whether or not Det. Balint’s belief that he had reasonable and probable grounds to order the arrest of Mr. Yusuf, believing him to be Ahmed, was objectively reasonable in the sense that a reasonable person in his position would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[105] Mr. Angelini submitted that even if I accept that Det. Balint subjectively believed that he had reasonable and probable grounds to order the arrest of Mr. Yusuf, believing him to be Ahmed, that the Crown has not proven that his subjective belief can be objectively justified. In addition to the arguments he had already made he submitted that a reasonable person in Det. Balint’s shoes would be alive to identification problems of cross-racial identification and noted that all of the officers save for DC Grewal are white. On this last point, however, he did not question any of the officers and given their experience I see no reason why I should not assume that they would be aware of these issues.

[106] Mr. Angelini submitted that Det. Balint did not rely on the fact that the target had been seen in the Nissan because this information was not in his notes. However, for the reasons already stated, I do not accept that submission.

[107] I have also found that Det. Balint heard the communication by DC Grewal that the possible POI was exhibiting characteristics of an armed person but that information does not appear to have impacted his decision to make the arrest.

[108] Mr. Angelini submitted that Det. Balint knew that Ahmed had brothers who looked similar to him. Det. Balint was not asked by either counsel if he knew that Ahmed had brothers who looked similar to him. That evidence came only from Sgt. Storey. However, as Det. Balint was conducting the briefing he would have been the source for this information or perhaps the information came from 23 Division. Given the evidence of Sgt. Storey and applying the same logic that I did with respect to the Nissan, I find Det. Balint must have known this at the time.

[109] Turning then to all of this information that was known to Det. Balint, I draw the following conclusions.

[110] I have reproduced a copy of the photographs of each brother above and certainly based on those photographs, in my view, the faces of the two brothers are strikingly similar. Mr. Angelini suggested that there were differences in their appearance but based only on the photographs of their faces I would say the similarities are so striking that I would not be surprised if on the street they were mistaken as twins. Obviously their skin color is the same but they both have brown eyes and black afro curly hair and in the photographs they both have bushy black eyebrows, mustaches and some hair on their chin. Their facial features are also the same in that they have long faces. In the photograph of Ahmed, his hair is pulled back in what appears to be a bushy ponytail and that is how Mr. Yusuf had his hair on the night in question. That would have made Mr. Yusuf look even more similar to the photograph the police had of Ahmed.

[111] In addition to the physical similarities, it appears that, like Ahmed, Mr. Yusuf was also associated with the Nissan and Ardwick.

[112] The confirmation of identity made by DC Ceresoli was based on Mr. Yusuf’s face as compared to the photograph of Ahmed. Even after Mr. Yusuf was out of the car, the fact is that he and his brother are almost the same height; a difference of one inch. The only significant difference is weight but given their height I would not expect the difference in weight to be that obvious

[113] My impression of the appearance of Mr. Yusuf as compared to the photograph of his brother Ahmed is confirmed by the evidence of Sgt. Storey which I accept. I was not given a copy of the photo ID that Mr. Yusuf produced but assuming it was as accurate and up to date as the photograph taken of him when he was arrested, Sgt. Storey testified that he still remained unsure as to who he was dealing with even when presented with that photo ID in the name of Mr. Yusuf and even though he knew Ahmed had similar looking brothers. It was only after Sgt. Storey confirmed information provided to him by Mr. Yusuf that he had been in custody until that morning that he was satisfied that he was not dealing with Ahmed. However, by this time he had done his search for officer safety reasons and located the firearm.

[114] I have carefully considered what Mr. Angelini characterized as his pivotal argument that given Det. Balint knew that Ahmed had similar looking brothers that he had an obligation to proceed with caution and that this created the need for a higher level of verification to ensure that he was not arresting a brother rather than his target Ahmed, particularly with a high-risk takedown. In this regard he referred to para. 93 of Burke, where in the concurring reasons of Vezina J.A., he stated:

There is nothing exceptional about brothers who resemble each other. An officer confronted with such a situation must ensure or at least attempt to ensure, that he is not confusing one for the other. The lack of any action to avoid confusion vitiates the objectively reasonable nature of the grounds for arrest. At least, I can see no error of principle in the fact that the trial judge drew this conclusion in the present case.

[115] As I have said, the facts in Burke are clearly distinguishable from the case at bar and I would not say that there was a lack of any attempt to ensure that Det. Balint was ordering the arrest of Ahmed. It is true that Det. Balint made no specific mention of this issue but, as I have said, he was not asked about it either and so even though I have found that he must have known Ahmed had similar looking brothers, I do not know how he would have responded to this argument. He could well have said that given the other connections to the POI, namely Ardwick and the Nissan, that he was satisfied he had the right man. There is no evidence that he would or should have known, as Mr. Angelini submitted, that Mr. Yusuf was also living at Ardwick. Although Mr. Yusuf was young, there is no evidence that this address was a family address and so I also do not accept the submission that this should have crossed Det. Balint’s mind.

[116] Mr. Angelini also argued that Det. Balint should not have accepted DC Ceresoli’s confirmation of the identity of the target given he had no idea how he made that confirmation. He suggested that Det. Balint should have questioned DC Ceresoli on where he was and how he made his observations and how sure he was especially since he should have known that DC Ceresoli had not attended the briefing and did not know that Ahmed had similar looking brothers. I accept that Det. Balint would have known that DC Ceresoli did not attend the briefing but neither he nor DC Ceresoli were asked if he told DC Ceresoli about the brothers.

[117] This argument was not put to Det. Balint although he did admit that his grounds for arrest were based on eyewitness identification. In my view even though DC Ceresoli was not on his Team, Det. Balint was entitled to rely on the fact that DC Ceresoli was a skilled officer who was also with the Guns and Gangs Task Force and that he would not confirm identification unless he was sure. I see no reason why Det. Balint could not take his communication at face value. It was consistent with his own belief and the observations of DC Small. He knew that DC Ceresoli had gone out on foot to make his observations. To suggest that in those circumstances he had an obligation to question DC Ceresoli is in my view contrary to how we would expect officers to work together as a team. They rely on each other for their personal safety and I see no reason why they could not be expected to rely on each other for the work that they do.

[118] The other difficulty with this argument made by Mr. Angelini is that given the facts that I have found, I do not know what else the police could have done. Mr. Angelini submitted that they could have used binoculars but that was not put to Det. Balint and if it had I expect he would have said that would have been a dead giveaway to the fact the POI was being watched by police. Furthermore, I have accepted Sgt. Storey’s evidence that even when he had Mr. Yusuf in custody he was not sure at first that he was not Ahmed even when Mr. Yusuf produced photo ID.

[119] Once the decision was made to arrest the person Det. Balint believed to be Ahmed, Mr. Angelini did not argue that Sgt. Storey was required to stop the arrest and search upon discovery of the photo ID. Clearly Sgt. Storey believed he was dealing with a person involved with firearms and a pat down search for safety reasons was certainly warranted before continuing his investigation into the identity of the person he had arrested. His subsequent confirmation that he had arrested Mr. Yusuf and not Ahmed did not retroactively render the arrest of Mr. Yusuf for possession of a firearm unlawful.

[120] Mr. Angelini also submitted that Det. Balint could simply have backed off and decided just to detain Mr. Yusuf to confirm his identification. The problem with this argument is that we know that when Mr. Yusuf was detained and arrested even with photo ID Sgt. Storey was not certain that he was not Ahmed. Furthermore, Ahmed was wanted on serious charges and was a suspect in a recent shooting. There had been surveillance for over an hour by DC Grewal and then the rest of the Team. Without more investigation there was nothing the Team could have done to be more certain that they had the right person in their sights.

[121] Accepting the evidence of Det. Balint, he was not certain that Mr. Yusuf was not Ahmed until he was fingerprinted. Obviously that is not something that could have been done until after an arrest. Short of that I do not see how Det. Balint could have been certain in this case that he had ordered the arrest of the wrong person given how similar the brothers look. As stated in Aguas at para. 56, the second last bullet:

[t]he standard of reasonable and probable grounds is used to define the point at which the state’s interest in detecting and preventing crime begins to prevail over the individual’s liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion.

[122] In my view, for all of these reasons, I find that Det. Balint’s belief that he had reasonable and probable grounds to order the arrest of Mr. Yusuf, believing him to be Ahmed, was objectively reasonable in the sense that a reasonable person in his position would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[123] Having found that the arrest was lawful, Mr. Angelini has fairly admitted that the pat down search of Mr. Yusuf and the subsequent seizure of the loaded firearm was a lawful search incident to a lawful arrest and not in violation of either s. 8 or s. 9 of the Charter.

[124] I turn then to the only other potential Charter breach; the fact that Sgt. Storey asked Mr. Yusuf whether or not the firearm was loaded before he was given his Charter rights. Having carefully considered the evidence of Sgt. Storey, I agree with Mr. Angelini that this was not really a necessary question that needed to be asked and answered for officer safety reasons. Sgt. Storey knew he was dealing with a revolver before he pulled the firearm out of Mr. Yusuf’s pocket and he would have been able to see that it was loaded if he had carefully removed the handkerchief. He admitted that he would not rely on information from an accused and that he would handle the firearm with caution regardless of the answer.

[125] However, I do not find that Sgt. Storey asked the question at the time in an effort to get some sort of admission from Mr. Yusuf that the Crown could rely upon at trial. He said it was his practice to ask this question and that he would take the answer into account. Although I have found that he really did not do so in any material way I do not believe that the question was asked in bad faith. While asking the question was a breach of Mr. Yusuf’s s. 10 Charter rights, this is not a breach that would have materially affected my s. 24(2) analysis had I come to the conclusion that Mr. Yusuf was not lawfully arrested.

[126] For these reasons, the application brought on behalf of Mr. Yusuf to exclude the firearm from evidence is dismissed.

If there was a breach of Mr. Yusuf’s s. 8 and s. 9 Charter rights, should the firearm be excluded pursuant to s. 24(2) of the Charter?

[127] Having found that Mr. Yusuf’s Charter rights were not breached, a s. 24(2) analysis is not necessary. However, in the event that I am incorrect, I have engaged in the s. 24(2) analysis to the extent possible, bearing in mind that, in a case like this, it is difficult to complete the analysis without knowing what might be considered a breach of the Charter by another court. In doing so I am guided by the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, which sets out the factors I would have to consider and balance in order to make such a determination.

[128] The first factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone deviation from the rule of law: Grant at para. 72. This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights”: at para. 74. The court must also consider whether there were “extenuating circumstances such as the need to prevent the disappearance of evidence” and whether the police acted in good faith: at para. 75.

[129] I have found that all of the officers who testified before me were credible and there is no evidence to suggest that they acted in bad faith. Mr. Yusuf was not arrested for any improper purpose. There was no suggestion that he was the target of racial profiling or other discriminatory police practices. It was a case of mistaken identity. However, Mr. Angelini argues that the police acted hastily and ignored vital facts which undermined their alleged reasonable and probable grounds. He submits that they knew or ought to have known they were taking a real risk in not arresting the right person. Depending on the view of another court, that would be material to this factor.

[130] The second factor in Grant, which to some extent overlaps the first, requires a consideration of the impact of the breach on the defendant. When considering the impact of the breach on the accused person’s Charter-protected interests, it is necessary to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. A court should consider whether the impact of the breach was “fleeting and technical” or “profoundly intrusive” and consider the effect of the breach on the accused’s human dignity: paras. 76, 78. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: at para. 76.

[131] Clearly if Mr. Yusuf was unlawfully arrested and searched, that would be a very serious breach of his Charter rights. As Cory J. stated in Storrey:

Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence …before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. (at para. --)

[132] Notwithstanding the seriousness of the arrest, there is no evidence that the police conduct was abusive. There was a brief struggle but no evidence of injury and the pat down search was performed over Mr. Yusuf’s clothing.

[133] Finally, considering the third Grant factor, this is reliable evidence and the Crown’s case depends upon it. Without this evidence the Crown has no case. Furthermore, even if the people in the Ford had just been detained it is likely that the firearm would have been found in any event as a pat down search of Mr. Yusuf would likely have been done. This is a strong factor favouring inclusion of the evidence. This, however, has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high: Grant at para. 84.

[134] The Supreme Court in Grant made it clear that reliable evidence is not automatically admissible. The Court held that the view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights: Grant at para. 80. However, the Court went on to say that “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”: at para. 81.

[135] At this stage of the analysis I would be required to weigh the various factors, understanding that there is no overarching rule governing how the balance should be struck: Grant, supra at para. 86. In balancing all of these factors as required by Grant, I would likely conclude that the admission of the firearm would, viewed in the long term, not bring the administration of justice into disrepute. Although unlike Grant, this is not a case where the officers were operating in circumstances of “considerable legal uncertainty” as the requirements for a lawful arrest have been settled for some time, how those requirements apply in the case of mistaken identity where there are brothers who are very similar in appearance has not been the subject of decisions that provide guidance beyond what the officers did in this case.

Disposition

[136] Mr. Yusuf would you please stand.

[137] For the reasons I have given I find you guilty of all of the charges in the Indictment.

SPIES J.

Released: January 21, 2016

CITATION: R. v. Yusuf, 2016 ONSC 514

COURT FILE NO.:15-5/041

DATE: 20160121

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MUSTAF YUSUF

Defendant

RULING ON DEFENCE APPLICATION

TO EXCLUDE EVIDENCE and judgment

SPIES J.

Released: January 21, 2016

[^1]: I will refer to the defendant Mustaf Yusuf throughout as Mr. Yusuf and to his brother as Ahmed.

[^2]: Counsel later agreed that that the information in the police database is correct and in fact Mr. Yusuf is 6’ 1” tall.