Court File and Parties
COURT FILE NO.: 09-10000589-0000 DATE: 20160916 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Daniel O’Connor, for the Crown Respondent
- and -
NOSAKHARE OHENHEN Luc Leclair, for the Defendant/Applicant Defendant/Applicant
HEARD: June 14-30, 2016, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Charter, ss. 8, 9, 10(b), 24(2)
Introduction
1On August 21, 2008, Mr. Ohenhen was arrested in the Parkdale area of Toronto following a Highway Traffic Act (“HTA”) stop. He was charged with seventeen offences: assault police, resist lawful arrest, eleven charges in relation to illegal possession of a loaded restricted firearm and breach of prior prohibition orders, two counts of possession of cocaine and one of marijuana for the purposes of trafficking, and possession of proceeds of crime. The arrest took place in a grassy treed area just south of Parkdale Collegiate Institute (PCI), on the north side of the parking lot and tennis courts. This area is south of Queen Street and north of King Street, between Jamieson on the west and Close Avenue on the east.
2Mr. Ohenhen challenges the admissibility of all of the evidence seized when he and his vehicle were searched following his arrest. He claims the evidence was obtained by the police through an unreasonable search and seizure, contrary to Mr. Ohenhen's rights under s. 8 of the Charter of Rights and Freedoms that followed on an unlawful detention, in contravention of his rights against arbitrary detention under s. 9. Mr. Ohenhen also asserted a breach of his s. 10(b) rights to counsel, both at the scene of the arrest and later at the police station.
3It is obvious, given the antiquity of this case, that this is a retrial. On June 17, 2010, the Honourable Madam Justice J. Wilson of this court, sitting without a jury on a joint voir dire and trial, convicted Mr. Ohenhen of all of these offences. Mr. Ohenhen was sentenced to nine years’ imprisonment, which, after credit as it was available at that time, required that he serve about four and a half years. He appealed from his conviction and sentence, but his appeal was not heard until five years later, June 30, 2015. The appeal was delayed by the retirement and unknown whereabouts of the trial reporter and, more importantly, the record of the trial proceedings. It took several years to obtain those, which accounts for the lengthy delay to appeal. By the time the appeal was heard, Mr. Ohenhen had served his sentence and was on release.
4However, the appeal from conviction was allowed and this retrial was ordered. The Court of Appeal released a brief endorsement. It noted that the trial judge rejected Mr. Ohenhen’s evidence finding it to be totally implausible. She found that his evidence “where it differs from the evidence of the officers is a fabrication of a story after having had the benefit of hearing all of the evidence”, merely in an attempt to exclude the gun and drugs from evidence. She rejected the contention that one of the police officers had planted drugs on Mr. Ohenhen to justify his decision to search his vehicle, where the firearm was located. She found the suggestion that any officer had planted drugs on the defendant to justify a warrantless search of the vehicle to be totally unsubstantiated.
5The Court of Appeal concluded that the trial judge’s findings reflected legal error R. v. Ohenhen, 2015 ONCA 507. At paragraphs 4-5 of its endorsement, it stated its reasons succinctly:
4 Credibility was a significant issue on the voir dire, in light of the disparate versions of events given by the principals. The appellant was entitled to have his credibility fairly assessed without paying an evidentiary price for the exercise of his statutory and constitutional right to be present at his trial. The trial judge's perception of the reactions of his trial counsel to the evidence adduced are not of evidentiary significance in an assessment of the appellant's credibility and the reliability of his evidence.
5 The trial judge found no constitutional infringement, but went on, in any event, to consider whether the application of s. 24(2) of the Charter would result in the admission or exclusion of evidence. We are not persuaded that her s. 24(2) analysis remained untainted by her original findings in connection with the appellant's credibility. At all events, we are not persuaded that her s. 24(2) analysis overcomes the fundamental flaws in her credibility assessment.
6The sentence appeal was abandoned since Mr. Ohenhen had already served it. Given that he had already served his sentence and that nothing could be gained from a new trial other than the addition of further convictions to Mr. Ohenhen’s already very lengthy drug dealing related criminal record, at the beginning of the trial I questioned counsel on whether there was a possibility of resolution and questioned the public utility and need of conducting another trial and consuming another three weeks of court resources. Indeed, as I waited on standby to ensure I would not be tainted as trial judge if the matter continued, Justice Nordheimer met with the parties several times for most of the day on June 14. He tried to achieve a resolution that would avoid the need for the matter to be retried, but he later advised me those efforts were unsuccessful and Crown and defence counsel advised me that the trial would proceed. As such, eight years after the original trial, Mr. Ohenhen was arraigned again on these charges from 2008 and the trial commenced, running for thirteen days until June 30, 2016.
7This background provides some context to this joint voir dire and trial. The witnesses were the five Toronto Police officers who were involved in Mr. Ohenhen’s detention and arrest, two other officers and the accused who testified for the purposes of the voir dire only. Throughout the trial, it was plain that apart from their limited recollections of many matters, even though they were all together in the same place, the most common response of the police witnesses to the many questions asked about these events and their interaction with each other and Mr. Ohenhen was “I don’t recall.”
8Having carefully considered the evidence of the police officers individually and collectively, I find it to be neither credible nor reliable in its totality for the reasons set out.below. I accept much of the evidence of the defendant, Mr. Ohenhen, but regardless, the deeply troubling aspects of the testimony and conduct of these officers and their uncertain credibility and reliability does not satisfy me on a balance of probabilities that the police had articulable cause to detain Mr. Ohenhen. Neither did they have grounds to arrest him and then search his person incident to that arrest and his vehicle without a warrant, or respect his rights to be told the reasons for his detention and arrest and to retain and instruct counsel without delay.
9In the result, on this voir dire eight years after the fact, I have found that Mr. Ohenhen was arbitrarily detained contrary to s. 9 of the Charter, that he was unreasonably searched contrary to s. 8, and that his constitutional right to retain and instruct counsel without delay under s. 10(b) of the Charter was totally and shockingly ignored by the police. The virtual total absence of important recall about these events apart from the strict line story that they tried to adhere to, and the very serious concerns about systemic police misconduct here, necessarily requires that this court disassociate itself from that conduct.
10Having found that Mr. Ohenhen’s rights were constitutionally infringed on three separate grounds, after applying the method of analysis mandated by R. v. Grant, 2009 SCC 32, I have excluded the evidence under s. 24(2) of the Charter for the further reasons set out below. Mr. Ohenhen will be acquitted of all charges.
The Facts
11It is necessary to set out the differing versions of the events, both because the facts are important to the Charter analysis but also because the facts reveal a troubling picture of police conduct, regardless of whose version of the events one chooses to accept.
12The incident began in the late afternoon of August 21, 2008. P.C. Mildenberger, his partner, P.C. Landry, and P.C. Beckwith, were in uniform on bicycle patrol in the Parkdale area of Toronto. They had just come over to Queen and Jamieson having completed some bicycle safety training for children at the Vietnamese Bicycle Club located on Queen Street. They headed south on Jamieson on the west side of the street. Moments later, from the north behind them, a dark green Jaguar sedan turned south onto Jamieson from Queen.
13Numerous Google maps of the area were used by all the witnesses to place themselves in the area as these events unfolded, and all were marked as exhibits. At the time the green Jaguar sedan driven by Mr. Ohenhen first came into view, P.C. Landry said he and P.C. Mildenberger were just south of Laxton Avenue, that runs east-west and meets Jamieson Avenue at a T-intersection, one block south of Queen Street. PCI is located directly opposite on the east side of Jamieson. P.C. Beckwith claimed he was a block farther south on the west side, parallel to the apartment building at 209 Jamieson.
14P.C. Mildenberger claimed he heard loud thumping music coming from the green Jaguar, turned and looked north and saw that vehicle and saw that the driver was not wearing his seatbelt. He said he pulled his bicycle onto the street and used some kind of motion for the driver to stop.
15The driver, Mr. Ohenhen, turned the green Jaguar east off Jamieson into the school parking lot immediately south of PCI. He did not immediately stop, but instead drove to the end of the parking lot. He found a vacant parking spot and parked his vehicle. He got out of the car and started walking in a southwest direction towards P.C. Mildenberger.
16As Mr. Ohenhen walked towards him, P.C. Mildenberger claimed he saw a large bulge at Mr. Ohenhen’s waist, under the basketball jersey he was wearing. P.C. Mildenberger was suddenly concerned it might be a firearm. He claimed as they came close to each other that he told Mr. Ohenhen to return to his vehicle, but he also reached out and touched the bulge. He claimed Mr. Ohenhen slapped his hand away and said, “don’t touch me.” P.C. Mildenberger ignored that response and lifted Mr. Ohenhen’s jersey to look for himself. But there was no firearm, just the protruding loop of Mr. Ohenhen’s belt buckle. He said Mr. Ohenhen pushed him away with two hands to his chest, and at that point, quickly turned and bolted, running eastbound back towards his car.
17P.C. Mildenberger pursued him on foot but the accused had a good head start. By this time, P.C. Landry claimed he had seen what transpired with P.C. Mildenberger, and saw Mr. Ohenhen turn and run. He dropped his bike and ran across Jamieson Avenue in pursuit, parallel to and north of Mr. Ohenhen’s path. Mr. Ohenhen had a good lead on P.C. Mildenberger, but he had to turn north at the tennis courts, just beside where the Jaguar was parked and this took him up to the grassy pathway area between the school and the tennis courts and parking lot. That was where P.C. Landry caught up with him and tackled Mr. Ohenhen.
18P.C. Beckwith also claimed to have seen the end of that interaction on the other side of the street when Mr. Ohenhen started to run, from his vantage point at 209 Jamieson where he and P.C. Landry had been distracted by another matter of claimed domestic assault in one of the apartments at that address. They had been having interactions with a screaming woman who had called 911. She evidently thought they had come in response to her call, but the west side of Jamieson Avenue is a different police division. While they dealt with her initially, he said that seconds later, officers from that division arrived in scout cars to deal with her. As P.C. Landry ran in pursuit of Mr. Ohenhen, P.C. Beckwith said he started to run in pursuit as well, crossed Jamieson, but then realized it would be faster to bicycle, ran back across Jamieson to retrieve his bike, and then crossed back over Jamieson again for a third time on his bicycle in pursuit of Mr. Ohenhen.
19P.C. Mildenberger arrived on scene first after P.C. Landry tackled Mr. Ohenhen and he sought to assist him in taking control of the suspect. P.C. Beckwith said he arrived seconds later and also assisted.
20Before these events transpired, two other officers were on bicycle patrol in the area. P.C.’s Tait and Westell were on Close Avenue to the east of PCI. A short while before, they had seen a youth shoving something into his pants as they approached him on Close Avenue, questioned him, and he revealed a small baggy of crack cocaine and some marijuana that he had been endeavouring to hide. They arrested him, took the drugs from him, and released him on a promise to appear.
21P.C. Westell remembered putting that baggy of drugs into the left breast pocket of his service vest. It was only 20 or 30 minutes after they finished dealing with that youth that they heard the commotion of the interactions involving Mr. Ohenhen. They immediately proceeded on their bicycles to the grassy path area where Mr. Ohenhen had been taken down and the other three officers were attempting to subdue him, intending to provide assistance.
22Mr. Ohenhen was lying face down on a gravel and dirt pathway, next to the first of three park benches that were on the north side of the tennis courts. While he was lying face down, he was given a surface search and the police found a baggy of drugs in one of his jeans pockets and a wad of money as well. At that point, P.C. Tait decided to search Mr. Ohenhen’s green Jaguar. It is admitted he had no warrant. When he went to the vehicle, there was nothing untoward in the front seat, but he saw a latch behind the driver’s seat for the bottom of the back seat, and he said it appeared ajar. He lifted the seat portion of the back seat and underneath found a handgun, fully loaded.
23By this time, according to the police, Mr. Ohenhen had been arrested for possession of narcotics, and so was now arrested for the possession of the firearm. He was allegedly cautioned and read his rights to counsel. He indicated in response that he understood and wanted to speak to his lawyer, Luc Leclair. A back-up car had arrived soon after, and he was put in the back seat for transport, but there was a delay of more than 25 minutes before he was transported to 14 Division for booking. The driver of that vehicle said they had to wait for P.C. Landry before they departed.
24As he was paraded before the Sergeant, P.C. Westell suggested a level three strip search. The Sergeant agreed. After being searched, the officers came back before the Sergeant with Mr. Ohenhen and claimed to have found another baggie of cocaine and a baggy of marijuana located in a secret pocket behind the zipper of his jeans. The booking videos, which were made exhibits on the voir dire, show P.C. Westell and P.C. Beckwith bringing Mr. Ohenhen back before the Booking Sergeant, and P.C. Westell pulling a baggy that he told the sergeant they had found on Mr. Ohenhen’s person out of his left breast pocket. As noted, that was the same pocket where he had put the drugs seized from the youth on Close Avenue just before the events transpired with Mr. Ohenhen south of PCI.
25The sergeant made reference to Mr. Ohenhen being allowed to call a lawyer or duty counsel, but in fact he was never actually put in contact with a lawyer, either his own, who he asked for by name, or duty counsel. One of the officers testified that she had tried to contact Mr. Leclair, Mr. Ohenhen’s preferred counsel, but that there was a Roger’s recorded message that the line was no longer in service.
26In his evidence, Mr. Ohenhen told a very different story about how these events transpired. Mr. Ohenhen is a black man whose parents came from Nigeria. He is now 35 but was 28 at the time of these events. He has an extensive and varied criminal record that involves numerous drug trafficking offences and includes firearms possession. Mr. Ohenhen plainly admitted to dealing drugs for a living.
27On August 21, earlier in the day, he had been visiting a friend who he called “Dijon”, an old friend he had known for 20 years, who lived at 165 Jamieson Avenue, the third building on the east side south of the PCI parking lot. At about 5:20 p.m. he came southbound onto Jamieson Avenue intent on going back to see Dijon, because Mr. Ohenhen said he had forgotten his cell phone at Dijon’s residence when he was there that morning. He was driving the 2000 green S-Type Jaguar. His friend, “Mills”, was with him in the vehicle, sitting in the passenger seat. The side windows of that vehicle are tinted, but not the windshield area.
28He drove down Jamieson Avenue and turned into the school parking lot to park his car, because he said there was no parking on the street at that time. He found a parking spot towards the end of the lot and got out of the car to walk to Dijon’s house. He told Mills to stay in the car and that he would be back soon.
29Mr. Ohenhen started to walk towards Jamieson Avenue, but after he had taken about 15 steps, he saw bicycle mounted police officers on the east and west side of Jamieson riding up. The officer on the west side (P.C. Mildenberger) came towards him and asked him if he had just parked his car there in the parking lot. He said, “You know you’re not supposed to park there.”
30As they approached, the police officer’s manner changed and he said “What’s that at your waist?” Mr. Ohenhen asked why, and said the officer then grabbed for his waist and lifted up his shirt. The accused asked him “hey, what’s going on.” He testified he was never told to get back in his car.
31He said the officer asked him for identification, grabbed the front of his basketball jersey and said “I’ll tell you when you can leave.” Mr. Ohenhen said he reached for identification in his small right jeans pocket, and at that same time, he heard a lady screaming about a domestic incident on the other side of the street. The accused said P.C. Mildenberger was holding his ID and turned in that direction. He pulled out his notepad, and directed the accused to sit on a concrete block that was evidently at the entryway to the parking lot. Mr. Ohenhen said he sat on that block as directed.
32Just then Mr. Ohenhen heard something broadcast over the officer’s police radio, and he just got up and ran. It was obviously the ICAD response to P.C. Landry’s identification request for the registered owner of the green Jaguar, a request Landry made when he was with P.C. Mildenberger and they first saw the vehicle. It is now known it identified the registered owner as Mr. Ohenhen and described him as someone with a criminal past who should be approached cautiously.
33Mr. Ohenhen said he ran because he knew the officer was not going to let him go after hearing that broadcast. The officer was aggressive and had pulled his shirt when he told him he could not leave until permitted to do so. The officer gave him no reason why he was being detained or why he had been stopped.
34Mr. Ohenhen said he bolted away from P.C. Mildenberger running eastbound through the parking lot, past his vehicle and up along the side of the tennis courts. He yelled at “Mills”, who was still in his car, to clear out of there. As he was doing that he could see another officer running towards him from the left at full speed. That other officer grabbed his left leg and held it for 4-5 seconds and then another officer jumped on his back and he fell to the ground face first as the second officer was trying to get control of his arms and pulling them behind his back. Mr. Ohenhen claimed the officer said “Why are you running?”, put handcuffs on him and pushed him down into the dirt pathway area.
35He was out of breath from running. From his face down position on the ground he could see other sets of feet of police officers. He did not hear them speaking, but then one of the officers said “We’ll think of something.” He thought it was the tallest of the officers, now known to be P.C. Tait. That officer was holding something in his hands; he thought a baggy of marijuana in one and something white in the other hand.
36The police conducted a pat down search of him while he was still face down on the ground, digging their fingers into his pockets. Then they pulled him to his feet. P.C. Mildenberger was holding one arm and P.C. Landry the other. One of the officers started going through his pockets and pulled out a wad of money. That was P.C. Tait. After P.C. Tait searched him, the officer went towards his vehicle. Mr. Ohenhen claimed he came back and said, “I bet if we search the vehicle we’ll find a black gun.”
37The officers had him stand for a while and then directed him to sit down on the adjacent concrete and wood bench. Mr. Ohenhen claimed he was never read his rights to counsel. They called for an escort car, but it was already parked across the street. He asked to call his lawyer. As they walked him to that vehicle, one of the officers asked him if he wanted to call a lawyer and he said yes. They put him in the back of the scout car, but he just sat there for a while, hot and sweaty. He does not know how long he sat there. The police did not permit him to call his lawyer at that time.
38Mr. Ohenhen explained that he was transported to 14 Division. He was paraded in front of the sergeant. Again in front of the sergeant, he said he did not understand what had happened and why he was arrested and asked to call his lawyer. He gave them the name of Mr. Leclair and his phone number. Then they strip-searched him in an adjacent room; two of the officers who had been on scene, P.C.’s Beckwith and Westell. They claimed to have found further contraband on Mr. Ohenhen’s person. After the search, and P.C. Westell producing the drugs that he and P.C. Beckwith had allegedly found on Mr. Ohenhen’s person during the strip search, Mr. Ohenhen was then taken upstairs to the CIB room. He was held in one of the cells in that part of the station for some hours. He was never given the opportunity to call a lawyer until well after the level three search at 14 Division. He gave the name and number of his lawyer to Sgt. Lee. She claimed in her evidence that the number was not in service. Mr. Ohenhen never did speak to either his own lawyer or duty counsel.
Legal Framework
39This case focuses on three distinct Charter rights and whether those rights were violated in this case. The first is the s. 9 right against arbitrary detention, the second the s. 8 right to be free from unreasonable search and seizure, and the third, the s. 10 rights of any citizen who is arrested or detained to be informed promptly of the reasons for their detention or arrest and to retain and instruct counsel of their choice without delay and to be informed of that right.
40Mr. Ohenhen contends in this case that when he was stopped by P.C. Mildenberger for an alleged infringement of the HTA while driving his vehicle on Jamieson Avenue in Toronto on August 21, 2008, it was without reasonable or articulable legal cause. He claims that P.C. Mildenberger not only arbitrarily detained him, but never bothered to tell him why he had been stopped or was being detained.
41Then, having committed no evident offence, and the police having no reasonable and probable grounds to believe he had committed an offence, when Mr. Ohenhen ran away from the officer to escape that detention, he was chased, tackled to the ground by several police officers and searched, two times initially at the same time his vehicle was searched, again without a warrant and without apparent cause. He was searched a third time for good measure: strip-searched, after being booked at the police station. All with no legal foundation. Finally, having been detained and then arrested, Mr. Ohenhen was never told the basis for his initial detention or arrest, and once unauthorized searches of his person and his vehicle produced a quantity of illegal drugs and a firearm, I have found that he was never actually given his formal rights to counsel. He told the police he wanted to call his lawyer at the scene and at the police station, but he was never permitted to exercise those rights to counsel by contacting his lawyer, Mr. Leclair, or duty counsel, despite several repeated requests to do so.
42Mr. Ohenhen’s claims involve allegations of very serious Charter violations. If that conduct is proven on the balance of probabilities standard that applies under s. 24(2) of the Charter, then it will provide a strong constitutional foundation for the exclusion of the evidence that was the product of that conduct. If that evidence is excluded, the charges against Mr. Ohenhen in this case must all be dismissed.
43Against that background, and before assessing the evidence and the credibility and reliability of the witnesses, it is important to recall the legal framework that governs these three areas of Charter challenge, apart from s. 24(2). That framework is well-established in over twenty years of jurisprudence. However, insofar as the adequacy and questions of credibility and reliability of the testimony of the principal police witnesses relative to these events ties into their notes, what was in the notes and what was not, as well as how and when they were made, I have commenced this outline of the legal framework by reminding myself of the jurisprudence relating to note-taking by officers.
(i) The adequacy of officers’ notes
44The duty of officers to make notes was addressed by the Supreme Court of Canada in Wood v. Schaeffer, 2013 SCC 71, although it looked at police note-taking in the context of a different question. That case was focused on whether a police officer in Ontario who has witnessed or participated in an incident under investigation by the SIU is entitled to speak with a lawyer before preparing his or her notes concerning the incident. Moldaver J., writing for the majority of the Supreme Court, held at para. 4 that officers do not enjoy this right.
45In the course of his reasoning, however, Moldaver J. discusses the duty of officers to make notes generally Wood v. Schaeffer, 2013 SCC 71 and recognized an obligation of police officers to take accurate, detailed and comprehensive notes. At para. 67, he stated:
…I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation…such a duty to prepare notes is, at a minimum, implicit in an officer’s duty to assist in the laying of charges and in prosecution…(My emphasis.)
46Several cases since Wood have subsequently applied the Supreme Court’s finding of a duty of police officers to take accurate, detailed and comprehensive notes. In R. v. Daley, 2015 ONSC 7367, for example, an absence of police notes as to why a vehicle was pulled over aggravated the seriousness of the Charter infringing conduct by police in that case, resulting in the evidence collected from that particular stop being excluded under s. 24(2). See also R. v. Dhillon, 2015 ONSC 5400 at para. 39, and R. v. Gill, 2015 ONSC 7872 at para. 45, where the court commented on the discretion of a trail court judge to determine the weight to be given to officer’s notes when those notes are missing details.
47A recent decision of the Ontario Court of Appeal also comments on the importance of adequate and accurate officer note-taking. In R. v. Thompson, 2015 ONCA 800, the accused alleged the trial judge erred in misapprehending and weighing evidence while assessing the credibility of the Crown’s witnesses. The accused had been charged with possession of cocaine and marijuana for the purpose of trafficking and possession of the proceeds of crime. He brought two applications under s. 24(1) and s. 24(2) of the Charter to stay the charges, or at least to exclude the evidence on the basis that the police obtained a search warrant for his restaurant illegally based on allegedly fabricated information that he was in the possession of drugs after leaving the restaurant.
48He argued that the trial judge erred in placing no weight on the fact that the original central notes of the officers went missing and that the consistency of the officers’ individual notes, prepared off of the central notes, alleviated any concerns about timing and inconsistencies. The accused relied on the Court of Appeal decision in R. v. Wood, 2011 ONCA 716, that when notes are used to refresh an officer’s memory at trial, it is vital that the notes used record the officer’s own independent recollection of the events in question.
49The Court of Appeal ultimately held, in agreement with the trial judge, that the officers, in line with their duty, reviewed the central notes as soon as possible after the event in question to ensure that the observations or actions attributed to them had been accurately recorded. Unlike in Jinje where the officers made notes in a group, in Thompson, after reviewing the central notes, the officers made separate notes of their own participation. The trial judge did not err in placing little weight on the lost handwritten central notes. R. v. Wood, 2011 ONCA 716.
50Justice Nordheimer’s decision in R. v. Jinje, 2015 ONSC 2081 is a decision that appears much closer on the facts to those present in this case. In that case, like here, amongst other charges, an accused was arrested for illegal possession of a firearm. Mr. Jinje challenged the admissibility of the firearm evidence on the basis of an invalid search and seizure under s. 8 of the Charter, which followed an unlawful detention contrary to s. 9. Nordheimer J. ultimately found at para. 50 that the officer had no legitimate grounds to arrest Mr. Jinje and consequently she and the other officers had no proper basis to detain him and conduct a search incident to arrest.
51The court noted in detail the varying versions of events as testified to by the accused and the police officers involved in his arrest and detention. One officer’s version of events contradicted markedly with that of Mr. Jinje. There was a particular conflict on whether or not Mr. Jinje had his hands in the pockets of his vest when he was stopped by police.
52Nordheimer J. found the evidence of the officers as to what took place prior to Mr. Jinje’s arrest to be “fundamentally problematic.” He reached that conclusion, not only because the officers admitted that all of them prepared their notes of what transpired in the presence of one another, but also because one of the officers even admitted that the officers had discussed the events that took place in the course of writing their notes. At para. 28-29, Nordheimer J. stated:
Having set out the competing evidence, I begin my analysis with a general observation and that is that I find the evidence of the police officers involved in this incident to be fundamentally problematic. My problems begin with the fact that three of the officers admitted that all of the officers involved had prepared their notes back at 32 Division in the lunchroom in the presence of each other. Officer Bilton, in particular, quite candidly admitted that all of the officers discussed what happened as they wrote up their notes.
This situation is concerning on two fronts. One is that an officer's notes are supposed to be a record of that officer's independent recollection of the events in which the officer is involved. If officers make their notes in a group, and discuss what occurred, then no one can have any 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 that it raises the spectre of collusion having occurred in the recording of the events. All of this serves to undermine the credibility and reliability of these officers as witnesses in terms of their recollection of the events in issue. (My emphasis.)
53Despite some inconsistencies in the notes and in the recollections of the officers as argued by the Crown, Nordheimer J. still found that collusion could have occurred, even if they were not successful in actually carrying it out. Further, only some of the officers may have participated in the collusion, accounting for some inconsistency among the officers’ version of events (at para. 30).
54He concluded, however, that the officers did not have a proper basis to arrest Mr. Jinje R. v. Jinje, 2015 ONSC 2081; they lacked reasonable and probable grounds to believe or suspect he had committed an offence. Based on the evidence, the officer only had, at best, a hunch that he was in possession of a handgun, which was not sufficient grounds to undertake a search or arrest. There was materially less in this case.
55Importantly, consistent with the Supreme Court’s position in R. v. Harrison, 2009 SCC 34, Nordheimer J. emphasized that the fact that the police actually found a handgun in Mr. Jinje’s pocket does not change the proper analysis: “the ends cannot justify the means.” R. v. Harrison, 2009 SCC 34 The impact on Mr. Jinje’s Charter rights was significant because the officers did not have any grounds on which to demand that Mr. Jinje show them the contents of his pocket.
56The officer’s evidence was suspect and the court found that it was “constructed [by her] for the sole purpose of attempting to justify her hunch that Mr. Jinje had a firearm,” R. v. Jinje, 2015 ONSC 2081 commenting at para. 62:
There will be little to commend our free and democratic society, if we permit police officers, on a whim or a hunch, to detain, arrest and search any citizen in the speculative hope that a firearm will be found and, in the process, administer personal injury to the person who is the subject of their interests. R. v. Jinje, 2015 ONSC 2081. See also R. v. Calleja, 2012 ONCJ 868.
(ii) Detention
57Section 9 of the Charter ensures that citizens are protected against arbitrary detention or imprisonment. Arbitrary detention includes two distinct elements, first, the question whether the person has been detained, and second, whether such detention has been arbitrarily imposed.
58The Supreme Court re-stated the law governing "detention" within the scope of ss. 9 and 10 of the Charter in R. v. Grant, 2009 SCC 32. It confirmed that any significant physical or psychological restraint that has the effect of suspending an individual's liberty interest amounts to a detention. A person will be detained where they have a legal obligation to comply with a restrictive request or demand, or where a reasonable person would conclude, by reason of the state conduct, that he or she had no choice but to comply. Plainly, the evidence demonstrates these circumstances were present in this case.
59In R. v. Pinto, a black person was confronted with demands of police officers in the context of a circumstance like this. Hill J. noted that “the experience and perspective of visible minorities respecting the police often serves to inform their beliefs about the realistic existence of free choice in dealing with the police” (my emphasis). That perspective equally informs their perception of their liberty to leave a situation where they have been detained, for whatever alleged reason, by police authorities or other officers of the state.
60Arbitrariness is the second component of unconstitutional detention. A detention will be found to be arbitrary where it was not legally authorized and thus unlawful. R. v. Grant, 2009 SCC 32. Our constitution guarantees individuals the freedom to do as they please in the absence of laws to the contrary. There is no general power of detention for investigative purposes R. v. Mann, 2004 SCC 52, and police conduct may only impinge the liberty of the subject to the extent legally authorized.
61In assessing the lawfulness of the authority exercised, where the police conduct is prima facie, an unlawful interference with an individual’s liberty, as it was here, the court is required to consider whether: (i) the police conduct giving rise to the interference falls within the general scope of any duty imposed by statute or common law and, if so; (ii) whether such conduct involved an unjustifiable use of power associated with the duty. R. v. Mann, 2004 SCC 52 Whether the conduct was reasonably necessary or justified is to be assessed on an objective view of the totality of the circumstances, and in particular by considering the extent to which the interference with liberty rights of the subject was necessary to perform the officer’s duty, and the nature and extent of the liberty interfered with. R. v. Mann, 2004 SCC 52
62Police have lawful authority to detain a person for investigative purposes based on the person's connection to a particular crime. However, in addition to other requirements, the police must have reasonable grounds to detain the person. This requires reasonable grounds to suspect in all of the circumstances that the person is connected to a particular crime. R. v. Mann, 2004 SCC 52
63The historic language required that the police have "articulable cause" for the detention. That required a factual basis to support a reasonable suspicion that the detainee was criminally implicated in the activity under investigation. R. v. Simpson. That threshold is somewhat lower than reasonable grounds to arrest, but it does have objective and subjective requirements. R. v. Mann, 2004 SCC 52 Nevertheless, certainly a person's mere presence in a high crime area would not, of itself, provide a lawful basis for detention. R. v. Mann, 2004 SCC 52 Unlike in this case, in Mann, the Supreme Court found that the accused was reasonably detained, since he was found near the scene of the reported break and enter, it was near midnight, and the accused closely matched the description of the suspect; in other words, he was detained based on other evidence that implicated the accused in the crime.
64The Court of Appeal held that a “roadside stop of a vehicle for a provincial regulatory offence under statutes like the HTA (e.g., speeding) is a detention, in R. v. Harflett, 2016 ONCA 248, referring to R. v. Mellenthin, 1992 SCC 50 and R. v. Harrison, 2009 SCC 34. It is the HTA that police rely upon here as their authority for having detained Mr. Ohenhen.
65Under s. 216 of the HTA, a police officer acting in the lawful execution of his duties may lawfully require the driver of a motor vehicle to stop, but that authority does not permit a motorist to be stopped in relation to a matter unrelated to highway safety.
66The “lawful execution” of duties element in s. 216(1) requires that the officer must have independent lawful authority to stop and detain one or more of the occupants of a vehicle if he is not acting in relation to highway safety. R. v. Simpson In Simpson, the Court of Appeal found that s. 216(1) did not provide authority for a motor vehicle stop where a police officer made the stop to investigate for drug offences, regardless of the fact that he may have been acting within the general scope of the duty to prevent crime and enforce criminal law. At paras. 30-35 of Simpson, Doherty J.A., states:
In my opinion, the "check stop" cases decide only that stops made for the purposes of enforcing driving related laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Highway Traffic Act, even where those stops are random. These cases do not declare that all stops which assist the police in the performance of any of their duties are authorized by s. 216(1) of the Highway Traffic Act.
Once, as in this case, road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual.
Section 216(1) of the Highway Traffic Act refers to stops made in the "lawful execution" of the officer's duty. In my opinion, the scope of the officer's power to investigate crimes unrelated to the operation of motor vehicles is unaffected by s. 216(1) except that the section empowers the officer to stop a vehicle where the officer otherwise has the lawful authority to stop and detain one or more of the occupants of the vehicle. Constable Wilkin had the authority to stop the vehicle and detain the occupants only if at the time he did so he could lawfully have stopped or detained one or both of the occupants had he encountered them on the street. If he had no such authority, he was not acting in the "lawful execution" of his duty as required by s. 216.
The search for a legal authority for this stop and detention must go beyond s. 216(1) of the Highway Traffic Act.
The law imposes broad general duties on the police but it provides them with only limited powers to perform those duties. Police duties and their authority to act in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it assisted in the performance of the duties assigned to the police. Where police conduct interferes with the liberty or freedom of the individual, that conduct will be lawful only if it is authorized by law. That law may be a specific statutory power or it may be the common law. As I have rejected the only statutory authority put forward to support this detention (s. 216(1) of the Highway Traffic Act), I will now consider whether the common law authorized this detention.
67Similarly, in R. v. Pinto, Hill J. discussed the powers and responsibilities of police officers in relation to a charge of having assaulted a police officer engaged in the lawful execution of his duty. Importantly, he observes that contrary to section 270(1)(a) of the Criminal Code, there can be “no conviction ... where a peace officer undertakes an unlawful arrest” because “the officer is not then acting in the execution of his duty.” R. v. Pinto.
68Pinto has additional relevance to this case since one of the alleged grounds for the vehicle stop was the playing of loud music, as is claimed in this case based on the evidence of the police officers. Section 75(4) of the HTA does provide that drivers are not to cause their vehicle to make any unnecessary noise, but Justice Hill warns at para. 43 that:
The s. 75(4) provincial offence is highly subjective in nature and generally unfettered by objectively independent verification. In other words, the allegation can be subject to interpretation, reasonable dispute, or in some instances, abuse.
The other alleged ground for the stop in this case was P.C. Mildenberger’s assertion that Mr. Ohenhen was not wearing his seatbelt. Section 106(2) of the HTA requires that drivers of vehicles wear seatbelts when driving a vehicle.
69However, the core of the defence position here is that this stop was without just cause on either of those two grounds. Instead, at its core it is claimed to have been instead a “racially motivated stop”, where there were no HTA grounds to pull over Mr. Ohenhen, but instead that he was pulled over as a black man driving an expensive vehicle.
70The Court of Appeal recognized the existence of such racial profiling in R. v. Brown, and described it as "the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group." It is "criminal profiling based on race. ... Criminal activity is attributed to an identified group in society...." The Court in Brown added at para. 8 that "The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping."
71Consequently, where a police officer may reasonably be considered to have stopped a person based on his or her colour (or on any other discriminatory ground), the purpose is plainly improper. Brown v. Durham Regional Police Force Clearly it would not be an articulable cause permitting the vehicle to be stopped or its driver detained. It would not be authorized by s. 216(1) of the HTA. If the police stop a car because of the racial origins of the driver, the stop is unlawful even if there were other valid highway safety concerns that justified the stop. R. v. Brown
72In Brown, the accused argued that subconscious racial profiling, rather than slight speeding and weaving, underlay the motor vehicle stop and that the breathalyzer analysis should be excluded based on a s.9 Charter violation. R. v. Brown The Court of Appeal ordered a new trial on the basis that the trial judge demonstrated a reasonable apprehension of bias in dismissing the application. Similarly in R. v. Khan, ss. 8 and 9 of the Charter were violated and cocaine found in the accused's vehicle was excluded where the court, applying Brown, found that the accused was targeted for a motor vehicle stop on the basis of racial profiling, namely, that he was a black man driving an expensive car. As noted, that is exactly the alleged motivation for the vehicle stop claimed by the defence in this case.
73Even if an HTA vehicle traffic stop is in the nature of a spot-check (fixed point or roving patrol), it will violate s. 9 unless it was made for specific HTA purposes (sobriety, licence, ownership, insurance, mechanical fitness) so as to have been justified by s. 1 of the Charter. The power to detain must be strictly confined to the HTA purposes in the absence of “reasonable grounds” to believe another offence has occurred or is in progress.
74In R. v. Ladouceur, 1990 SCC 108, in considering whether the legislative objective behind s. 189(a)(1) of the HTA (now s.216(1)) was outweighed by the extent of the infringement, the court stated (at para. 44):
The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may be justifiably asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.
75In R. v. Mellenthin, 1992 SCC 50, the Supreme Court determined that the police violated the accused’s s. 8 Charter rights during a HTA (Alta.) spot-check by questioning him about the contents of a bag and examining its contents. Cory J., on behalf of the court, stated at para. 15:
However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licenses, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.
(iii) Search and seizure
76Turning to s. 8 of the Charter, having detained Mr. Ohenhen in an alleged HTA traffic stop, after he ran away from them and was then caught and arrested, police then proceeded to search him several times and to search his vehicle. This conduct is claimed to have violated his right to be secure against unreasonable search and seizure.
77In R. v. Harflett, 2016 ONCA 248, the Court of Appeal described the governing principles in a section 8 analysis in the context of roadside vehicle stops as follows:
As Binnie J. observed, roadside stops “sometimes develop in unpredictable ways”: R. v. Nolet, 2010 SCC 24, at para. 4. In such situations the court’s task is to “proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry”. (My emphasis.)
78Harflett involved a search of the appellant’s vehicle that was without a warrant, and thus “presumptively unreasonable.” Lauwers, J.A. states at para. 12 that the fact that it was presumptively unreasonable calls upon the Crown to establish, on the balance of probabilities, that (i) the search was authorized by law, (ii) the law is reasonable, and (iii) the search was carried out in a reasonable manner: see R. v. Collins, 1987 SCC 84.
79To satisfy the test under the first branch of Collins"the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search is not authorized by law." R. v. Collins, 1987 SCC 84; see also R. v. Caslake, 1998 SCC 838 at para. 12.
80The second branch of the Collins test requires that "the search must be carried out in accordance with the procedural and substantive requirements the law provides." R. v. Caslake, 1998 SCC 838 The second branch is incapable of being satisfied if the first of the three tests has not been met.
(iv) Rights to counsel
81Finally, in this case, Mr. Ohenhen asserts a violation of his s. 10(a) and (b) rights to be informed promptly of the reasons for his detention and arrest, and to then retain and instruct counsel without delay and to be informed of that right.
82The right conferred by s. 10(a) of the Charter gives rise to a corresponding duty on the police to inform a detainee of all of the reasons for his or her arrest or detention. R. v. Borden, 1994 SCC 63 The police also have a duty under s.10(a), if the reason for the detention is different from the subject-matter that the police intend to address, to inform the detainee of both the reasons for detention and the subject-matter that the police intend to address. R. v. Sawatsky.
83The duty to inform a person of the reasons for his or her arrest or detention is founded on two principles: (1) a person is not obliged to submit to an arrest or detention if he or she does not know the reason for it, and (2) the right to counsel can be exercised in a meaningful way only if the person knows the extent of his or her jeopardy. R. v. Evans, 1991 SCC 98.
84In R. v. McGuffie, 2016 ONCA 365, Justice Doherty summarized the law on section 10(b):
41 [It] creates the right to retain and instruct counsel without delay, and the right to be informed of that right without delay. If a detained person, having been advised of his right to counsel, chooses to exercise that right, the police must provide the detained person with a reasonable opportunity to exercise that right and must refrain from eliciting incriminatory evidence from the detained person until he has had a reasonable opportunity to consult with counsel: R. v. Grant, 2009 SCC 32, at para. 58.
42 The rights created by s.10(b) attach immediately upon detention, subject to legitimate concerns for officer or public safety: Suberu, at para. 42. … The appellant should have been asked if he wanted to speak with counsel and, if he did, Constable Greenwood should have afforded him that opportunity without delay.
44 The appellant was under the control of the police…. The appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it.
Analysis
(i) Credibility and reliability of the witnesses
85On this combined voir dire and trial, five police witnesses were involved in the detention, arrest, and search of Mr. Ohenhen and his vehicle. They were P.C.’s Kyle Mildenberger, Adam Landry, Chris Beckwith, Scott Tait and Craig Westell. They were the principal witnesses who testified for the Crown. Several other officers provided ancillary testimony. The accused, Mr. Ohenhen, also testified, albeit solely for the purposes of the voir dire. Again, however, I note that the burden of persuasion on the Charter rights voir dire to show that Mr. Ohenhen was legally detained and lawfully arrested and searched remained with the Crown to a balance of probabilities standard.
86I have taken a number of factors into account in my assessment of the credibility and reliability of the evidence of the witnesses in this case. Amongst the factors that would be demonstrative of truthful and reliable evidence are that it is logical and sensible, internally consistent, consistent with other evidence, that it shows no material contradictions with prior statements, and an absence of bias or any motive to favour either side, all in circumstances where the witness shows clarity and consistency of recollection.
87By corollary, however, if found to be present, there are a number of factors that will be suggestive of untruthful or unreliable evidence. They are the opposite of what I have just described: evasiveness or reluctance to answer questions, evidence that conflicts with a contemporaneous document or with another audio or visual record of the events, contradiction with other reliable evidence, contradiction with a witness’s previous statements and internal inconsistencies or confusion. Importantly here, credibility and reliability of testimony will also fall into question where there is a demonstrated inability of the witness to recall accurately what actually transpired, or a demonstrated favouritism or bias, evidence that is vague or non-specific, or evidence that appears to be the product of a reconstructed memory, and thus where there is no clarity or consistency of recollection.
88Throughout the trial, it was evident to me that apart from their limited recollections of many matters, even though they were all together in the same place, the most common response of the five main police witnesses to the innumerable questions asked about these events and their interaction with each other and Mr. Ohenhen, was “I don’t recall” or “I don’t remember.”
89It caused me great concern that those witnesses could respond to question after question with a claimed absence of recollection about the detail of these events. There were quite literally at least one hundred, if not more, questions asked of the officers, about their own actions or those of the other officers who all came to be standing together around Mr. Ohenhen, to which the answer was “I don’t recall” or “I don’t remember.”
90At the same time that these witnesses had precise memories of the things that were helpful to their version of the chronology, they had no recollection of any details that would have detracted from the version of events they presented to the court, that might have permitted their stories to be tested, or that might have conflicted with their colleagues’ testimony. But I have found those their chronology, to the limited extent they remembered it, was, at least in part, constructed after the events had actually transpired in order to try to varnish them with the appearance of truthfulness and legality which were otherwise absent.
91Moreover, there were innumerable instances where the witnesses said they could not recall what had occurred, but whose memories were then refreshed and in some cases specifically contradicted by evidence they had previously given at the first trial, or by the evidence given by other members of their group; evidence that could not logically fit together, make sense, or seem to even be possible in the context of the evidence of the five officers as a whole.
92An important aspect to my concern about the truthfulness and reliability of the evidence of the five main police participants arises out of where they positioned themselves, alone and together with others of the group, on the numerous Google maps that were used as exhibits, and on which the officers made markings to indicate where they were as the initial detention took place, and when the subsequent takedown of Mr. Ohenhen occurred. This, combined with an absence of recall of what other members of their group actually did when they were standing mere inches away from each other, did not enhance their credibility.
93Finally, a further important factor to my assessment of their evidence is the question of their notes: what is in those notes, and equally importantly, what is not, and also important, when they were made and in whose company. As discussed above, and referenced in Woods and Jinge, the independence, detail and accuracy of an officer’s notes is an important factor in assessing the evidence of police witnesses. This combined with obtuseness about whether they were all or mostly together and had discussed what happened before they actually made their notes, notwithstanding their somewhat weak and certainly unpersuasive claims that they recorded their own individual recollections at the time without influence from each other, also undermined my belief in at least the reliability of their evidence, if not its truthfulness as well.
94I have not provided all of the specific instances of these evidentiary problems here. There are too many to recount, but I have referenced specific important examples here and later in these reasons as I assess each of the alleged Charter breaches in order to demonstrate the most problematic aspects of the officers’ evidence:
(i) P.C. Mildenberger claimed he pulled over Mr. Ohenhen’s vehicle when he saw that the driver was not wearing a seatbelt. That vehicle was still 50 metres, or about 100-150 feet away from him. In spite of his claimed ability to see that level of minute detail from that distance, what he did not see was that there was a front seat passenger who was sitting right beside Mr. Ohenhen in the vehicle, and would have been a much larger object and easier to see than the alleged absence of a seatbelt. In cross-examination, P.C. Mildenberger acknowledged he was not sure the driver was not wearing the seatbelt. (ii) Despite P.C. Mildenberger’s claim of the grounds for the stop, P.C. Landry testified that he was beside P.C. Mildenberger when they saw the vehicle coming southbound on Jamieson and that they decided together that the vehicle should be pulled over for making excessive noise because of loud music. Yet that was not P.C. Mildenberger’s basis for the alleged HTA stop and he testified he did not know loud music was a HTA offence until some years after the occurrence. (iii) It makes no sense that Mr. Ohenhen would have driven to the end of the parking lot to park his vehicle if he was being stopped by police as P.C Mildenberger claimed. He would have stopped once summoned to do so like any driver would and is required to do. It is much more likely, as he testified, that Mr. Ohenhen was parking his car and intending to walk back westbound to the street to walk south to his friend Dijon’s house when he saw P.C. Mildenberger coming towards him close to the entry of the parking lot. (iv) P.C. Mildenberger saw Mr. Ohenhen walking towards him and was concerned by the bulge at his waist. He feels the bulge and then lifts the shirt to see that it is a belt loop, not a weapon. At that point he claims Mr. Ohenhen assaults him by swiping his hand away and pushing him away on his chest using two hands. However, Mr. Ohenhen testified that it was P.C. Mildenberger who grabbed the chest area of his basketball jersey and told him he was not going to go anywhere until the officer told him he could. Revealingly, the booking video of Mr. Ohenhen being paraded before the Sergeant at 14 Division plainly shows that the jersey being worn by Mr. Ohenhen has been grabbed and stretched and torn in the upper left chest area, a fact that supports Mr. Ohenhen’s version of events over that of P.C. Mildenberger’s, given the officer’s claim that he only touched the belt area of that jersey. (v) P.C. Beckwith and P.C. Landry were inside the front hallway/lobby of 209 Jamieson on the other side of the street from the PCI parking lot and were focused on the screaming lady who was seeking their help for a domestic assault. They were looking elsewhere and would not likely have seen any of the confrontation between P.C. Mildenberger and Mr. Ohenhen until Mr. Ohenhen was running away. From that distance, I reject their evidence that they were watching and saw the alleged pushing by Mr. Ohenhen when their own evidence shows their focus was elsewhere until he actually started to run. Given their attention to the woman claiming a domestic assault had occurred, and their presence inside at least the entry lobby of the building, common sense dictates the contrary. (vi) The police officers’ evidence of their locations as these events unfolded cannot be reconciled. P.C. Beckwith says he did not tell P.C. Mildenberger to pull the car over, because he was inside the lobby of the apartment building dealing with the tenant when P.C. Mildenberger was across the street. However, on P.C Mildenberger’s evidence, when he was asked to place his location and P.C. Beckwith’s, the two of them were on exactly the same corner as the green Jaguar was coming down Jamieson Avenue, with P.C. Landry just up the street. (vii) P.C. Beckwith was the officer, along with P.C. Tait, who had previously arrested Mr. Ohenhen. He had a crystal recollection of those events that took place four years before these, who the officers were, and where and how they arrested Mr. Ohenhen, but had no recollection of the detail of these later events, or was unwilling to provide it, seemingly lest it conflict with the evidence of others. (viii) These events occurred at about 5:20 p.m., during the afternoon traffic surge. Jamieson Avenue is a busy street with limited parking during the day. Nevertheless, P.C. Beckwith, after seeing Mr. Ohenhen running away from his vantage point inside the lobby of the building at 209 Jamieson, claimed he could run once across Jamieson and not be hit by traffic, run back again a second time to pick up his bike, and then cross Jamieson a third time and proceed to the location where Mr. Ohenhen was tackled in less than two minutes. This is a timeframe that is frankly impossible, given the distances and the late afternoon traffic that would have been present on Jamieson at that time. (ix) Despite being there ‘the whole time” and indicating that he watched as P.C. Tait searched the accused and saw him pull a wad of money out and give it to him, and then find the baggy of cocaine, P.C. Beckwith refused to recall which of Mr. Ohenhen’s pockets drugs were seized from at the scene. P.C. Tait confirms in his evidence that P.C. Beckwith was right there beside him on his right side as he searched the accused and as he found the wad of money and package of crack cocaine. Indeed, P.C. Tait said that Beckwith searched Mr. Ohenhen as well when they were on scene. P.C. Beckwith denies that. P.C. Landry was called back to give further evidence and despite having been standing right there with the others, once he was being re-examined on the point, he could recall no detail of the search performed on Mr. Ohenhen, whether he was on the ground or standing, and who seized drugs. (x) Neither could P.C. Beckwith recall seeing P.C. Westell find the further money and drugs claimed to have been discovered on Mr. Ohenhen’s person at the police station level three strip search. He could not recall despite having been the only other person in the room and having actively participated in that search. P.C. Beckwith preferred not to recall these details, because it was plain from his answers he was concerned to not to want to give evidence that might be inconsistent with that of the other officers. Indeed, from the moment after P.C. Tait allegedly took the money and drugs out of Mr. Ohenhen’s jeans at the scene, P.C. Beckwith said he remembered “nothing from that point on”. (xi) P.C Mildenberger acknowledges in his evidence, first, that he never told Mr. Ohenhen why he was being detained and, second, he did not tell him why he was arrested and he did not hear anyone else tell him either. P.C. Beckwith gave the same answer. P.C.’s Tait and Westell said the same thing. (xii) P.C. Mildenberger agreed that he would have talked to the other officers about the events that evening as they were making notes. P.C. Beckwith said they talked about the events “while they were making their notes.” However, several of the other officers would not even acknowledge that they might have been in the same room or same location discussing what had happened or could not remember with certainty where they were and who was with them when they prepared their notes. Moreover, despite the obvious fact that these officers most likely did talk to each other to get the story straight, there is an absence in their notes of important details that should have been there and that they could not explain; details that a careful and observant officer would have thought important to include in their notes. (xiii) Despite the fact that Mr. Ohenhen was kept seated in the back of the transport car for 25 minutes while Officer Parmigiana’s agreed prior testimony was that they were waiting for P.C. Landry, the police officers all appear to have been standing around talking during that period. However, all of them claimed to have no idea why they waited 25 minutes to transport or what they were talking about during that hiatus. I find the more logical explanation is that it was during this period, before the accused was presented and paraded at 14 Division, that the officers needed to align their stories. Once there was a record outside of themselves of what allegedly happened, there could be no going back. (xiv) P.C. Tait testified that when he and P.C. Westell arrested the youth on Close Avenue, and despite standing right there beside him, he did not see P.C. Westell seize drugs from that youth, crack cocaine and marijuana, or put it into the left breast pocket of his service vest. It would not have been possible that P.C. Tait did not see those drugs seized when he and P.C. Westell were together, right beside each other, as they arrested the young person. (xv) The drugs seized from the young person were not logged into the police evidence system until 8 days after they were seized. P.C. Zamparo acknowledged this would be highly irregular and contrary to police policy. P.C. Westell testified he would never put drugs from another seizure into the same pocket as another seizure he might have previously made. Yet, when P.C Beckwith and P.C. Westell brought Mr. Ohenhen back before the Sergeant at 14 Division after searching him, and P.C. Westell tells the Sergeant of the further drugs he has found, he reaches into the very same pocket where he had deposited the drugs seized from the young person and produced those drugs to the Sergeant. This is plainly visible in the booking video. As such, it is very troubling and raises the serious prospect that the drugs allegedly seized during that search were actually the drugs previously seized by P.C.’s Tait and Westell from the young person, less than an hour before the arrest and alleged finding of drugs on Mr. Ohenhen’s person. (xvi) Det. Jeff Bangold, the Sergeant who was present for half of the booking video and is visible in the booking video, acknowledges Mr. Ohenhen complaining twice of not being told why he had been arrested. He also expressed shock and acknowledged that P.C. Westell had not told him that the drugs produced after the strip-search and retrieved from his left breast pocket was the same location as he had deposited drugs seized only an hour before from the young person on Close Avenue. Detective Bangold also acknowledged that in spite of the words to the contrary, he did not permit Mr. Ohenhen to go to the room right next to the booking hall to permit him to try to contact his lawyer. (xvii) Despite testifying that he did read Mr. Ohenhen his rights to counsel after he was arrested, P.C. Landry had no notation in his notes to that effect. The absence of notation when combined with the evidence of several of the officers that Mr. Ohenhen was not told either why he was detained or why he was arrested makes it more likely to me that rights to counsel would not have been given to him, because the reading of those rights, as P.C. Landry acknowledged, should be given to him “as soon as practicable after his arrest.” But having never been told why he was arrested, I find it more likely that he was not read rights to counsel. (xviii) Nevertheless, P.C. Westell testified he did ask Mr. Ohenhen if he wanted to call a lawyer as he was escorting him to the scout car for transport, and Mr. Ohenhen said he did, but there is no evidence of P.C. Westell having ever followed through with that, or passing the word along to other officers that he wanted to call his lawyer and had not yet had an opportunity to do so although he does make mention of it in the booking video.
95These are examples of some of the very troubling answers and inconsistent evidence given by the five principal police officers involved in this matter. In addition, I note that all five central police actors, as well as P.C. Zamparo, were contradicted in their recollections of specific matters as they had testified at the original trial when confronted in cross-examination with their earlier testimony, or admitted that if they could not recall now at this trial, what they had said then was true and adopted it.
96In the result, having carefully considered and compared the evidence of the police officers individually and collectively, on its own and in the context of Mr. Ohenhen’s testimony, I have found it to be neither credible nor reliable, individually or in its totality.
97However, I do accept much of the evidence of the defendant, Mr. Ohenhen, especially regarding events at the front end of this occurrence. Mr. Ohenhen is plainly a drug dealer. His acknowledged criminal record attests to that. Yet, unlike every other drug dealer I have encountered before me over the years, when he was arrested, he had no cell phone with him. There was no cell phone seized and found amongst his belongings. This is supportive of Mr. Ohenhen’s version that he had left his cell phone at his friend’s house that morning, and was on his way to retrieve it when the altercation with the officers interrupted his plan.
98I do not specifically believe Mr. Ohenhen’s evidence that P.C. Tait pulled out drugs to plant on him as a ruse to then justify P.C. Tait’s decision to search Mr. Ohenhen’s vehicle. However, given that P.C.’s Tait and Westell had just seized drugs from the young person on Close Avenue, and had those drugs in their possession, and given that the evidence showed that drugs produced and alleged to be attributable to Mr. Ohenhen came from the same pocket where drugs seized from the young person had been deposited, it could reasonably be true. Regardless of that, the absence of credibility or reliability of the evidence of the officers, and specifically P.C.’s Tait and Westell in that regard, does not provide a reason not to believe his evidence.
99Most of the remaining aspects of Mr. Ohenhen’s evidence are not centrally relevant to the questions I have to decide here. I accept that he was face down on the pathway, that it was more likely P.C. Mildenberger who assaulted him (see below), that he was searched twice at the scene, that P.C. Tait unilaterally decided to search his vehicle without a warrant, that he was not read his rights to counsel, and that when he asked to call his lawyer who he specifically named, he was never given the opportunity to do so.
100However, regardless of Mr. Ohenhen’s evidence that I do accept, there are deeply troubling aspects of the testimony and conduct of these officers, as outlined above, and that is what informs my decisions on the alleged breaches of his Charter rights.
(ii) Was Mr. Ohenhen arbitrarily detained and unreasonably searched?
101I have found on the evidence in this case that P.C. Mildenberger had no legitimate grounds to require him to stop for alleged HTA infractions, and had no articulable cause to detain him. As such, Mr. Ohenhen should have been free to leave, but he was not. Neither was there any basis to later arrest him after he ran away from P.C. Mildenberger. As such, none of the officers had any legal basis to perform a search of his person or his vehicle incident to arrest. By that time, having checked himself to see there was no gun under Mr. Ohenhen’s jersey, it is difficult to understand that a search based on officer safety could possibly have been warranted and at that time police had no reasonable and probable grounds to arrest Mr. Ohenhen for anything. Apart from my previous evidentiary findings, the reasons for those conclusions are set out in the following paragraphs.
102First and most importantly, is the conflict between the evidence of P.C. Landry and P.C. Mildenberger on why they decided to pull Mr. Ohenhen’s vehicle over. P.C. Landry saw two individuals in the vehicle and made no mention of a seatbelt infraction in his evidence. It was the noise. In contrast, despite P.C. Landry’s claim that they decided together to pull him over for loud music, P.C.’s Landry and Mildenberger never actually appear on the maps that were made exhibits to be at the same location prior to the arrest of Mr. Ohenhen. Further, P.C. Mildenberger not only claimed it was the seatbelt infraction that motivated him, but also that he did not even know at the time that it was an offence under the HTA to have loud music coming from a vehicle.
103That evidential conflict alone is enough to leave me unable to conclude that these officers had a valid bona fide HTA purpose when they claim to have pulled over Mr. Ohenhen. It is enough for me to conclude that Mr. Ohenhen’s s. 9 Charter rights were breached. It is enough, because the Crown has not persuaded me on a balance of probabilities standard that the HTA stop and subsequent detention were legally undertaken and the burden of persuasion rests in this case on the Crown.
104Added to this uncertainty, is the contrasting certainty of the extent to which the officers were unable to recall little else except what is in their notes, but this also makes no sense. They were all there. I found myself continuously asking myself, given that they were all there, how is it that they could not know and could not remember any meaningful detail, particularly where it might have favoured the defence? How is it that while they all admit they were standing around together after Mr. Ohenhen was in the scout car awaiting transport to 14 Division, none of them has the slightest recollection of what they talked about, while these circumstances were still fresh, and in particular why they had to wait for P.C. Landry for 25 minutes. The more logical explanation is that it was during this period, before the accused was presented and paraded at 14 Division, that the officers needed to align their stories. Once there was a record outside of themselves of what allegedly happened, there could be no going back.
105What I believe actually happened here, given the whole of the evidence and the prior interactions of P.C. Beckwith and P.C. Tait with Mr. Ohenhen is a different and disconcerting story. As the green Jaguar turned onto Jamieson, it was P.C.’s Landry and Beckwith that were closest to the top of the street where it meets Queen. The officers’ evidence about carding practices in Toronto and the plain and legitimate concerns about racial stereotyping raises the concern that Mr. Ohenhen was pulled over at least in part because he was a black man driving an expensive car. P.C. Landry called in the marker for the green Jaguar to dispatch for identification, prompted by P.C. Beckwith who was beside him at the time, given that P.C. Beckwith had previously arrested Mr. Ohenhen, four years earlier, and yet had a crystal clear recollection of that arrest, unlike this event.
106By the time the response came back from radio dispatch, P.C.’s Beckwith, Landry and Mildenberger had moved down the street. By that time, Mr. Ohenhen had driven south to the PCI parking lot and parked his vehicle. I accept his testimony that there was no HTA stop, much less a valid one, initiated by any of these officers. He simply pulled into the PCI parking lot and parked close to the tennis courts in an available space and then started walking back towards Jamieson, intending to walk south to Dijon’s apartment to retrieve his cell phone, when the convergence of police across the street and in front of him, with P.C. Mildenberger telling him he could not park there initiated the initial exchanges and the entire set of events that followed. I cannot be certain of this explanation, but it appears likely to me on the whole of the evidence.
107Regardless whether that is the explanation, the uncertain credibility and reliability of the evidence of P.C.’s Mildenberger, Landry and Beckwith, as the initial participants, does not satisfy me on a balance of probabilities standard that the police had articulable cause to detain Mr. Ohenhen, or to arrest him and then search his person incident to that arrest and search his vehicle without a warrant. It is admitted that he was detained and that no explanation was ever given for why he was detained or why he was arrested. In my view, the prior interactions by P.C. Beckwith with Mr. Ohenhen is what prompted the call to dispatch, but plainly the Crown has failed to prove on a balance of probabilities that there was articulable cause to detain Mr. Ohenhen. There was nothing sinister under Mr. Ohenhen’s shirt that could justify a search. A claim of officer safety that is made after two breaches have already occurred cannot remedy the prior Charter breaching conduct. P.C. Tait testified that he decided to search the vehicle on his own, without a warrant. This is brazen Charter violating conduct even if Mr. Ohenhen’s claim of a plant of drugs on him is not true.
108The final very troubling aspect to the police conduct in these searches relates to the breaches of police policy relative to the deposit and registration of seized drugs, and the real possibility that the police did actually plant drugs on Mr. Ohenhen. P.C. Westell said he did not see the drugs seized at the scene from Mr. Ohenhen but was contradicted by P.C. Landry. He was standing right beside him. P.C. Landry, when he had the previous transcripts put to him, acknowledged that it was P.C. Westell who took the drugs from Mr. Ohenhen at the scene – he was 100% sure. But it was also P.C. Westell who took the drugs from Mr. Ohenhen during the level three search at 14 Division, and he puts the drugs in the same pocket where he had placed the drugs seized from the young person on Close Avenue, and then produces drugs from that pocket as allegedly seized from Mr. Ohenhen. This highly improper conduct completely contaminates any ability of the police in this case to maintain certainty of continuity between Mr. Ohenhen and the drugs allegedly seized from him. More importantly, it also raises at least a strong suspicion, if not compelling evidence, that Mr. Ohenhen’s claims that the police planted drugs on his person are true.
109These are deeply troubling examples of police conduct dedicated to the “end justifies the means principle.” All of this conduct colours the assessment of the detention and arrest and its legality. Mr. Ohenhen paid serious consequences for that conduct, having been sentenced and only released in 2014. That calls for strong judicial sanction.
(iv) Was Mr. Ohenhen denied his s. 10(a) and (b) rights?
110It is in circumstances like Mr. Ohenhen found himself in that the right to speak to your own lawyer, your counsel of choice, is of critical importance. It is plain on the evidence of the police officers alone that Mr. Ohenhen’s Charter rights to be told the reasons for his detention and arrest and to retain and instruct counsel without delay were repeatedly violated.
111From the time of his arrest until the duty counsel call was finally made by Sgt. Lee, five hours passed. This is plainly not “without delay.” It is unlikely that he was ever formally read his rights to counsel, for the reasons indicated above, but regardless at least P.C. Westell asked him while escorting him to the scout car at about 5:30 p.m. whether he wanted to call a lawyer and he said “Yeah”, but was never given a meaningful opportunity to do so. P.C. Westell did not tell any other officer that he wanted to call a lawyer, although he did mention it before the booking sergeant, but again, no opportunity was provided. The Sergeant provided no opportunity for that call to be made. None of the police officers permitted Mr. Ohenhen to have access to his counsel of choice without delay.
112When he did not get the opportunity to contact his lawyer on scene, or in the time it that passed before he was booked, or as a result of being paraded before the Sergeant, or before or after the strip search was conducted, he was finally asked for his lawyer’s phone number by Sgt. Lee after he was taken upstairs to the CIB office.
113Sergeant Karen Lee’s evidence shows that the police gave little more than lip-service to Mr. Ohenhen’s request, made on several occasions, to put him in contact with a lawyer, much less his own counsel. She claimed to have called Mr. Leclair’s phone number and had been greeted by a Rogers Telecom message saying that that number was not in service. Yet Mr. Leclair produced irrefutable evidence that his account at that time was with Bell, not Rogers, and that he had actually received and made calls from that active number during the exact same period of time that Det. Lee claimed there was no service. Perhaps she dialed the number incorrectly, but she plainly did not bother to try the number again to double check it, or ask Mr. Ohenhen about it, which is surprising because Mr. Ohenhen had just given her that number as his lawyer’s phone number and presumably knew the number he was giving her. Then, she put in a call to duty counsel, but she did not tell anyone duty counsel would be calling back, so when duty counsel did actually call back, no connection was made to Mr. Ohenhen. He never did speak to a lawyer.
114These are blatant violations of Mr. Ohenhen’s rights to counsel. By their conduct, the police officers in this case demonstrated a callous disinterest and disregard for the breach of constitutional rights of accused persons. That calls for strong judicial sanction.
(v) Should the evidence be excluded under s. 24(2) of the Charter?
115In this case, I have found that Mr. Ohenhen’s s. 8, 9 and 10(a) and (b) Charter rights were breached by the actions of the police who arbitrarily detained him on August 21, 2008, who provided no reason for that detention, who then searched him incident to an arrest that had no reasonable and probable grounds to support it, searched his vehicle without a warrant, and then, notwithstanding his several requests to speak to his lawyer, totally ignored that right and their duty to take steps to ensure, as an accused person, that he would get to actually exercise his rights to counsel. That is the background to a consideration now of whether the evidentiary product of those actions should be excluded at his trial.
116In R. v. Harrison, 2009 SCC 34, McLachlin C.J.C. properly set the framework for this s. 24(2) analysis. In that case, while the trial judge had found that the Charter breaches committed by the police authorities were egregious, he nevertheless observed that that the Charter breaches paled in comparison to the criminality involved in drug trafficking. This caused the Chief Justice to observe at para. 41 that:
…the trial judge's observation… risked the appearance of turning the s. 24(2) inquiry into a contest between the misdeeds of the police and those of the accused. The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2). We expect police to adhere to higher standards than alleged criminals.
117I can do no better than that. It will suffice to say that in my opinion these are very serious and egregious Charter violations. The inability to trust the evidence of the police officers exacerbates the gravity of the violations and the very distinct possibility that the police planted drugs on Mr. Ohenhen given the factual circumstances, even if not proven on a balance of probabilities is more than enough to require that the court disassociate itself from this egregious and bad faith police conduct.
118Moreover, the state did not even remotely respect his Charter protected s. 9 interests to be left alone and his s. 8 Charter rights to be free from unreasonable search and seizure. This is patently obvious insofar as Mr. Ohenhen was detained without any legal basis to support it, and then, when he ran away from Officer Mildenberger, as he was entitled to do given no legal or articulable cause for his detention, he was chased, tackled, searched at least three times, two at the scene and once at 14 Division, and his vehicle was searched with no warrant and no grounds to support a need to do so for officer safety or incident to his unlawful arrest.
119The “icing on the cake” was the total failure of police authorities to respect Mr. Ohenhen’s rights to be told why he was detained and arrested, which never happened at the scene, and only later at the police station, and the total and admitted failure to permit him to retain and instruct counsel without delay. There was plenty of delay here. That unacceptable delay occurred because the cavalier attitude of the police authorities demonstrated clearly that those constitutional rights of this accused were of little or no importance to them.
120This is a very simple Grant analysis. Under step one, I find the Charter infringing conduct to be egregious and committed in bad faith, in circumstances where the credibility and reliability of the police officer’s evidence has been totally undermined. Their evidence cannot be believed or relied upon. That strongly favours exclusion of the evidence. Under step two, the Charter protected rights that were breached are core to Mr. Ohenhen’s dignity and the security of his person. They are the right to be left alone and the right to be free from unreasonable search and seizure. These are rights that are central to the constitutional freedoms enjoyed by Canadians. This factor also favours exclusion of the evidence.
121On the third test under Grant, certainly drug trafficking and weapons offences are very serious, and they ought to go to trial, except when the evidence has been illegally obtained by police conduct that brazenly and blatantly violated the accused’s Charter rights. This is conduct that would never be condoned by reasonable members of the public. While the public is rightly concerned that communities need to be kept safe from firearms and drug trafficking, they are not people who are ever likely to believe that the end will justify the use of illegal and unconstitutional means, particularly where there was no foundation in the first place to ever reasonably believe that Mr. Ohenhen had committed any offence. The third step also favours exclusion.
Conclusion
122In the result, this is a simple and plain case. I have reached the only reasonable conclusion that I find is available to me. The evidence must be excluded under s. 24(2). This will gut the Crown’s case, as it should have been long before this trial was again permitted to use limited and expensive court resources. While I accept defence counsel’s position that the proceedings could be stayed if I found that the police did plant drugs on Mr. Ohenhen, despite the evidential factors that point in that direction, I remain uncertain of whether that actually occurred, though it certainly remains distinctly possible and arguably probable on the evidence. As such a stay of proceedings would be inappropriate since stays of proceedings are reserved for only the very clearest of cases.
123The evidence will be excluded. Mr. Ohenhen is acquitted of all charges.
Michael G. Quigley J.
Released: September 16, 2016