R. v. Asemota, 2017 ONSC 1229
COURT FILE NO.: CR-16-1391
DATE: 20170222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Quilty for the Crown
- and -
OSATO ASEMOTA AND CHARLES ELLIS
S. Agbakwa for Osato Asemota
A. Monaco for Charles Ellis
HEARD: February 7, 8, 9, 10, 13, 14, 15, 2017
REASONS FOR DECISION ON DEFENCE
CHARTER APPLICATION
André J.
[1] Members of the Peel Regional Police Force charged Mr. Osato Asemota and Mr. Charles Ellis with a number of gun related offences, after stopping a vehicle being driven by Mr. Asemota on March 16, 2015. Both Mr. Asemota and Mr. Ellis have brought motions for a declaration that their rights under sections 8 and 9 of the Charter of Rights and Freedoms (“the Charter”) have been infringed and that pursuant to s. 24(2) of the Charter, all evidence obtained during their investigation should be excluded, specifically 2 guns that were found. The Crown maintains that the officers involved in the arrest all acted in good faith and did not violate the accuseds’ Charter rights. Even if the accuseds’ Charter rights were breached the Crown submits that the evidence obtained during the investigation constitutes real evidence and should be admitted pursuant to s. 24(2) of the Charter.
SUMMARY OF THE CROWN’S EVIDENCE
[2] Constable Clair Martin, a police officer since May 2014, was travelling westbound on Queen Street in Brampton on March 16, 2015 when she observed a BMW car being driven by Mr. Asemota ahead of her cruiser. She observed that the rear light was not illuminated. The car made a couple of traffic turns. Constable Martin did a query on her mobile data unit and found out that the registered owner of the vehicle was on a curfew between 9:00 p.m. to 6:00 a.m. pursuant to a probation order. She subsequently pulled the vehicle over at 10:15 p.m. on Main Street and then approached the front passenger side where she spoke to Mr. Asemota.
[3] She advised him that she stopped the vehicle because of the unilluminated rear light. She asked him if he was the registered owner. He admitted that he was. She questioned him about the curfew. He gave her his licence, insurance and a copy of his probation order. He told her he could be outside after 9:00 p.m. as long as he was with the mother of his child. He identified the girl seated in the front passenger seat as the mother of his child. The girl verbally identified herself as Fantazia Knibb. Ms. Knibb also said that she was the mother of Mr. Asemota’s child. Constable Martin reviewed the probation order. She did not question this information given by Mr. Asemota and Ms. Knibb.
[4] Constable Martin returned to her cruiser. Sergeant Ceballo attended the stop. She advised him of the reasons for the stop and told him about the curfew. She testified that she told Sergeant Ceballo about the condition in the curfew which permitted Mr. Asemota to be outside of his residence during his curfew if he was accompanied by his child or by the mother of his child. Sergeant Ceballo then reviewed the probation order. Nevertheless, both she and Sergeant Ceballo “confirmed and clarified” that Mr. Asemota was only allowed out of his home with the mother of his child in case of a medical emergency. Sergeant Ceballo told Constable Martin to return to the BMW to ask the driver where they were coming from and where they were going. He also asked her to obtain the name of the male passengers.
[5] Mr. Asemota told her that he was coming from a local mall and was going to his sister’s home. The rear passengers did not provide their names. Constable Martin reported this information to Sergeant Ceballo. Both officers returned to the BMW. They asked Mr. Asemota to exit the vehicle. He did so. He appeared nervous and fidgety. He was sweating profusely.
[6] Constable Martin arrested Mr. Asemota at 10:32 p.m. and led him to the back of Mr. Asemota’s car. She asked him to place his hands on her cruiser. She handcuffed him with his hands behind his back, did a pat down search and placed him in the rear of her cruiser. She then read him his rights to counsel and caution. Mr. Asemota stated he understood.
[7] Two officers, Constable Stern and Constable Woodley, attended the scene at 10:37 p.m. at the request of Sergeant Ceballo. Constable Martin told them that she had arrested Mr. Asemota for breach of probation and that his vehicle would be seized. Constable Martin testified that she and Sergeant Ceballo made the decision to seize the car because it was in a live lane of traffic.
[8] Constable Martin then approached the front passenger side and asked Ms. Knibb to exit the vehicle. As Ms. Knibb exited the vehicle, Constable Woodley told Constable Martin that all of the vehicle’s occupants were “arrestable for CDSA”. Constable Martin did not know what drug had been found in the vehicle or where it had been found. She nevertheless arrested Ms. Knibb for possession of a controlled substance. Constable Martin testified that she had smelt a strong odor of fresh marijuana emanating from the car when she initially approached it. However, she did not tell any officer at the scene about smelling marijuana.
[9] While Constable Martin searched Ms. Knibb, Constable Sterns yelled “gun”. Constable Martin then placed Ms. Knibb’s hand behind her back. She handed Ms. Knibb over to another officer. Constable Martin then re-attended her cruiser and told Mr. Asemota that she was charging him with the additional offence of possession of a contraband substance and possession of a firearm. She re-read him his rights to counsel and caution. She took him out of her cruiser and conducted a full body search. She did not find anything. Constable Martin subsequently transported Mr. Asemota to 22 Division where he was duly lodged. She called duty counsel at 11:14 p.m. She then had a briefing with Sergeant Ceballo, Constable Woodley, Constable Sterns, Constable Missev and Constable Pickens at 12:15 a.m. There was another briefing with the Criminal Investigations Bureau (“CIB”) at 12:40 a.m. The latter briefing concluded at 1:52 a.m.
[10] Constable Woodley’s version of events is as follows: When Constable Woodley arrived at the scene, he opened the rear passenger door behind the driver, and stuck his head inside the vehicle. Aided by his flashlight, he saw what he believed to be traces of marijuana on the floor mat behind the driver’s seat. He immediately told Constable Martin and Constable Sterns that all occupants were “arrestable for CDSA”. He asked the male passenger to exit. He searched the vehicle and discovered a handgun under the driver’s seat. He placed the marijuana he had observed in a clear Ziploc plastic bag which he received from Sergeant Ceballo. Constable Woodley testified that it was his decision to arrest the occupants of the vehicle because of his belief that all parties were in joint possession of the marijuana he had found.
[11] According to Constable Sterns, she attended Mr. Asemota’s vehicle when she arrived at the scene, opened the back passenger door and asked Mr. Ellis and the other male passenger to exit. With respect to Mr. Ellis, she advised him that the vehicle was being seized. While doing so, Constable Woodley advised her, Constable Sterns, that Mr. Ellis was “arrestable for a CDSA”. She then arrested Mr. Ellis for possession of a controlled substance and did a pat down search incident to his arrest. Constable Sterns found a handgun which was tucked in his waistband and then re-arrested him for possession of a firearm.
SUMMARY OF DEFENCE EVIDENCE
[12] Ms. Fantazia Knibb was the passenger in the front seat of Mr. Asemota’s vehicle when Constable Martin stopped it. The officer told Mr. Asemota that she pulled her over because his “lights were on”. She then asked him: “Do you know you are on probation?”
[13] Ms. Knibb opened the front glove compartment and took out Mr. Asemota’s probation order. They kept it there for easy access because one to three months before, an OPP officer had stopped Mr. Asemota on his way from Windsor and asked him about his probation.
[14] Mr. Asemota then gave the officer his licence, insurance and the probation order.
[15] The officer returned to the cruiser with the documents. While in her cruiser, three police cruisers arrived. The officer, who we now know to be Constable Martin, then returned to the car and asked Ms. Knibb whether she was Fantazia Knibb. Ms. Knibb replied “yes”. Ms. Knibb then said, “I’m the baby mother.” The officer asked her for the baby’s date of birth.
[16] Ms. Knibb showed the officer pictures on her cellphone of her baby, together with Mr. Asemota and herself. Ms. Knibb placed the phone beside her face. The officer then looked at the paperwork Mr. Asemota had given her and said: “You guys are good to go”. Ms. Knibb then placed the probation order back into the glove box.
[17] As they prepared to leave, a black officer, who turned out to be Sergeant Ceballo, ran up to their car and said: “Stop, I need to see your conditions again.”
[18] Mr. Asemota gave his probation order to the officer. The two officers then placed the order on the hood of Mr. Asemota’s car and looked at it intently, using their flashlights. The exceptions to the curfew, Ms. Knibb testified, had been highlighted in orange because they had been pulled over before. While the officers were reviewing the probation order, Ms. Knibb was on the phone, trying to contact Mr. Asemota’s lawyer and Mr. Asemota’s younger brother.
[19] The officers returned to the driver’s side. They asked Mr. Asemota to exit the car. Ms. Knibb stated that the black officer had taken over the investigation.
[20] Mr. Asemota refused to exit. He sought to know why he was being asked to do so. The female officer replied that she just wanted to talk to him beside her cruiser. Mr. Asemota exited his car.
[21] Ms. Knibb heard Mr. Asemota screaming her name. She looked back and saw him being handcuffed and placed in a cruiser. He was crying. He was perspiring profusely because of, according to Ms. Knibb, a medical disorder in Mr. Asemota’s family. She saw Mr. Asemota in the back seat of the cruiser by looking through the rear view window on the driver’s side of the car.
[22] A female officer came to the passenger side of the car. She asked Ms. Knibb to come out because they needed to search it following the detention of Mr. Asemota. Ms. Knibb replied no. She depressed a button to lock the doors although the driver and front passenger windows were still down.
[23] Thereupon, the black officer put his hand through the window and grabbed the keys of the car. Ms. Knibb placed her hand over his to stop him from taking the keys. One of the occupants told her to stop. The officer said “shut up”.
[24] He took the keys and opened the trunk. He also opened the car. A female officer told Ms. Knibb to get out of the car. Mr. Ellis and the other male exited. The latter male was very cooperative. Ms. Knibb recalled seeing the black officer search the male.
[25] Mr. Ellis got out of the car. Ms. Knibb suddenly heard a word with an “f” which sounded like “firearm”. This was followed by another word with the letters “CD”.
[26] Everything then became “aggressive”, Ms. Knibb testified. A female officer arrested Ms. Knibb. A male officer placed her in a cruiser. Twenty minutes later, he told Ms. Knibb she would be charged with possession of marijuana. Ms. Knibb testified that there was no marijuana in Mr. Asemota’s car. She knew the smell of the drug because her grandmother had a licence to use it for medicinal purposes.
[27] She saw two officers search Mr. Ellis. They uttered the words “firearm” and “CD” when they were searching him.
ANALYSIS
[28] The pretrial motions brought by counsel for the accused raise the following issues:
(1) Did the arresting officers violate the accuseds’ s. 9 Charter rights?
(2) Did the arresting officers violate the accuseds’ s. 8 Charter rights?
(3) If the officers violated the accuseds’ Charter rights, should any evidence obtained as a result of the violation be excluded under s. 24(2) of the Charter?
Issue No. One: Did the arresting officers violate the accused’s [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[29] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. In R. v. Ledouceur, [1990] S.C.R. 1257, 77 C.R. (3d.) 110, 56, the Supreme Court of Canada stated that the random stop of a motorist under provincial highway legislation for the purpose of a stop check contravenes s. 9 of the Charter. However, the random stop is justifiable under s. 1 of the Charter in that the legislation deals with pressing and substantial concern and meets the proportionality test set out in s.1.
[30] In R. v. Storrey, [1990] S.C.R. 241, 1990 CanLII 125, at pp. 250-251, the Supreme Court of Canada set out the following test for the formulation of reasonable and probable grounds for arrest:
In summary then, the Criminal Code requires that 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 for conviction before making an arrest.
[31] In R. v. Brown, 2012 ONCA 225, [2012] O.J. No. 1569, the Ontario Court of Appeal at paragraph 14 noted further that:
Without this objective component, the scope of the police power to arrest would be defined entirely by the police officer’s perception of the relevant circumstances. The individual’s constitutional right to be left alone by the state cannot depend exclusively on the officer’s subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer’s belief, but the need to impose discernable objectively measurable limits on police powers.
[32] In R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, the Supreme Court of Canada considered the lawfulness of an arrest under s. 495(1)(a) of the Criminal Code at para. 3:
If the arrest was unlawful, the detention of Mr. Loewen violates s. 9 of the Charter. In that case, the search cannot have been incidental to arrest, and hence would violate s. 8 of the Charter. The first question is therefore whether the arrest was unlawful.
The Arrest of Mr. Asemota
[33] There is no question that Constable Martin, by virtue of the Highway Traffic Act R.S.O. 1990, c. H.8, had the requisite authority to stop Mr. Asemota’s vehicle for a possible traffic infraction. Nor is there any question that based on the information she received from the Canadian Police Information Centre (“CPIC”), the officer had the authority to investigate Mr. Asemota for a suspected violation of his curfew. To that extent, stopping his vehicle and initially questioning him regarding the curfew was legally permissible. As the British Columbia Court of Appeal stated in R. v. Kaddoura, 2009 BCCA 113, at para. 23, where a police officer has the legal authority to stop a vehicle, the existence of additional reasons to stop does not transform a lawful detention into an arbitrary one: see also R. v. Batista, 2015 BCSC 244, para. 65.
[34] To determine whether the arrest of Mr. Asemota was lawful, it is necessary to set out the relevant provisions of his probation order. Mr. Asemota gave Constable Martin a copy of this order without being requested to do so. The officer testified that she read its contents and told her supervisor about the exceptions to the curfew in the probation order. Following this, Sergeant Ceballo and herself “clarified and confirmed” that Mr. Asemota was only allowed to be outside with the mother of his child in case of an emergency. Asked whether that conclusion conflicted with Constable Martin’s own understanding of the conditions of Mr. Asemota’s probation, Constable Martin replied that: “I accepted what my sergeant told me.” She also testified in cross-examination that it was possible that she would have let the vehicle go before Sergeant Ceballo arrived.
[35] Mr. Asemota’s probation order indicated that:
For the first 12 months of this Order be in your residence daily between the hours of 9:00 p.m. to 6:00 a.m.
EXCEPT
for any medical emergency, hospital visit, or funeral attendance involving you or a member of your immediate family (spouse, child, parent, sibling). You must provide written justification for any such absence to the youth worker on supervision within 72 hours of the absence.
With permission of your probation officer, or for employment purposes; or in the immediate presence of your child and/or the child’s mother.
[36] Constable Martin testified that she reviewed these conditions. Sergeant Ceballo testified that he saw Constable Martin review the conditions. Contrary to Constable Martin’s evidence and Ms. Knibb’s, he denied that he read them himself. However, he admitted in cross-examination that he told the CIB officers he had reviewed them and admitted to having done so.
[37] In my view, these conditions show unequivocally that Mr. Asemota was in compliance with his probation order when he was investigated by Constable Martin. There is nothing ambiguous about these conditions. They clearly indicated that Mr. Asemota was permitted to be outside his residence between 9:00 p.m. and 6:00 a.m. when in the company of his child’s mother.
[38] Mr. Asemota told Constable Martin that the female in the front passenger seat of his vehicle was the mother of his child. Ms. Knibb told Constable Martin the same thing. Constable Martin did not dispute this information. She did not question Mr. Asemota or Ms. Knibb about the veracity of this information.
[39] Constable Martin testified that she had no reason to believe that Ms. Knibb was not who she claimed to be. She did not seek to confirm that Ms. Knibb was the mother of Mr. Asemota’s child. Constable Hopeton testified in cross-examination that neither Constable Martin or Sergeant Ceballo expressed any concerns during their meeting with the CIB about Ms. Knibb being the mother of Mr. Asemota’s child.
[40] I accept Ms. Knibb’s version of events regarding the information relayed to the officers about her identity for a few reasons. She testified in a forthright manner without any exaggeration or embellishment. When challenged by the Crown that she was trying to help the father and godfather of her child, she replied that she no longer had a relationship with Mr. Asemota. To the contrary, she had taken him to family court presumably for child support. She was not shaken in cross-examination. Except for telling the police that the female officer had approached the passenger side of the car, instead of the driver’s side as she had testified in her testimony in-chief, there were little or no inconsistencies between her statement to the police and her testimony. Ms. Knibb also admitted that when the female officer asked her about the identity of the male passengers, she told her that their identity was irrelevant.
[41] Additionally, Ms. Knibb, in many respects, corroborated the testimony of Constable Martin. She confirmed that the officer first inquired about Mr. Asemota’s probation; that both officers reviewed Mr. Asemota’s probation order; that Mr. Asemota had initially refused to exit his vehicle; that he was sweating profusely after he exited the vehicle; and that Mr. Asemota had been arrested by Constable Martin. She also confirmed that Sergeant Ceballo took over the investigation following his arrival at the scene. Ms. Knibb’s evidence diverged with that of the officer about the investigation and arrest of the two male passengers of the car.
[42] The Crown submits that I should place little or no weight on Ms. Knibb’s testimony because of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.). The Crown maintains that the defence did not ask the Crown’s witnesses questions about the anticipated testimony of Ms. Knibb. The rationale of the rule is to afford a witness an opportunity to clarify his or her evidence before it is later challenged either by contradictory evidence or in argument when the witness cannot defend himself or herself. The underlying rationale of the rule is fairness, particularly where there are issues of credibility in a case.
[43] In this case, I am disinclined to draw an adverse inference against the defence because of its apparent failure to adhere to the rule. First, I accept that the defence only found out about the availability of Ms. Knibb to testify in this trial after both defence counsel had advised the court that they would not be calling any evidence on the pretrial motion. Second, defence counsel cross-examined some of the Crown’s witnesses, Constable Martin and Constable Woodley in particular, about important areas of Ms. Knibb’s testimony. These include the fact that Ms. Knibb had shown Constable Martin images on her telephone showing Mr. Asemota, herself and the child; the possibility that the officers had not smelt any drugs in the car; the fact that there were no drugs in the car; the fact that Ms. Knibb was on the phone when Constable Martin came up to the car; and the fact that both Constable Martin and Sergeant Ceballo had reviewed Mr. Asemota’s probation order. Third, the Crown had a transcript of Ms. Knibb’s statement to the police and had a full opportunity to cross-examine Ms. Knibb on her statement. Finally, following Ms. Knibb’s testimony, I asked the Crown if he wished to call rebuttal evidence and he declined the opportunity to do so.
[44] I note parenthetically, that granting leave to call reply evidence is a remedy when the rule in Browne v. Dunn has been breached: see R. v. McNeill, 2000 CanLII 4897 (ON CA), 131 O.A.C. 346, at para. 49; R. v. Marshall, 2005 CanLII 30051 (ON CA), 201 O.A.C. 154, at paras. 54-55, leave denied [2006] S.C.C.A. No. 105.
[45] In the circumstances of this case, I cannot accede to the Crown’s request to disregard Ms. Knibb’s evidence based on the rule in Browne v. Dunn. I adopt the following statement of the Ontario Court of Appeal in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 80-81:
80 As a rule of fairness, the rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case: R. v. Paris (2000), 2000 CanLII 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 124, at paras. 21-22; R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 211, at para. 42.
81 Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness's story is not accepted: Giroux, at para. 46; McNeill, at para. 45. It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at pp. 375-376; Paris, at para. 22; and Browne v. Dunn, at pp. 70-71.
[46] With respect to Ms. Knibb being called late to testify by the defence, the Crown submits that no weight should be given to Ms. Knibb’s testimony because her appearance in court, following the closing of the Crown’s case on the pretrial motion, is not mere coincidence. He submits that in all likelihood, one of the accused contacted Ms. Knibb to testify on behalf of the defence. As a result, Ms. Knibb is not a credible witness.
[47] In my view, this submission has no merit. Every accused has an inalienable right to make full answer and defence to any criminal charge. That right necessarily involves the discretion to call any witness to testify during this hearing or during the trial. Even if the Crown is correct that one of the accused contacted Ms. Knibb to testify in this hearing, he had every right to do so. Ms. Knibb’s testimony cannot be discredited solely because she was asked to testify in these proceedings. Such a conclusion would run roughshod over an accused’s rights to make full answer and defence.
[48] The Crown also submits that Ms. Knibb’s testimony should be rejected or discredited because of her testimony that she saw Mr. Asemota sweating profusely in the back of a police cruiser by looking through the car’s rear view mirror. However, Ms. Knibb insisted that she had seen Mr. Asemota in the manner that she described, while the Crown submits this is unbelievable. Even if the Crown is correct, the impact of this seeming inconsistency is negligible. It does not alter the fact that Mr. Asemota was arrested for breach of probation while he was in full compliance with his probation. On the substantive issues relating to the arrest, search and seizure, Ms. Knibb was not shaken in cross-examination.
[49] For the above reasons, I accept Ms. Knibb’s testimony that she identified herself to Constable Martin and showed her pictures on her phone with Mr. Asemota, herself and their child. I find as a fact that both Sergeant Ceballo and Constable Martin reviewed the probation order.
[50] Constable Martin testified that she decided to arrest Mr. Asemota after he told her he was coming from a mall and was on his way to his sister’s home. Based on the plain reading of the conditions of Mr. Asemota’s probation, which Constable Martin reviewed, her arrest of Mr. Asemota was unlawful. Even if it is said that subjectively, she had the requisite grounds to arrest Mr. Asemota, which I am not prepared to find, Constable Martin objectively lacked the grounds to arrest Mr. Asemota for breach of his probation order. To the contrary, he was complying with his probation when the officer arrested him.
[51] Sergeant Ceballo’s evidence does not assist the Crown in establishing that the arrest was lawful. Sergeant Ceballo testified that he looked at CPIC in his cruiser. It indicated that for the first twelve months’ probation, Mr. Asemota had to be home between 9:00 p.m. to 6:00 a.m. with exceptions for medical emergencies such as hospital visits, or funeral attendance involving members of his immediate family. However, Sergeant Ceballo testified in cross-examination that when he looked at CPIC, he did not scroll down to see the other exception to the curfew on Mr. Asemota’s probation order.
[52] Sergeant Ceballo testified that that was the sum total of his understanding of the exceptions to the curfew. He testified that Constable Martin showed him the papers she was reviewing but he did not pay much attention to them. He did not know that the papers which Constable Martin was reviewing was a copy of Mr. Asemota’s probation order. The officer testified that he only saw on CPIC what he had written in his notes. He only read the information from CPIC which was noted in his notebook.
[53] Sergeant Ceballo’s evidence is problematic for a few reasons. First, Sergeant Ceballo’s testimony is not believable in light of Constable Martin’s testimony. In fact, he admitted under cross-examination that Constable Martin told him the conditions of the probation order as she read and understood them. He then went back to review CPIC but only saw the condition he had written down.
[54] Significantly, Constable Martin testified that she told Sergeant Ceballo about the second exception to the curfew that permitted Mr. Asemota to be outside his residence between 9:00 p.m. to 6:00 a.m. while in the presence of his child’s mother. She further testified that Sergeant Ceballo “clarified and confirmed” that Mr. Asemota was only allowed to be outside his home with the mother of his child for emergencies. Indeed, Sergeant Ceballo advised her to ask the driver where he was coming from, where he was going and to ascertain the identity of the two males in the back of the vehicle.
[55] Second, Sergeant Ceballo gave conflicting information about whether he had reviewed the probation order. He initially testified in cross-examination that he did not want to look at the papers in Constable Martin’s possession. However, he later agreed that he told Constable Boycott, during the CIB meeting, that “I reviewed the paperwork”. When pressed by Ms. Monaco, counsel for Mr. Ellis, he testified: “I saw the papers, ma’am”.
[56] Third, Constable Hopeton, the officer in charge, testified that during the CIB meeting, Sergeant Ceballo advised him that he reviewed the paperwork given to him by Constable Martin.
[57] For these reasons, I cannot find that Sergeant Ceballo’s actions were merely an honest mistake, inadvertence or an oversight. The probation order was very clear. The CPIC was also very clear. I find as a fact that Constable Martin told Sergeant Ceballo about the second exception to the curfew and that Sergeant Ceballo reviewed Mr. Asemota’s probation order. Sergeant Ceballo clearly ignored the exception to the curfew with the result that Mr. Asemota was unlawfully arrested.
[58] The Crown submits that even if Constable Martin and Sergeant Ceballo were mistaken about Mr. Asemota’s curfew, they nevertheless had the legal authority to arrest Mr. Asemota because they were not obliged to investigate any exceptions to the curfew prior to the arrest. He relies on the summary appeals decision in R. v. Boston, 2014 ONSC 4457, [2014] O.J. No. 3594, for that proposition.
[59] In that case, a hospital staff member called the police after Mr. Boston became irate over the treatment his pregnant girlfriend received. Officers found out that the accused was under a recognizance which had a house arrest condition. When they investigated him, he was unresponsive and hostile. The police then arrested the accused for breach of recognizance. While under arrest, the accused spat on a police officer. It was later discovered that the accused was not on bail when arrested and not subject to house arrest, although he was on probation.
[60] At trial, the judge held that the arrest was lawful. The summary appeals court judge upheld the decision. The summary appeal court held, at para. 21, that the police had clear evidence of a facial breach of the accused’s house arrest term of bail and furthermore, that there was nothing to support, that an exception to the house arrest condition was in place at the time of the arrest. The summary appeal judge noted at para. 19 that:
Where the police have evidence of a facial breach of a term of bail or probation, and they are faced with volatile conditions on the street, there is nothing wrong with making an arrest and then continuing the investigation.
[61] The summary appeal court relied on the following dicta of the Ontario Court of Appeal in R. v. Valentine, 2014 ONCA 147, 316 O.A.C. 302 at paras. 34-41:
Constable Dowling had evidence of a clear facial breach. He only had the appellant’s assurance that the exception to the curfew was in play. It was late at night. The appellant had serious criminal antecedents, was on bail for serious offences and was exhibiting threatening behaviour. In my view, in these circumstances the officer is not required to investigate and try to rule out all possible explanations for the appellant’s being out past his curfew before making an arrest.
[62] In my view, the facts in this case are fundamentally different from those in Boston and Valentine. Here, Constable Martin and Sergeant Ceballo had more than just evidence of a “facial” breach. They had evidence from both CPIC and the probation order that there was no breach. The officers therefore had much more than a verbal “assurance” that the exception to the curfew was in play. Mr. Asemota was not on bail for any offence, let alone serious offences. He was not exhibiting threatening behaviour. To the contrary, Constable Martin testified that he was polite and cooperative. There was no need to investigate post arrest because the officers already had all the information required to decide that there was no need to arrest Mr. Asemota. For these reasons, Boston and Valentine do not apply to the facts in this case.
Right to Remain Silent
[63] By Sergeant Ceballo’s own testimony, he also breached Mr. Asemota’s right to remain silent and his right against self-incrimination. The officer testified that he had grounds to arrest Mr. Asemota when he arrived at the scene. He added that grounds for an arrest existed once the officers found Mr. Asemota outside his residence. Those grounds, according to Sergeant Cebello, existed even prior to Constable Martin asking Mr. Asemota where he was coming from and where he was going.
[64] By his own admission, Sergeant Ceballo had grounds to arrest Mr. Asemota by virtue of the fact he was not at his residence after 9:00 p.m. Despite having already formed reasonable and probable grounds to arrest Mr. Asemota for breach of probation, Sergeant Ceballo instructed Constable Martin to ask Mr. Asemota where he was coming from and where he was going. In other words, he sought to conscript Mr. Asemota against himself by unwittingly providing the police with information about whether he was outside his residence because of an emergency.
[65] On her version of events, Constable Martin proceeded to ask Mr. Asemota questions without cautioning him that anything he said could be used against him in a court proceeding.
[66] In R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, 77 C.R. (3d) 145, 57 C.C.C. (3d) SC, the Supreme Court of Canada emphasized that section 7 of the Charter accords a detainee the right to make a meaningful choice whether to speak to the authorities or to remain silent and that s. 7 permits the rejection of statements obtained in circumstances that violate this right. The officers denied Mr. Asemota this right.
[67] The arrest and detention of Mr. Ellis will be discussed below.
Issue No. Two: Did the arresting officers violate the accuseds’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[68] Section 8 provides that everyone has the right to be secure against unreasonable search or seizure.
[69] I have concluded that Constable Martin unlawfully arrested Mr. Asemota. It follows that the pat down search she initially did and the later full body search she conducted of Mr. Asemota were also unlawful. She would not have had the legal authority to conduct either search had she merely charged Mr. Asemota with a traffic infraction.
[70] I must also consider whether the search conducted of Mr. Asemota’s vehicle was lawful. The Crown insists that this search was incident to Mr. Asemota’s arrest and also lawful. Sergeant Ceballo testified that the search of the vehicle was incident to Mr. Asemota’s arrest. The Crown however, submits that Mr. Ellis lacks standing to challenge the search of Mr. Asemota’s vehicle.
[71] The common law power to search incident to arrest flows from a legal arrest. There “need not be separate reasonable and probable grounds that the search will yield evidence or weapons”: see R. v. Shankar, 2007 ONCA 200, at para. 11.
[72] In R. v. Caslake, [1998] 1 S.C.R. 51, 1998 CanLII 835, at paras. 15 to 25, the Supreme Court of Canada noted that the main purposes of a search incident to arrest are:
to ensure the safety of the police and the public;
to prevent the destruction of evidence; and,
to discover evidence of the offence or offences for which the accused was arrested.
See also Cloutier v. Langlois, [1990] 1 S.C.R. 158, 1990 CanLII 122, at p. 270-278.
[73] I should also note that s. 221 of the Highway Traffic Act (“HTA”) authorizes the police to conduct an inventory search of a vehicle when an accused has been charged with a traffic infraction. The search of a vehicle is also authorized pursuant to the power to impound vehicles, under s. 221(1) of the HTA if the vehicle was apparently abandoned: see R. v. Ellis, 2016 ONCA 598 [2016] O.J. No. 4111, at paras. 62-66. However, there is no evidence in this case that Mr. Asemota abandoned his vehicle before Constable Martin investigated it. I also note that both Sergeant Ceballo and Constable Woodley justified the search of Mr. Asemota’s vehicle as a search incident to the arrest on a criminal offence rather than one conducted pursuant to s. 221 of the HTA.
[74] The unlawful arrest of Mr. Asemota cannot justify the search and seizure of his motor vehicle. The search of the vehicle was not done to ensure the safety of the police and the public, to prevent the destruction of property or to discover evidence of the offence for which Mr. Asemota had been arrested. Constable Martin testified that she approached the vehicle from the passenger side not because she was fearful of its occupants but because the vehicle was in a live lane of traffic.
[75] Furthermore, the search could not yield evidence supporting the charge of failing to comply with a probation order given that Constable Martin had Mr. Asemota’s identification documents and a copy of his probation. Thus, she had all the information required with respect to the charge of breach of probation.
[76] The search of the vehicle, therefore, cannot be legally justified as a search incidental to the arrest of Mr. Asemota.
Was the search of Mr. Asemota’s vehicle lawful because it flowed directly from the lawful arrest of Mr. Ellis?
[77] Sergeant Ceballo provided evidence concerning the investigation of the occupants of Mr. Asemota’s vehicle. He testified that he decided to seize the vehicle following the arrest of its registered owner. Furthermore, the male occupants of the vehicle had refused to give their names to Constable Martin upon her request. Constable Martin testified that Sergeant Ceballo told Constables Woodley and Sterns that the two males were “suspicious and uncooperative” while Sergeant Ceballo conceded that he told Constables Woodley and Sterns that they were uncooperative. He could not recall whether he had also told them that the two males appeared “suspicious”. Sergeant Ceballo also testified that he told Constables Woodley and Sterns to investigate the vehicle’s occupants because they were inside Mr. Asemota’s vehicle which was about to be seized.
Reasons for the Search of the Vehicle
[78] The ostensible reason for the search of Mr. Asemota’s vehicle was the finding of marijuana within it by Constable Woodley. However, there is evidence which cumulatively suggest that Sergeant Ceballo, who took control of the investigation following his arrival at the scene, had made the decision to investigate Mr. Asemota, his car and its occupants for evidence of criminal activity even before his arrival. This evidence include the following:
(1) He initially testified that he attended the scene following a request for assistance by Constable Martin. In cross-examination however, he conceded that Constable Martin never asked for assistance and that he attended the scene after obtaining information about the stop on his data mobile unit.
(2) He testified in-chief that he attended the scene after seeing on CPIC that Mr. Asemota was on a curfew. He initially denied in cross-examination that the reason for his attendance was seeing on his mobile data unit that Mr. Asemota was the subject of a firearms prohibition order. In cross-examination however, he conceded that he testified at the preliminary hearing that he knew that the driver was on a firearms prohibition order.
(3) Upon his arrival at the scene, and even before a full review of CPIC and the probation order, he formed grounds that Mr. Asemota should be arrested for breach of probation.
(4) He directed Constable Martin to ascertain the identity of the car’s occupants. He did so despite the fact that an officer’s powers under the HTA does not include the power to ask passengers in detained vehicles for identification: see R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214 (CA).
(5) He directed Constable Martin to arrest Mr. Asemota.
(6) He specifically requested Constables Woodley and Sterns to attend the scene to provide assistance with the car’s occupants.
(7) According to Constable Martin, he told Constable Woodley and Constable Sterns that the occupants were “suspicious and uncooperative”.
(8) Constable Martin conceded that she testified at the preliminary hearing that Sergeant Ceballo told Constables Woodley, Sterns and herself that the vehicle should be seized because its registered owner had been arrested.
(9) Sergeant Ceballo testified in cross-examination that Mr. Asemota’s vehicle would be searched incident to his arrest. He testified that the officers would do an inventory search of the vehicle following its seizure. He also testified in-chief that a search of Mr. Asemota’s vehicle could assist him in proving the breach of the curfew.
[79] It is clear that on this evidence, the officer formed an intention to arrest Mr. Asemota, to seize and search his vehicle and investigate its occupants even before he had reasonable and probable grounds to arrest or to search any vehicle.
[80] Constable Martin testified to a further ground that could form the basis of a proper search. She testified that she detected a strong smell of fresh marijuana emanating from the vehicle when she initially approached it. I find that Constable Martin is not a credible witness on this issue for the following reasons.
[81] First, Sergeant Ceballo testified that when he went to the front passenger side of the vehicle, he did not smell marijuana. Second, Constable Martin made no mention of smelling marijuana in her notes. Third, she failed to mention it to Sergeant Ceballo. Fourth, she failed to mention it to either Constable Woodley or to Constable Sterns. Fifth, she failed to mention it during the briefing she had with Sergeant Ceballo, Constable Woodley, Constable Sterns and Constable Misev at 12:15 a.m. during a briefing meeting. Nor did she mention it during her meeting with the CIB on March 17, 2015 from 12:40 a.m. to 1:52 a.m.
[82] Finally, Ms. Knibb testified that there was no smell of marijuana in Mr. Asemota’s car when Constable Martin stopped it. She was not shaken in her testimony.
Did Constable Woodley have reasonable and probable grounds to order the arrest of Mr. Ellis for possession of a controlled substance under the CDSA?
[83] Prior to reviewing Constable Woodley’s evidence, it should be noted that the smell of fresh marijuana, which may be indicative of the presence of marijuana, may constitute reasonable and probable grounds for an arrest for simple possession: see R. v. Evans, 2008 ABQB 582, at para. 25; R. v. Krall, 2003 ABPC 171, 341 A.R. 311 at para. 69; R. v. Polashek, 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434; R. v. Calderon, 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481, 23 C.R. (6th) 1, (C.A.); R. v. Madore, 2012 BCCA 160, at paras. 9, 37, leave to appeal refused, [2012] S.C.C.A. No. 384; R. v. Harding, 2010 ABCA 180, at para. 29.
[84] Constable Woodley testified that Sergeant Ceballo asked him and Constable Sterns to attend the scene of the arrest. Upon arrival, Sergeant Ceballo told them that the two males in the rear of the vehicle were uncooperative and should be removed from the vehicle before it was seized.
[85] Constable Woodley testified that he opened the rear passenger door behind the driver’s seat. He leaned into the vehicle and illuminated it with his flashlight. He immediately smelt unburnt marijuana within it. He asked the male passenger behind the driver’s seat, who identified himself as “Tristan”, to exit the vehicle. He scanned the interior for officer safety. He saw pieces of a green leafy substance on the floor mat at the feet of the male passenger. Some of the marijuana he saw was “crystalized and powdery”. He then told Constable Sterns that the vehicle’s occupants were “arrestable” for a CDSA offence. He testified that he ordered the arrest of the vehicle’s occupants. He did so on the basis that all the occupants were in joint possession of the marijuana. He escorted Tristan to the rear of the cruiser. He searched him but found nothing.
[86] Constable Woodley then searched the vehicle along with Constable Sterns. Twenty seconds into the search he heard Constable Sterns yell “gun”. Constable Woodley then located a second firearm under the driver’s seat. He retrieved it and handed it to Sergeant Ceballo to make it safe. Sergeant Ceballo ejected a magazine, racked the gun and a bullet came out of the chamber. Constable Woodley returned to the rear driver’s side of the vehicle and retrieved as much of the marijuana as possible from the floor and placed it into a plastic Ziploc bag which he received from Sergeant Ceballo. It ultimately weighed .40 grams.
[87] Constable Woodley arrested Tristan at 10:39 p.m. He made his notes regarding the smell of marijuana he had detected at 11:35 p.m.
Flashlight Search
[88] In analyzing Constable Woodley’s testimony, I must first consider whether his decision to lean into the car and illuminate the area where the legs of a male passenger were, constituted a search pursuant to section 8 of the Charter. The officer testified that he shone his flashlight in the car on account of officer safety.
[89] Officers possess the legal authority to use their flashlights to visually search the interior of a vehicle stopped at night to ensure their safety: see R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pages 623-624. They are reasonably permitted to do so particularly in circumstances where they reasonably believe that there may be threats to their safety.
[90] In this case however, Constable Woodley had no basis to fear for his safety. Mr. Asemota had been arrested for breach of probation. The two unknown male occupants had not done or said anything of a threatening nature. One would have thought that if the officer had concerns about his safety and that of the other officers, he would have asked them to show their hands or to place them in an area where he could see them.
[91] In my view, Constable Woodley’s purpose in leaning into the vehicle and using his flashlight to search in the mat area of the passenger seat behind the driver was unlawful. For reasons which I set out later, I do not accept that he smelt marijuana in the vehicle when he opened the door. If he had any concerns about his safety, he would not have leaned into the vehicle, where the two unknown males were seated and used his flashlight to search the floor area.
[92] To the extent that his flashlight search of Mr. Asemota’s vehicle was incidental to his arrest, it was unlawful. It was also unlawful because Constable Woodley had no reasonable suspicion or grounds to search the vehicle.
Finding of Marijuana
[93] I have some serious concerns about Constable Woodley’s testimony about finding drugs in Mr. Asemota’s car. First, he testified that Sergeant Ceballo asked him to remove the males from the vehicle, while Sergeant Ceballo testified that he advised Constable Woodley and Sterns to investigate the males because they were uncooperative. Second, Sergeant Ceballo, who had earlier approached the vehicle, testified that he did not smell marijuana in it. An explanation for this could be that he did not stick his head into the vehicle as Constable Woodley had done. However, Constable Sterns testified in cross-examination that whenever she was close to the car, the smell of marijuana remained strong the whole time she was at the scene.
[94] More problematic is Constable Woodley’s testimony that he received the plastic Ziploc bag in which he placed the marijuana from Sergeant Ceballo. Sergeant Ceballo denied that he ever gave Constable Woodley a bag to place anything. One would have thought that Sergeant Ceballo would have remembered this detail since he was the one who had asked Constable Woodley to investigate the occupants of the vehicle.
[95] There is another aspect of Sergeant Ceballo’s testimony that raises concerns regarding Constable Woodley’s testimony that he found marijuana in the vehicle. He testified that as soon as Constable Woodley opened the rear door, Constable Woodley announced that all occupants are “arrestable for CDSA”. Constable Woodley’s testimony seems to suggest that there was a passage of time, after he opened the door, before he told his colleagues that the car’s occupants were arrestable for a “CDSA”.
[96] Furthermore, Constable Woodley circled spots in a black and white photograph of a mat in the rear interior of the vehicle as evidence of traces of marijuana he saw in the vehicle. He testified that he knew that the spots he had encircled were marijuana because they appeared to be green in the photographs which were marked as exhibits.
[97] Upon a closer inspection of the photographs, it is difficult, nigh impossible, to tell that the spots encircled by Constable Woodley are what he claimed them to be. There is nothing distinguishing these spots from other areas on the mat that he did not circle.
[98] Indeed, during his testimony in-chief, Constable Woodley circled fifteen spots which he claimed were traces of marijuana. Under cross-examination, he conceded that during his testimony at the preliminary hearing, he circled twenty three spots on a similar photograph. He also conceded in cross-examination that two spots he identified during the preliminary hearing as being marijuana, were not marijuana.
[99] Additionally, it is unknown whether the mat in the car was in the same condition when the photographs were taken as it had been at the time of the investigation. Indeed, Constable Hopeton testified that the photographs were taken approximately ten days following the arrest. Furthermore, Constable Hopeton testified that the car was unlocked at the pound during this period. It is therefore unknown whether anyone entered the car during this period.
[100] There are other reasons why I attach little or no weight to Constable Woodley’s testimony that he smelt and then located unburnt marijuana in the car. Both Constable Martin and Constable Woodley testified that they detected a very strong odour of fresh marijuana coming from the vehicle. Constable Woodley testified that the total weight of the marijuana he retrieved from the mat was .40 grams. He noted that the traces of the marijuana left on the mat were less than one tenth of that amount. It is difficult to imagine how such a small amount of marijuana, even if fresh, could have generated a strong smell of marijuana. This evidence is even more remarkable considering that much of the marijuana which the officer claimed to have seen had been “crystalized and powdery”.
[101] Also problematic is the conflict in the evidence about when Constable Woodley gave the marijuana he claimed to have found in Mr. Asemota’s car to Constable Hopeton. Constable Woodley testified he did so after the CIB briefing which ended on March 17, 2015, at 1:52 a.m. Constable Hopeton, on the other hand, testified that he received the marijuana from Constable Woodley at 1:45 a.m., which would have been during the CIB briefing. This discrepancy, on its own, may not amount to anything. However, it assumes greater significance in light of the other concerns arising from the Crown’s evidence about the finding of marijuana inside Mr. Asemota’s vehicle.
[102] Furthermore, Constable Hopeton testified that there was not enough marijuana to bring to court. Additionally, no photograph was taken of the seized marijuana. Constable Hopeton testified that this was an oversight. That omission, however, in combination with the other concerns I have mentioned, leaves me very skeptical about whether any marijuana was found in Mr. Asemota’s car.
[103] Constable Danielle Sterns’ testimony does not assist me in determining whether Constable Woodley found any drugs in Mr. Asemota’s car. The officer attended Mr. Asemota’s car at the behest of Sergeant Ceballo after being told that its occupants were suspicious and uncooperative. She opened the door and was besieged by a strong smell of marijuana. She asked Mr. Ellis to exit. As he did so, he appeared nervous. Constable Woodley then told her that all the occupants were arrestable for a CDSA offence. She then arrested Mr. Ellis and did a pat down search of him. She discovered a gun tucked between his trousers and his shorts. She removed it from his waistband and placed it on the ground. All the occupants were handcuffed and secured. Constable Sterns also searched the rear passenger side of the vehicle but found nothing. At the division, Constable Sterns had a meeting with the other officers involved in the investigation before meeting with the CIB. At approximately 3:42 a.m., she recorded in her notebook that she had detected a strong smell of marijuana after opening the rear passenger door of Mr. Asemota’s vehicle.
[104] Like Constable Martin, Constable Sterns did not write in her notebook, while at the scene of the investigation, that she had smelt marijuana in Mr. Asemota’s car. This is significant because Constable Sterns made fairly extensive notes at the scene about her arrest of Mr. Ellis, the search of Mr. Asemota’s car, and Constable Woodley’s removal of a gun from the vehicle. She failed to mention the smell or presence of marijuana at the first briefing at 12:15 a.m. or at the CIB meeting. In my view, this omission is startling given that it goes to the reason why Mr. Ellis was arrested in the first place.
[105] Additionally, Constable Sterns did not see any marijuana in the vehicle. This can be explained by her testimony that she only searched the rear passenger side of Mr. Asemota’s vehicle. Furthermore, Constable Sterns testified that the smell of marijuana was strong when she was close to the vehicle and that the smell remained strong the whole time. And yet the more experienced Sergeant Ceballo never detected this smell.
[106] Constable Copeland testified that Constable Hopeton gave him a small plastic bag of marijuana which weighed .40 grams. There is no question that the drug this officer received from Constable Woodley was submitted to Health Canada for testing. However, Constable Copeland’s testimony provides little or no assistance on the crucial question whether Constable Woodley located marijuana in Mr. Asemota’s vehicle.
[107] For the above reasons, I am unable to find, even on a balance of probabilities, that Constable Woodley found marijuana in Mr. Asemota’s vehicle. As a result, I find that Constable Woodley lacked reasonable and probable grounds to arrest the occupants of Mr. Asemota’s car. Accordingly, the arrest of Mr. Ellis was unlawful. It therefore follows that the search of the vehicle was also unlawful.
Does Mr. Ellis have standing to challenge the validity of the search of Mr. Asemota’s vehicle?
[108] A person whose section 8 Charter rights have been infringed is entitled to claim the relief that s. 24(2) affords. Mr. Ellis’ s. 8 Charter rights can only have been infringed by the search of Mr. Asemota’s vehicle if Mr. Ellis had a reasonable expectation of privacy in the firearm found under the driver’s seat of the vehicle. In Belnavis, Cory J., at para. 22 assessed the following factors to determine whether a passenger had a reasonable expectation of privacy in a vehicle:
i) presence at the time of the search;
ii) ownership of the vehicle;
iii) control over the vehicle;
iv) use of the vehicle in the past;
v) relationship with the owner or driver which would establish some special access to a privilege in regard to the vehicle;
vi) the ability to regulate access to the vehicle;
vii) evidence of a subjective expectation of privacy in the vehicle: see also Edwards v. The Queen (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136.
[109] Mr. Ellis was at the scene when Constable Woodley and Constable Sterns searched the vehicle. However, he was not the owner of the vehicle neither did he have control over it. There is no evidence that he had used it in the past. He is a close friend of Mr. Asemota but there is no evidence that this friendship gave him some special access to or privilege in regard to the car. Neither is there any evidence that he had the ability to regulate access to the car. Furthermore, there is no evidence that Mr. Ellis had a subjective expectation of privacy in Mr. Asemota’s car.
[110] Similarly, Mr. Ellis has not asserted any ownership or possessory interest in the firearm found by Constable Woodley under the driver’s seat of the vehicle. There is no evidence that he was aware of its presence. It was not in plain view. The firearm did not possess any telltale details or marks linking it to Mr. Ellis nor was it found in any of his property. Neither was it located in proximity to him. Finally, he was not the only passenger in the backseat of the car.
[111] For the above reasons, Mr. Ellis has failed to show, on a balance of probabilities, that he had a reasonable expectation of privacy in the vehicle sufficient to challenge the validity of the search of the car. Had Mr. Ellis asserted ownership of the gun in the car, he may have had standing to challenge the admissibility of the evidence on the basis of an unlawful breach: see R. v. Poulin, [2004] O.J. No. 1354 (SCJ). The situation may have also been different had he sat on the gun, thereby exercising some control over it: see R. v. Stephen, [2003] O.J. No. 634 (SCJ). In the circumstances of this case, Mr. Ellis had no expectation of privacy in the firearm under the driver’s seat and hence has no standing to challenge the search of Mr. Asemota’s vehicle.
Issue No. Three: Should the Evidence obtained as a Result of the Charter Breaches be excluded pursuant to [section 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[112] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.R. 363, set out an analytical framework for the admission or exclusion of evidence obtained as a result of a Charter breach. The test involves a consideration of the following factors:
(1) the seriousness of the Charter-infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.
The Seriousness of the Charter-infringing State Conduct
Mr. Asemota
[113] The more severe or serious the state misconduct, the greater the need for the court to condemn such conduct and to avoid legitimising it. Mere inadvertence, an honest mistake or the good faith actions of a state agent, for example, may be factors that can mitigate against the exclusion of evidence based on this factor.
[114] How should the police conduct be characterized in this case? The following statement of Doherty J.A.’s in R. v. Kitaitchik, 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (C.A.) is very helpful in this regard:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights … What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct…
[115] In this case, the Charter-infringing conduct approximates that which constitutes, to use Doherty J.A.’s typology, “a blatant disregard for Charter rights”. Both officers reviewed the probation order which Mr. Asemota provided without any prompting. Both would have read the clear, unambiguous exceptions to the curfew which Mr. Asemota had to comply with. And yet Constable Martin, on the instructions of her supervising officer, proceeded to arrest Mr. Asemota despite the fact that he was in full compliance with the terms of his probation order.
[116] Even if I accepted Sergeant Ceballo’s testimony that he did not scroll down on CPIC to see all the exceptions to the curfew or he refused to review the probation order given to Constable Martin, the Charter-infringing conduct would still be very serious. In my view, the seasoned 28-year veteran had an obligation to conduct a proper investigation before forming grounds to arrest him for failing to comply with a court order. Wilful blindness or negligence cannot excuse Charter-infringing conduct. As noted by the Court of Appeal in R. v. Ellis, 2016 ONCA 598, at para. 68, “…negligence is not good faith”.
[117] The Charter-infringing conduct as it relates to Mr. Asemota is very serious for additional reasons: first, Sergeant Ceballo requested Constable Martin to ask Mr. Asemota questions about his whereabouts that night for the sole purpose of obtaining evidence which would lead to his arrest. Constable Martin did as she was instructed without cautioning Mr. Asemota. This, in my view, was improper because Mr. Asemota was not under arrest and not yet cautioned.
[118] Additionally, Mr. Asemota was subjected to two searches following his unlawful arrest. His vehicle was seized as a consequence of his arrest and impounded for more than ten days. It was also searched by Constables Woodley and Sterns.
[119] There is an added reason why the Charter-infringing conduct is very serious in this case. The arrest of Mr. Asemota appears to reflected the modus operandi of Sergeant Ceballo. During cross-examination, defence counsel put to him that he had acted in the very same manner in the case of R. v. Martin, 2012 ONSC 2298, [2012] O.J. No. 1954. In that case he attended the scene of a traffic stop without being requested to do and instructed the investigating officers to remove the passengers from the vehicle. He also attended the scene after seeing that the driver was the subject of a weapons prohibition.
[120] Furthermore, in R. v. Thompson, 2013 ONSC 1527, Hill J. admonished Sergeant Ceballo for having a debriefing meeting with the officers involved in an investigation before they made their notes, without considering the potential of tainting the officer’s independent recollections. I note that both Sergeant Ceballo and Constable Sterns made a portion of their notes following the briefing from 12:15 a.m. to 12:30 a.m. to “make sure”, in the words of Sergeant Ceballo, “everyone knew their roles” in the investigation.
[121] This modus operandi, which involves, at best, a cavalier disregard or, at worst, a cruel and callous disdain for the rights of citizens, makes the Charter-infringing conduct in this case very serious. As Hill J. noted in Thompson, at para. 204, “a court is not foreclosed in considering as a factor in assessing the seriousness of a Charter breach, relevant history of a particular officer, squad or police service…” Furthermore, in R. v. Jahmarr Sterling-Debney, 2013 ONSC 4584, Durno J. noted at para. 128 that:
There has been a disturbing pattern of Charter abuse in vehicle stops in Peel relating to, as Hill J. framed it, "unlawful, warrantless searches of vehicles by the PRPS resulting in the seizure of firearms." See: R. v. Samaroo [2010] O.J. No. 6185 (S.C.J.) at paras. 25, 34, 37, and 77; R. v. Bacchus, 2012 ONSC 5082at paras. 61, 64, 119-130, and 148; and R. v. Martin 2012 ONSC 2298(S.C.J.) and Thompson.
[122] A motor vehicle is not a Charter free zone. The occupants of a vehicle, irrespective of their background or antecedents, are protected from arbitrary state conduct to the same extent as anyone else in any other location.
Mr. Ellis
[123] Mr. Ellis was investigated because he exercised his right not to give his name during what commenced as the investigation of a traffic infraction. For that he was deemed suspicious and uncooperative. Had Constables Woodley and Sterns simply desired him to exit the vehicle, they would have requested him to do so, just as Sergeant Ceballo and Constable Martin asked Mr. Asemota to exit his vehicle. Instead, Constable Woodley leaned inside the vehicle with his flashlight despite his avowed concerns for safety.
[124] Based on my analysis on the presence of marijuana in the car, I find that there were no legal grounds to arrest Mr. Ellis for possession of a controlled substance. I find that this arrest was merely a pretext to search Mr. Asemota’s vehicle and its occupants. Concomitantly, Constable Sterns had no legal justification to arrest and then search Mr. Ellis.
[125] Exacerbating the seriousness of the Charter-infringing conduct is the fact that, in my view, the arresting officers were less than forthright in their testimony regarding the circumstances leading to the arrest of the accused, their search of Mr. Asemota’s vehicle and the presence of marijuana in it. Sergeant Ceballo’s testimony about not looking at the probation order and Constable Woodley’s testimony about finding marijuana in the vehicle amount to nothing more than ex-post facto justification for the arrest and subsequent search of Mr. Ellis.
Impact of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing Conduct
[126] The Supreme Court of Canada in Grant noted at para. 76 that this factor “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”.
[127] There can be no question that the Charter breaches significantly undermined the security interests of the accused and their right to be free from arbitrary arrest and search and seizure and their right not to be unlawfully deprived of their liberty. Mr. Asemota was ordered out of his car and arrested at approximately 10:39 p.m. His vehicle was searched and then towed to the pound where it was held for a long period. He was taken to 22 Division where he was interviewed. He was held for a bail hearing and spent nine months in pre-trial custody. He was then released on a recognizance with a number of restrictive conditions.
[128] Similarly, Mr. Ellis was arrested, searched, and held overnight for a bail hearing. He spent seventeen days in pretrial custody before being released on a recognizance with a number of restrictive conditions including house arrest. The Charter-infringing conduct amounted to a significant intrusion on his s. 8 and 9 Charter rights.
Society’s Interest in the Adjudication of the Case on its Merits
[129] This factor favours admission of the evidence. The guns constitute real evidence and are critical to the Crown’s case. Admission of this evidence would better serve the truth-seeking function of the criminal trial process than its exclusion. The evidence is also reliable. Furthermore, the scourge of gun violence has haunted our community and has taken a significant and tragic toll on numerous families.
[130] I must also consider the impact of admission or exclusion of the evidence on the repute of the administration of justice. Admission of the evidence would surely promote the public safety and security interests of the community. Admission is therefore consistent with the short term reputation of the administration of justice.
[131] In R. v. Harrison (2009), 2 S.C.R. 494, 2009 SCC 34, however, the Supreme Court of Canada cautioned, at para. 36, that it is the long term reputation of the administration of justice that must be assessed; rather than its short term reputation: see also Grant at para. 84. In my view, judicial condonation of the Charter breaches in this case will have a deleterious effect on the long term reputation of the administration of justice. It will send the undesirable message that in the sphere of law enforcement the ends justify the means and that with respect to certain types of offences, the Charter of Rights and Freedoms is to be honoured more in the breach than in the practice.
[132] For the above reasons, the application is granted in part. With respect to Mr. Asemota, the two firearms obtained during the course of the investigation are excluded. With respect to Mr. Ellis, the firearm found on his person, described as an Iver Johnson revolver, is excluded.
André J.
Released: February 22, 2017
CITATION: R. v. Asemota, 2017 ONSC 1229
COURT FILE NO.: CR-16-1391
DATE: 20170222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
OSATA ASEMOTA AND CHARLES ELLIS
REASONS FOR JUDGMENT
André J.
Released: February 22, 2017