Court File and Parties
Court File No.: CR-16-30000075-0000 Date: 2017-04-18 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Michael Davani and Alwayne Bigby
Counsel: Rob Fried and Jerry Brienza, for the Crown Edward Sapiano and David Wilson, for Michael Davani David Bayliss and Antia Kwan, for Alwayne Bigby
Heard: March 5, 6 & 10, 2017
M. Dambrot J.:
Background
[1] Michael Davani and Alwayne Bigby are charged with the second degree murder of Andrea White. They are being tried together before me with a jury.
[2] The Crown alleges that Davani shot White in a drive-by shooting in revenge for the killing of one Kwado Mensah the previous year. As a part of the proof of an association between Davani and Mensah, the Crown proposes to call evidence that on June 30, 2011, a number of police officers encountered four men sitting together on a short wall, one of whom identified himself as Mensah, and another of whom identified himself as Davani.
[3] Davani brought an application to exclude the evidence of self-identification by the individual purporting to be him on the basis that his rights under sections 7, 8, 9 and 10(b) of the Charter were violated. He also took the position that the evidence of self-identification was inadmissible because the Crown failed to establish that it was done voluntarily. Davani also argued that P.C. Karakochuk should not be permitted to identify him in the dock as one of the persons he encountered on June 30, 2011 and that the evidence of self-identification by Mensah is inadmissible hearsay.
The Evidence
[4] On June 30, 2011, P.C. Thomas and P.C. Karakochuk were in uniform, assigned to the 23 Division Community Response Unit of the Toronto Police Service, and tasked to conduct general patrol in the area of an apartment complex at 2063 and 2067 Islington Avenue. At 3:30 p.m., they attended behind a parking lot at the rear of 2063 Islington and entered into a green space between the parking lot and the School of Experimental Education. The green space consists of grass and trees, and a wall runs through it, separating the parking lot from the school grounds. P.C. Thomas thought that the wall might be five feet in height. The school is situated in a park, and is not enclosed on any of the other sides. Neither officer was aware of any signs posted at the school property that said that loitering was not permitted.
[5] The officers observed four men sitting on the wall. P.C. Thomas believed that the wall was school property, and described the four men as loitering on school property. While he didn’t specifically know where the property line was, he believed that fences ordinarily separate property, and did so in this case. He was of the view that this was a violation of the Trespass to Property Act, R.S.O. 1990, c. T.21 (“the Act”), and he and his partner approached the four men to investigate. P.C. Karakochuk said that they needed to determine if the men were students.
[6] P.C. Thomas told the men that they were being investigated for trespassing. The officers had not yet decided whether they would issue a Provincial Offence ticket, or simply verbally caution the men, and asked them their names. The men were immediately uncooperative, didn’t want to provide their names and accused the officers of harassing them. The officers explained that the police had been given authority by “both” school boards to enforce the Act on their behalf. Eventually, the men provided their names. One of the men gave his name as Michael Davani. He was brown skinned, 5’8” or 5’9”, about 190 pounds, approximately 18 years of age, had long straight black hair in a pony tail and with some of his hair braided, was wearing a Toronto Maple Leafs cap, a hoodie and blue jeans. He was not known to P.C. Thomas. A photograph of Davani taken on July 27, 2011 reveals that he did have long hair at that time. Another of the men identified himself as Kwado Mensah.
[7] The police ascertained from the men that two of them had outstanding charges and all of them had previously been charged with criminal offences – Davani for robbery - and advised them that they would be patted down for weapons. Davani became irate, raised his voice, insisted that the police would not be searching him and jumped down from the wall. He had remained on the wall until then. The officers explained that they just wanted to pat him down for safety. He lifted his sweater and said that they could look but not search.
[8] The officers observed that he had a blue bandana tied to the button area of his pants, and was wearing a lot of blue. The area was known for gang activity, and they suspected that he might be a member of the Cripps. As a result, they told him he would be searched. At that point he pulled out his blackberry, gave it to one of the other men and directed him to record the search. The officers then proceeded to pat down the pockets of the four men. These searches were all negative, and the police gave them all verbal warnings and asked them to leave. They complied.
[9] In cross-examination, P.C. Thomas was asked if he told the men that they had to answer when he asked them to identify themselves. He said that he did not; he just asked the question. He was then asked if he was letting the men know that they had to answer. He replied, “I was obtaining the information I needed for the Trespass to Property Act investigation, yes.” When asked in re-examination how he made it clear to the men that they had to answer his questions, he simply replied that the men were told that they were being asked the questions because they were being investigated under the Act, but he never said that they had to answer the questions. Although both counsel for Davani and Crown counsel appeared to have understood that the officer testified that he had conveyed to the four men that they had to identify themselves, I conclude that all he actually was saying was that he conveyed to them the reason he was asking them to do so. P.C. Thomas also said in cross-examination that the men were not leaving until the officers were finished. But there is no evidence at all that this was conveyed to the four men. In fact, P.C. Karakochuk testified that the men were free to walk away.
[10] P.C. Karakochuk identified Davani at the preliminary inquiry, partly on the basis that he was in the box, and partly because he vaguely saw him as familiar. He testified that he subsequently pulled up his picture, presumably from police records, and is better able to identify him now.
[11] Business records produced by the Crown verify that Davani lived in the 2063-2067 Islington apartment complex in 2008.
Analysis
1. Charter Violations
[12] As I have noted, Davani alleges that the two police officers breached his rights under sections 7, 8, 9 and 10(b) of the Charter. Since the foundation for much of the argument requires a finding that Davani was detained by those officers, I will consider that issue first.
[13] The meaning of detention for Charter purposes is not in doubt. It was determined by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and in its companion case, R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The Court said the following at paras. 21 - 25 of Suberu:
21 In Grant, we adopted a purposive approach to the definition of “detention” and held that a “detention” for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.
22 While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.
23 However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court's conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:
“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional [page 475] rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so. [Emphasis added; at para. 19.]
24 As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.
25 For convenience, we repeat the summary set out in Grant, at para. 44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[14] In applying these principles I bear in mind that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. The Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, is a detention. (Suberu, para. 3.)
[15] Turning to the evidence, I begin by noting that P.C. Thomas’s belief that the four men were trespassing was in error. I do not question his logic that the wall upon which the men were seated was likely school property. None of the prerequisites of a trespass existed. Entry on the premises was not prohibited by notice (s. 2(a)(i) and s. 3(1) of the Act), loitering on the premises was not an activity prohibited by notice (s. 2(1)(a)(ii) and s. 3(1) of the Act), the premises was not land under cultivation (s. 3(1)(a) of the Act) and the premises were not enclosed in a manner that indicated the occupier’s intention to keep persons off the premises (s. 3(1)(b) of the Act). That, however, did not exhaust the authority of the police to act pursuant to the Act.
[16] An occupier of premises, including a school board (s. 1(2) of the Act), and any person authorized by the occupier, has the right to direct any person on the premises to leave immediately (s. 2(1)(b) of the Act). The uncontradicted evidence is that the police have such authority with respect to school board property. This would obviously entitle them to direct persons unconnected with a school found loitering on school property to leave. Failure to leave after being directed to do so amounts to a trespass.
[17] As a result, the police were perfectly entitled to approach the four men on the fence, ask them who they were and direct them to leave if they considered it appropriate. Until the point in time that they conducted a pat down search of Davani, which occurred after they had obtained Davani’s name, there was no physical restraint of Davani at the hands of the state. At no time were the men under any legal obligation to answer any police questions. Nor, in my view, was there psychological restraint of Davani at the hands of the state. The police conduct, viewed objectively in light of all of the circumstances, would not have caused a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police, and clearly did not have that effect on Davani.
[18] Although P.C. Thomas’s evidence was not a model of clarity on this issue, I am of the view that the actions of the officers would not have conveyed to a reasonable person and did not convey to Davani that he had to identify himself or that he was not free to leave. Indeed, Davani’s actions belie any such conclusion. He was aggressive and uncooperative, and felt free to remove himself from the wall at a time of his own choosing and to provide his cell phone to one of his companions to video the police pat down search of him.
[19] As a result, I conclude that Davani was not detained by the police when they approached him and asked him to identify himself or when he did in fact advise the police of his identity. As a result, I further conclude that his rights under sections 7, 9 and 10(b) of the Charter were not violated.
[20] That leaves only the alleged violation of s. 8 for consideration. Little attention was paid to the reasonableness of a pat down search in the circumstances of this case in the course of argument. However in light of the fact that the police did not have reasonable grounds to believe that Davani had committed an offence or that he posed an imminent threat to public or police safety (R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37), I conclude that there was a breach of s.8. However the pat down search was unobtrusive, it was limited only to a brief external touching of pockets, and it followed the obtaining of Davani’s identity and was connected to it only temporally.
[21] I turn then to s. 24(2). Applying the factors in Grant, I conclude that the evidence of Davani’s self-identification should not be excluded.
[22] With respect to the seriousness of the Charter-infringing state conduct, I note that P.C. Thomas believed that the presence of the fence was sufficient to ground a charge under the Act. While he erred in law, it was a small error made without bad faith, and wholly unconnected to the obtaining of Davani’s identity. As the Supreme court noted in R. v. Mack at para. 42, while it is true that a causal relationship between a breach and the evidence sought to be excluded is not required to support a finding that evidence was obtained in a manner that violated the Charter, nevertheless the nature and extent of the causal relationship remains an important factor for the trial judge's consideration. The complete absence of a causal connection obviously favours admission of the evidence. In all of the circumstances, I consider the state conduct to be far from serious.
[23] With respect to the impact of the breach on the Charter-protected interests of the accused, I repeat that the search was unobtrusive and as insignificant an intrusion into privacy as could be imagined.
[24] With respect to society’s interest in an adjudication on the merits, while the evidence is far from crucial to the Crown’s case, this consideration favours admission.
[25] Balancing all of these considerations, admission of the evidence of self-identification by Davani will not bring the administration of justice into disrepute, and I will not exclude it under s. 24(2) of the Charter.
2. Voluntariness
[26] Davani also argued that Davani’s self-identification is a statement of an accused, and that it is inadmissible in evidence because the Crown has failed to establish beyond a reasonable doubt that it was made voluntarily.
[27] I am doubtful that a simple statement of identity given to a police officer by a person suspected to be in breach of a regulatory statute who is being investigated by the police but who is not detained is subject to the requirement of proof of voluntariness before it can be admitted into evidence. However on the assumption that it is, I am satisfied beyond a reasonable doubt that Davani’s self-identification was voluntary. There is no doubt that Davani was of the view that he was being harassed by the police, and that they had no right to approach him. There is no doubt that as a result, he was uncooperative and didn’t want to provide his name. But the only evidence before me is that once the reason for the inquiry was explained to him, he identified himself. There is no evidence whatever of any of the usual indicia of involuntariness: promises, threats, the application of force, oppression and the like. I am satisifed beyond a reasonable doubt that Davani gave his name voluntarily. The failure of the police to caution Davani before asking him to provide his name is of no moment, at least in the circumstances of this case.
3. Dock Identification
[28] Davani also argued that P.C. Karakochuk should not be permitted to identify him in the dock as one of the persons he encountered on June 30, 2011 because the evidence is unreliable.
[29] In-dock identifications are presumptively admissible, subject to the requirement of a proper limiting jury instruction. In virtually all cases, therefore, in-dock identification evidence is admitted, subject to such an instruction. (See R. v. Muir, 2013 ONCA 470, 309 O.A.C. 36 at para. 8.) Such evidence will be excluded exceptionally where its prejudicial effect outweighs its probative value. This is not such a case, for the following reasons:
(1) The identification evidence in question is not central to the Crown’s case;
(2) P.C. Karakochuk’s opportunity to observe the individual in question was not fleeting; and
(3) other evidence supports the identification of this individual as Davani, including the individual’s self-identification; the description of the individual recorded by P.C. Karakochuk at the time which, while far from unique, is consistent with Davani’s known appearance at around the same time based on a photograph of him; and business records tendered by the Crown that verify that Davani lived in the apartment complex immediately behind the area where the police encountered the man said to be Davani in 2008.
[30] I will not exclude the in-dock identification of Davani.
4. Hearsay
[31] Davani also argued that the evidence of self-identification by one of the men encountered by the police on June 30, 2011 as Kwado Mensah is inadmissible hearsay. I do not agree.
[32] There is a long line of cases that hold that self-identification is not hearsay at all; it is a piece of circumstantial evidence of identity. The more unique the name, the more probative the self-identification is on the issue of identity (see R. v. Brown (2003), 13 C.R. (6th) 317 at paras. 21-24 (Ont. S.C.J.)). In this case, the name Kwado Mensah is undoubtedly uncommon, and has probative force.
[33] Alternatively, self-identification is a long-standing traditional exception to the hearsay rule and is admissible as prima facie evidence that a person who identifies himself or herself by name is in fact that person (Brown, at paras. 25-29; R. v. Farah 2016 ONSC 2081, 30 C.R. (7th) 148 at paras. 55-57 (Ont. S.C.J.)). Self-identification has also been held to be admissible as a principled exception to the hearsay rule (Brown, at paras. 30-40). I note however that the Crown did not bring an application to have the evidence admitted on that basis.
[34] I would not give effect to this argument.
Disposition
[35] The application is dismissed.
M. DAMBROT J. RELEASED: April 18, 2017