Court File and Parties
COURT FILE NO.: SCA 59/15 DATE: 20170711
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Appellant – and – DAMION FELONE Respondent
Counsel: Martin Sabat for the Appellant Faisal Mirza for the Respondent
HEARD: June 29, 2017
On appeal from acquittals entered by Justice Howard Borenstein of the Ontario Court of Justice on July 13, 2015
1On December 3, 2014 the respondent appeared in the Ontario Court of Justice in Toronto and was arraigned on an information charging that:
(i) on or about the 28th of December, 2013, at the City of Toronto, he failed, without lawful excuse, to comply with the condition of a recognizance of bail that he not attend at Bedrock Barney’s located at 3855 Lawrence Avenue East, Toronto;
(ii) on or about the 28th of December, 2013, at the City of Toronto, he assaulted Andrew Garvey, a peace officer, with intent to resist lawful arrest; and
(iii) on or about the 28th of December, 2013, at the City of Toronto, he assaulted Matthew Brown, a peace officer, with intent to resist lawful arrest.
2The Crown elected to proceed by way of summary conviction and the respondent pleaded not guilty. The trial proceeded on various dates over the course of the next six months. On June 6, 2015 the final submissions of the parties were heard and judgment was reserved. On July 13, 2015 the trial judge delivered oral reasons acquitting the respondent on all three counts.
3The Crown appeals only against the acquittals on the counts of assault with intent to resist arrest.
A. The Evidence
4I will refer to the evidence only to the extent necessary to address the grounds of appeal raised by the Crown.
5On July 16, 2013 the respondent was arrested on charges of trafficking in cocaine and possession of cocaine for the purpose of trafficking. He was held for a bail hearing. On July 18, 2013 the respondent was ordered released on a recognizance of bail, one of the terms of which was that he was “not to attend at Bedrock Barney’s, located at 3855 Lawrence Avenue East, Toronto.”
6Bedrock Barney's was a bar situated at the west end of a five-store strip mall in a plaza on the south side of Lawrence Avenue East in Scarborough. Immediately to the west of the plaza is a high-rise apartment building. The property of the apartment building is separated from the strip mall, and from Bedrock Barney's, by a steel picket fence, which appears to be about eight feet high. The fence is about five or six feet to the west of Bedrock Barney's and runs all the way south from Lawrence Avenue to the parking area at the rear of Bedrock Barney's. Immediately to the east of the plaza in which Bedrock Barney's was located is another small plaza and strip mall. This second plaza is several feet lower than the plaza containing Bedrock Barney's and is separated from it by a retaining wall and a chain link fence. A laneway runs south between the two strip malls.
7Police Constable Matthew Brown was one of the officers who had arrested the respondent on the cocaine trafficking charges on July 16, 2013. He testified that the allegation underlying those charges was that the respondent was trafficking cocaine behind Bedrock Barney’s. He testified that there had been a lot of problems with drug activity at that location. While he had not been present at the respondent’s bail hearing, Constable Brown was aware that one of the terms of his release was that he not attend at Bedrock Barney's.
8On December 28, 2013, shortly after 4:00 p.m., Constable Brown and Constable Garvey, who were in uniform in a marked police car, entered into the lower of the two plazas looking for a motor vehicle that was suspected of being involved in an incident unrelated to this case. Constable Brown was driving. The essence of Brown’s evidence was that as he proceeded westbound through the lower plaza he looked across the upper plaza and observed the respondent. Brown testified that when he caught sight of him, the respondent was on the sidewalk directly in front of the door to Bedrock Barney's, walking in an easterly direction at a normal pace. Brown had not seen where the respondent had come from. As the trial judge put it, “Brown did not see [the respondent] stop, linger, enter or exit Barney’s”.
9Constable Brown immediately told Constable Garvey that he recognized the respondent and that he was prohibited from attending at Bedrock Barney's. Constable Garvey had not been looking in the direction of the upper plaza – he had been scanning the parking lot looking for a vehicle associated with the unrelated case. When he turned to look in the direction pointed to by Brown, Garvey saw the respondent, who by this point was walking in front of the pizzeria located two stores further east of Bedrock Barney's. The respondent kept walking eastbound. He did not stop at any of the other stores in the upper plaza. He then began cutting across the parking area of the upper plaza, in a northeasterly direction. He had made eye contact with the officers and watched where they were going. Brown pulled his cruiser out of the lower plaza, onto Lawrence Avenue, and then drove into the upper plaza. The trial judge found as a fact that by the time Constable Brown drove into the upper plaza he had formed the intention to arrest the respondent for breaching the term of his bail that he not attend at Bedrock Barney's.
10By this point, the respondent had walked around the fence separating the two plazas and was proceeding eastbound across the lower plaza toward the next street to the east, Susan Street. Brown drove south through a laneway to the rear of the plazas and turned east. When he reached Susan Street the respondent was about 20 feet away. The respondent once again made eye-contact with the officers and then began running. Garvey got out and began a foot pursuit. Garvey caught up to the respondent and with the assistance of Brown subdued him and placed him under arrest. It is alleged that in the course of their efforts to subdue the respondent both officers were assaulted.
11The respondent did not testify and did not call any evidence.
B. The Trial Judge’s Reasons
12For the purpose of his assessment of whether the Crown had proved the respondent’s guilt on any of the three charges the trial judge stated several times that he was prepared to take the Crown’s case at its highest, by which he meant on the basis of the evidence of Constable Brown. Brown’s evidence was that when he first saw the respondent he was walking directly in front of the door to Bedrock Barney's.
13With respect to the charge of failing to comply with the condition of bail not to attend at Bedrock Barney's, the trial judge stated:
What does it mean to attend at some place? It obviously includes entering. It may also include loitering in front of a place as well. Here, at its highest, [the respondent] was walking past that establishment. An accused must know what he is prohibited from doing. There is no geographic restriction such as to stay 20 feet or 20 metres or 100 metres away from that address. At its highest, he was walking normally by the front door in an easterly direction… In all the circumstances the Crown has not proved that the respondent had breached that condition and he will be acquitted on that charge.
14With respect to the charges of assault with intent to resist lawful arrest, the trial judge focused on the question of whether the Crown had proved beyond a reasonable doubt that the arrest was lawful. In this case, he stated, the arrest would be lawful if Constable Brown had reasonable grounds to believe that the respondent was committing the offence of breaching his recognizance of bail. He concluded that while Constable Brown may have subjectively believed that the respondent was breaching the term of his bail prohibiting him from attending at Bedrock Barney's, that belief was not objectively reasonable. Accepting the Crown’s case “at its highest”, he held that the observation of the respondent walking in front of the door to Bedrock Barney's “would provide the officers with grounds and a motive to investigate and speak to [the respondent], not to arrest him. They were not entitled to arrest him as there were no reasonable grounds to believe [he] was committing an offence”. Further, the trial judge held, the Crown could not bolster the grounds for the arrest with the fact that the respondent fled when the police approached him because by that point the decision to arrest had already been made.
15In light of his determination that the arrest of the respondent was unlawful, the trial judge acquitted the respondent of the two counts of assault with intent to resist lawful arrest.
C. The Applicable Principles
16In R. v. Storrey, [1990] 1 S.C.R. 241, at paragraph 17, the Supreme Court of Canada set forth what must be shown to establish a lawful 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 the arrest.
17In considering whether an arresting officer subjectively had reasonable grounds for an arrest and whether a reasonable person in the position of the officer would be able to conclude that there were reasonable grounds the court is not confined strictly to the grounds articulated by the officer. To the extent that an inference can be drawn that the officer took into account circumstances that were not articulated to be part of the grounds for belief, those circumstances can be considered when applying both the subjective and objective components of the test: R. v. Nesbeth, 2008 ONCA 579, at paragraphs 17-20; R. v. Yi, 2007 ONCA 185, affirming [2006] O.J. No. 1315 at paragraph 20 (Sup. Ct.); R. v Squires, [2002] O.J. No. 2314, at paragraph 22 (C.A.).
18In relation to the reasonable person test, all relevant information known to the officer must be considered. In Chartier v. A.G.- Que. (1979), 48 C.C.C. (2d) 34 (S.C.C.), Pigeon J., writing for the majority of the Court, stated, at p. 56: “For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable.” A review of whether a peace officer's belief was based on reasonable grounds, therefore, involves more than a search for some circumstance which might be said to offer support for the belief. Rather, it is the totality of the circumstances known to the officer – those that undermine the belief as well as those that support it – that must be assessed to determine if the requirement of reasonable grounds has been met.
19The standard to be applied on a review of a determination as to whether reasonable grounds existed was settled by the Supreme Court of Canada in R. v. Shepherd, 2009 SCC 35, at para. 20:
While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law… Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness.
D. Application to this Case
20In my opinion, the trial judge erred in law in concluding that Constable Brown’s subjective belief that the respondent was in violation of his bail order was not objectively supported on the facts. In coming to that conclusion, the trial judge limited his consideration of the circumstances known to Brown to the fact that the respondent “was seen walking at a normal pace without stopping in front of Bedrock Barney's towards a pizzeria and he kept walking”. Limiting what was known to Brown in that fashion deprived Brown’s observations of the respondent of much of the context that gave them significance. In the course of his testimony, Brown testified that he knew:
(i) Bedrock Barney's was a location that was resorted to for drug dealing;
(ii) less than six months earlier the respondent had been arrested at the rear of Bedrock Barney's and charged with trafficking cocaine;
(iii) a condition of the respondent’s interim release on the trafficking charge was that he was “not to attend at Bedrock Barney's”’;
(iv) at the time Brown saw the respondent, he was directly in front of the entrance door of Bedrock Barney's, walking in an eastbound direction;
(v) Bedrock Barney's was the last store on the strip mall; that is, there were no other stores to the west;
(vi) the respondent did not stop at any of the stores to the east of Bedrock Barney's, including the pizzeria, but instead began cutting across the parking lot moving away from the strip mall.
21Further, Constable Brown could not have been unaware that five or six feet to the west of Bedrock Barney's was an eight-foot high steel picket fence running from the rear of Bedrock Barney's all the way north to Lawrence Avenue. The existence of that barrier was a circumstance tending to narrow the possible explanations for how the respondent might have come to be walking eastbound away from the front of the bar.
22It is a reasonable inference that all of the circumstances I have mentioned contributed to Constable Brown’s belief that the respondent had ‘attended at Bedrock Barney's’ in violation of the terms of his bail order. A reasonable person, aware of those circumstances, would be able to conclude that there were reasonable grounds for that belief. The trial judge erred in law in holding otherwise. Accordingly, he erred in holding that the arrest of the respondent was unlawful.
23That determination is sufficient to require that the verdicts of acquittal on the charges of assault with intent to resist arrest be set aside and a new trial ordered. I would add, however, that I am also of the view that the respondent’s flight from the police was a relevant circumstance in relation to whether the arrest was based on objectively reasonable grounds. The trial judge acknowledged that in some circumstances flight from the police can be a factor supporting grounds for arrest: see, e.g. R. v. Nesbeth, supra, at paragraphs 17-20. He concluded that the respondent’s flight was not relevant in this case, however, because Constable Brown had made the decision to arrest before the respondent fled.
24I agree that facts of which an officer might become aware after an arrest would be irrelevant to a review of whether the officer had reasonable grounds to make the arrest. However, I see no basis for excluding from consideration circumstances of which the officer becomes aware after making a decision to arrest but prior to the execution of that decision. The point in time at which both the subjective and objective components of the test for a lawful arrest are to be assessed is when the arrest actually occurs. The question is whether at the time of the arrest the officer subjectively believed on objectively reasonable grounds that the suspect was committing an offence: cf. Nesbeth, at paragraph 17. Where there is an interval between the formation of an intention to arrest and the carrying out of that intention the circumstances may change. Those changes may bolster the grounds for an arrest or they may undermine them. An arresting officer would not only be entitled to take a change in circumstances into account, the officer would be obliged to do so: Chartier v. A.G.- Que., supra.
25Constable Brown did not say that he took the respondent’s flight into account as a factor reinforcing his belief that he had witnessed the respondent violating a condition of his bail but I am prepared to draw the reasonable inference that he did so. In the circumstances, the respondent’s flight was a relevant consideration in relation to whether there were objectively reasonable grounds for the arrest.
E. Disposition
26For the foregoing reasons, the appeal is allowed, the verdicts of acquittal on the charges of assault with intent to resist arrest are set aside and a new trial is ordered.
27It has been more than 3½ years since the incident giving rise to the charges against the respondent, and two years since the acquittals were registered. The Crown’s appeal was initially argued in June 2016 and judgment was reserved. Because the judge who heard the appeal was unable to render a decision, the appeal was re-argued before me more than a year later. In all of the circumstances, the Crown may wish to consider whether it is in the interests of justice to proceed with a new trial.
28The respondent is directed to attend courtroom 407 at the Metro East courthouse at 1911 Eglinton Avenue East at 10:00 a.m. on July 26, 2017 for the purpose of setting a date for a new trial.
29Pursuant to s. 822(3) of the Criminal Code, I direct that the respondent be released pending his trial on a recognizance in the amount and with the conditions that the parties agree would be appropriate.
MacDonnell, J.