R. v. Williams, 2018 ONSC 3654

COURT FILE NO.: CRIMJ(P) 367/17

DATE: 2018 06 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

T. Sarantis, for the Crown

and -

TREVON WILLIAMS

G. Holder, for the Defence

HEARD: May 14-18, 23-25, 2018

JUDGMENT

Paras.

A. INTRODUCTION........................................................................................... 1

B. ROLE OF THE CONFIDENTIAL INFORMER................................................... 5

C. SURVEILLANCE OF TREVON WILLIAMS

(1) The Marigold Hotel................................................................................. 11

(2) The High School.................................................................................... 25

D. THE TAC UNIT OPERATION

(1) The Vehicle Stop................................................................................... 31

(2) Taser Deployment.................................................................................. 39

(3) Suspect Questioned by TAC Unit............................................................ 59

E. STATEMENTS IN THE POLICE CRUISER.................................................... 67

F. TREVON WILLIAMS SPEAKS TO COUNSEL............................................... 81

G. THE FIREARM EVIDENCE.......................................................................... 85

H. COURT ORDERS GOVERNING TREVON WILLIAMS.................................... 87

I. ANALYSIS

(1) Arbitrary Arrest

(a) Introduction........................................................................................ 88

(b) Defence Position................................................................................ 92

(d) Governing Principles......................................................................... 104

(e) Discussion........................................................................................ 120

(2) Forcible Arrest – ss. 7/12 of the Charter

(a) Defence Position............................................................................... 143

(b) Crown Position.................................................................................. 153

(d) Discussion........................................................................................ 167

(3) Warrantless Search/Seizure of Responses/Real Evidence From Arrestee

(a) Defence Position............................................................................... 185

(b) Crown Position.................................................................................. 190

(d) Discussion........................................................................................ 199

(4) Section 10(a) of the Charter

(a) Defence Position............................................................................... 201

(b) Crown Position.................................................................................. 204

(d) Discussion........................................................................................ 210

(5) Submitted Breaches of Right to Counsel

(a) Defence Position............................................................................... 218

(b) Crown Position.................................................................................. 223

(d) Discussion........................................................................................ 237

(6) Section 24(1) Charter – Stay of Proceedings

(a) Defence Position............................................................................... 246

(b) Crown Position.................................................................................. 249

(d) Discussion........................................................................................ 252

(7) Section 24(2) Admission/Exclusion of Evidence

(a) Defence Position............................................................................... 253

(b) Crown Position.................................................................................. 261

(d) Discussion........................................................................................ 281

J. CONCLUSION.......................................................................................... 291

Hill J.

A. INTRODUCTION

[1] In this judge-alone trial, Trevon Williams pled not guilty to three firearms- related offences.

[2] On November 2, 2016, Mr. Williams was arrested in possession of a loaded restricted firearm – an apparently uncomplicated event. However, the circumstances of the arrest have given rise to a number of Charter challenges, including submissions of:

(1) a breach of s. 9 of the Charter in the absence of reasonable and probable grounds for the arrest

(2) a breach of s. 8 of the Charter as the physical search of the accused was incidental to an unlawful arrest

(3) breach of the s. 7 and s. 12 Charter rights to liberty and security of the person, and not to be subjected to cruel and unusual punishment, given the unreasonable and excessive force used by the police to effect the accused’s arrest

(4) a breach of s. 8 of the Charter when the accused was subjected to a warrantless search leading to seizure of incriminatory responses on his part

(5) a breach of the accused’s s. 10(a) Charter right when the reason for arrest was not given immediately

(6) breaches of the s. 10(b) Charter right to counsel when the right was not communicated immediately, the substantive content was flawed, and state implementation of the right was deficient

(7) violation of the accused’s s. 7 Charter right against involuntary self-incrimination in circumstances of the police creating an environment for the accused to speak in an uncautioned situation without the benefit of consultation with counsel.

[3] The defence submitted, respecting the alleged excessive force to effect the arrest, that a stay of proceedings is the appropriate remedy for this unconstitutional state conduct. In any event, the remainder of the submitted Charter breaches, it was argued, ought to result in the exclusion of physical evidence seized at the point of arrest and all utterances on the part of the accused.

[4] On agreement, the trial proceeded as a blended proceeding. A stay or exclusion of the seized firearm would result in acquittals while rejection of sought – after Charter remedies would, on the record here, necessarily result in findings of guilt.

B. ROLE OF THE CONFIDENTIAL INFORMER

[5] Peel Regional Police Service (PRPS) Constable Sean Osborne, at some point in the week preceding November 2, 2016, received information from a confidential informant (CI).

[6] From his discussion with the CI, Constable Osborne learned that an individual named Trevon Williams was in possession of a firearm. The constable was aware of the CI’s relationship to Trevon Williams. The CI provided specific details about the firearm in Williams’ possession. As well, the CI gave sufficient detail in their account to permit the police to determine Williams’ whereabouts at 2:30 p.m. on November 2, 2016.

[7] As of November 2016, the CI had been a carded or registered informant of the PRPS for over one year. The CI had previously proven reliable, on more than one occasion, leading to arrests and seizures in serious cases including for firearms. While the CI had not, in the past, provided false information, Const. Osborne nevertheless cautioned the informant on this occasion regarding the penalty for giving false information, including the prospect of criminal charges. As well, the CI was told that no consideration would be provided for the information should it turn out to be misleading or false.

[8] Const. Osborne was familiar with the CI including the nature of his lifestyle and what, if any, outstanding charges the informant faced as well as any prior criminal record including for offences of dishonesty or involving the administration of justice.

[9] Aware of Trevon Williams’ physical description and date of birth, Const. Osborne provided this information to other PRPS investigators. It was further determined that Trevon Williams was not a person who was lawfully entitled to possess a firearm of the type described by the CI.

[10] At some point after Trevon Williams was arrested, the CI received the consideration provided by the police for the accurate information provided.

C. SURVEILLANCE OF TREVON WILLIAMS

(1) The Marigold Hotel

[11] On November 2, 2016, Constables Tobias Mullinder and Ian Holder of the PRPS Street Crime Gang Unit were partnered together in an unmarked vehicle driving in Brampton. At about 2:15 p.m., they received information by phone causing them to become involved in the criminal investigation of Trevon Williams.

[12] The constables were tasked to locate the suspect. On the basis of the redacted information in the record of this proceeding, the constables were informed that the suspect was 18-year-old Trevon Williams, a black male with a light complexion, believed to be in possession of a firearm. The officers had some additional information, redacted from the record, which further related to Williams’ personal appearance and travel habits.

[13] By 2:18 p.m., the officers positioned their vehicle in the parking lot of the Marigold Hotel on Queen Street in Brampton with an unobstructed view of the front doors of the establishment about 35 feet from their position.

[14] At 2:30 p.m., a taxi cab pulled up in front of the hotel and one person exited the vehicle and entered the hotel. In his evidence, Const. Mullinder described this person as a black-skinned male, wearing blue jeans, a dark jacket, white running shoes, and carrying a blue satchel with a shoulder strap across his left shoulder such that the bag hung in the area of his right hip. In the constable’s view, the male “matched” the description of the suspect he was looking for.

[15] According to Const. Mullinder, the male person who was unknown to him, was constantly adjusting the satchel to sit on his right hip area which would allow access to the receptacle zipper. In the officer’s opinion, given the way the satchel hung, it was “definitely heavy” and, in the way it swung, it was “fairly weighted”.

[16] On the basis of Const. Mullinder’s police training as described to the court, the male appeared to demonstrate the characteristics of an armed person. The witness made reference to the suspect “constantly moving” the bag, pulling on the strap to keep it on the hip, making adjustments and “security pats”. The latter reference was acknowledged to be a broad term including here a purposeful touching of the satchel with the right hand to make sure that a weapon is still “seated”. In his testimony, the officer stated, “I don’t have a vast experience with persons having a firearm down their waist”. In cross-examination, the witness agreed that the bag for which there was no noticeable bulge or protrusion, could well have contained keys, a cellphone or a wallet.

[17] Const. Holder observed a male person exit the taxi in front of the hotel. He was carrying a blue PUMA satchel, sized about 12 inches by 12 inches. The receptacle appeared to be “full with an object” which “appeared to be heavy” and the male kept his right hand on the bag to keep it in place as he walked. The constable was of the view that he displayed “some” characteristics of an armed person as he walked the 10-to-15 foot path into the hotel. In light of the information already received, and his observations, Const. Holder considered that it was “possible” that the male may have a firearm concealed in the blue bag.

[18] Const. Holder recalled that when the male party entered the hotel, this was reported by phone to Detective Scott with a request for assistance. Const. Mullinder testified that assistance was called for as “soon as [Williams] shows up at the hotel and we believe he’s got a firearm”. As Const. Mullinder was on the phone, a PRPS mugshot of Trevon Williams, dated 2015/02/15, came through to Holder’s cellphone. In his view, it depicted the same person he had just seen enter the hotel. He showed the photo to his partner.

[19] At about 2:49 p.m., Trevon Williams exited the Marigold Hotel through the front doors together with an unknown white male. Through the windshield of the police vehicle, Const. Mullinder used his cellphone to videotape the parties as they moved a few feet to the side of the hotel doors (Exhibit #2). The males talked and Williams smoked a cigarette, used his cellphone, pulled up his pants at the back and, at a point, bent forward toward his footwear. The blue satchel remained on his right side with the strap hung across his left shoulder.

[20] Const. Holder testified that when Williams moved, he would place his hand on the bag or make adjustments to it. There was still an appearance of something heavy in the bag. Const. Mullinder testified to seeing a few adjustments on Williams’ part but not as much as when he was initially entering the hotel. When the Exhibit #2 video was played for the witness, he pointed out only one “tap” of the bag by Williams.

[21] When the accused emerged through the hotel front doors and appeared to pat his satchel, Const. Mullinder can be heard, in the video, to say almost instantly, “He’s got the hand on the satchel there, it’s heavy”. As the two constables maintained observations during the 6-minute-long video, with sound recording, Const. Mullinder can be heard to say: “It’s hanging”; “You can tell it’s hanging down”; “The satchel’s definitely heavy … you see it hanging”.

[22] In Const. Mullinder’s view, while the observations of Williams standing alone would not have supported an arrest, with the information originally given that the suspect had a gun, an arrest was justified.

[23] In his in-chief testimony, the constable gave this evidence respecting his grounds for Williams’ arrest for possession of a firearm:

Q. What are you relying on as grounds for that?

A. Our knowledge and belief that Mr. Williams has a firearm, as well as the characteristics of an armed person that I believe we saw.

Q. And when do you form those grounds of arrest?

A. When he initially shows up and we observe that obviously it’s him that’s showing up there, as well as the characteristics of an armed person with that satchel.

Q. Where do the grounds come in terms of you think you can arrest him?

A. When we were initially at the hotel, he shows up and then walks inside, he’s doing the characteristics where he’s doing the safety pats, he’s doing the adjustments and we can see the satchel’s weighted. At that time, I believe he has a firearm and that’s why I called my boss to let him know that I believe this is the individual that we are looking for that’s in possession of a firearm and we believe the firearm is with him now.

Asked about his second rationale for an arrest, “public safety”, the constable stated:

A. Well, anybody with a firearm walking around or being driven around Brampton is a threat to the public obviously. People carry firearms to use them. Especially when he got to the school location, that obviously raised the stakes a lot higher.

Q. Why?

A. You’ve got a kid now going in to a school with a gun so there’s the potential for a shooting…

[24] In cross-examination, Const. Mullinder provided this information:

Q. …Constable you’d agree with me that in the absence of the information that you were provided, the observations you made would not have led you to believe that Mr. Williams had a firearm, correct?

A. In the totality, with the information, and what I observed, that’s when I drew my grounds that he had a firearm. There’s certain times where he does security pats and certain movements where, yes, that would raise my attention to possibly there being something in there but, on its complete own, no.

(emphasis added)

(2) The High School

[25] The police video captures the accused walking toward an arrived taxi. He placed his right hand on the PUMA bag as he approached the taxi. The video terminated when the suspect entered the taxi at 2:55 p.m., followed by Consts. Mullinder and Holder during a brief drive to the immediate area of David Suzuki High School in Brampton, arriving at about 3:06 pm. as school was getting out. According to Const. Mullinder, as Williams proceeded on foot across the road and school parking lot to the front entrance area of the school, disappearing into a crowd of about one hundred students milling about outside the front doors of the school, he was pulling the satchel down and making security pats.

[26] Const. Holder was concerned about the prospect of an armed individual entering the school. Const. Mullinder described the situation as “panic mode” based on the knowledge and belief that Williams had a firearm and the observations of the suspect consistent with him being an armed individual.

[27] Const. Mullinder testified that had he physically been in a position to do so, he would have tackled the suspect “or done something” to prevent him entering the school. He had no opportunity to tackle Williams before he made it to the front entrance area of the school. Had the chance presented itself, he would have executed a gun-point arrest of Williams for possession of a firearm and for “public safety”. He was of the opinion that a firearm was concealed in the satchel. There was the potential that the party was entering the school for a fight.

[28] Remaining in radio contact with other officers, the constables were aware that other Street Crime Gang Unit cars were responding to their location and that the Tactical Rescue (TAC) Unit had also been dispatched to effect a “high risk takedown”. Det. Scott directed the constables to hold their position and to maintain surveillance. According to Const. Mullinder, the decision was “made that the Tactical Team will be doing the arrest”.

[29] After receipt of school CCTV footage a couple of days later, the police were able to determine that the suspect did in fact enter the school at about 3:08 p.m. with an exit by 3:12 p.m. When the officers saw Williams emerge from the throng of students in front of the school, as he walked along the street, the blue satchel was still on his right hip with his right hand on the receptacle.

[30] At this point, Consts. Mullinder and Holder turned the surveillance task over to other Street Crime officers. Through ongoing radio communications, the officers learned that the suspect was again in a taxi with the TAC Unit in the area planning a takedown.

D. THE TAC UNIT OPERATION

(1) The Vehicle Stop

[31] Const. Marc Charlebois of the PRPS TAC Unit, partnered together with Const. Vergil-Bissaillon, was part of the team dispatched to execute a high risk takedown of an armed suspect identified by the Street Crime Gang Unit officers. The other half of the assigned TAC Unit team was comprised of the team leader, Const. Williams, partnered with Const. Stewart. The paired officers were operating two black Dodge Ram pickup trucks with emergency LED lighting in the front grill and along the windows of the vehicles.

[32] Const. Charlebois understood the subject of the pending apprehension to be a black-skinned male, 5’9” in height, 185 pounds in weight, and wearing a jean jacket over a hoodie. Charlebois and Vergil-Bissaillon believed that the suspect had a firearm.

[33] As the TAC Unit vehicles followed the taxi northbound on Chinguacousy Road, and the traffic light at Bovaird Drive turned red, at about 3:40 p.m., Const. Williams called for the takedown at this major intersection location when the taxi would not be in motion. The roadway at the intersection was 5 traffic lanes wide with a left-turn lane, 3 through-lanes, and a right-hand turn lane. The taxicab came to a stop in the centre through-lane.

[34] It is unclear, on the evidence, where the police witnesses obtained the 3:40 p.m. time marker. The 3:40 p.m. time assigned to the vehicle stop and arrest in the constables’ testimony and notes does not accord with the PRPS Communications CAD Report (Exhibit #16) which records that these events have been completed by 3:40 p.m. when a call was made, “Uniform For Transport”. Exhibit #16 appears consistent with the Taser download report (Exhibit #15) in terms of accurate timing.

[35] The Williams/Stewart vehicle blocked the taxi from the front while Const. Charlebois, with emergency lights activated, pulled his pickup truck up to the rear bumper of the taxi. At this point, there were vehicles in the other lanes, pedestrians crossing on Bovaird and others standing at a bus stop at the southeast corner of the intersection, and vehicles and persons at a plaza at that corner of the intersection.

[36] Also arriving on scene was a PRPS canine unit, TAC unit paramedics, and shortly afterward, Street Crime Gang Unit vehicles with Det. Scott, and Consts. Mullinder, Holder, Santos and Seville.

[37] Const. Charlebois opened his driver’s door and stepped out onto the running board side rail of the truck, and, from cover behind his open vehicle door, trained his C8 carbine, a short assault rifle, in the direction of the suspect seated in the right rear of the taxi. Const. Vergil-Bissaillon took up a similar position on the other side of the TAC Unit truck.

[38] The in-taxi video displaying the vehicle interior shows that the suspect was aware that police were on scene prior to stepping out of the cab. After putting both hands up to the side of his head, palms out, Williams exited the taxi.

(2) Taser Deployment

[39] Const. Charlebois observed the seated suspect’s left hand up at the side of his head and the right rear passenger door of the taxi open with the suspect stepping out onto the road pavement.

[40] Const. Vergil-Bissaillon testified that he maintained focus on the passenger seated in the rear of the taxi. He has no recall of seeing Williams raise his hands. The officer informed the court that he issued the command, “Police, don’t move”, prior to the suspect exiting the cab or at the point that he was in the process of doing so. However, according to the witness, Williams “jumped right out of the cab” and the constable thought “he was going to run right off the hop”.

[41] According to Const. Vergil-Bissaillon, the TAC Unit protocol in a high risk vehicle takedown is to box in the subject vehicle and to create a static environment with a call out to the occupants one at a time to exit the vehicle with hands up under command to walk backwards to a location with lethal force cover for handcuffing.

[42] While the constable does not now recall commands issued by other officers, he assumes that this occurred. The constable testified that when Williams stepped out onto the pavement, from his elevated position 6 or 7 feet away, he issued further commands: “Get your hands up. Get down on the ground”.

[43] The constable observed the suspect, with his hands with palms out at chest level. The suspect was looking around as though seeking out “an avenue to run”.

[44] In reviewing the taxi video, the constable acknowledged that, at a point, the suspect appears to have his hands raised by his head. The witness testified that he may not have seen this as he was in the process of stepping off the truck side rail, dropping to the ground and handing his carbine to the canine officer, in preparation to transition to his taser, a type of CEW (conducted energy weapon).

[45] Const. Vergil-Bissaillon testified that when he observed the suspect stepping toward him, he ordered: “Stop moving”. He was “stunned” to see the suspect continuing to come forward.

[46] Const. Charlebois’ recall is that once the suspect exited the taxi, his hands were empty and visible in front of his body in the waist area. He was approaching in the direction of Const. Vergil-Bissaillon and looking around. The constable formed the view that the suspect may have been evaluating a route for escape. Const. Charlebois’ opinion was that there was an immediate need to ensure public safety – if the suspect accessed a firearm concealed in the satchel, and grabbed a pedestrian or nearby vehicle, the situation would quickly become more dangerous.

[47] Const. Charlebois informed the court that when he commanded, “Police, don’t move”, the suspect complied. He observed Williams hit by a taser discharge from Vergil-Bissaillon’s CEW.

[48] Const. Vergil-Bissaillon saw the PUMA satchel at the suspect’s waist. Based upon the information that the suspect was armed, and from his own experience of individuals concealing a firearm in such a location, the officer was concerned that the firearm not be accessed. The constable observed the suspect’s eyes looking left and right. He considered that the suspect had been non-compliant with commands not to move, to get his hands up by his head, and to get to the ground. The witness informed the court that events were fluid and “happening quickly”. When the suspect did not stop moving, having stepped the short distance from the taxi passenger door area to the rear of the cab, the officer fired his taser, a “less lethal option” to secure control in a manner protecting everyone’s safety.

[49] According to Const. Vergil-Bissaillon, the suspect may have been 6 to 10 feet distant when he first emerged from the taxi. At this proceeding, the witness estimated that their degree of separation when the taser was fired to be about 5 to 6 feet. At the preliminary inquiry, the constable maintained that their initial separation was 5 to 7 feet or “maybe a bit more”, with the taser deployed from a distance of “about three feet”.

[50] On Exhibit #2 is the real-time video from the taxi camera mounted at that vehicle’s rearview mirror. Exhibit #17 is a series of still photos from the video, with images 14 to 46, each one second apart, framing the activities within the camera’s view. Drawing in part on the Exhibit #25 summary relating to the Exhibit #17 images, this information emerges:

IMAGE	TIME	CONTENT
14	15:34:37.51	- Mr. Williams and taxi driver appear unaware of police
16	15:34:38.51	- Both Mr. Williams and cab driver’s eyes appear to be fixated on something in front of the taxi
18	15:34:39.51	- Flashing lights on a truck grill observable through taxi rear window
20	15:34:40.51	- Mr. Williams appears to be looking in the direction of rear right passenger door of taxi
22	15:34:41.51	- Rear passenger door appears to be partially opened. Cab driver covering her face
24	15:34:42.51	- Mr. Williams appears to be getting ready to exit the vehicle. His body is angled towards the rear passenger door.
26	15:34:43.51	- Mr. Williams’ seated body is now facing forward. His left hand is plainly visible in the air above his head. Mr. Williams’ right hand may be obstructed by the front passenger seat headrest. (The defence position is that both hands are up at this point)
28	15:34:44.51	- Mr. Williams begins to exit the vehicle through the rear passenger door
30	15:34:45.51	- Mr. Williams’ back is exposed through the rear passenger door
32	15:34:46.51	- Mr. Williams’ right side/torso is exposed and there is some discoloration at the top of the rear passenger door (The defence position is that the discoloration is the beginning of Mr. Williams’ arm extended over his head)
34	15:34:47.51	- Mr. Williams’ right side/torso is exposed and the arm is now clearly visible through the rear passenger doorway (The defence position is that Mr. Williams’ arms are extended upwards and his hands are over his head)
36	15:34:48.51	- Mr. Williams’ right side can still be seen through the rear passenger doorway (The defence maintains that it does not appear that Mr. Williams has taken any steps towards the rear of the cab)
38	15:34:49.51	- Mr. Williams’ right side can still be seen through the rear passenger doorway (The defence position is that it does not appear that Mr. Williams has taken any steps towards the rear of the cab)
40 42 44 46	15:34:50.51 15:34:51.51 15:34:52:51 15:34:53.51	-Mr. Williams is no longer observable through the rear passenger window (It is the defence position that he has been tasered at this point and has fallen to the ground)

[51] Const. Vergil-Bissaillon was of the opinion that, in all the circumstances, lesser force options, such as hands-on physical confrontation, rwin baton strikes or pepper spray would not be effective or safe.

[52] The PRPS X2 taser is a 2-cartridge weapon designed, on a single firing, to fire two darts or probes toward an intended target. The darts remain connected to the weapon by a fine wire coil. The weapon delivers an electrical current to the subject, designed to effect involuntary muscle contractions and loss of motor control often described as neuro-muscular incapacitation or lockout. The objective is to have a suspect undergo a controlled fall to the ground where they can be quickly brought under control.

[53] The separation or spread between the barbed darts on the person of the subject relates to the intensity of the current delivered to a subject. Generally, the greater the separation, the greater the electrical current. The desired delivery of current may be effected even where a probe does not enter the skin.

[54] A single shot from the X2 taser cycles 5 seconds of electrical current. PRPS training encourages discharge of both cartridges to deliver 4 probes to a suspect to ensure adequate probe-separation to subdue the suspect. The strike of 2 additional probes does not however have the effect of doubling the delivered electrical current.

[55] In instances where a probe attaches to the skin, there may be a minor burn mark. The police use trained paramedics to remove embedded probes. When a subject is tasered, they will feel pain during the time of the electrical discharge.

[56] According to Const. Vergil-Bissaillon, after he fired the first pair of probes at Williams’ centre mass at 3:34:52 p.m., he looked to see the suspect’s reaction and degree of pain compliance. The constable saw the suspect cringe as he was visibly in pain and pulling his arms in closer to his body. However, not observing neuro-muscular lockout, at 3:34:53 p.m., he fired a second pair of probes toward the suspect’s lower body to secure an increased spread of the darts. The second shot had the desired effect with the suspect falling to the ground.

[57] Questioned about the strike locations of the taser probes, the constable testified that the darts struck the upper abdomen, the lower abdomen, the subject’s jean jacket, and the PUMA satchel.

[58] Const. Charlebois saw Williams fall to the ground, and out of his view, when he was hit by the taser probes. The officer immediately moved to the right side of the TAC Unit truck and the taxi, handing off his carbine to the canine officer. The suspect was face-down on the ground. Const. Charlebois placed his left knee on the suspect’s back in order to pin him down for the necessary measure of control to handcuff him to the rear. The officer’s commands for the suspect to show his hands were complied with as Const. Stewart stood nearby to provide protective cover.

(3) Suspect Questioned by TAC Unit

[59] With the suspect still on the ground, Const. Charlebois questioned him. On the officer’s evidence, he did so for safety reasons to avoid putting his hands into pockets or places where there might be sharp items and for public safety as the suspect could still access a weapon or means of escape:

Q. Is there anything on you that will hurt you or me?

A. In my bag.

Q. What’s in there?

A. Just check.

[60] The strap of the satchel was cut by Const. Stewart to remove it from the suspect and handed off to Const. Santos of the Street Crime Gang Unit. The PUMA bag contained a loaded handgun.

[61] Const. Charlebois then asked further questions:

Q. Is there anything else?

A. Check my pocket.

Q. Just tell me.

A. It’s the bullets.

[62] In cross-examination, Const. Charlebois gave this evidence:

Q. You’d agree with me that you could have located an item without asking him those questions, correct?

A. No.

Q. You could not have located the bullets, the firearm, anything, without asking him that?

A. In the interests of everyone’s safety, I feel that it’s best to ask before I touch.

Q. The question is, could you not have located it without asking him?

A. I’ve never done it that way.

Q. It’s not about whether you’ve done it that way. I’m asking, could you have located it without asking him that question?

A. Using only my observation skills, yes.

Q. You had every opportunity to engage in a pat-down right?

A. Correct.

Q. For the record, a pat-down is to preserve officer safety, correct?

A. Yes.

Q. You do it when an individual is detained or under arrest, either one … you do a pat-down, correct?

A. Correct.

[63] When Charlebois then patted down the exterior of the suspect’s left pants pocket, he felt a small bulge. The constable removed a small clear plastic baggie containing bullets. These were provided to Const. Santos. The officer then posed a final question:

Q. Is there anything else?

A. No.

[64] On the evidence of Consts. Charlebois and Santos, Williams was turned over to Santos at 3:45 p.m.

[65] In his in-chief evidence, Const. Charlebois stated that he expected that the Street Crime officers would caution the suspect and provide him his s. 10(b) constitutional rights.

[66] Paramedics were directed to remove any probes attached to Mr. Williams’ person. The record contains no evidence as to whether any of the taser prongs entered his skin through his clothing. There is no evidence of the arrestee having any injuries or requiring any medical treatment.

E. STATEMENTS IN THE POLICE CRUISER

[67] Const. Samuel Santos took custody of Williams. In the vicinity of the canine vehicle, Charlebois’ handcuffs were switched out with Santos’ cuffs. Taser prongs were removed by paramedics.

[68] Const. Santos assumed that the arrestee had been searched by a TAC Unit officer. He undertook another pat-down search of Williams to ensure that the accused did not have on his person a weapon or means of escape.

[69] By 3:47 p.m., the accused was placed in the rear of Santos’ police vehicle. The officer drove his vehicle from the roadway to the nearby plaza. Questioned as to the delay in providing the arrestee his Charter rights, Const. Santos gave this evidence:

Q. What happened at the gas station?

A. At the gas station, I then provided him with his rights to counsel, caution, secondary caution, and advised him of his Charter rights.

Q. So in between your getting custody turned over to you and this point, 3:47, why isn’t he getting his rights to counsel right off the hop?

A. At that point, we were just concerned with again switching cuffs, getting the taser prongs out, and ensuring that there was nothing else on him that could be a danger to anyone or me and getting him secure in the car and out of the way of the road.

Q. Given that there is an application before the court, can you just go through what you said to Mr. Williams at 3:47 in respect of rights to counsel and caution?

A. So I would have advised him of the reason for the arrest, possession of a firearm… I would have told him uh that he does not have to provide me with any sort of statement whatsoever … and that anything he does say to me I would take down in writing and can be used in court … I would have also advised him that he was entitled to any lawyer he wishes … and that if that lawyer was not available that I could also provide him with Duty Counsel for free advice…

[70] According to the witness, when asked if he had a lawyer, the accused provided the name of his lawyer as Deepa Balachandran.

[71] The witness was asked how the rights communicated to the arrestee were sourced:

Q. You didn’t read those verbatim from your notebook?

A. No.

[72] Const. Santos testified that he further spoke of a secondary caution:

I also tell him that anything another officer told him, that I don’t want it to influence me in giving a statement, so that any other officer he had dealt with prior to me, anything that officer may have said, not to have that influence him in giving me any sort of statement whatsoever.

[73] Questioned as to whether Mr. Williams responded in any manner, the witness provided this evidence:

Q. …I think you indicated that he understood. How do you know that he understood?

A. He would acknowledge that he understood.

Q. What does that look like?

A. He would have said yes or nodded his head.

[74] In his in-chief testimony, the constable was asked about facilitating access to counsel:

Q. When he gives you the name … what’s your intent in respect of doing anything about that?

A. Putting him in contact with that specific lawyer that he requested.

Q. Where’s that going to happen?

A. That would happen back at the station.

In cross-examination, Const. Santos stated:

Q. …do you know when he’s going to be taken to the station?

A. At that point, I’m still waiting for a uniformed officer to attend.

[75] The witness was cross-examined on this subject:

Q. So he indicated he wanted to speak to a lawyer, right?

A. Yes.

Q. And you understand from your training, and just for clarity how long have you been a member of the police force?

A. Eleven years.

Q. So you understand from your training obviously that when an individual provides a lawyer, and indicates that he wants to speak to a lawyer, it’s your responsibility to make sure that they get an opportunity to speak to one, right?

A. Yes.

Q. Whether through yourself or someone else you would ensure that that opportunity was given, correct?

A. Yes.

Q. You also understand that it is important that you cease all questioning until he is given an opportunity to speak to a lawyer, correct…?

A. Yes.

[76] In in-chief testimony, Const. Santos stated that he remained in the plaza parking lot with the accused awaiting a marked cruiser to come to the scene to transport the arrestee:

Q. So what happens after Mr. Williams gives you the name of the lawyer he wants?

A. After he provided it to me, he made an utterance to me. So he asked, “How did you guys know I had a gun on me?” and I replied that that would all be explained later on video. And his response was “okay”.

[77] According to Santos, this utterance “would have been” made “within minutes” of the accused providing his lawyer’s name. The witness further testified:

Q. Is there anything you remember saying to the man that leads to him making that comment?

A. No … No, there wasn’t any.

Q. How does it come about that it is blurted out?

A. I don’t know. He just said it.

Q. There’s nothing you did?

A. No.

[78] Const. Santos informed the court that he counted out the currency seized from Williams and had the arrestee confirm the count. The witness acknowledged that he questioned the accused about the source of the seized funds before asking him if he was facing any criminal charges. When the accused revealed that he was on probation, according to Const. Santos, he then arrested him for breach of probation and gave him “rights to counsel again on that”. The witness was extensively questioned on these subjects.

[79] In his in-chief evidence, the witness testified as follows:

Q. So you have some further interaction with Mr. Williams after the money is counted and you’re waiting for uniform … and, at 15:50, there’s a comment, “Male advises on probation”, can you tell us how that came about?

A. I would have asked him if he was on any charges.

Q. Is that something you remember asking him?

A. Yes.

Q. Do you have a note of it?

A. No.

Q. So how do you know you asked him?

A. I typically ask everyone if I’m not aware already if they’re on any charges that I should be aware of.

Q. Do you remember when in the interaction you had with Mr. Williams when you asked that question?

A. It would have been at 3:50 when I asked him.

Q. And what’s the point of asking the question?

A. Just didn’t know if he’s on any other charges because I’m not familiar with him and I don’t know if he’s on any charges at this point.

[80] In cross-examination, the witness provided this evidence:

Q. But you didn’t stop asking him questions right … you didn’t, correct?

A. I asked him … the only thing I asked him was whether he was on any charges.

Q. Despite the fact that he indicated that he wanted a lawyer, you decided to count the money in front of him after … after you advised him and he indicated a willingness to speak to a lawyer…?

A. Yes.

Q. And then you asked him to confirm the amount of money that was there, correct?

A. Yes.

Q. And then you asked him questions about where the money came from, correct?

A. I did yes.

Q. You didn’t think that was intrusive?

A. I didn’t think it had anything to do with the investigation.

Q. Why were you asking about his employer?

A. I just ask people where they work, where they live.

Q. I’m going to suggest to you that you asked that question because you thought that money … was obtained illegally, correct?

A. The investigation was in relation to a firearm so as far as the money it could be from anywhere so I was asking him where it was from.

Q. Well why did you need to know?

A. I just asked.

Q. Why are you even asking when you’re supposed to stop asking questions until he gets a chance to speak to a lawyer? Why did you ask him?

A. No specific reason.

Q. You didn’t just stop there, you asked him an additional question about charges, right?

A. Yes.

Q. You asked him whether he had a criminal charge and, subsequent to his response, you charge him?

A. Yes, because he told me he was on probation.

Q. You didn’t believe that that was an improper question to ask from all of your years of experience?

A. In my opinion, me asking him if he was on any charges at that time, was not something that I found that was inappropriate.

Q. You understand that you’re not supposed to ask any more questions once you’ve indicated that he wants to speak to a lawyer, right?

A. It’s my understanding that I’m not to ask questions about the investigation.

Q. So you can ask questions about other investigations that may be looming as a result of your questions, you can do that…?

A. I wouldn’t say about other investigations either, I’m simply saying that I was asking him where the money was from and he said it was from work but he couldn’t give me an employer which is fine. I didn’t take that any further and then I simply asked him if he was on any charges that I should be aware of and he told me he was on probation.

F. TREVON WILLIAMS SPEAKS TO COUNSEL

[81] Custody of Trevon Williams was transferred to Const. Connell at 3:54 p.m. The prisoner was transported to PRPS 22 Division by Const. Connell, arriving at 4:19 p.m.

[82] After intake processing was completed between 4:21 and 4:33 p.m., and some time spent in the police facility cell, the accused was placed in an interview room at 5:00 p.m. The room was equipped with videotaping capability.

[83] At 5:04 p.m., Const. Holder communicated s. 10(a) and s. 10(b) Charter information to Mr. Williams. The accused once again asked to speak to counsel, Deepa Balachandran. Const. Holder then communicated information respecting the right to silence and the secondary caution, completing these communications at 5:06 p.m.

[84] The prosecution is unable to determine when the police contacted Ms. Balachandran. Counsel called into 22 Division at 5:15 p.m. and the accused consulted counsel by phone, in private, until 5:18 p.m.

G. THE FIREARM EVIDENCE

[85] The firearm seized from the accused was a functioning .22 calibre semi-automatic handgun loaded with 4 rounds. The accused was not the holder of a firearm registration certificate or licence to possess this firearm.

[86] The PUMA satchel contained 2 .22 calibre bullets and an additional 5 .22 calibre bullets were seized from the arrestee’s pants pocket.

H. COURT ORDERS GOVERNING TREVON WILLIAMS

[87] On November 2, 2016, Trevon Williams was subject to:

(1) a March 31, 2016 probation order, a term of which prohibited him from possessing any firearm

(2) a free-standing March 31, 2016 firearm prohibition order.

I. ANALYSIS

(1) Arbitrary Arrest

(a) Introduction

[88] Const. Sean Osborne was not a witness at trial. By way of ongoing disclosure, the officer prepared an affidavit for the court and defence disclosure setting out the information he received from the CI. That original affidavit became a sealed exhibit (Exhibit #A).

[89] In order to protect confidential informer privilege, disclosed to the defence was a redacted copy of the affidavit (Exhibit #20). The defence was initially provided with a Crown Summary of the redactions (Exhibit #19) followed by Judicial Summaries (Exhibit #s 21, 27).

[90] Const. Mullinder’s oral testimony remained faithful to the limits of the redacted form of his notes as disclosed to the defence (Exhibit #22) insofar as the information he and Const. Holder received which originated from the CI’s handler, Const. Osborne. In this proceeding, the defence was provided a Judicial Summary (Exhibit #23) of the redactions made to the original and sealed version of the witness’ notes (Exhibit #B).

[91] The s. 9 Charter argument as to the arbitrary arrest, and the related s. 8 Charter submissions relating to the search/seizure incidental thereto resulting in discovery of the firearm and ammunition, were premised upon the following understanding of the evidence:

(1) Const. Osborne did not direct or authorize Street Crime Gang Unit officers to arrest Trevon Williams

(2) having receiving a truncated version of the information received by Const. Osborne, Consts. Mullinder and Holder undertook investigative efforts to locate Williams and to confirm that the suspect was armed with a view to arresting him

(3) Consts. Mullinder and Holder (for convenience, referred to hereafter as Mullinder), after a period of brief surveillance of Williams, concluded that reasonable and probable grounds existed to arrest the suspect

(4) through police channels, Const. Mullinder solicited TAC Unit assistance to effect a high risk takedown/arrest of Williams

(5) acting on the Mullinder authorization, Consts. Charlebois and Vergil-Bissaillon executed a de facto arrest of the suspect without any independent assessment of the grounds for arrest

(6) also acting on the Mullinder authorization, Const. Santos performed the “formal” arrest of the suspect.

(b) Defence Position

[92] On behalf of the defence, Mr. Holder submitted that, while Const. Mullinder may have subjectively had grounds to arrest Trevon Williams for unlawful possession of a firearm, the evidence does not objectively support the existence of reasonable and probable grounds to effect the arrest.

[93] The tip information passed through to Consts. Mullinder and Holder was legally insufficient to provide reasonable grounds for arrest. There was no information as to the recency of the information, whether it originated from someone with direct personal knowledge or observations, and the reliability of the tip was unknown or predicatively detailed. The constables’ action recognized these deficiencies when they undertook investigative surveillance in an effort to top up the tipster information.

[94] The principal position of the defence is that the reported observations of Williams, said to be consistent with the characteristics of an armed person, were “fabricated” by the officers. Given the video evidence from the Marigold Hotel, there was no cogent independent evidence to support Mullinder’s adjustment/security pat testimony.

[95] In the alternative, it was submitted that the reported observations of the suspect, added to the tip information, did not rise to the level of objectively discernible facts justifying an arrest. The described observations were of an innocuous and innocent character. The suspect carried a long-strapped satchel over baggy clothes necessarily requiring adjustment as the carrier moved. The slung receptacle could well have contained a wallet or cellphone. The security pat evidence, as purportedly indicative of an armed person, was valueless. Const. Mullinder’s reported training in this regard was minimal and unclear and any observations, such as they may have been, were coloured by tunnel-vision interpretation influenced by the tip information resulting in false assessment of Williams as displaying the characteristics of an armed individual.

[96] Insofar as the court’s ability to have resort to the unredacted summary of the redactions in Const. Mullinder’s notes relating to the tip information (sealed Exhibit #B), the information the witness also eliminated from his oral testimony in describing his grounds for arrest, should such procedure be available, which is itself unclear, the Exhibit #23 summary of redactions is inadequate for the defence to challenge the contribution of the redacted material to the adequacy of the grounds of belief.

(c) Crown Position

[97] Mr. Sarantis submitted that, in the totality of the circumstances known to him, Const. Mullinder formed reasonable and probable grounds, in both the subjective and objective senses, to direct the arrest of Trevon Williams.

[98] Counsel emphasized the fluid nature of events transpiring for the Street Crime Gang Unit officers during the afternoon of November 2, 2016 to underline the limited opportunity for Consts. Mullinder and Holder to undertake quiet reflection upon the circumstances confronting them as Trevon Williams, believed to have a firearm, moved from a hotel to a public school, then becoming mobile yet again in another taxi.

[99] It was submitted that while the tipster information as known by Mullinder could not itself found reasonable and probable grounds to arrest Williams, the dispatched facts were not entirely undetailed.

[100] Crown counsel noted that, while the tip information passed through to the constables could not be sourced to a credible or reliable source, acting on the information dispatched to them about Trevon Williams at 2:15 p.m., they were able to quickly take up observations of the Marigold Hotel by 2:18 p.m. Twelve minutes later (2:30 p.m.), a male person matching their description of Mr. Williams arrived at the hotel. That initial identification was almost immediately confirmed by comparison to the transmitted PRPS mug shot of Trevon Williams.

[101] In accepting that the observation evidence of Consts. Mullinder and Holder also could not, standing alone, meet the reasonable grounds threshold, Mr. Sarantis submitted that that evidence together with the dispatched information, constituting the totality of the relevant circumstances, justifiably permitted Mullinder’s authorization to arrest.

[102] While counsel agreed that the reported observations are capable of being seen as “innocent”, the observations truthfully identified by the constables must be interpreted in light of their police training and experience relating to armed persons. As in drug transaction cases, police officers are entitled to fairly analyze the physical behaviour of suspects. Crown counsel reviewed the evidence of the suspect looking around, adjusting the strap of the satchel, security pats and indications of an item of weight in the bag – factors collectively consistent with the characteristics of an armed person as described by the officers. Additionally, both constables drew the inference of armed characteristics.

[103] It was submitted that should the totality of circumstances, as described, fall short of objectively discernible grounds for arrest, the court could legitimately consider, on a Garofoli Step Six-like analysis, the unredacted information available to Consts. Mullinder and Holder (Exhibit B) in making a final determination of the s. 9 Charter issue.

(d) Governing Principles

[104] The purpose of the guarantee against arbitrary detention in s. 9 of the Charter is to protect individual liberty from unjustified state interference: Regina v. Gonzales, 2017 ONCA 543, at para. 51. The police “require reasonable and probable grounds, both subjectively and objectively, to arrest a suspect without a warrant” (Regina v. Barclay, 2018 ONCA 114, at para. 35) or indeed to obtain a warrant to arrest: see also Regina v. Dhillon, 2016 ONCA 308, at paras. 23-25, 29-45; Regina v. Wu, 2015 ONCA 667, at paras. 49-57 (leave to appeal refused [2015] S.C.C.A. No. 504); Regina v. Stevenson, 2014 ONCA 842, at para. 50 (leave to appeal refused [2015] S.C.C.A. No. 37); Regina v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 (Ont. C.A.), at para. 26.

[105] As observed by Watt J.A. in Gonzales, at para. 95:

The Criminal Code requires that an arresting officer subjectively have reasonable grounds on which to base an arrest. But more is required. In addition, the grounds must be justifiable from an objective point of view. To say the same thing in another way, a reasonable person in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, nothing more than reasonable grounds need be shown. Not a prima facie case. And not proof beyond a reasonable doubt: Storrey, at pp. 250-251.

[106] Initially, the Crown’s position in this proceeding was that if the Mullinder/Holder grounds for arrest fell short of the required reasonable and probable grounds standard, while meeting the reasonable suspicion threshold for an investigative detention, then no s. 9 Charter violation should be found. Ultimately, having regard to the holding of Doherty J.A., at paras. 55-56 of Stevenson, this submission was withdrawn:

The arrest of the appellant was unlawful in that it was not authorized by s. 495(1) of the Criminal Code or by any other law. The Crown argues, however, that even if the arrest was unlawful, it was not arbitrary because the OPP, on the true state of affairs known to the Brockville police, could have detained the appellant both for investigative purposes and to ensure the safety of the children. The Crown submits that because the police had authority to detain, the detention pursuant to the arrest was not arbitrary.

Whatever lawful police power, apart from the arrest power, the police may have had to detain the appellant, they did not purport to exercise any such power. The police arrested the appellant. The police conduct at and after the gunpoint encounter with the appellant, is only consistent with a full arrest. The arbitrariness of the appellant's detention must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised: R. v. Whitaker, 2008 BCCA 174, [2008] B.C.J. No. 725 at para. 65, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 296; R. v. Dhillon, 2012 BCCA 254, 291 C.C.C. (3d) 93, at para. 40.

[107] In some instances, the police officer who forms reasonable and probable grounds for an arrest does not him or herself execute the actual arrest but authorizes another peace officer to do so with the second/arresting officer not independently forming their own grounds to arrest. In this “straight line authorization” model, the focus is the legal sufficiency of the first officer’s grounds: Regina v. Richards, 2015 ONCA 348, at paras. 4-12, 27, 33, 42 (leave to appeal refused [2015] S.C.C.A. No. 299); Stevenson, at paras. 31-40, 51; United States v. Edwards, USCA 8th Cir., May 31, 2018 (No. 17-1455), at para. 9.

[108] In assessing the reasonable grounds standard, a threshold concerned with credibly-based probabilities, not possibilities or suspicion, these principles govern:

(1) the fact "that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable": Regina v. Biccum, 2012 ABCA 80, at para. 21; see also Regina v. Luong, 2010 BCCA 158, at para. 19; Regina v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47

(2) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach -- it is necessarily a qualitative standard upon which reasonable people can differ in some cases: Regina v. Campbell (2010), 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at paras. 52-4 (affd 2011 SCC 32, [2011] 2 S.C.R. 549); Chehil, [2013 SCC 49, [2013] 3 S.C.R. 220] at paras. 29, 62, 69; Regina v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 71; R. v. Ward, 2012 ONCA 660, at para. 116

(3) that said, reasonable grounds is about "probabilities" (Chehil, at paras. 27-8; MacKenzie, at para. 74), not confidence at the level of no reasonable doubt (Regina v. Debot (1986), 1989 CanLII 13 (SCC), 30 C.C.C. (3d) 207 (Ont. C.A.), at p. 219 (affd (1989), 52 C.C.C. (3d) 193 (S.C.C.), at pp. 198, 213)), nor at the low threshold of mere suspicion or possibility (Regina v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; Regina v. Baron (1993), 1993 CanLII 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.), at paras. 43, 47

(4) the standard of reasonable probability applied to the totality of the circumstances, considering the relevant facts cumulatively, where credibly-based probability replaces suspicion and possibility, does not demand that police officers "always be correct, but that they always be reasonable" United States v. Clutter, 674 F.3d 980, 983 (8th Cir. 2012); Regina v. Robinson, 2016 ONCA 402, at para. 40

(5) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities: Mugesera v. Canada (Minister of Citizenship and Immigration, 2001 SCC 36, 2 S.C.R. 100, at para. 14; Regina v. Henareh, 2017 BCCA 7, at para. 39; Regina v. Spence, 2011 BCCA 280, at para. 31; Regina v. Loewen (2010), 2010 ABCA 255, 260 C.C.C. (3d) 296 (Alta. C.A.), at para. 18 (affd 2011 SCC 21, [2011] 2 S.C.R. 167); Regina v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Florida v. Harris, 133 S.Ct. 1050, 1052 (2013)

(6) the police cannot rely upon ex post facto justifications for grounds of arrests or searches premised on the results of what is discovered: Regina v. Kokesh (1990), C.C.C. (3d) 207 (S.C.C.), at p. 227; Regina v. Genest (1989), 1989 CanLII 109 (SCC), 45 C.C.C. (3d) 385 (S.C.C.), at p. 408.

[109] The objective reasonableness of an arrest must be viewed “through the lens of the arresting officers” (Regina v. Williams, 2014 ONCA 908, at para. 14) having regard to the reasonable police officer in similar circumstances. The contribution of a police officer’s experience and training to the objective existence of reasonable grounds cannot be easily discounted: Regina v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-64, 73; Regina v. Canary, 2018 ONCA 304, at para. 22 (court to look to “the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer”); Regina v. Brown, 2012 ONCA 225, at para. 13; Regina v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22; Regina v. Bui, 2018 ABCA 62, at paras. 10, 13, 15; Barclay, at para. 36. I would add that the objective test presumes a reasonably and properly trained officer – an assumption which stands to be challenged on the facts of a particular case. Relevant police training is not limited to formal training but includes “on the job practical training”: Regina v. Nguyen, 2011 ONCA 465, at para. 30.

[110] In Brown, at paras. 13-14, the court held:

…We also accept that his prior experience with drug dealing is properly taken into account in assessing whether he had reasonable and probable grounds.

In our view, however, there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lends some objective justification or verification to the officer's belief. Section 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. 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.

[111] All arrests have specific factual context. Not infrequently, the circumstances may be characterized by features which are evolving, dynamic, fluid and perhaps implicating risk assessment respecting officer and public safety. The police are not required to evaluate the evidence to a legal standard or make legal judgments: Tremblay and Mongrain v. Ottawa Police Services Board et al., 2018 ONCA 497, at paras. 60, 75. In Regina v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18, Doherty J.A. observed:

… It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

[112] We accept that a police officer’s perception of a person’s “body language and movements” may factor into the totality of circumstances founding grounds for detention (Regina v. Plummer, 2011 ONCA 350, at para. 23) and that observations of a suspect’s behaviour, together with CI information, may afford valid grounds for arrest: Regina v. Muller, 2014 ONCA 780, at paras. 41-42. For example, canvassed in the authorities respecting grounds for the presence of a firearm are instances of an individual’s movement toward the area of his waist (Regina v. Williams, 2013 ONCA 772, at para. 12), or a “blading” movement turning a side of the body away from another person (Regina v. Amofa, 2011 ONCA 368, at para. 9; Regina v. Fountain, 2015 ONCA 354, at paras. 5, 31; Regina v. Williams (2013), at paras. 12, 31), or observed taps to the hip at waist level: Regina v. Peterkin, 2015 ONCA 8, at paras. 17, 28, 30 and, at para. 62:

As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant's pants. "Blading" to obstruct their view of the appellant's right side.

In Regina v. Dene, 2010 ONCA 796, at para. 4, the court noted among the grounds for a valid investigative detention, “[t]heir posture and body movements indicated that they could be carrying weapons or drugs”.

[113] Where information from a confidential informer contributes to the formation of grounds for the exercise of a police power, courts generally look to the “Debot” criteria as summarized by Doherty J.A. in Regina v. Green, 2015 ONCA 579, at para. 15:

R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168, instructs that when information relied on comes from a confidential informant, the court, in considering the adequacy of the information, must have regard to:

Information relevant to the credibility or reliability of the confidential informant;

The degree to which the information is compelling or cogent; and

The degree to which the confidential informant's information is confirmed or supported in material matters by credible independent information.

These factors do not each form a separate test; rather, the reliability of the confidential informant's information is assessed by looking at the totality of the circumstances.

See also Regina v. Lowe, 2018 ONCA 110, at paras. 51-63; Regina v. Shivrattan, 2017 ONCA 23, at paras. 27-28 (leave to appeal refused [2017] S.C.C.A. No. 93); Regina v. Carelse-Brown, 2016 ONCA 943, at paras. 38-48; Richards, at paras. 43-46.

[114] A police officer is authorized by the Criminal Code to arrest without warrant where the officer has reasonable grounds to believe that a person has committed a criminal offence (s. 495(1)(a)) or where a person is found committing a criminal offence (s. 495(1)(b)). A warrantless arrest is to be distinguished from an arrest with warrant where the court issues an arrest order on receiving sworn reasonable grounds that an individual has committed an indictable offence (ss. 504, 507, Form 7 Warrant for Arrest).

[115] Where the Crown seeks to establish that reasonable grounds exist, in the case of information originating from a CI, as set out in an ITO (information to obtain a search warrant) or a Part VI affidavit, the prosecution almost inevitably argues its position based upon redacted material in order to protect confidential informer identity.

[116] Resort to unredacted material is permissible (a “Garofoli Step Six”) provided that the summary of redactions provided to an accused permits them to be sufficiently aware of the nature of the material to challenge it in argument or by evidence: Regina v. Crevier, 2015 ONCA 619, at paras. 2, 23-25, 47; Regina v. Bennett, 2017 ONCA 780, at para. 10; Lowe, at paras. 46-50. In Crevier, at para. 46, the court observed that:

When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though it very well could have issued based on the complete picture that was before the issuing justice. The affiant police officer may have carefully prepared a detailed and thorough ITO that met the statutory requirements, setting out reasonable and probable grounds for the search and addressing the three Debot criteria for assessing the reliability of informer tips. But the search will nonetheless be found to have violated the accused’s Charter rights because the reviewing court is prevented from relying on the redacted portions of the ITO.

[117] As noted by Doherty J.A., in Golub, at para. 18, “[b]oth a justice and an arresting officer must assess the reasonableness of the information available to them before acting”. In either case, CI information may constitute a significant source of the grounds of belief. If a police officer obtained a warrant of arrest from a justice, the redaction process/Step Six approach would undoubtedly apply to the reasonable grounds review of the sworn record advanced to secure the arrest warrant.

[118] Where the arrest is without warrant, for example, because of quickly unfolding investigative circumstances, can the review process of reasonable grounds based on CI information permit the court, in appropriate cases, to apply the Step Six approach to the adequacy of the grounds actually possessed by the arresting officer? The issue has yet to be determined by the Ontario Court of Appeal: Regina v. Iraheta, 2018 ONCA 229, at paras. 18-19. While the parallel is not exact because the warranted example, within a prior authorization context, inquires as to whether there were reasonable grounds upon which an independent and neutral justice could have issued the Form 7 arrest warrant, the instance of a warrantless arrest asks whether the arresting officer, from the perspective of a reasonable police officer, but one on the investigative team itself, in the circumstances of that officer, could have legally made the arrest.

[119] Nevertheless, where the officer who arrested without warrant has the grounds for belief committed to writing, as in the instance of Const. Mullinder’s notebook, sworn in oral testimony to have been a basis for the arrest decision, the Step Six review process may well strike the appropriate balance to the competing interests of full answer and defence, and, the public interest in CI protection in the course of criminal investigation evidence gathering.

(e) Discussion

[120] Consts. Mullinder and Holder were informed through police channels that the PRPS had been provided information that someone had possession of a firearm. The facts known to the officers at 2:15 p.m. on November 2, 2016 (Exhibit #s 22, 23) were as follows:

(1) the suspect was 18-year-old Trevon Williams

(2) he was a black-skinned male with a light complexion

(3) additional redacted information related to Williams’ personal appearance

(4) redacted information related to the travel habits of the suspect as well as information allowing the officers to determine his location.

[121] There was no arrest warrant or straightline authorization from another officer to the constables to arrest Trevon Williams. As well, the dispatched information, it is agreed, did not standing alone afford reasonable and probable grounds to arrest the suspect. The constables understood that, if they could find Williams, they would need to independently confirm enough of what they had been informed to acquire valid grounds to arrest.

[122] On the evidence accepted by the court, it is apparent that Consts. Mullinder and Holder honestly believed that reasonable grounds existed to arrest Trevon Williams for unlawful possession of a weapon. The critical question for determination is whether it was objectively reasonable for a police officer in the circumstances of the constables, adequately trained and familiar with Charter rights, to arrest the suspect.

[123] Insofar as the officers’ after-acquired information:

(1) 3 minutes after receiving the dispatched information, surveillance was set up on the Marigold Hotel, a mere 12 minutes before arrival of the suspect

(2) the transmitted PRPS mug shot of Trevon Williams matched the dispatched description of the suspect and the appearance of the individual who entered the Marigold Hotel

(3) observations of the suspect suggested that he displayed the characteristics of an armed person.

[124] In Const. Mullinder’s view, it was this final factor that gave him grounds to arrest Williams as of the point in time when the suspect entered a taxi to depart from the Marigold Hotel.

[125] In assessing the reasonableness of their grounds for arrest, it is important to keep in mind, in the circumstances of this case, that the surveillance officers:

(1) could not seek to dilute the reasonable grounds standard on the rationale that the investigation involved a firearm

(2) were not entitled to over-credit the reliability of the information dispatched to them at 2:15 p.m.

(3) could not be influenced by the target being a young black male with an apparent prior criminal history with the PRPS

(4) were required to guard against tunnel-vision, consciously or unconsciously, in the sense of interpreting the suspect’s behaviour to fill informational gaps with unreasonable interpretations of his actions or with inferences of a tenuous or remote nature in an effort to accord with their suspicions.

[126] Observation of the suspect to the point of formulation of grounds to arrest had two phases – (1) entry to the hotel (2) standing outside at the front of the hotel after exiting. On the evidence, the first phase would have lasted a matter of seconds only as the suspect walked the few feet to the hotel front doors. The duration of the second phase was about 6 minutes. Subsequent observation of the suspect walking toward the high school and exiting the school tended to confirm that he was armed.

[127] Const. Mullinder generally described his training respecting characteristics associated with a person being armed. While no textual course material or information relating to false positives regarding the observed characteristics was referred to or filed, I accept that police training, including use-of-force instruction, touches upon the subject of perceived characteristics of armed individuals including security taps or pats.

[128] Const. Muller expressed familiarity with certain of these learned characteristics or features observed in Williams including:

(1) adjustments of the shoulder strap of the PUMA satchel appearing designed to set the receptacle at the location of the suspect’s right hip

(2) security pats or taps associated to the possessor of a firearm checking to see if the gun was still seated.

[129] To the extent that Const. Mullinder purported to rely upon his personal law enforcement experience to infer that Trevon Williams was armed, the contours of that experience, its depth, and the extent of its relevance to the present case, is less clear. The witness’ level of experience with armed females carrying a handgun in a slung purse or male offenders with a similar man purse or receptacle on a shoulder strap was not explored. The witness’ reference to police officers, with holstered weapons, periodically touching the location of their firearm cannot necessarily be readily analogized to the situation in this case.

[130] Placing the right hand on a shoulder-strung bag to keep it from swinging is hardly an unnatural or uncommon action for a right-handed person. Of course, observed facts, viewed discretely, may certainly be prone to innocent explanation. However, the appropriate approach is holistic – whether the entirety of the circumstances, objectively considered, raise a credibility-based probability that the police interpretation is reasonable regardless of whether it is correct or that other competing explanations exist.

[131] While Const. Holder did not articulate what characteristics of an armed person he observed, he was not challenged in cross-examination on his conclusion. He was, it seems, particularly focused on something heavy being in the satchel. That too, as described in para. 21 above, was something that attracted Const. Mullinder’s attention.

[132] The first phase of observation was exceedingly brief as the suspect, wearing bulky upper clothing, entered the hotel and any observation of adjustment of the satchel could be said to be logically more consistent with the behaviour of someone just alighting from a conveyance and walking the next 10 to 15 feet.

[133] Insofar as the 6-minute surveillance segment, when the relevant Exhibit #2 video was played in court, Constable Mullinder was unable to point out any frequency of strap adjustments or security pats on the suspect’s part.

[134] Finally, it is to be noted that Const. Holder concluded that it was “possible” that Trevon Williams had a firearm concealed in his satchel. Const. Mullinder concluded that the suspect’s behaviour raised his attention “to possibly there being something” in the receptacle. I took these references to relate to the officers’ belief that a firearm could be concealed in the small satchel while not inconsistent with their overall belief that reasonable grounds existed to believe that the suspect was armed.

[135] In closing submissions, Mr. Holder put the credibility of Consts. Mullinder and Holder in sharp relief by asserting that their observations of Trevon Williams were fabricated, or alternatively, unreasonably linked to the profile of an armed person in a transparently unacceptable effort to claim that reasonable grounds existed for the suspect’s arrest.

[136] The defence submission respecting Const. Holder can be summarily dismissed. The officer testified at the Discovery in this case that he observed behaviour on Trevon Williams’ part consistent with the characteristics of an armed person. At that proceeding, he was not challenged on this evidence. In this trial, the court made it abundantly clear before evidence was called, and thereafter, that party reliance on transcript material would be acceptable provided that credibility determinations were not required respecting the testimony of any witness whose evidence was simply filed. The defence elected not to call Const. Holder to testify but agreed to his Discovery evidence being filed here as Exhibit #11. To the extent that Const. Holder’s evidence is supportive of reasonable grounds to arrest, it is accepted by the court.

[137] Insofar as the evidence of Const. Mullinder, the defence aggressively, but fairly, challenged the limits and substance of his testimonial description of his observations as well as his police training respecting armed individuals.

[138] Having seen and heard Const. Mullinder testify, I am confident that he testified truthfully and reliably. The suggestion that he fabricated his evidence respecting observed behaviour of the suspect, and the significance of its linkage to his training and experience over the years regarding armed persons, has no basis on the evidence accepted by the court. Granted, there were weaknesses with the observation evidence, some of which have been reviewed at paras. 129 to 130 and 132. Be that as it may, the court accepts and affords weight to the following:

(1) when the suspect first arrived at the Marigold Hotel, Const. Mullinder did see, albeit briefly, the suspect adjusting the satchel on his right hip – a position allowing a right-handed person access to a firearm in the bag

(2) when the suspect next emerged from the hotel, the constable noted immediately the way in which the suspect had his hand on the satchel – viewing of the Exhibit #2 video confirms this very pronounced behaviour on the part of Trevon Williams pressing his right hand against the side of the bag

(3) both Const. Mullinder and Const. Holder, in noting the way the satchel hung, were confident that the bag contained something heavy – this factor, consistent with experience and common sense, would suggest the contents of the satchel were more likely a firearm than something like a wallet or cellphone

(4) when Mr. Williams was standing with a friend, talking, and on his cellphone, not walking or pacing, he appeared unconcerned with satchel adjustments or touches – at some points, he was looking around

(5) when the suspect, after 6 minutes, walked away from the front of the hotel to enter the taxi, he again placed his right hand on the satchel

(6) Const. Mullinder observed the suspect making strap adjustments and security pats as he walked toward the high school

(7) when the suspect left the school, as he walked along, Const. Mullinder again observed the suspect with his right hand on the satchel

(8) Const. Holder and Const. Mullinder both concluded that, as the suspect walked, he displayed the characteristics of an armed person

(9) there was no evidence from Trevon Williams that he did not undertake shoulder strap adjustments or right-hand touchings of the satchel

(10) the discovery of the metal and wood firearm (see Exhibit #s 2 (photos), 10) in the small satchel, an item estimated to weigh 4 to 5 pounds on the evidence, tends to confirm that the constables’ observations of a heavy item in the satchel were reasonable.

[139] While the majority of the accused's actions at the school, as depicted in the high school video footage, was unseen by the constables on November 2, 2016, excepting the suspect’s emergence back to the front of the institution, there are instances within the footage of the suspect placing his right hand against the lateral surface of the PUMA bag, consistent with Const. Mullinder’s reported observations of what he did see of the suspect’s conduct.

[140] Consts. Mullinder and Holder received information that Trevon Williams was a possible armed person. Within minutes, the information dispatched to them apparently being sufficiently predictive, resulted in the officers positioning themselves at a location where Trevon Williams arrived within 12 minutes. While the confirmatory observational evidence of the constables was of limited duration, with an admitted measure of experiential interpretation, in the totality of circumstances, it tipped the case toward credibly-based probability that Trevon Williams was armed with a handgun.

[141] While it is not strictly necessary for determination of the s. 9 Charter issue, with what the court considers a legally adequate summary (Exhibit #23) provided to the defence of the unredacted version (Exhibit B) of Const. Mullinder’s notes relating to the CI information, review of that officer’s original notation advanced the detail of the information dispatched to the Street Crime officers but not to the level of reasonable grounds to arrest without the above-described surveillance observations.

[142] Undoubtedly, the case is a close one, but on the whole of the evidence the accused has not discharged the onus of demonstrating, on balance, that he was subjected to an arbitrary arrest lacking in reasonable and probable grounds.

(2) Forcible Arrest – ss. 7/12 of the Charter

(a) Defence Position

[143] Mr. Holder submitted that Trevon Williams’ s. 7 and s. 12 Charter rights were violated when Const. Vergil-Bissaillon deployed his taser against the suspect. It is said that Mr. Williams’ liberty and security of the person were breached, and that he was subjected to cruel and unusual treatment, by unnecessary and excessive use of force by the police.

[144] The defence submitted that Consts. Charlebois and Vergil-Bissaillon, in their testimonial efforts to justify the forcible arrest of the suspect, fabricated aspects of their evidence.

[145] It was submitted that, while the taxi video clearly depicts Mr. Williams seated in the taxi with his hands up at head level in a sign of surrender, Const. Charlebois testified to seeing only the suspect’s left hand up while Const. Vergil-Bissaillon claimed to have not seen raised hands.

[146] Mr. Holder noted that Consts. Charlebois and Vergil-Bissaillon were unable to tell the court what commands may have been issued to the suspect by other officers, for example, direction to get out of the taxi.

[147] Mr. Holder further noted that Const. Charlebois made no notebook as to how Williams’ hands were positioned when the suspect was standing beside the taxi. At the preliminary inquiry, the constable was uncertain of how the suspect’s hands were then positioned while now, at trial, the witness was able to describe Williams’ hands out at his sides in front of him.

[148] It was submitted that Const. Vergil-Bissaillon’s notes were vague as to the exact commands he issued and as to the precise position and height of the suspect’s hands when he exited the taxi. Over time, the witness provided different estimates as to the separation between himself and the suspect when he deployed his taser.

[149] Counsel argued that the police created the exigency of an ill-prepared plan of arrest, without full complement for the task, and ill-chosen location with nearby vehicles and pedestrians.

[150] Mr. Holder emphasized the contents of the taxi video, advocating surrender interpretation showing Mr. Williams seated in the taxi and then stepping out onto the roadway, as independent evidence supporting the suspect having his hands raised and not stepping in Const. Vergil-Bissaillon’s direction prior to the taser being fired. Const. Charlebois’ evidence that the suspect stopped moving when he issued his command is confirmatory of the fact that Mr. Williams was not approaching Const. Vergil-Bissaillon when he was fired upon.

[151] It is said that, assuming Mr. Williams was looking about when he stood erect on exiting the taxi, such an innocuous action could not reasonably be elevated to the level of a public safety threat justifying the use of force by taser. The suspect’s empty hands were clearly visible.

[152] It was submitted that the deploy of the taser weapon was an unreasonable use-of-force option, in the sense of excessive, given that “significant possible injuries could be” occasioned to a suspect – there was a “threat of significant harm”. The excessive force was further aggravated by a second shot being fired from the taser immediately after the suspect was struck by the first shot, in obvious pain, and arguably in the course of going to the ground.

(b) Crown Position

[153] On behalf of the Crown, Mr. Sarantis submitted that the constitutionally impugned conduct of Const. Vergil-Bissaillon did not offend the s. 7 and s. 12 interests of Mr. Williams. The TAC Unit officers were commissioned to safely execute the arrest of an armed suspect.

[154] It was noted that, in all the circumstances, it is not reasonable for others to second-guess the choice of the location for the suspect’s arrest. The TAC Unit members, specially trained for high-risk takedown situations, assessed the relevant factors balancing public safety and the risk of losing contact with the taxi conveying Williams and a firearm to an unknown location.

[155] It is accepted that Mr. Williams raised his hands to head level while seated in the taxi. The focus of Charlebois and Vergil-Bissaillon was upon a controlled extraction of the armed suspect. Const. Vergil-Bissaillon gave the protocol command, “Don’t move”. That direction was ignored as the suspect chose to exit the taxi. With a maximum separation distance of about 10 feet, this became a close-in encounter.

[156] Crown counsel submitted that the taxi video does not demonstrate the height to which Mr. Williams may have raised his hands once outside the taxi. The constables’ evidence ought to be accepted that the suspect’s hands were not at head level or higher.

[157] It was further submitted that the circumstances were dynamic and unfolding quickly. While the taxi video, analyzed on a per-second frame-by-frame basis as captured by Exhibit #17, conveys a measure of independent information, it is not only not true to the real time unfolding of events, but also, as Const. Vergil-Bissaillon testified, it was not what he was seeing from his position.

[158] It is entirely speculative to suggest that some other officer at the scene issued a contradictory command ordering Williams out of the taxi.

[159] When Const. Vergil-Bissaillon dismounted from the TAC Unit truck, the suspect had exited the taxi against command, and was out on the pavement, believed to be armed, looking around with the prospect of flight or a hostage-taking option. Vehicles and pedestrians were in the vicinity. Follow-up commands, to raise his hands and to get on the ground, were ignored by the suspect as was a final command, “Stop moving”. This was not surrender behaviour. While the steps taken by Mr. Williams from the rear passenger door of the taxi may not have been many, there was forward motion observed by Consts. Charlebois and Vergil-Bissaillon.

[160] The non-compliant actions of the suspect clearly implicated public and officer safety. Charlebois’ command, “Don’t move”, from his perspective, secured compliance. From Vergil-Bissaillon’s perspective, deployment of the less lethal force of his taser representing a safe, intermediate use-of-force option, secured compliance. There is no objective reason, it was submitted, to question Const. Vergil-Bissaillon’s opinion that lesser force options would be unworkable and unsafe.

[161] It was noted that Const. Vergil-Bissaillon, certified and trained in CEW use, made a split-second determination that the first taser shot did not effect full neuro-muscular lockout. Consistent with his PRPS training, a second shot from the weapon was fired. The strike of a probe or probes from the second shot did not escalate the level of delivered electrical current. The duration of the conducted energy cycle to the suspect was about 6 seconds in total. The pain infliction was transient, not lasting.

[162] On the evidence, Mr. Williams went to the ground without injury. There is no evidence of lasting effect from the taser shots or of medical intervention.

[163] It was submitted that, in the totality of circumstances faced by Const. Vergil-Bissaillon, the force employed to safely effect the arrest of the armed suspect, was necessary and reasonable.

(c) Governing Principles

[164] The fact that the police have lawful authority to arrest a person does not authorize them to use whatever force they may choose to employ: Fleming v. Ontario, 2018 ONCA 160, at para. 60 (appln for leave to appeal filed [2018] S.C.C.A. No. 116). The parties here were in agreement that the principles relating to necessary and reasonably proportionate use of force by police in effecting an arrest, and the intersect with ss. 7 and 12 of the Charter, were accurately summarized in Regina v. Rigo, 2017 ONSC 3694, at paras. 72, 74-75, 81-87, and, Regina v. DaCosta, 2015 ONSC 1586, at paras. 92 to 105. Accordingly, repetition of the relevant principles need not be reproduced here.

[165] It is perhaps worth observing, as noted earlier, that very frequently, the circumstances confronting a police officer in an arrest situation continue to evolve – review analysis “ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture”: Amofa, at paras. 19, 24-25; Rigo, at para. 73. The actions of a police officer ought not to be judged with the benefit of hindsight: Fleming, at para. 63.

[166] In any case, the fact-finding exercise must assess the existence of inconsistencies in the evidence between witnesses’ accounts including the measure of discrepancy, any explanation for the inconsistency, and the materiality of the issue upon which differences arise. In the context of a dynamic arrest situation, on the subject of explanation, a trier of fact must exercise a degree of common sense taking into account the totality of the circumstances including officer stress capable of limiting or distorting perception (Rigo, at para. 91) and reporting differences founded upon the witnesses “being in different positions and seeing things from different perspectives”: Regina v. Phills, 2010 ONSC 4446, at para. 92.

(d) Discussion

[167] Consts. Charlebois and Vergil-Bissaillon acted as agents of Consts. Mullinder and Holder in executing the high-risk takedown. The reasonable grounds for arrest resided with the Street Crime Gang Unit officers. The TAC Unit officers understood that they would be required to safely apprehend an armed suspect.

[168] In some respects, it might be said that there is no good place to safely arrest an armed person. While the Chinguacousy/Bovaird intersection, busy with vehicular and pedestrian traffic, was not ideal, there is no basis for the court to question the reasonableness of the operational decision to execute the arrest at this location with traffic stopped at the red signal traffic light minimizing risk of losing contact with the taxi transporting the accused.

[169] The defence established that, seated in the taxi, Trevon Williams had his hands up at the side of his head. When he stepped onto the roadway, the taxi video does not appear to depict the suspect’s arms down at his side. The same video shows that the suspect did not step far away from the rear open door of the taxi. There is no suggestion that Williams was acting aggressively. His hands were empty. The taser download report records two shots from the weapon barely one second apart. Discharge of probes from the weapon caused the suspect to fall to the ground in pain.

[170] The defence, as said, submitted that the taxi video supports the inference that Trevon Williams was standing stationary with his hands raised, in a posture of surrender, when he was unnecessarily tasered.

[171] Having seen and heard Consts. Charlebois and Vergil-Bissaillon testify, and despite such matters as Charlebois’ various accounts relating to the position of the suspect’s hands and Vergil-Bissaillon’s inconsistent accounts of the number of feet of his physical separation from the suspect, I am satisfied that they have not advanced a manufactured after-the-fact account to mask the use of unnecessary and unreasonable force to apprehend Trevon Williams. Both witnesses made a sincere effort, without argument, attempt at embellishment or defensive tone or rhetoric to describe the events of over a year and a half ago. Const. Vergil-Bissaillon was emphatic in his testimony, nearly akin to reliving events in the witness box, in redescribing the suspect’s lack of response to the commands he was giving.

[172] There is no contrary testimony from other witnesses who were present and might have been called, for example Trevon Williams or the PRPS canine officer. No use-of-force expert was called to testify. Const. Vergil-Bissaillon was not cross-examined respecting any Use of Force Report submitted after discharge of his taser weapon.

[173] Positioned closest to the suspect, Const. Vergil-Bissaillon took up the primary control position. There is no evidence to support the contention that an officer on scene ordered the suspect to leave the taxi. It was important for Consts. Williams and Stewart to quickly extricate the taxi driver from the vehicle. Then, under controlled commands, the suspect would be ordered out of the taxi to walk backwards with his hands over his head to a controlled site for arrest.

[174] I accept the evidence of Const. Vergil-Bissaillon that, before, or as the suspect opened the taxi door, he commanded the suspect “Police, don’t move”. The taxi video shows the suspect exiting the vehicle. When that command was ignored, on the evidence accepted by the court, Const. Vergil-Bissaillon immediately issued the commands: “Get your hands up. Get down on the ground”. This did not prompt the suspect to raise his hands as high as commanded or to go down to the pavement.

[175] Turning back to the question of the accused’s hands raised while seated in the taxi, for whatever reason, the constables did not see this occurrence. Constable Charlebois saw one arm raised. I reject the suggestion that the witnesses saw this behaviour on the suspect’s part but have chosen to withhold that fact from the court. The suspect’s hands, raised even with his head, appear to be in front of the plane of his body (Exhibit #’s 2, 17 (Image 26)). As the officers stood on the truck side rails behind the open doors of that vehicle, with their field of vision angled down, it is not apparent on the evidence how much of the suspect was visible to them from their elevated position through the rear taxi window.

[176] Having viewed, and reviewed the taxi video numerous times, in my view it cannot be said that it shows the suspect to have raised his hands by or above his head once standing outside of the taxi. I accept that the suspect’s empty hands were palms-out at chest level.

[177] Both constables picked up on Trevon Williams’ eyes looking about in a manner suggesting that he might attempt an on-foot escape. The potential existed for the suspect to access his firearm and to grab a hostage.

[178] Events, as described by Const. Vergil-Bissaillon, were happening quickly. The taxi video records approximately a 6-second period depicting the suspect beginning to exit the vehicle until the suspect is no longer visible presumably having been tasered.

[179] In his real-time experience, with three commands ignored, Const. Vergil-Bissaillon issued a final command, “Stop moving”. His very clear perception was that this did not immediately stop the suspect. He was “stunned” to see ongoing non-compliance. From Const. Charlebois’ perspective, his command, “Police, don’t move”, halted the suspect’s forward progress. As the order or spacing of these commands from the constables cannot precisely be determined, inconsistency between the officers’ evidence does not necessarily exist.

[180] Const. Vergil-Bissaillon effectively made a split-second decision in a tense, uncertain and rapidly evolving situation that use of his taser was necessary. The constable, I am satisfied, honestly believed that discharge of this lesser-force weapon was required to safely apprehend Trevon Williams. In the police view, quite correctly, use of a firearm, or of a canine assist to take the suspect down, would have constituted excessive force. The suspect, believed to be armed, was non-compliant with commands, close-in to the officer, and apparently looking about for possible avenues of escape. Members of the public were in the vicinity. From an objective perspective, the totality of circumstances observed and known to Const. Vergil-Bissaillon supported the use of the taser as a necessary and reasonable application of force. The X2 taser is designed to inflict no permanent injury and to effect a controlled fall to the ground for the target of the weapon.

[181] I further accept Const. Vergil-Bissaillon’s evidence that upon seeing the effect of his first taser shot not having an instant incapacitating effect, he immediately fired a second time to ensure completed circuitry and control. This was not unreasonable in the circumstances nor inconsistent with the officer’s training. The probes from the weapon’s second discharge do not double the force of the current applied to the suspect or measurably prolong the impact of the weapon upon the suspect.

[182] The pain from the overall 6-second electric current flow to the taser probes was transient. There is no evidence of injury to Trevon Williams. No officer or member of the public was injured. The loaded firearm was safely seized.

[183] Const. Vergil-Bissaillon did not know Trevon Williams. The suspect may have ultimately surrendered and not attempted to flee or access his loaded handgun. At a point however, a police officer in Const. Vergil-Bissaillon’s position with a non-compliant armed suspect, if he hesitates further hoping for the best possible outcome, may be expected to face tragic consequences.

[184] Use of the taser was not constitutionally excessive. The accused has not established a breach of his s. 7 and s. 12 Charter rights.

(3) Warrantless Search/Seizure of Responses/Real Evidence From Arrestee

(a) Defence Position

[185] On behalf of Mr. Williams, Mr. Holder submitted that Const. Charlebois’ questioning of the suspect amounted to a warrantless search and seizure.

[186] There had been a de facto arrest by TAC Unit officers. The tasered suspect was detained on the ground, taser prongs attached to him, handcuffed to the rear, under the weight of Const. Charlebois’ knee, and subject to the cover of Const. Stewart’s firearm.

[187] Although the defence characterized the responses to Const. Charlebois’ questions, while uncautioned and unadvised of his Charter rights, as effectively compelled, involuntary, self-incrimination, without valid waiver of the right to silence, the Charter breach submission was principally cast in terms of a warrantless search and seizure of information leading directly to the seizure of the firearm and ammunition – all in contravention of s. 8 Charter principles.

[188] Mr. Holder further argued that the in-cruiser questioning of Mr. Williams by Const. Santos had a similar quality. That officer engaged in questioning Mr. Williams when the arrestee did not have the benefit of counsel. The reported utterance respecting the firearm, and, the disclosure of probation status, amounted to unconstitutional warrantless seizures of information.

[189] In submitting that, on balance, an arbitrary arrest has been demonstrated, Mr. Holder noted that the consequence of such unconstitutional state action invalidated the reasonableness of any search incident to arrest for the firearm.

(b) Crown Position

[190] Mr. Sarantis resisted the notion of a s. 8 Charter breach in the context of Const. Charlebois’ questioning of Mr. Williams. Counsel agreed that the suspect was de facto under arrest. Incident to this state of detention, the police were entitled, for officer and public safety, to effect a pat-down search of the suspect.

[191] Crown counsel noted that the constable’s questions were not designed to elicit evidence but related to safety concerns. As such, the tailored, non-investigative questioning was tantamount to a verbal pat-down search and ultimately less invasive than a physical search.

[192] Mr. Sarantis elected to deal with the alleged s. 8 Charter breach by Const. Santos, relating to warrantless police questioning, within his s. 7, 10(a) and 10(b) Charter submissions relating to that officer.

[193] In submitting that the arrest of Williams by Charlebois/Santos, as authorized by Const. Mullinder, was not arbitrary, Crown counsel further submitted that the warrantless search of the suspect for the firearm incidental to his arrest was lawful and compliant with s. 8 Charter principles.

(c) Governing Principles

[194] In Regina v. McGuffie, 2016 ONCA 365, at paras. 48-49, Doherty J.A. observed:

[48] Section 8 declares:

Everyone has the right to be secure against unreasonable search or seizure.

[49] Section 8, like s. 9, is reflective of an individual's right to be left alone by the state absent justification for state interference with the individual. The constitutional protection in s. 8 rests on the fundamental belief that privacy, in its various manifestations, is an essential precondition to individual liberty and security of the person. State intrusion upon privacy must be reasonable; that is, any law authorizing an intrusion must be reasonable and the manner in which the intrusion is effected must be reasonable: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 12; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 30.

[195] Where an individual is arrested, that person may be searched incidental thereto to secure evidence or any thing that might be used as a weapon or a means of escape.

[196] However, a search incident to arrest, justifying search of an arrestee and any carried receptacle for the presence of a weapon, evidence, or a means of escape, cannot be compatible with s. 8 of the Charter where the arrest is itself unlawful: Canary, at paras. 17, 33; Gonzales, at para. 98; Muller, at para. 38; Regina v. Shankar, 2007 ONCA 280, at para. 11.

[197] Apart from arrest situations, “[o]ften, police officers conduct safety searches incident to investigative detentions”: Fountain, at para. 25. A Mann “search is anchored in safety concerns and is limited to weapons”: Plummer, at para. 52. As noted in McGuffie, at para. 52, in the context of reasonable suspicion that an individual had a handgun, the imminent threat that circumstance posed to a police officer’s safety, could easily justify a protective search. The police are not necessarily limited to search of the person as opposed to a satchel or vehicle: Plummer, at paras. 53, 58, 65-67. A pat-down search of a detained suspect may be reasonably justified for safety concerns even where the detainee is handcuffed: Regina v. Atkins, 2013 ONCA 586, at para. 15.

[198] On occasion, a police seizure of information from a detained suspect, through oral questioning, in the absence of an informed and valid consent, can implicate search/seizure principles and the constitutional protection of s. 8 of the Charter: Regina v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at paras. 11, 18; Regina v. Harris, 2007 ONCA 574, at paras. 33-37, 40-44, 60; Regina v. Mhlongo, 2017 ONCA 562, at para. 31; Regina v. Jackson, 2013 ONCA 177, at paras. 43, 52.

(d) Discussion

[199] While s. 8 Charter principles may justifiably be applied to the warrantless seizure of information, in circumstances of state-compelled responses on the part of a detainee in the absence of valid consent to surrender a reasonable expectation of privacy in personal information, in my view, the questioning by Const. Charlebois and subsequently by Const. Santos are most appropriately analyzed on right to silence, and s. 10 (a) and s. 10(b) Charter principles as discussed more fully below.

[200] In light of the lawfulness of the arrest, the search of the contents of the PUMA satchel and the pants pocket containing the bullets incident to that arrest, did not breach s. 8 of the Charter regardless of the concurrent questioning by Const. Charlebois. In other words, in the circumstances, the arrest of the suspect, not police questioning, effectively resulted in seizure of the physical evidence.

(4) Section 10(a) of the Charter

(a) Defence Position

[201] Mr. Holder submitted that the evidence establishes a breach of Mr. Williams’ s. 10(a) Charter right to be promptly informed of the reason for his arrest/detention.

[202] At about 3:40 p.m., Mr. Williams was clearly detained as he lay on the ground, handcuffed and under police control. He was constitutionally entitled to be informed immediately of the reason for his detention. However, he was not advised until some point after 3:47 p.m. in Const. Santos’ cruiser.

[203] It was submitted that the police failure to honour the s. 10(a) Charter right in a timely way, upon deprivation of Mr. Williams’ liberty, cannot reasonably be justified by safety concerns or other exigency. The detainee was completely under physical control, vehicle traffic was stopped and backed up, and rather than communicate the s. 10(a) Charter information, the suspect was first questioned and searched by Const. Charlebois, attended to by paramedics, searched by Const. Santos, and driven by Santos to the parking lot of a nearby plaza.

(b) Crown Position

[204] On behalf of the Crown, Mr. Sarantis suggested that, in the circumstances, Mr. Williams would have understood he was under detention for possession of a firearm.

[205] In any event, communication of the s. 10(a) Charter information could justifiably be suspended until the firearm was located, and the arrestee moved out of live traffic lanes – all with a view to implementing a safe environment for the police discharge of their constitutional obligations.

(c) Governing Principles

[206] Section 10(a) of the Charter provides that everyone on arrest “or detention” has the right “… to be informed promptly of the reasons therefor”.

[207] The s. 10(a) Charter right obliges the police to provide a detainee the reason for the imposed detention – while this is to be done immediately upon detention in order to, among other reasons, facilitate the detainee’s exercise of the right to counsel, no precise or technical language is required provided an officer’s clear and simply notice conveys the substance of the reason(s) for the detention: Mann, at para. 21; Regina v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at para. 35; Regina v. Roberts, 2018 ONCA 411, at para 78; Regina v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 16-20.

[208] A delay of minutes from the commencement of detention to communication of the information mandated by s. 10(a) usually amounts to a breach of the constitutional right: Regina v. Sheck, 2015 BCCA 471, at para. 33 (leave to appeal refused [2016] S.C.C.A. No. 50).

[209] In circumstances of “officer safety concerns”, a brief delay in communicating the reason for detention may be justified without there being a violation of s. 10(a) of the Charter: Gonzales, at paras. 111-128. In other cases, the delay in communicating the reason for detention until “safe to do so” has been viewed as an attenuating factor in the s. 24(2) Charter analysis: Regina v. Rafiq, 2017 ONCA 185, at paras. 2, 5.

(d) Discussion

[210] There is no dispute that Trevon Williams was detained when the TAC Unit members issued commands relating to restriction of his liberty. Certainly by the point at which the accused was tasered and Const. Charlebois took physical control of him in a de facto arrest, the status of detention is indisputable.

[211] The Crown submission that the accused would have understood he was under arrest for possession of a firearm is unpersuasive. The s. 10(a) Charter right is not self-executing – the detaining state agent is constitutionally responsible for communicating the reason for the deprivation of liberty.

[212] The accused was entitled to be informed immediately of the reason for his arrest. Such communication is the informational platform for comprehending one’s jeopardy before risking self-incrimination – notice critically necessary when next informed of the rights to counsel.

[213] Once Const. Charlebois handcuffed the accused, he was in a position to speak the nine (9) words, “You are under arrest for possession of a firearm”. There was no safety-concern impediment to doing so. Instead, with Const. Stewart providing the cover of his firearm, the officer posed five (5) questions to Williams conscripting him to disclose the presence of the firearm. The witness testified that he expected that a Street Crime officer would communicate cautions and the right to counsel – nothing said about s. 10(a) of the Charter.

[214] Const. Charlebois breached the accused’s s. 10(a) Charter right.

[215] The Crown fares no better on the alternative scenario of forgiving a brief delay for the arrestee to be turned over to Street Crime Gang Unit officers before compliance with the s. 10(a) right. Assuming that Const. Charlebois was reasonably justified in reserving the communication of constitutional rights to the investigative team, given that Williams was not then informed of the reason for his arrest immediately after the point of turn-over from TAC, there was a violation of his constitutional right.

[216] Vehicular traffic was backed up. The arrestee was handcuffed. Several armed police officers were in the immediate vicinity of the arrestee. He was standing by a police vehicle and in no need of emergency medical treatment. There was no safety exigency or urgency. Taser prong removal, a successive personal search, a switch of handcuffs, placement in a police vehicle – all with no officer relating the reason for arrest.

[217] Compounding the unreasonable delay was vehicular removal of Williams from the scene of arrest to a nearby location without s. 10(a) Charter compliance. With a take-down at 3:40 p.m., it took the police until 3:47 p.m. to communicate the reason for arrest – an unjustifiable delay and a breach of s. 10(a) of the Charter.

(5) Submitted Breaches of Right to Counsel

(a) Defence Position

[218] Building on the alleged breach of s. 10(a) of the Charter, it was submitted by the defence that Const. Charlebois also breached Mr. Williams’ constitutional right to retain and instruct counsel when he failed to immediately communicate s. 10(b) Charter information to the subdued suspect while proceeding to question him with the clear potential for eliciting self-incriminating responses. Performance of a physical pat-down search, unaccompanied by interrogation, would not have constituted an exigency reasonably justifying suspension of communication of the right to counsel. In the result, the arrestee had no opportunity to make an informed decision about speaking to Const. Charlebois.

[219] Insofar as the role of Const. Santos, he took control of Mr. Williams from Charlebois after the 3:40 p.m. takedown, waited for the taser prongs removal, swapped out handcuffs, conducted a physical pat-down search, placed the arrestee in his cruiser, and drove to the plaza, before communicating something about the right to counsel. There was no immediate communication of the s. 10(b) Charter right and no justifiable circumstance(s) reasonably explaining the delay in advising of the constitutional right to contact and consult counsel.

[220] Once at the relocation to the plaza, some time after 3:47 p.m., Const. Santos’ evidence in this proceeding was that the information he conveyed to Mr. Williams respecting his right to counsel, his right to silence, and the influence of other officers previously-dealt-with upon his decision-making, was not read verbatim from a PRPS card or notebook. The witness purported to speak of what he “would have” said to the arrestee. It was submitted that there can be little confidence as to exactly what the constable said to Mr. Williams or what the arrestee said.

[221] Whatever Mr. Williams was told about his right to counsel, he provided the name of a specific lawyer which Const. Santos understood to mean that the arrestee wanted to speak to that counsel. On the record here, there is no evidence that Santos informed Williams that he would be permitted to contact counsel by phone from the police facility. At some point thereafter, at the plaza, Mr. Williams is said to have made an utterance about the seized firearm. As well, the constable improperly questioned the arrestee about various subjects including the source of monies seized from him and his status respecting other charges. The officer was obliged to hold off questioning.

[222] In terms of the overall delay to consult counsel, the delay from the 3:40 p.m. arrest to about 5:15 p.m. when Mr. Williams spoke to his counsel of choice by phone at PRPS 22 Division – a period of about 1 ½ hours – does not comply with the constitutional expectation of implementation of access to counsel immediately.

(b) Crown Position

[223] Mr. Sarantis, for essentially the same reasons advanced by the Crown for delay of communication of the s. 10(a) Charter right, submitted that the decision to briefly suspend communication of the right to counsel, until after 3:47 p.m., was reasonably justified for safety reasons.

[224] Crown counsel noted that the prosecution changed its initial trial decision respecting any effort to have the court admit any utterances by Mr. Williams as reported by Const. Santos. No statement evidence is sought to be introduced by the Crown.

[225] During the period of time that Mr. Williams was detained in Const. Santos’ vehicle, with Mr. Williams having received the “functional equivalent” of a s. 10(b) Charter communication and cautions, the officer did not seek to interrogate the arrestee about the firearm seizure. Accordingly, it cannot be said that the police failed to hold off questioning as constitutionally required.

[226] Insofar as the overall delay to Mr. Williams’ consultation with counsel, Crown counsel submitted that given that it would be unrealistic to attempt consultation with counsel in the police vehicle at the scene of arrest, and given the time required for the 22 Division processing intake, the delay was not unreasonable or non-compliant with s. 10(b) of the Charter.

(c) Governing Principles

[227] A detainee’s s. 10(b) Charter right is intimately concerned with his or her right against self-incrimination: Regina v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24, 26, 29, 36; Regina v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 38. In Regina v. Suberu, 2009 SCC 33, at para. 41, the court held that:

A situation of vulnerability relative to the state is created at the outset of a detention.

[228] The s. 10(b) right, both its informational and implementational aspects, must be complied with “immediately” by the police: Suberu, at paras. 2, 37, 39, 41-42; Mhlongo, at paras. 46-50, 65, 72-73.

[229] In McGuffie, at para. 42, Doherty J.A. stated:

The rights created by s. 10(b) attach immediately upon detention, subject to legitimate concerns for officer or public safety: Suberu, at para. 42. On the facts of this case, the appellant should have been told by Constable Greenwood that he had a right to speak to his lawyer no later than immediately after Constable Greenwood had handcuffed the appellant and conducted the pat down search while standing on the street. The appellant should have been asked if he wanted to speak with counsel and, if he did, Constable Greenwood should have afforded him that opportunity without delay.

The permissible exception to the immediacy requirement is very restricted: Regina v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 31 (“necessarily limited in urgent or dangerous circumstances); Regina v. Montgomery, 2009 BCCA 41, at para. 33.

[230] Once informed of his right to counsel, a detainee must be reasonably diligent in the exercise of his s. 10(b) Charter rights: Regina v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at p. 439; Regina v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at para. 19. Where an opportunity to consult counsel is requested, in the absence of particularly urgent circumstances, the police are under a duty to assist in the implementation of that contact as “the detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so”: Regina v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at paras. 21, 24. And the police are then under a duty to cease questioning inviting self-incrimination or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel: Manninen, at para. 23; Regina v. Rowson, 2015 ABCA 354, at paras. 36-37 (affd 2016 SCC 40).

[231] Insofar as the police duty to facilitate access to counsel, a duty which “arises immediately upon the detainee’s request to speak to counsel” (Taylor, at para. 24), the police obligation “does not create a “right” to use a specific phone” and “in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual”: Taylor, at para. 27. However, the duty implies an obligation “to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination”: Taylor, at para. 28.

[232] Applying the voluntariness test of admissibility is essentially a question of fact: Regina v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 23, 71;

A. INTRODUCTION

B. ROLE OF THE CONFIDENTIAL INFORMER

C. SURVEILLANCE OF TREVON WILLIAMS

(1) The Marigold Hotel

(2) The High School

D. THE TAC UNIT OPERATION

(1) The Vehicle Stop

(2) Taser Deployment

(3) Suspect Questioned by TAC Unit

E. STATEMENTS IN THE POLICE CRUISER

F. TREVON WILLIAMS SPEAKS TO COUNSEL

G. THE FIREARM EVIDENCE

H. COURT ORDERS GOVERNING TREVON WILLIAMS

I. ANALYSIS

(1) Arbitrary Arrest

(a) Introduction

(b) Defence Position

(c) Crown Position

(d) Governing Principles

(e) Discussion

(2) Forcible Arrest – ss. 7/12 of the Charter

(a) Defence Position

(b) Crown Position

(c) Governing Principles

(d) Discussion

(3) Warrantless Search/Seizure of Responses/Real Evidence From Arrestee

(a) Defence Position

(b) Crown Position

(c) Governing Principles

(d) Discussion

(4) Section 10(a) of the Charter

(a) Defence Position

(b) Crown Position

(c) Governing Principles

(d) Discussion

(5) Submitted Breaches of Right to Counsel

(a) Defence Position

(b) Crown Position

(c) Governing Principles

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 4

Legislation 1