COURT FILE NO.: CV-12-36230

DATE: 2018-11-06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Rikki Jeremiah, Maureen Knight Jeremiah, Rashida Jeremiah, a Minor, by Litigation Guardian Maureen Knight Jeremiah, and Rashid Jeremiah, a Minor, by Litigation Guardian Maureen Knight Jeremiah

Plaintiffs

• and -

Hamilton-Wentworth Police Services Board, Chief of Police Glenn De Caire, Ian Milburn, Dave Pidgeon, Shawn Smith, and Andrew Poustie

Defendants

Counsel: Robert B. Munroe, for the Plaintiffs Stephen Chisholm, for the Defendants

HEARD: September 24-28, 2018

REASONS FOR JUDGMENT

The Honourable Mr. Justice Antonio Skarica

OVERVIEW

[1] Rikki Jeremiah and his friend were parked in a high crime area near downtown Hamilton at about 1:30 a.m. on a cold February morning. Mr. Jeremiah's vehicle was a Chrysler Sebring, a vehicle that can be and is often stolen at an above-average rate. The vehicle had no front licence plate as Mr. Jeremiah is a car dealer and had a dealer plate at the back. Mr. Jeremiah and his friend were committing no crimes.

[2] The police approached the vehicle and noticed the vehicle had no front plate. Additionally, one officer observed Mr. Jeremiah place something down into the driver's seat area. The police investigated.

[3] A dispute ensued regarding whether Mr. Jeremiah needed to identify himself and Mr. Jeremiah was eventually forcefully removed from the driver's seat, handcuffed and "grounded" – forced onto the ground. The police obtained Mr. Jeremiah's identification and confirmed that Mr. Jeremiah was the owner of the vehicle. The vehicle was searched in the driver's seat area and a Bluetooth device was recovered. Mr. Jeremiah was then released from his handcuffs and set free. No charges were laid as Mr. Jeremiah was committing no offences and had no intention to commit any offences. Mr. Jeremiah subsequently brought a civil action for damages for negligence, assault, false arrest, and breach of his rights and freedoms guaranteed by the Charter.

ISSUES AT TRIAL

[4] A five-day non-jury trial established the following main issues:

1. What happened from the time the police approached the plaintiff's vehicle to the subsequent release of Mr. Jeremiah?

2. Did the police have the authority in these circumstances to conduct an investigative detention and arrest of the plaintiff?

3. Did the police use reasonable force in the circumstances?

4. The plaintiff and his friend were black; the five police officers were white. Did racism play a part in the officers' conduct and actions?

5. What are the damages that should be assessed by any improper police conduct?

ISSUE #1

What happened from the time police approached the plaintiff's vehicle to the subsequent release of the plaintiff?

THE UNDISPUTED FACTS

[5] Rikki Jeremiah is an immigrant from the Caribbean, arriving in Canada in 1994 when he was 26 years old. Mr. Jeremiah is an auto mechanic and also operates a car dealership.

[6] On the evening of February 12, 2012, Mr. Jeremiah agreed to drive his friend Christian Lokofe and Mr. Lokofe's girlfriend to Toronto. Mr. Jeremiah drove a Chrysler Sebring which had a dealer plate on the back. Mr. Lokofe's girlfriend was dropped off at about midnight.

[7] Mr. Jeremiah then drove Mr. Lokofe to the corner of King Street East and West Avenue, arriving at about 1:00 a.m. Mr. Jeremiah parked his car across from Mr. Lokofe's house, and engaged in a conversation with Mr. Lokofe.

[8] It is clear that Mr. Jeremiah and Mr. Lokofe were not committing any crimes and had no intention to commit any crimes.

[9] All five police defendants testified. Their evidence was basically consistent with each other. The five defendants were working on the ACTION Squad – Team 1. ACTION is an acronym for Addressing Crime Trends in Our Neighbourhood. The ACTION squads target high crime neighbourhoods in order to suppress crimes in those neighbourhoods.

[10] Constable Ian Milburn was driving a marked police van. Constable Shawn Smith was in the front passenger seat. Behind Ian Milburn was Constable Brent Gibson. Seated behind Constable Shawn Smith was Sergeant David Pidgeon, the team leader. Seated behind Sergeant Pidgeon was Constable Andrew Poustie. The police van approached and stopped at the south corner of West Avenue at the intersection of West Avenue and King Street. At about 1:30 a.m. on February 13, 2012, the police were able to observe the plaintiff's vehicle, which was parked at the north corner of West Avenue at the West Avenue/King Street intersection. The silhouette of two people could be seen in the vehicle.

[11] The plaintiff vehicle was facing the police van and the police officers testified they noticed the front licence plate was missing. The Highway Traffic Act (HTA) requires vehicles to have a front plate with some exceptions. The plaintiff vehicle was a Chrysler Sebring which is an easy car to steal and suffers from an above-average rate of theft. Further, Constable Gibson indicated to the team members that the driver of the Sebring was concealing something between the seats. Constable Milburn stopped next to the Chrysler and started to speak to the plaintiff. Constable Milburn and Constable Smith got out of the vehicle and the other three officers initially remained in the van.

[12] Constable Milburn and Constable Smith approached the occupants of the Chrysler. The plaintiff and defendants' versions of what occurred are substantially different from the point where conversation was initiated with the plaintiff and Mr. Lokofe. After the plaintiff was released from his handcuffs and set free, Mr. Jeremiah spoke to Sergeant Pidgeon and indicated that he was going to complain about the way the police treated him.

PLAINTIFF'S VERSION OF EVENTS REGARDING USE OF FORCE BY POLICE

THE PLAINTIFF RIKKI JEREMIAH

[13] Mr. Jeremiah is self-employed as an auto mechanic and car dealer. On February 12, 2012, Mr. Jeremiah's friend and barber, Christian Lokofe, asked Mr. Jeremiah for a ride to Toronto. Mr. Jeremiah picked up Mr. Lokofe and Mr. Lokofe's girlfriend at 11:15 p.m. Mr. Jeremiah drove a Chrysler Sebring. The Sebring had a dealer plate on the vehicle on the back and no front plate, as is customary with dealer plates. Mr. Lokofe's girlfriend was dropped off at about midnight in Toronto and Mr. Jeremiah drove Mr. Lokofe back to Hamilton. At about 12:45 a.m. Mr. Jeremiah parked at the corner of West and King Street, facing southbound, across from Mr. Lokofe's residence on West Street. Mr. Lokofe was in the passenger seat and wanted to talk. While talking, a Hamilton police vehicle (not the defendants' police van) drove up from behind the Sebring. The officer stopped his car and through open windows on both vehicles, Mr. Jeremiah told the officer they were just talking and the police vehicle drove off southbound.

[14] Fifteen to twenty minutes later, the defendants, in a marked police van, were driving northbound and crossed King Street with the intersection at West and King Street. The plaintiff was able to see the van approaching as he was facing south and the van was driving towards the front of the Chrysler Sebring vehicle.

[15] The van stopped and again the police officer, driving the police vehicle, and the plaintiff lowered their windows. The officer asked what was happening and the plaintiff indicated they were just talking for a few minutes. The officer (Constable Milburn) then asked who owned the vehicle and Mr. Jeremiah replied that he did. Constable Milburn indicated, "You have no front plate on". Mr. Jeremiah replied, saying he knew as he was a car dealer and the dealer plate was on the back of the car. Constable Milburn replied, raising his voice, "You, a dealer?"

[16] Constable Milburn stepped out of the van followed by the other officer. Constable Milburn went to Mr. Jeremiah's side and commanded that Mr. Jeremiah give the officer his licence. Mr. Jeremiah replied, "Officer, why do you need my licence?" Constable Milburn again demanded to see Mr. Jeremiah's licence. Again, Mr. Jeremiah asked why the police needed his licence. Constable Milburn then said, "Give me your licence or I'll punch you in the face." Constable Milburn, while saying that, put his head into the window and Constable Milburn's face was right next to Mr Jeremiah's face. Mr. Jeremiah pulled his body back and asked the officer what he had done to justify having his face punched. Constable Milburn then said that Mr. Jeremiah was under arrest. Constable Milburn swung the door open and bent Mr. Jeremiah's left wrist, causing pain. Constable Milburn then started to pull him out of the car indicating that Mr. Jeremiah must get out of the car as he was under arrest. Mr. Jeremiah held onto the steering wheel and jammed his leg against the steering wheel to resist being pulled out of the vehicle. Mr. Jeremiah did not get out of the car as he feared for his life. The officer repeatedly stated that Mr. Jeremiah was under arrest and to get out of the car. Mr. Jeremiah repeatedly responded by asking what had he done and what was he under arrest for. Mr. Jeremiah asked to speak to the officer in charge but no one came forward.

[17] Constable Milburn was pulling on Mr. Jeremiah's left arm and wrist causing pain while yelling, "Get out of the car". Accordingly, Mr. Jeremiah allowed himself to be pulled out of the car by letting go of the steering wheel.

[18] Mr. Jeremiah heard the other two police officers say, "He dropped something...we saw him drop something in the car and we can smell things in the car."

[19] Constable Millburn tried to handcuff Mr. Jeremiah's hands behind Mr. Jeremiah's back but couldn't manoeuvre his hands. Constable Millburn asked the officers to assist him. Another officer assisted with the handcuffing.

[20] Mr. Jeremiah pleaded that they were hurting him and continued to ask why they were doing this to him. Mr. Jeremiah told the police he was a Christian person and didn't smoke or drink; "I don't do drugs or do guns." Mr. Jeremiah warned them about planting something in his car. The next thing he knew he was on the ground lying on his cuffs. Constable Milburn put his knee against Mr. Jeremiah's groin while Mr. Jeremiah was lying on the ground on his back.

[21] Mr. Lokofe was telling the police that Mr. Jeremiah was a Christian and they shouldn't treat people this way.

[22] Constable Milburn lifted Mr. Jeremiah and checked his pockets and after flipping him to one side, Constable Milburn found Mr. Jeremiah's wallet in Mr. Jeremiah's right pocket. The wallet was given to Sergeant Pidgeon and Mr. Jeremiah was put back on the ground and Constable Milburn again kneeled on him.

[23] Sergeant Pidgeon returned shortly after and told Constable Milburn to get Mr. Jeremiah off the ground and both Sergeant Pidgeon and Constable Milburn lifted Mr. Jeremiah to his feet.

[24] Sergeant Pidgeon had to tell Constable Milburn three times to take the cuffs off before Constable Milburn did it.

[25] Sergeant Pidgeon asked if Mr. Jeremiah was the owner of the vehicle. Sergeant Pidgeon asked for information for the dealer plate and Mr. Jeremiah opened the dealer plate bag and provided the information. Sergeant Pidgeon apologized for what happened. Mr. Jeremiah asked what this was all about and Sergeant Pidgeon indicated that one of the guys said somebody dropped something in the car. Mr. Jeremiah asked what was found and was told a Bluetooth was found in the car.

[26] Mr. Jeremiah indicated he was taking the police to court and wanted badge numbers of all the police there. Sergeant Pidgeon provided badge numbers for Sergeant Pidgeon and Constable Milburn indicating no more were needed. Mr. Jeremiah has been stopped by police many times. Mr. Jeremiah's explanation for why he did not provide his licence was given as follows:

MR. MUNROE: Q. Mr. Jeremiah, I just want to go back to the incident itself and just ask you a few, few questions about it, general questions. First thing is, did you ever – when, when Constable Milburn asked for your licence, why didn't you give it to him?

A. I didn't give him my licence because I needed to know why he needed my licence.

Q. And why is that?

A. Cause it's – I'm a car dealer, Mr. Munroe, and I've been stopped by police many times. I get stop by police all the time. I shouldn't say all the time, but often, and one of the thing that – this is a normal thing would have happened with me in the police stop. Police would stop me. I would see his lights on, and he comes to my window. Before he or she – I'm saying he but could be a female, so he or she – before the officer speak to me, my normal would be, "How are you doing, Officer? What seems to be the problem today?" or tonight or whenever it is. And the officer would probably say, "Well, you know you were driving with a dealer plate. We just want to check it out, make sure it's okay" and I would go "Yeah, sure, sure, Officer. No, no problem "Driver's licence, okay here you are. I would say to the officer, "Officer, my, my plates information is in my red bag. Do you mind if I go and give it to you?" he, he or she would say, "No, come ahead. Give it to me." I would give it to them. They would do whatever they check and they would come back. "Am I okay to go, Officer?" "Yeah, you're good to go. Have a good, have a good evening." "Okay officer, you too. Safe trip." Everybody goes home.

That particular – so ask him Mr., Mr., Mr. Milburn why he needed my licence was nothing new to me. It wasn't disrespectful. It was a normal thing that I do to every officer. The only different was that day that the wording was different. I ask him why he needed my licence instead of officer, how you doing, because he didn't stop me. And that's why I was very confused at that point because my car was parked. I was not driving. My engine was shut off. So when he came asked me for my licence, I'm, my word to him was "Officer, why do you need my licence?" instead of like I said just now, how you doing, officer? But it was the same thing like that that I was would ask any police officer who ever stopped me. How you doing – and they would give me a reason and would go on. So that, that's the reason why I asked him why he needed my licence.

[27] Mr. Jeremiah is five feet 10 inches tall and weighs 220 pounds.

[28] In cross-examination, Mr. Jeremiah agreed that dealer plates are intended to be used for purposes relating to the sale of the vehicle. That night Mr. Jeremiah was not using the dealer plate for a purpose relating to the sale of the vehicle. When Constable Milburn first approached Mr. Jeremiah, Constable Milburn said, "you have no plates in the front", but Mr. Jeremiah testified he didn't know if that's the reason why Constable Milburn got out of his car and did what he did to Mr. Jeremiah. In his prior traffic stop regarding police inquiries about the dealer plate, the police asked for identification and Mr. Jeremiah would usually give them the driver's licence they asked for and insurance. Mr. Jeremiah agreed that there's no way to check appropriate use of the dealer plate without checking his identification. Mr. Jeremiah agreed that he did not give up his driver's licence to Constable Milburn when Constable Milburn asked for it. If Constable Milburn would have given Mr. Jeremiah an answer as to why Constable Milburn needed the driver's licence, Mr. Jeremiah would have provided it. When Mr. Jeremiah was asked, "So the purpose of the stop was simply to ensure that you were a driver entitled to use the dealer plate, Mr. Jeremiah testified, "based on the police asking, I'm just checking your dealer plate, at that point, I will say yes."

[29] Mr. Jeremiah, in cross examination, testified that Constable Milburn never asked him to come out of the vehicle. Constable Milburn only asked for a licence. He didn't tell him to get out of the vehicle and pulled Mr. Jeremiah out of the vehicle after telling him he was under arrest. Mr. Jeremiah wanted to speak to the officer in charge when Constable Milburn first attempted to pull him out of the vehicle.

[30] Sergeant Pidgeon, when apologizing, indicated that Mr. Jeremiah should have provided the information requested but agreed that Constable Milburn should have told Mr. Jeremiah why he needed his licence.

CHRISTIAN LOKOFE

[31] Christian Lokofe's testimony, regarding how he and Mr. Jeremiah ended up talking in the Chrysler Sebring across from Mr. Lokofe's home at 1:00 a.m., is consistent with Mr. Jeremiah's testimony. His version of what happened after the defendants arrived is markedly different from Mr. Jeremiah's version.

[32] Mr. Lokofe testified that he and Mr. Jeremiah were talking in the Chrysler and the "whole thing happened real fast". The police arrived and the next thing he knew the police were by their doors. The police were loud and screaming and were trying to get them out of the Chrysler. There were not many questions, only orders for them to get out of the vehicle. The police were very brutal. Mr. Lokofe was seated in the passenger seat. The door was closed but he did not know if it was locked. Two or three police were on his side and the same number were on the other side. The police were screaming for both of them to get out of the car. The police were trying to open the door. Mr. Lokofe's door was opened and the police grabbed him as he was stepping out of the car. Mr. Lokofe saw Mr. Jeremiah being roughed up – first being placed against the car and then he was thrown on the ground. One guy was on top of his back. There were more than three officers on that side.

[33] On Mr. Lokofe's side, there was screaming all around. It was very brutal; Mr. Lokofe wasn't touched much but received mostly threats. One officer told Mr. Lokofe to stay calm as he didn't want to be in Mr. Jeremiah's situation. The police called Mr. Lokofe "boy". Mr. Lokofe fled the Congo because of war and violence and this "rough" night reminded him of the Congo. Mr. Lokofe observed an officer put his knee on Mr. Jeremiah's groin while Mr. Jeremiah was lying on the ground handcuffed and Mr. Jeremiah was screaming.

[34] After things calmed down and Mr. Jeremiah was released, Mr. Jeremiah was complaining and the police didn't provide explanations.

[35] One of the police officers said they saw someone drop something while Mr. Jeremiah was talking to Mr. Lokofe. There was nothing illegal going on in the car.

[36] Mr. Lokofe confirmed that the police didn't come and ask questions when the police saw them. It was like the police attacked them. There was no questions. It was not the case that the police became aggressive after asking a question and being told no. The police "came right away aggressive."

[37] When Mr. Lokofe tried to pull out a cellphone, he was threatened and called "boy" again.

[38] In cross-examination, Mr. Lokofe could not remember Mr. Jeremiah being asked for his driver's licence or Mr. Lokofe advising Mr. Jeremiah to give the police his identification.

[39] Mr. Lokofe testified that he didn't think it was less than three officers who pulled Mr. Jeremiah out of the car. Mr. Jeremiah was taken down on his face.

[40] Mr. Lokofe doesn't know which officer called him "boy". Mr. Lokofe doesn't know if Mr. Jeremiah was called "boy" or what was said to him. Mr. Lokofe was not watching out for words because they were being attacked. Mr. Lokofe can't guarantee that Mr. Jeremiah was on his stomach the whole time. He remembers Mr. Jeremiah being on his stomach when he was screaming.

DEFENDANTS' VERSION OF EVENTS REGARDING USE OF FORCE BY POLICE

CONSTABLE IAN MILBURN

[41] Constable Milburn testified that he was driving the police van northbound on West Avenue. The police were on their way back to the station near the end of their shift. Everybody wanted to go home. Constable Smith was in the front passenger seat; Sergeant Pidgeon and Constable Gibson were in the backseat and Constable Poustie was in the very back seat behind Sergeant Pidgeon and Constable Gibson.

[42] At the intersection of West Avenue and King Street, Constable Milburn observed the plaintiff's vehicle at the opposite intersection. The plaintiff vehicle, was a Chrysler Sebring. The vehicle was facing the police van. There is a crack house nearby. Chryslers of this type are notorious for being stolen. There was no front licence plate on the vehicle. Under the HTA licence plates are required for both front and rear plates. It is an offence under the HTA to have no front licence plate. From his vantage point, Constable Milburn could not identify the vehicle occupants' age or ethnicity. Constable Millburn decided further investigation was necessary. As the police van approached the Chrysler, Constable Gibson indicated the driver just stuffed something down the front driver seat area. This statement worried Constable Milburn; he did not know if it was a weapon or something else illegal.

[43] Constable Milburn asked the driver how he was doing and what he was up to. Constable Milburn asked the driver for his licence. Constable Milburn attempted to explain he was obliged to provide his licence to a police officer under the HTA, but Mr. Jeremiah talked over him. Constable Milburn asked Mr. Jeremiah for his licence a few times but Mr. Jeremiah was arguing, indicating he was doing nothing wrong and questioning why he should show his licence. Constable Milburn said there was no front plate and it was his duty to make sure that Mr. Jeremiah had a licence and insurance. Constable Milburn told Mr Jeremiah that if he had no licence, Constable Milburn needed some ID, so they could verify that he was a licenced driver. It is common if a driver is asked for his licence, and the driver is evasive or answers a question with a question, it is a stalling tactic. Most people just hand the licence to you. Constable Milburn backed the van a couple of feet and Constables Milburn and Smith got out of the van. They got out to give them room in case something happened. Something was hidden in the seat of the car. Constable Milburn stood just behind the driver's door of the Chrysler. He couldn't see into the car and felt vulnerable. Constable Milburn did not insert his head into the vehicle. Constable Milburn did not threaten to punch Mr. Jeremiah. Constable Milburn explained that Mr. Jeremiah continued to argue about the need to produce the driver's licence. Meanwhile Constable Smith was talking to the passenger who was yelling at Constable Smith. Constable Milburn was worried about his safety and wanted to end the interaction.

[44] Constable Milburn opened the door and asked Mr. Jeremiah to step out. Mr. Jeremiah did not get out. Instead Mr. Jeremiah refused and held onto the steering wheel. Constable Milburn's physical attempts to loosen Mr. Jeremiah's grip on the steering wheel failed. Eventually, Mr. Jeremiah got out of the vehicle on his own. Constable Milburn attempted to put Mr. Jeremiah's hand at his back and probably said, "stop resisting." Constable Milburn needed help to handcuff Mr. Jeremiah. Constable Milburn said, "I need help."

[45] Constable Poustie assisted in putting handcuffs on Mr. Jeremiah. Mr. Jeremiah was still resisting and had to be put to the ground. It was Constable Milburn's opinion that Mr. Jeremiah had to be handcuffed and searched due to safety concerns. Constable Milburn tripped Mr. Jeremiah to the ground. Mr. Jeremiah was on his front on the ground and was not injured. Constable Milburn did not put his knee on Mr. Jeremiah's head or groin. Mr. Jeremiah was searched and his wallet was recovered. The police conducted a search of the car looking for weapons but Constable Gibson found a Bluetooth device only.

[46] Shortly after Mr. Jeremiah was identified, he was stood up and the cuffs were taken off. Mr. Jeremiah demanded to speak to the supervisor and spoke to Sergeant Pidgeon. No charges were laid and no one ever said "boy". No racist comments were made to the vehicle occupants and race did not impact the reason to investigate.

[47] In cross-examination, Constable Milburn acknowledged Mr. Jeremiah was handcuffed while standing and was then put on the ground. Constable Milburn has no recollection of who put Mr. Jeremiah on the ground.

[48] There is nothing in Constable Milburn's notes or occurrence report about a crack house nearby. There was no mention of a crack house in Constable Milburn's discovery in November 2015. The first time a crack house was mentioned in these proceedings was at trial. The alleged crack house was at 2 West Avenue. This is Mr. Lokofe's residence which is occupied by students. Before this incident, Constable Milburn had heard from other officers that 2 West Avenue was a crack house. Constable Milburn had no direct knowledge of this crack house and could not say who at work gave this information. Nothing was said to Mr. Jeremiah about a crack house.

[49] In the occurrence report, Constable Milburn noted that the area was known for drugs and crime. Constable Millburn was thinking about the Chrysler possibly being stolen. Chryslers are stolen on a regular basis. Constable Milburn was suspicious about what the occupants were doing there at that late hour – 1:39 a.m. Adding to his concern was Constable Gibson's comments about something being placed in the driver seat area. Constable Milburn concluded that there could be criminal activity. Constable Milburn agreed that the vast majority of people and Chryslers in that area are not related to criminal activity.

[50] Constable Milburn learned at the scene that there was a dealer plate on the Chrysler – he doesn't know who saw it first. Even if Constable Milburn knew that there was a dealer plate, Mr. Jeremiah would still have to prove he was the owner.

[51] Constable Milburn was concerned about Constable Gibson's observations of something being hidden in the car. When he approached the vehicle, he was concerned that it might be a weapon. However, when he and Constable Smith got out of the car, the other three police officers stayed in the car. There had been no mention in the van of the hidden item being a weapon.

[52] Constable Milburn did not say that maybe there's a weapon in the vehicle and what's our plan. Constable Milburn had a suspicion that something was not right here. Constable Milburn recognized that Mr. Jeremiah was agitated and upset but Mr. Jeremiah did nothing aggressive and made no attempt to flee.

[53] During the initial conversation with Mr. Jeremiah, both Mr. Jeremiah and Constable Milburn's voices started to rise but no foul language was used. Constable Milburn did not swear at Mr. Jeremiah but he is not absolutely certain.

[54] Constable Milburn did not tell Mr. Jeremiah why he wanted Mr. Jeremiah to get out of the car. The dispatch record at 1:39 a.m. refers to a subject stop and not a traffic stop.

[55] Constable Milburn left out of his notes that the men were black. He denied that race was an important factor in the stop.

Staff Sergeant David Pidgeon

[56] Sergeant Pidgeon on February 12 to 13, 2012, was in charge of Team 1 of the ACTION squad.

[57] On February 13, 2012, there was an hour left in their shift. They had just completed doing building sweeps on high rises. They were in uniform in a marked police van.

[58] When they got to the intersection of West Ave. and King Street, Sergeant Pidgeon observed a Chrysler Sebring (an easily stolen car) with no front plate and two occupants. Every car needs two licence plates and there was a need to further investigate.

[59] Sergeant Pidgeon did not tell Constable Milburn to stop the van but when it was done, he agreed with it. As they crossed over onto King Street, Constable Gibson observed the driver concealing something with his right hand – it could be something criminal or any type of weapon. Constable Gibson did not say a weapon was being concealed.

[60] Constable Milburn asked Mr. Jeremiah what he was up to. Sergeant Pidgeon did not hear Mr. Jeremiah's response. Constables Milburn and Smith exited the police van. It was appropriate that two officers look into it.

[61] Sergeant Pidgeon heard Constable Milburn and Mr. Jeremiah's voices rise and he got out of the van. The other officers stayed in the van. Sergeant Pidgeon then noticed the dealer plate. Constable Milburn was not told about the dealer plate. Sergeant Pidgeon did not think it was relevant at that moment. Constable Milburn did not insert his head into the driver's side of the vehicle. No racial slurs such as "boy" were uttered. There were no threats coming from Constable Milburn. Sergeant Pidgeon observed Constable Milburn trying to remove Mr. Jeremiah from the vehicle. Sergeant Pidgeon could hear Constable Milburn ask Mr. Jeremiah to identify himself. There was lots of back and forth and essentially Constable Milburn grabbed Mr. Jeremiah's arm to take control and Mr. Jeremiah was not compliant, refusing to get out of the car. Constable Milburn tried to handcuff Mr. Jeremiah when he was out of the Chrysler and told him to stop resisting. Mr. Jeremiah tried to pull away. Constable Milburn asked for help and Constable Poustie assisted with the handcuffing of Mr. Jeremiah. Mr. Jeremiah was still resisting and he was tripped to the ground. Mr. Jeremiah was not injured, and did not say he was injured.

[62] Mr. Jeremiah was searched. At no time did Constable Milburn place his knee on Mr. Jeremiah's head or groin. Constable Gibson searched the car.

[63] Once the police were satisfied with Mr. Jeremiah's identity, Mr. Jeremiah was assisted to get up and Constable Milburn was instructed to take the cuffs off Mr. Jeremiah, which he did readily and there was no refusal to Sergeant Pidgeon's orders.

[64] Mr. Jeremiah got out the documents relevant to the dealer plate. Sergeant Pidgeon apologized for the totality of what happened but not the officers' actions.

[65] In cross-examination, Sergeant Pidgeon agreed that there was no plan when Constables Milburn and Smith got out of the police van. There was no specific knowledge of any crime being committed. There was no discussion of a weapon before the two police officers got out. Constable Milburn did ask Mr. Jeremiah to step out of the vehicle for everybody's safety.

[66] Sergeant Pidgeon testified at trial that if even they believed a weapon was being hidden, their approach would not have been different. However, at the discovery, Sergeant Pidgeon at questions 175-178, testified that if they had known there was a weapon, their response would have been different. Sergeant Pidgeon explained that if Gibson had said he saw a weapon, the response would be different. If Gibson said he believed he saw a weapon, the response would not be different.

[67] At question 96 of the discovery, Sergeant Pidgeon testified that the plan or expectation was that Mr. Jeremiah and the passenger would be investigated. The investigation was based on a constellation of factors including the high crime neighbourhood, the easily stolen Chrysler, two men late at night sitting in the Chrysler, no front plate, and the heightened concern from Constable Gibson's observation of the driver's hand movement and possible concealment of something. The hand movement took the investigation to a different level.

[68] The police and Constable Milburn were investigating whether there was a weapon or something illegal in the car, whether the car was legally plated and/or stolen, and they wanted the identity of the occupants.

[69] Sergeant Pidgeon didn't volunteer the dealer plate information when he saw it because it was not relevant at that moment.

[70] Sergeant Pidgeon did not ask Constable Gibson what he saw regarding the driver's hand movement because it happened so fast. There were no descriptions of race in Sergeant Pidgeon's notes as the occupants of the Chrysler were not accused of any crime.

Constable Andrew Poustie

[71] Constable Poustie called the incident in and put 1:39 a.m. as that was the time he got from dispatch. The incident occurred from about 1:30 a.m. to 1:39 a.m. Constable Poustie called dispatch to report the incident.

[72] Constable Poustie was seated at the very rear of the police van and also saw that the Chrysler had no front plate as required by the HTA with some exceptions. Constable Poustie felt the vehicle required further investigation. As they approached the Chrysler, Constable Gibson made a comment that the driver was concealing something between the seats. When Constables Milburn and Smith got out of the van, Sergeant Pidgeon directed him to stay in the van.

[73] Constable Milburn grabbed the driver's left arm and got him out of the vehicle. Later when Constable Milburn was struggling with Mr. Jeremiah outside the Chrysler, Constable Milburn asked for help. Constable Poustie helped put the handcuffs on Mr. Jeremiah.

[74] Mr. Jeremiah was then put to the ground. Constable Poustie had nothing to do with that. Mr. Jeremiah was put on his stomach and was not injured. Constable Milburn did not place his knee on Mr. Jeremiah's groin. Mr. Jeremiah was turned several times so that he could be searched. Mr. Jeremiah's wallet was found. Constable Gibson found a Bluetooth ear piece in the Chrysler.

[75] Sergeant Pidgeon then directed, one time, that Mr. Jeremiah's handcuffs be removed and Mr. Jeremiah was released unconditionally.

[76] There were no references to "boy" or any racial slurs or comments. Mr. Jeremiah's race was irrelevant.

[77] Constable Poustie testified he has zero tolerance for racism. He is married to a biracial woman and has biracial children.

[78] In cross-examination, Constable Poustie indicated there was no discussion regarding whether to stop when approaching the Chrysler vehicle.

[79] Constable Poustie called into dispatch to call in a traffic stop. However, dispatch recorded the incident as a subject stop, not a traffic stop. Dispatch put in the coding according to the information provided to them by Constable Poustie.

[80] At no time did Constable Poustie do anything aggressive regarding pushing, punching and he didn't flee. Mr. Jeremiah's resistance to handcuffing was pulling away from the handcuff attempt.

Sean Smith

[81] Constable Smith testified he was in the front passenger seat of the police van as they approached the Chrysler. Constable Gibson, as they proceeded through the West Avenue and King Street intersection, pointed out the Chrysler and stated that the driver put something under the seat. The Chrysler had two occupants and no front plate. The concealment attempt and no front plate indicated it was highly possible that something was wrong.

[82] Constable Smith got out of the van with Constable Milburn.

[83] Constable Smith saw the rear dealer plate on the Chrysler. He did not advise the other officers about the dealer plate. Constable Smith still had officer safety concerns given Constable Gibson's remark.

[84] Constable Smith looked inside the vehicle with his flashlight, Constable Smith opened the passenger door which was unlocked. The passenger provided his verbal ID and address and was very co-operative. The passenger was trying to calm down the driver. The other three police officers were in the van. The passenger voluntarily exited the vehicle. Constable Milburn did not threaten the driver. Constable Smith's impression was that the conversation with Constable Milburn and the driver was going sideways. The driver was resistant to answering questions and was answering questions with questions. The driver became upset, his voice was elevated declaring that he was not doing anything wrong and didn't have to tell the officer anything. Constable Milburn did not threaten to punch Mr. Jeremiah.

[85] Mr. Jeremiah was then being removed from the car as Constable Milburn appeared to be arresting him. After Constable Gibson found the blue tooth device, Mr. Jeremiah was released and Sergeant Pidgeon spoke to him.

[86] No one used the term "boy". There were no racial slurs and no use of force was threatened. Mr. Lokofe was very co-operative and race played no role in the incident.

[87] In cross-examination, Constable Smith confirmed that he saw the dealer plate but did not pass this information on to Constable Milburn. The initial investigation was regarding what was under the seat. Constable Smith agreed that the fact of the dealer plate was not relevant to the circumstances of Constable Milburn's and Constable Smith's investigation.

[88] Mr. Lokofe raised his voice only to tell the driver to calm down.

[89] At the discovery, Constable Smith said that their main concern was officer safety – he was looking for any weapons or something illegal when looking in the Chrysler with his floodlight. They were investigating potential criminal activity. However they did not see any criminal activity.

[90] Constable Smith indicated there were no other police on his side. Constable Smith may have raised his voice to get Mr. Lokofe's attention. Constable Smith did not touch Mr. Lokofe as Mr. Lokofe was being co-operative and there was no need to search him. Mr. Lokofe was not threatened and he was not called "boy".

[91] The other three officers stayed in the van until Constable Milburn asked for assistance.

[92] Constable Smith agreed that all five officers could have gotten out of the van if there were real concerns regarding officer safety. However, there are a lot of factors to consider, including public perception. Race was not mentioned in his notes as there was no reason for description due to no crime being committed.

constable Brent Gibson

[93] Constable Gibson noted that the Chrysler had no front licence plate when their van approached the Chrysler.

[94] Constable Gibson observed the driver moving something and placing it down by the driver seat. Constable Gibson told the others what the driver's hand were doing.

[95] This was just a traffic stop and not a high risk takedown. Initially, Sergeant Pidgeon instructed Constables Poustie and Gibson to stay in the van. Sergeant Pidgeon stated, "let's not make this into a spectacle." Constable Gibson later looked under the driver seat and found the blue tooth device.

[96] Constable Gibson saw the dealer plate at the back of the vehicle. There were no racial slurs used. The term "boy" was not used. Race played no role.

[97] In cross-examination, Constable Gibson indicated that Sergeant Pidgeon stated, "let's not make this a spectacle", at the beginning of the event. However, earlier in his discovery, Constable Gibson indicated Sergeant Pidgeon said this at the end of the event. Constable Gibson indicated his trial evidence was in error. Those words by Sergeant Pidgeon were used at the end of the event.

ANALYSIS OF EVIDENCE

[98] I find Mr. Lokofe's evidence to be neither credible nor reliable and I reject it.

[99] The gist of Mr. Lokofe's evidence is that the police arrived and two or three officers surrounded each side of the Chrysler. The police were loud and screaming telling them to get out of the vehicle. At first Mr. Lokofe said there were not many questions but just orders for them to get out of the vehicle. Later in his testimony, Mr. Lokofe indicated there were no questions. "It was not like the police asked a question and were told no and started being aggressive". The police "came right away aggressive". In cross-examination Mr. Lokofe testified he didn't think it was less than three officers who pulled Mr. Jeremiah out of the car. It was like the police attacked them. To summarize his evidence, Mr. Lokofe described the police action as an attack akin to a gangland or military ambush style attack for no reason at all. Mr. Lokofe is a refugee from war and violence in the Congo and this police attack, "remind me of Congo to be honest."

[100] This evidence is not only contradicted by all five police officers but also in large part by Mr. Jeremiah himself who described questioning back and forth with him demanding to know why Constable Milburn needed to see Mr. Jeremiah's licence. Mr. Jeremiah's and the police evidence indicates that it was only Constable Milburn who forced Mr. Jeremiah out of the car.

[101] All five police officers denied calling anyone "boy" or invoking any racial slurs at all. Mr. Jeremiah did not testify to hearing any racial slurs. Constable Poustie testified that he is married to a biracial woman and has biracial children and would not tolerate any type of racism. I conclude that no one called Mr. Lokofe "boy" and no racial slurs were directed at any occupants of the car.

[102] It is clear from the evidence that the police were concerned with an object hidden in the Chrysler and that officer safety was a concern, to some degree, for the officers, especially Constable Milburn and Constable Smith. Despite this according to Mr. Jeremiah, Constable Milburn upon being refused Mr. Jeremiah's licence, put his head into the window of the car and when his face was right next to Mr. Jeremiah's face said "give me your licence or I'll punch you in the face." Constable Milburn denied placing his head into the window and denied making any threats. Making a threat like that with a weapon possibly being easily accessible to Mr. Jeremiah and/or Mr. Lokofe would be extremely reckless. Finally, Constable Smith was nearby speaking to Mr. Lokofe and heard no threats. Given Constable Smith's evidence in addition to the unlikely probability that Constable Milburn would recklessly put his head into a car and make threats with the occupants possibly having easy access to weapons, I reject Mr. Jeremiah's evidence that Constable Milburn threatened to punch Mr. Jeremiah in the face.

[103] Constable Milburn's evidence at trial was that one of the constellation of factors affecting Constable Milburn's conduct was that there was a crack house nearby. There is nothing in Constable Milburn's notes or occurrence report about a crack house nearby. There was no mention of a crack house in Constable Milburn's discovery in November of 2015. Constable Milburn had no direct knowledge of the crack house and could not say who gave him this information. No other officer expressed a crack house concern.

[104] I conclude that Constable Milburn made up the crack house concern at trial to bolster the constellation of factors involved in investigating Mr. Jeremiah. I reject Constable Milburn's crack house evidence. Further, Constable Milburn testified that Mr. Lokofe was yelling at Constable Smith. Constable Smith's evidence contradicts this evidence. Constable Smith testified that Mr. Lokofe was cooperative throughout. Mr. Lokofe verbally identified himself; Mr. Lokofe told Mr. Jeremiah to calm down; Mr. Lokofe left the car without being touched. The evidence of the other officers and the circumstances of Mr. Lokofe providing his ID evidence and not having any injuries of any kind confirms Constable Smith's version of events vis-à-vis Mr. Lokofe. Constable Smith's evidence contradicts Constable Milburn's version of Mr. Lokofe's yelling behaviour and I reject Constable Milburn's evidence in this regard.

CONCLUSION: ISSUE #1

What happened from the time police approached the plaintiff's vehicle to the subsequent release of the plaintiff?

[105] All five police officers testified that they observed that the Chrysler had no front plate and this potentially would be an HTA offence.

[106] Yet when Constable Smith and Constable Gibson saw the rear dealer plate, nothing was said about it to Constable Milburn.

[107] Constable Smith testified that the original investigation was concerned with what was under the seat. Constable Poustie called the incident into dispatch which recorded the incident as a subject stop and not a traffic stop.

[108] Sergeant Pidgeon, who was in charge of the ACTION Unit, testified that when Constable Milburn and Mr. Jeremiah's voices started rising, Sergeant Pidgeon got out of the van and saw the dealer plate. Sergeant Pidgeon did not say anything about the dealer plate to Constable Milburn because "it was not relevant at that moment." The police were investigating and Constable Milburn was investigating whether there was a weapon or something illegal in the car, and/or criminal activity, and they wanted the identity of the occupants.

[109] Constable Milburn testified that given the circumstances, the Chrysler, the late hour, a high crime rate area, and Constable Gibson's comments about something being hidden at the driver's seat, Constable Milburn concluded there was criminal activity. Constable Milburn was concerned about Constable Gibson's observations of something being hidden in the car. Constable Milburn had a suspicion that something was not right here.

[110] Putting it all together, I conclude that despite all the officers observing that the Chrysler had no front plate, this investigation was not about the absence of the front plate. Once Constable Gibson told the officers about the possibility of the driver hiding something upon the police approach, Constable Milburn and the police then conducted a criminal investigation. This is why Sergeant Pidgeon, the officer in charge, saw the dealer plate while Constable Milburn was engaged with Mr. Jeremiah but did not tell Constable Milburn about it. In Sergeant Pidgeon's words, "it was not relevant at that moment."

[111] As indicated in the dispatch report, this was a subject stop, not a vehicle stop. I conclude that when Constable Milburn spoke to Mr. Jeremiah, the police were conducting a criminal investigation into what was being concealed in the Chrysler vehicle.

[112] Instead of telling Mr. Jeremiah that he was conducting a criminal investigation into the contents of the Chrysler, Constable Milburn instead demanded to see Mr. Jeremiah's licence. Mr. Jeremiah refused to provide it and Constable Milburn continued to demand the licence and/or ID which Mr. Jeremiah refused to provide, arguing he was doing nothing wrong, which was truthful information. Constable Milburn testified that upon hearing Mr. Lokofe yell at Constable Smith (which I find did not happen) he was concerned for his safety and then decided to end it by arresting Mr. Jeremiah. Mr. Jeremiah was then removed from the car, handcuffed and put on the ground. Mr. Jeremiah was released shortly after the Bluetooth device was discovered which confirmed to the police that Mr. Jeremiah was committing no criminal offences.

[113] In cross-examination, Constable Milburn agreed with the suggestion that what was going through his mind was what these two men were up to. Constable Milburn agreed that his concerns about the two men had nothing to do with the HTA. Constable Milburn agreed that it had to do with his concern that they were in a drug neighbourhood, something to do with drugs and criminal activity, and the police were going to find out what it was. When Constable Gibson said he saw something being placed or hidden in the front seat, it reinforced Constable Gibson's thoughts that there could be criminal activity.

[114] Constable Pidgeon testified in cross-examination that, after Constable Gibson made his observation of Mr. Jeremiah's hand movement, the investigation was raised to a different level. Sergeant Pidgeon indicated they wanted to resolve whether there was a weapon or not and then they would conduct an investigation to see whether the car was legally plated and whether the person who has the car legally possesses the car. At the discovery on p. 24, Q.96, Sergeant Pidgeon testified,

I was hoping that Mr. Jeremiah would listen to how we – why Ian was articulating why he was being stopped and that he would identify himself. We could conduct an investigation on both the passenger and driver of the vehicle and we would hopefully go on our way.

Sergeant Pidgeon agreed that the investigation included whether the car was stolen and identifying the passenger. When Sergeant Pidgeon got out of the van and saw the dealer plate, he did not volunteer that information because it was not relevant at that moment. Accordingly, I conclude that the police purpose in detaining both the driver and passenger was to further an investigation for possible ongoing criminal activity by either the driver and/or passenger and was not in furtherance of any HTA purposes.

[115] I conclude, after consideration of all the evidence:

1. The stop and detention of Mr. Jeremiah was not pursuant to any HTA purposes. The stop and detention was done to further an investigation into potential criminal activity being committed by Mr. Jeremiah and/or the passenger, Mr. Lokofe.

2. The arrest of Mr. Jeremiah, according to Constable Milburn, was due to officer safety concerns because Mr. Lokofe was yelling at Constable Smith. This evidence from Constable Milburn is not credible and as indicated, I find that Mr. Lokofe was not yelling at Constable Smith. Accordingly, I find that Constable Milburn did not arrest Mr. Jeremiah due to officer safety concerns. It is reasonable to conclude that Constable Milburn was frustrated with Mr. Jeremiah's refusal to hand over his licence and frustrated with Mr. Jeremiah's demands for explanation. I conclude that Constable Milburn arrested Mr. Jeremiah due to Mr. Jeremiah's refusal to cooperate with the police investigation.

3. Upon Mr. Jeremiah's arrest, Sergeant Pidgeon directed Constable Gibson to search the Chrysler and Constable Gibson located a Bluetooth device. At the time of the search, Mr. Jeremiah was outside of the car and handcuffed. Mr. Lokofe was also outside of the car. Constable Gibson testified his main concern was seeing if an unsecured weapon was in the vehicle but did not know what was in the vehicle. I find that this search was no longer necessary for officer safety concerns as the driver and passenger were outside of the car and had no access to the contents of the car. This search at best was a search incidental to arrest or simply, a warrantless search further to the ongoing criminal investigation being conducted by the police.

ISSUE #2

Did the police have the authority in these circumstances to conduct an investigative detention and arrest of the plaintiff?

LAW

[116] At issue in this case is the classic issue of balancing the right of the individual to resist police questioning and interference with individual liberty in a free and democratic society, with the duty and power of the police to legitimately and legally interfere with an individual's right to freedom in order to protect that free and democratic society from criminal and/or illegal activity. As indicated by Justice Doherty in Brown v. Durham (Regional Municipality) Police Force, 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223, 116 O.A.C. 126, at para. 79, "we want to be safe but we need to be free."

THE CHARTER

[117] The legal rights relevant to this matter are set out at paras. 7-10 of the Canadian Charter of Rights and Freedoms:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

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

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

THE BASIC PRINCIPLES OF RIGHT TO LIBERTY AND SECURITY

[118] Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly the State), may act only to the extent they are empowered to do so by law – see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.

[119] While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly. As a result police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch nor cannot become a de facto arrest – see Mann, at para. 35.

THE RIGHT TO REMAIN SILENT

[120] In R. v. Esposito, 1985 CanLII 118 (ON CA), 53 O.R. (2d) 356 (C.A.), the Court held at para. 15:

A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he things that useful information can be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.

See also, R. v. Dedman, 1981 CanLII 1631 (ON CA), 32 O.R. (2d) 641 (C.A.), at pp. 652-3, and R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at para. 21.

[121] There is generally no legal obligation, in the absence of a statutory duty to do so, that requires an individual to identify him or herself to the police. The police have the right to ask but the individual has to right to refuse to answer – see R. v. Greaves, 2004 BCCA 484, 203 B.C.A.C. 31, at paras. 47-50.

[122] A police officer has the right to ask questions even if he or she has no belief that an offence has been committed. While there may be a social or moral duty to answer, there is no legal duty to answer – see R. v. Grafe, 1987 CanLII 170 (ON CA), 36 C.C.C. (3d) 267, at p. 4.

[123] The right of an individual not to answer any police questions is deeply rooted in Canadian and British legal tradition. The right to remain silent operates at all stages of the criminal process – pre-detention, post detention, upon and post-arrest, at the preliminary hearing, and at the trial stage – see Esposito, at pp. 6-8. The right to silence has been constitutionally entrenched in s.7 of the Charter – see R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 45.

[124] Even though an individual has no obligation to answer questions put to him by the police, the individual, if he chooses to answer, may be charged for dishonest answers. In Grafe, the accused was charged with personation by giving a false name to police officers in circumstances where he was not suspected of any offences and the police asked for his name.

WHAT IS "DETENTION"?

[125] In Grafe, the brief encounter between the police, where no offence was suspected and the police asked for names, was held not to be a detention which would invoke the rights outlined in the Charter at ss.9 and 10.

[126] Preliminary questioning of bystanders where police believe a crime has been recently committed may not give rise to a detention under s.9 and s.10 of the Charter – see R. v. Seberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 28-31.

[127] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44, the Supreme Court of Canada defined "detention" as follows:

In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether [page 385] a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigations.

b) The nature of the police conduct, including the language used; the use of physical contact the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

INVESTIGATIVE DETENTION

[128] The police may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary – see Mann, at paras. 23, 45; R. v. MacKenzie, 2013 SCC 50, [2013] S.C.R. 250, at para. 38, R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, at para. 25.

[129] Further, where the police have reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat down search of the detained individual. Both the detention and the pat down search must be conducted in a reasonable manner. The investigative detention should be brief and there is no obligation on the detained individual to answer questions by the police. The investigative detention and protective search are to be distinguished from an arrest and the incidental power to arrest – see Mann at para. 45.

WHAT CONSTITUTES REASONABLE GROUNDS TO SUSPECT THE INDIVIDUAL IS CONNECTED TO A CRIME?

[130] The Ontario Court of Appeal in R. v. Simpson, 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), held that investigative detention are only justified at common law "if the detaining officer has some "articulable cause" for the detention." Articulable cause was defined by Justice Doherty at p. 202 as "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation." Articulable cause has a lower threshold than reasonable and probable grounds for lawful arrest and has both an objective and subjective standard – see Mann at para. 27. Articulable cause is not sustained by an officer's hunch based on intuition gained by experience – see Simpson at p. 202, Mann, at para. 30. Nor can it become a de facto arrest – see Mann at para. 35.

[131] Justice Iacobucci summarizes the guiding principles governing investigative detentions as follows at paras. 33-35 of Mann:

33 With respect to terminology, I prefer to use the term "reasonable grounds to detain" rather than the U.S. phrase "articulable cause" since Canadian jurisprudence has employed reasonable grounds in analogous circumstances and has provided useful guidance to decide the issues in question. As I discuss below, the reasonable grounds are related to the police action involved, namely, detention, search or arrest.

34 The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

35 Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

WHAT IS THE PROCEDURE TO BE FOLLOWED IN AN INVESTIGATIVE DETENTION ANALYSIS?

[132] The Canadian courts have adopted a two prong test in determining whether a police officer has acted within his power – see. R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 34-36. This two prong test is derived from the English Court of Appeal in R. v. Waterfield, [1963] 3 All E.R. 659.

[133] The Supreme Court of Canada has applied the two-step Waterfield test in a variety of contexts in assessing whether an action constituting prima facie infringement of an individual's liberty falls within an officer's power – see MacDonald, at para. 34. In these situations, the Courts consider:

1. Does the police conduct, giving rise to the interference, fall within the general scope of any duty imposed on the officer by statute or common law? At common law, the nature and scope of police duties include the preservation of the peace, prevention of crime and the protection of life and property – see Mann at paras. 24-26.

2. If threshold criteria #1 is met, as outlined above, the analysis continues to consider secondly whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers with the duty. This involves the guiding principles of "reasonable cause to detention", "articulable cause" and the other principles outlined in paras. 33-35 of Mann as outlined above. At this second stage, the Court considers whether "the interference must be necessary to carry out the particular police duty and it must be reasonable having regard to the nature of the liberty interfered with and the importance of the police purpose served by the interference" – see MacDonald, at paras. 35-36.

DISTINCTION BETWEEN INVESTIGATIVE DETENTION AND ARREST

[134] The distinction between reasonable probable grounds (required for an arrest) and "reasonable suspicion" (required for investigative detention) was outlined by Binnie J. in R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 75-76:

75 The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123.

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]

Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). See also R. v. Cahill (1992), 1992 CanLII 2129 (BC CA), 13 C.R. (4th) 327 (B.C.C.A.), at p. 339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

76. The U.S. Fourth Amendment cases were reviewed by the Ontario Court of Appeal in connection with investigative stops based on reasonable suspicion in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, where Doherty J.A. concluded, at p. 202:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard . . . serves to avoid indiscriminate and discriminatory exercises of the police power. [Emphasis added.]

The Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as "articulable cause". The Simpson description of "articulable cause" was treated as equivalent to "reasonable suspicion" in the context of s. 99(1) (f) of the Customs Act in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, per Gonthier J., at para. 24, and Major J., at para. 52, and I conclude that it applies to "reasonable suspicion" in the present context as well. See also R. v. Ferris (1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298 (B.C.C.A.), at para. 37.

[135] In the context of an arrest, "reasonable grounds" means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous with "reasonable and probable grounds". In the context of investigative detention, "reasonable grounds" means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with "reasonable suspicion".

[136] Reasonable suspicion is a matter of possibilities while reasonable and probable grounds is one of probabilities – see MacKenzie, at para. 30, R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27, and Kang-Brown at para. 164.

[137] Reasonable suspicion is a lower standard as it engages the reasonable possibility rather than probability of crime – see Chehil at para. 27. The hallmark of reasonable suspicion is that a sincerely held belief is insufficient. Reasonable suspicion must be grounded in objectively discernible facts, which can then be subjected to independent judicial scrutiny – see MacKenzie at para. 41.

[138] Reasonable suspicion must be assessed in the totality of the circumstances. There is a need for sufficiently particularized constellation of factors. The totality of the circumstances including favourable and unfavourable factors must be considered; the officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable – see Chehil at paras. 25-30.

[139] An officer's educated guess, hunches, or intuition based on experience, standing alone, does not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard – see Chehil at para. 47.

[140] Rigorous judicial scrutiny is an independent review that ensures that suspicion is supported by objectively ascertainable factors, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment."

[141] The constellation of facts must be based in the evidence, tied to the individual and capable of supporting a logical inference of criminal behaviour.

[142] If the link between the constellation and criminality cannot be established by way of logical inference, the Crown must lead evidence to connect the circumstances to criminality – see Chehil at para. 46.

[143] An officer must have reasonable grounds to suspect that there is a clear nexus between the individual detained and a recent or ongoing offence. The courts have specifically noted that suspicion based on a hunch or the high crime nature of a neighbourhood or place are not reasonable grounds to suspect and therefore cannot be the basis, by itself, for detaining individuals – see Mann at para. 47 and Simpson at para. 61.

RANDOM MOTOR VEHICLE STOPS

[144] The Supreme Court of Canada in R. v. Dedman 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, after conducting the two-pronged Waterfield test, held there was common law authority for random vehicle stops made on a purely arbitrary basis, pursuant to a RIDE program, without any grounds for suspicion or belief that the particular driver was committing an offence. – see Dedman at paras. 68-69. The RIDE program had, as its object, to detect and deter impaired driving, a notorious cause of injury and death and this important public purpose was not an unreasonable interference with the right to circulate in the public highway.

[145] Section 216(1) of the HTA states:

Power of police officer to stop vehicle – A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[146] Justice Watt in R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, outlines the law regarding random vehicle stops at paras. 55-64:

55 Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham, at para. 21; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

56 In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24.

57 A trial judge's finding that highway regulation or safety concerns was a purpose that animated a traffic stop is a finding of fact. As a consequence, the finding is subject to deference and cannot be set aside by this court unless it is unreasonable or based upon a material misapprehension of the evidence adduced at trial: Brown v. Durham, at para. 27.

58 Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

59 Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 254-55.

60 Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor: Simpson, at pp. 492-493.

61 Police duties and their authority to do things in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it helped the police perform their assigned duties. Where that conduct interferes with the liberty or freedom of an individual, it will be lawful only if and to the extent it is authorized by law: Simpson, at p. 493.

62 Absent statutory authority to legitimize police conduct, the common law may provide a place of refuge. Precedents supports a two-step analysis where police conduct interferes with an individual's liberty. The first inquiry or step requires a determination of whether the police conduct that gives rise to the interference falls within the general scope of any duty imposed upon an officer by state or at common law. Where this threshold has been met, the second step or stage requires a determination of whether the conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty: Mann, at para. 24. This is the Waterfield test, first expressed by the English Court of Criminal Appeal, and adopted, refined and incrementally applied by our courts: Mann, at para. 25. See also R. v. Waterfield, [1964] 1 Q.B. 164 (C.A.).

63 The second step or stage involves and requires a balancing of the competing interests of the police duty and the liberty interests at stake. This entails consideration of whether an invasion of individual rights is necessary for the police to perform their duty, and whether the invasion is reasonable, in light of the public purposes served by effective control of criminal conduct, on the one hand, and respect for the liberty and fundamental dignity of individuals, on the other: Mann, at para. 26. Several factors exert an influence in applying this second test, the justifiability assessment:

i. the duty being performed;

ii. the extent to which some interference with individual liberty is necessary to perform that duty;

iii. the importance to the public good of the performance of that duty;

iv. the liberty intruded upon;

v. the nature and extent of the intrusion; and

vi. the context in which the police/citizen confrontation took place.

See Mann, at para. 26; Simpson, at pp. 499-500.

64 Where a person is detained by police in the course of efforts to determine whether that person is involved in a criminal activity being investigated, that detention can only be justified if the detaining officer has some articulable cause, or said in another way, reasonable grounds to suspect, the person is involved in the investigated activity. This standard includes both objective and subjective components: Mann, at paras. 27 and 33; Simpson, at p. 500.

[147] In R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, the Supreme Court of Canada outlined the limited uses of random checks for highway purposes at paras. 3, 4, 21-25:

3 Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into "an unfounded general inquisition or an unreasonable search": R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 624.

4 Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Analysed in this way, I believe the majority reached the correct conclusion. I would dismiss the appeal.

21 At the heart of this appeal lies the thorny issue of warrantless searches conducted in conjunction with random roadside stops. A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone "the right to be secure against unreasonable search or seizure". In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278, and R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10.

22 The appeal also engages s. 9 of the Charter ("the right not to be arbitrarily detained or imprisoned"). A random vehicle stop on the highway is, by definition, an arbitrary detention: Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257 (hereinafter "Ladouceur (Ont.)"); Mellenthin; and R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214. The detention will only be justified under s. 1 of the Charter (Hufsky, at p. 637) if the police act within the limited highway-related purposes for which the powers were conferred (Ladouceur (Ont.), per Cory J., at p. 1287).

A. The Initial Stop

23 Random roadside stops must be limited to their intended purposes. "A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over", per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana a couple of hours later as well as the follow-up "inventory search" the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. 8 or s. 9 of the Charter. A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.

24 Much of the debate on the appeal focussed on whether the search of the duffle bag was or was not covered by s. 63(5) of the H&TA. This inquiry is important but not sufficient. A distinction must be drawn between the existence of a police power and the further issue of whether that power, otherwise legal, is exercised in violation of s. 8 of the Charter, having regard to a trucker's reasonable expectation of some privacy in the sleeping area of the cab. An exclusive focus on police powers under the H&TA may not give adequate weight to Charter concerns. Equally, restricting the Court's focus to the Charter may distract attention from the important preliminary question of whether the police possessed the power to conduct a search in the first place.

25 The Court has ruled on a number of occasions that pursuant to statutory authority, the police officers can randomly stop persons for "reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle": Ladouceur (Ont.), at p. 1287. See also R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41; Mellenthin, at p. 624. The courts below held that the appellants' truck was stopped for the valid purpose of carrying out an H&TA document check, and this issue is no longer seriously in dispute. The stop was valid. On this basis, the case is readily distinguishable from our Court's recent ruling in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, where the accused had been pulled over for no valid purpose. The police equally exceed their powers in the Saskatchewan case of R. v. Ladouceur, 2002 SKCA 73, 165 C.C.C. (3d) 321 (hereinafter "Ladouceur (Sask.)"), where the officers set up a random stop program called "Operation Recovery" specifically to detect not only highway infractions but to "locate contraband being transported on our highways" (para. 69). For that purpose the Saskatchewan checkpoint was staffed not only with police, but on occasion customs and immigration officials, "tobacco people", wildlife officials and sniffer dogs (para. 44). The random stop program in Ladouceur (Sask.) was designed as a "comprehensive check for criminal activity" (para. 43) and was therefore fatally flawed from the outset.

APPLICATION OF LAW TO FACTS

[148] As indicated at paras. 111-113 of this decision, the police were conducting a criminal investigation into what was being concealed in the vehicle. Mr. Jeremiah was already stopped but the police power to randomly stop, detain, and investigate him did not exist under the HTA because the police investigation did not relate to driving violations such as checking a driver's licence, insurance, sobriety of driver, and mechanical fitness. The police's purpose in detaining and investigating Mr. Jeremiah was pursuant to a criminal investigation into the contents of the car (i.e. that the movement of Mr. Jeremiah's hands in the vehicle related to concealing some illegal object, possibly a weapon).

[149] In the words of Justice Watt at paras. 60 and 71 of Gonzales, where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor.

[150] As indicated at para. 62 of Gonzales, once statutory authority to legitimize police conduct is removed, the common law must be examined to see if precedents support the police conduct that interfered with a person's liberty.

[151] Per Mann at para. 24, the two stage Waterfield test is to be applied to determine whether a police officer has acted within his common law powers. The first question to be asked is: Does the police conduct, giving rise to the interference, fall within the general scope of any duties imposed by statute or at common law?

[152] I find, pursuant to the evidence adduced at trial, the police were part of Team 1 of ACTION Squad. Their duty was to attend at high crime areas and proactively seek out offenders engaged in criminal activities and provincial statute violations. Constable Milburn's investigation of potential criminal activity by Mr. Jeremiah falls within the scope of his common law and statutory duty to investigate crime and apprehend those who may be responsible for it. This satisfies the first requirement of Waterfield.

[153] The second threshold to be met requires a consideration of whether the stop and detention, albeit within the general scope of common law and statutory duties, involved an unjustifiable use of power associated with that duty – see Mann at paras. 24 and 26, and Gonzales at para. 74.

[154] Investigative detentions are to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence – see Mann at para. 34.

[155] Investigative detentions are only justified at common law "if the detaining officer has some 'articulable cause for the detention' – i.e. there exist a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation" – see Mann at para. 27.

[156] Constable Milburn testified that one of the constellation of factors was that there was a crack house nearby. Constable Milburn had no knowledge of the crack house and could not say who told him about it. No other officer mentioned it. I concluded at para. 105 of this judgment that I reject Constable Milburn's evidence regarding this crack house and that Constable Milburn made it up to bolster the weak constellation of factors that the police were operating on.

[157] As indicated by Doherty in Simpson at para. 61, attendance at the site of ongoing criminal activity may contribute to the existence of articulable cause. Given that I reject Constable Milburn's evidence regarding the crack house, this evidence cannot be a factor that can support articulable cause.

[158] The Chrysler was parked in a high crime rate area. Statistics regarding the crime rate were not given. Churches, law abiding citizens reside there and the Central Police Station is nearby. As indicated in Mann at para. 47, the high crime nature of a neighbourhood is not by itself a basis for detaining individuals; the presence of an individual in a high crime area is relevant only so far as it reflects his or her proximity to a particular crime. Were it otherwise, the police would have a general warrant to stop anyone who happened to attend at any place which the police had a reason to believe would be the site of ongoing criminal activity – see Simpson at para. 61.

[159] Mr. Jeremiah's Chrysler was of a type that has a higher theft rate, according to the police evidence. No statistics were provided. According to the police, there was a possibility, given the front plate was missing, that the Chrysler might be stolen. However, stops and detention are not static events – see Nolet at paras. 4 and 23. Almost immediately, the police became aware of the dealer plate and hence no front plate was required – see R.R.O. 1990, Reg. 628 Vehicle Permits – s. 9(3) and s. 9(5) and 13.3(1).

[160] Accordingly, other than an unspecified percentage of Chrysler Sebrings that get stolen, there is no evidence at all that this particular Chrysler was stolen or might be stolen. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, an OPP officer noticed that the accused's vehicle had no front plate, which for an Ontario registered car would constitute an offence. However, upon following it, the officer noted the rear plate was registered in Alberta and the vehicle did not require a front plate. The car was pulled over anyway. The Court held at para. 20, "given that the officer recognized prior to the detention that the appellant's SUV did not require a front licence plate, he should not have made the initial stop. A vague concern for the integrity of the police, even if genuine, was clearly an inadequate reason to follow through with the detention."

[161] Another factor noted was the time of night, roughly 1:30 a.m. Persons sitting and talking in a car in the early morning hours, without more, cannot be taken as a reasonable cause to suspect that the detainee is implicated in a crime. This leaves only Constable Gibson's comments about something being hidden at the driver seat area. Constable Gibson told the others that the drive moved something and placed it down by the driver seat. Constable Gibson did not see what it was. The police speculated it could be a weapon. I say "speculation" because when Constable Milburn and Constable Smith got out of the vehicle, Sergeant Pidgeon told the others to remain in the police van. I find that if there were real concerns about a weapon, all of the officers would have gotten out of the van together (as testified to by Sergeant Pidgeon).

[162] Reasonable suspicion must be assessed against the totality of the circumstances. The totality here is that the police saw the driver put some unknown thing, which could be anything, in the driver seat of a car parked in a high crime area. This amounts to mere suspicion and possibly a hunch but it is not evidence of the reasonable possibility of a crime.

CONCLUSION

[163] Accordingly, I find that the detention of Mr. Jeremiah was an arbitrary detention. The police had the right to question Mr. Jeremiah. He had the right to refuse. The police had the right to ask for identification. Mr. Jeremiah had the right to refuse to provide any documents. As the police were not pursuing any HTA concerns, Mr. Jeremiah had the right to refuse to hand over his licence for the police purpose of seeking his identity in a criminal investigation– see Greaves at paras. 47-50.

[164] The illegal detention led to an illegal arrest which in turn led to an illegal search of his vehicle which was not justified in these circumstances. The defendants submit the combination of s. 33(3) and s. 217(2) of the HTA authorized the police officer to arrest Mr. Jeremiah as Mr. Jeremiah was refusing to surrender his licence.

[165] Section 33(3) of the HTA requires a driver to surrender a licence for inspection to a police officer for carrying out the provisions of this Act. As stated previously, the police were conducting a criminal investigation of Mr. Jeremiah and were not carrying out the provisions of the HTA.

[166] Further, s. 33(3) allows a person who refuses to surrender his licence, the option of giving other reasonable identification. Section 217(2) gives the police the power to arrest only for an infraction of s. 33(3) – see R. v. Plummer, 2006 CanLII 38165 (ON CA), 214 C.C.C. (3d) 84 (Ont. C.A.), at para. 38. This did not occur in the present circumstances.

[167] The Ontario Court of Appeal in Plummer, at para. 38, noted that the HTA closely circumscribes the power of arrest and places strict limits on police power. The Court concluded at para. 43 that s. 33(3) means that there can be no power to arrest without a warrant until the officer has made the request for alternative identification. The Court concluded that as there was no power of arrest, the arrest was unlawful and the officer unlawfully assaulted the appellant – see Plummer at paras. 48-49.

[168] As Mr. Jeremiah was entirely within his rights to refuse to provide his licence, the police had no right to detain or arrest him for this failure. Constable Milburn testified that he did advise Mr. Jeremiah of the right to produce alternative identification (this would presumably be pursuant to s. 33(3) of the HTA). Mr. Jeremiah testified that Constable Milburn only asked for his licence. Constable Milburn testified that he arrested Mr. Jeremiah because he wanted to "end it" due to officer safety concerns as Mr. Lokofe was yelling at Constable Smith and he was still worried about what was in the car. This is not an arrest due to refusal to produce identification pursuant to s. 33(3) of the HTA. As previously discussed, Constable Milburn gave evidence regarding a "crack" house nearby and I find that Constable Milburn's "crack" house evidence was not credible and this evidence was given in order to bolster the weak constellation of factors which he was relying on. I further find that Constable Milburn's evidence of asking for alternative identification (which was given in response to a leading question given by counsel in chief after Constable Milburn testified he had a duty to ask for Mr. Jeremiah's licence under the HTA to ensure Mr. Jeremiah had a valid licence and insurance) was a further attempt to bolster his reasons for his actions. Accordingly, I accept Mr. Jeremiah's evidence that Constable Milburn only asked for his driver's licence.

[169] Accordingly, s. 33(3) of the HTA does not assist the defendants for two reasons:

1. The stop and detention of Mr. Jeremiah was not pursuant to any HTA purposes as required by s. 33. The stop and detention was done to further an investigation into potential criminal activity being committed by Mr. Jeremiah; and

2. Constable Milburn did not ask for identification, alternative to a driver's licence, as is required before a lawful arrest could be made under s. 33(3) of the HTA – see Plummer at para. 43.

[170] As indicated at paras. 113, 116 of this judgment, I find that Mr. Lokofe never yelled at Detective Smith and accordingly there was no credible reason to arrest Mr. Jeremiah. Further, there was no reason to search Mr. Jeremiah's car. If there was a reasonable suspicion of a weapon, why did all the officers not get out of the van together? Why did no one ask Mr. Jeremiah what was in the car? Why did no one, prior to detention and arrest, tell Mr. Jeremiah about what Officer Gibson saw or that they suspected a weapon or drug or something illegal was in the car? I find that there were no officer safety issues after the detention and arrest of Mr. Jeremiah and the detention of Mr. Lokofe.

[171] The reasonable approach by the police would be to ask the simple questions outlined above.

[172] The power to engage in safety searches is not unbridled. As indicated in MacDonald at paras. 40-41:

40 On balancing these factors, I am convinced that the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the police should have the power to conduct the search.

41 But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).

[173] Given that the police had no idea exactly what was placed in the driver seat, Mr. Jeremiah was handcuffed and arrested (illegally), Mr. Lokofe was detained, and there was absolutely no evidence of any offences being committed, the police were really just acting on a hunch. The police could have enquired about what was in the car before engaging in a search that produced an innocent item.

[174] In any event, the police/state/crown have the burden of showing that a warrantless search is reasonable – see MacDonald at para. 28.

[175] I find that the police have failed to establish that the search of the Chrysler was reasonable and I conclude that the vehicle search violated s. 8 of the Charter.

CONCLUSION: ISSUE 2

Did the police have authority in these circumstances to conduct an investigative detention and arrest of the plaintiff?

[176] The simple answer, as analyzed, is no.

[177] The police had no authority to conduct any of the following actions:

1. Investigative Detention

The police demand for Mr. Jeremiah's arrest accompanied by the demand for Mr. Jeremiah to exit the vehicle resulted in both physical and psychological restraint of Mr. Jeremiah and was a detention – see Grant at para. 44. The detention was not for any HTA purposes but was pursuant to a criminal investigation. The police had no articulable cause and/or no reasonable grounds to suspect that Mr. Jeremiah was involved or connected to any criminal activity – see Gonzales at para. 64. There is no authority for the police to detain Mr. Jeremiah to investigate his connection to criminal activity in these circumstances – see Nolet at paras. 3, 4, and 25.

Accordingly the detention of Mr. Jeremiah was an arbitrary detention contrary to s. 9 of the Charter.

2. The Arrest of Mr. Jeremiah

As indicated, in my review of the facts earlier, I reject Constable Milburn's evidence that he arrested Mr. Jeremiah for officer safety concerns. I find that Constable Milburn arrested Mr. Jeremiah for refusing to hand over his driver's licence. As previously analyzed, Constable Milburn was not pursuing any HTA purposes but was detaining Mr. Jeremiah when there was no legal authority to do so. Mr. Jeremiah was acting within his common law and constitutional rights in refusing to identify himself, in refusing to hand over his driver's licence and in refusing to exit his vehicle. Mr. Jeremiah was committing no criminal offences and there was no articulable cause to reasonably suspect that he was committing any criminal offences.

It follows obviously that Constable Milburn had no reasonable grounds to arrest Mr. Jeremiah – see Gonzales at para. 95. Constable Milburn accordingly conducted an illegal arrest of Mr. Jeremiah and loses the protection of s. 25 of the Criminal Code. Accordingly, by conducting an unlawful arrest on Mr. Jeremiah, Constable Milburn assaulted and briefly forcibly confined Mr. Jeremiah without legal authority – see Plummer at paras. 48-49.

3. The Search of Mr. Jeremiah's Vehicle

Upon Mr. Jeremiah's arrest and handcuffing, Constable Gibson searched the front seat area of Mr. Jeremiah's vehicle for a weapon. Constable Gibson found a Bluetooth. As previously analyzed, there were no officer safety concerns at this point and the warrantless search was conducted to further a criminal investigation which was unsupported by any reasonable or articulable grounds to suspect a criminal offence was committed or being committed by Mr. Jeremiah.

Given that Mr. Jeremiah was unlawfully arrested, that there were neither reasonable grounds to suspect nor reasonable and probable grounds to believe he had committed any offences and since officer safety was no longer an issue, this search was not necessary or reasonable.

There is a strong causal connection between the illegal detention and arrest and the search incidental to the arrest – see Gonzales at para. 171.

A search cannot be justified on a vague concern for safety – see MacDonald at paras. 40 and 41. Given there were no articulable grounds to suspect Mr. Jeremiah of any offence, there were no objective reasonable reasons to search the vehicle – see R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 20-25. Further, it is clear that the arrest of Mr. Jeremiah was an unlawful arrest. The power to search incidental to arrest requires that the search be incidental to a lawful arrest – see Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at paras. 49 and 59.

ISSUE #3

Did the police use reasonable force in the circumstances?

[178] The police engaged in an unlawful arbitrary detention, contrary so s. 9 of the Charter and a subsequent unlawful arrest. Having lost the protection of s. 25 of the Criminal Code, Constable Milburn engaged in an assault of Mr. Jeremiah by forcibly removing him and "grounding" him. Accordingly, the police did not use reasonable force in these circumstances.

[179] Further, s. 10(a) of the Charter indicates that everyone has the right on arrest or detention to be informed of the reasons therefor.

[180] Mr. Jeremiah was being investigated and detained for suspected involvement in hiding a weapon or some other illegal object in his car. The police had an obligation upon detaining Mr. Jeremiah to advise him in clear language of the reasons for his detention – see Gonzales at para. 122. Had Constable Milburn been forthright and honest with Mr. Jeremiah about the real purpose of his investigation, it is very possible that the night's events might have taken a different course.

[181] Steve Summerville was qualified as an expert respecting the education and training of police officers regarding the lawful application of force and exercise of judgment.

[182] Mr. Summerville's opinion was that reasonable officers in like circumstances would have attempted effective communication strategies and/or conflict resolution strategies with Mr. Jeremiah and taken reasonable steps to provide some form of context as to why he was being stopped and why he was being requested to provide his driver's licence, in order to obtain voluntary compliance.

[183] I agree with this assessment. Further, Mr. Summerville was of the opinion that the grounding of Mr. Jeremiah upon his arrest, within the totality of the circumstances, was inconsistent with the resistance being provided at the time. I accept this evidence as well as the evidence reveals, regardless of who you believe, that Mr. Jeremiah once handcuffed was not posing a risk to the officers. The defence expert, Chris Lawrence, testified that the HTA allows a police officer to arrest and charge a driver who refuses to produce his licence or to otherwise identify him or herself (including refusing oral identification). In cross-examination, Mr. Lawrence conceded that the police are not to use a HTA stop as a pretext to pursue a criminal investigation. This is exactly what occurred here – the asking for identification purportedly pursuant to the HTA was a pretext to in fact conduct a criminal investigation – see Gonzales at paras. 69-71.

[184] Given the circumstances of the unlawful detention, the failure of the police to provide the true reasons for the detention, the unlawful arrest and the unlawful search of the vehicle, I find that the police failed to meet the duty of care and fell below the standard of care expected from the police.

[185] The violations of the Charter by the police resulted in the police assaulting Mr. Jeremiah. Obviously, therefore the circumstances of the unlawful arrest resulted in excessive force being exacted on Mr. Jeremiah. Further, the grounding incident was unreasonable in the circumstances and fell below the standard of care expected of the police officers.

ISSUE #4

Did racism play a part in the officer's conduct and action?

[186] The only evidence of racial slurs being made comes from Mr. Lokofe and as indicated previously, I reject Mr. Lokofe's evidence in this regard. Mr. Jeremiah did not testify to hearing any racial slurs. All five police officers denied hearing any racial slurs. Constable Poustie testified that he is married to a biracial woman and has biracial children, and would not tolerate any type of racism. I conclude that there is no evidence that race played any role in the officers' conduct and actions.

ISSUE # 5 – DAMAGES

What are the damages to be assessed by improper conduct of the police?

[187] The plaintiff seeks damages in three basic categories of relief:

1. Tort damages – negligence, assault, false arrest, conversion, misfeasance of public office

2. Section 24(1) damages for Charter breaches

3. Punitive damages

[188] The plaintiff has made out its claims in the first two categories regarding tort violations and breaches under the Charter. Should the plaintiff receive compensation under both heads of damages?

LAW

[189] In the leading case of Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Court held that s. 24(1) of the Charter allows for damages under the following principles enumerated at paras. 31, 34-36, 59, and 72:

31 In summary, damages under s. 24(1) of the Charter are a unique public law remedy, which may serve the objectives of: (1) compensating the claimant for loss and suffering caused by the breach; (2) vindicating the right by emphasizing its importance and the gravity of the breach; and (3) deterring state agents from committing future breaches. Achieving one or more of these objects is the first requirement for "appropriate and just" damages under s. 24(1) of the Charter.

34 A functional approach to damages under s. 24(1) means that if other remedies adequately meet the need for compensation, vindication and/or deterrence, a further award of damages under s. 24(1) would serve no function and would not be "appropriate and just". The Charter entered an existent remedial arena which already housed tools to correct violative state conduct. Section 24(1) operates concurrently with, and does not replace, these areas of law. Alternative remedies include private law remedies for actions for personal injury, other Charter remedies like declarations under s. 24(1), and remedies for actions covered by legislation permitting proceedings against the Crown.

35 The claimant must establish basic functionality having regard to the objects of constitutional damages. The evidentiary burden then shifts to the state to show that the engaged functions can be fulfilled through other remedies. The claimant need not show that she has exhausted all other recourses. Rather, it is for the state to show that other remedies are available in the particular case that will sufficiently address the breach. For example, if the claimant has brought a concurrent action in tort, it is open to the state to argue that, should the tort claim be successful, the resulting award of damages would adequately address the Charter breach. If that were the case, an award of Charter damages would be duplicative. In addition, it is conceivable that another Charter remedy may, in a particular case, fulfill the function of Charter damages.

36 The existence of a potential claim in tort does not therefore bar a claimant from obtaining damages under the Charter. Tort law and the Charter are distinct legal avenues. However, a concurrent action in tort, or other private law claim, bars s. 24(1) damages if the result would be double compensation: Simpson v. Attorney-General, [1994] 3 N.Z.L.R. 667 (C.A.), at p. 678.

59 As was done here, the claimant may join a s. 24(1) claim with a tort claim. It may be useful to consider the tort claim first, since if it meets the objects of Charter damages, recourse to s. 24(1) will be unnecessary. This may add useful context and facilitate the s. 24(1) analysis. This said, it is not essential that the claimant exhaust her remedies in private law before bringing a s. 24(1) claim.

72 The objects of vindication and deterrence engage the seriousness of the state conduct. The corrections officers' conduct was serious and reflected a lack of sensitivity to Charter concerns. That said, the officers' action was not intentional, in that it was not malicious, high-handed or oppressive. In these circumstances, the objects of vindication and deterrence do not require an award of substantial damages against the state.

[190] Regarding punitive damages, punitive damages are only to be awarded where compensatory damages are inadequate to accomplish the goals of retribution, deterrence, and condemnation. Punitive damages are exceptional, to be awarded where "malicious, oppressive, high handed" conduct offends the court's sense of decency. It must be remembered that compensatory damages also punish and a trial judge is to have regard to the punitive components otherwise awarded to the plaintiff and the penalties otherwise imposed on the defendant – see Filice v. Complex Services Inc., 2018 ONCA 625, at paras. 58-60.

APPLICATION OF LAW TO FACTS

[191] The comments of Ward at para. 72 are highly appropriate to the facts of this case. The police in the present case did not plan or target Mr. Jeremiah, either personally or due to his race. Their conduct was not planned but involved a misapprehension of their police powers. The conduct was serious but not malicious, high handed, or oppressive. In my opinion, the tort claim will meet the Charter objects of compensation, vindication, and deterrence, having regard to the impact of the Charter breaches on the claimant and the seriousness of the state conduct. Once the tort claim is accounted for, in my opinion, a further award pursuant to s. 24(1) would result in double compensation – see Vancouver (City) v. Ward at para. 36.

TORT AWARD – SPECIAL DAMAGES

[192] Pursuant to Exhibit 5, the plaintiff is awarded special damages as follows:

Out of Pocket Expenses

1. Five psychotherapy sessions from February 23, 2012 to April 17, 2012

$675.00

2. Six physiotherapy treatments from February 21, 2012 to March 2, 2012

$285.00

3. Six physiotherapy treatments from August 9, 2018 to September 6, 2018

$315.00

Total out of pocket expenses

$1,275.00

Compensation for Future Treatment

$8,525.00

Total Special Damages

$9,800.00

GENERAL DAMAGES

[193] The plaintiff asks for general damages in the $40,000 to $60,000 range. The defendant submits general damages in the amount of $20,000 would be appropriate.

[194] Dr. Duda, the plaintiff's family doctor, saw the plaintiff on February 15, 2012, three days after the incident. Mr. Jeremiah had dry abrasions over his left wrist. He was assessed as "physical assault with musculoskeletal pain" and Mr. Jeremiah was referred for physiotherapy, massage therapy, and advised to take ibuprofen, when necessary. Mr. Jeremiah's main complaint was of pain to both shoulders, radiating to the arm.

[195] Dr. Duda saw Mr. Jeremiah again on or about April 2, 2018. Mr. Jeremiah said he was traumatized, loses sleep, has fears of a repeat incident for him and his children, and has occasional nightmares. Ultrasound and x-rays showed supraspinatus tears of both shoulders. Mr. Jeremiah might need surgical repairs and was referred to an orthopedic surgeon. A more recent report of August 16, 2018 indicated a diagnosis of partial rotator cuff tears. Further physiotherapy was recommended with possible surgery. Mr. Jeremiah may need treatment for post-traumatic stress disorder.

[196] Dr. Bill Ristevski, in a report August 11, 2018, indicates Mr. Jeremiah needs to rest 20% of the time while working as an auto mechanic. In a report dated March 19, 2018, Dr. Ip concluded that Mr. Jeremiah developed post-traumatic stress syndrome (PTDS) and was suffering from that when he met with her from February to April 2012 for five sessions.

[197] According to Dr. Ip, the prognosis of Mr. Jeremiah to return to his pre-incident state is guarded even with treatment. Dr. Ip strongly recommended further psychological treatment.

[198] Mr. Jeremiah testified that the incident traumatized him and his mind was "gone". Mr. Jeremiah went for five psychological treatments in 2012. He feels much better now. However, he feels like a total wreck when he sees a police car driving behind him. He fears that his children will also get beat up by the police. Mr. Jeremiah missed about a month from work. He is self-employed and continues to work and there is no claim for lost income.

[199] Dr. Chaimowitz prepared a defence medical report dated May 16, 2018. Dr. Chaimowitz indicated that Mr. Jeremiah suffered from PTSD, which is now in remission. He appears to have responded to treatment and his prognosis is good. Mr. Jeremiah distrusts the police and is fearful of police encounters with his children.

[200] Dr. Chaimowitz disagrees with Dr. Ip's conclusion that Mr. Jeremiah is using maladaptive coping strategies. His symptoms have improved and he is not engaging in psychotherapy and is improved.

Conclusion

[201] Mr. Jeremiah seems to have suffered two significant consequences as a result of the February 12, 2012 incident:

1. PTSD; and

2. Shoulder injuries which may or may not require surgery.

[202] Mr. Jeremiah sought out treatment for a limited period in 2012 and only recently has returned to Dr. Ip to receive potential further treatment.

[203] He lost a month from work but afterward lost no time, although he is required to take rests.

[204] In all the circumstances, I would assess general damages at $40,000.

Total Damages

[205] Accordingly, Mr. Jeremiah shall be awarded $40,000 for general damages and special damages (out of pocket expenses and future treatment award) of $9,800 for a total award of $49,800.

Family Law Claims of Family Members

[206] Maureen Knight Jeremiah (Mr. Jeremiah's wife) and their two children Rashida Jeremiah and Rashid Jeremiah testified at this trial.

[207] Rashida Jeremiah testified that her father is very protective of her and does not want her to go out. Mr. Jeremiah was less happy after the incident.

[208] Rashid Jeremiah testified his father was bubbly and happy before the incident. He was less happy after the incident. He was changed. Mr. Jeremiah is coming back to the way he was but not to the full extent as in 2012.

[209] Maureen Jeremiah testified that after the incident, Mr. Jeremiah had nightmares and slept on the couch most nights for about a year. Mr. Jeremiah became withdrawn but over the years, he has become more jovial and fun. He is not 100 percent but close.

[210] Based on the evidence, I would assess the family law claims as follows:

1. Maureen Knight Jeremiah - $5,000

2. Rashid Jeremiah - $2,500

3. Rashida Jeremiah - $2,500

Punitive Damages

[211] The police conduct in this matter was not malicious, high handed or oppressive. I find it resulted from a misapprehension of the police as to their powers during the incident in question.

[212] The police action was not planned in advance nor was there a conspiracy of any type to harm the plaintiff. The incident arose without any planning in advance and occurred over a brief time.

[213] I find that race was not a factor. This makes this case far different from Elmardy v. Toronto Police Services Board, 2017 ONSC 2074 (Div. Court) where the police engaged in (1) racial profiling and (2) conduct that was high handed and oppressive, which resulted in a significant award for Charter breaches and punitive damages.

[214] Accordingly, this case is not one that requires punitive damages to be awarded.

Liability

[215] The police conduct in the present case involved an unlawful and unjustified criminal investigation that interfered with the rights and liberty of the plaintiff Rikki Jeremiah. The unlawful criminal investigation was a joint operation by the officers involved and was overseen by the officer in charge, Sergeant Dave Pidgeon. All the other defendants Ian Milburn, Shawn Smith, Brent Gibson and Andrew Poustie participated in the unlawful criminal investigation in one way or another and were parties to the illegal actions inflicted upon Rikki Jeremiah. Accordingly, all those defendants share joint and several liability for the damages to the plaintiffs. These defendants were in the employ of the Hamilton Police Services Board and Chief Glenn De Caire who have vicarious liability for the unlawful conduct of the defendant police officers.

Order

[216] The defendants are ordered to pay damages as follows:

1. To the plaintiff Rikki Jeremiah, general and special damages totalling $49,800

2. To the plaintiff Maureen Knight Jeremiah, a family law claim totalling $5,000

3. To the plaintiff Rashid Jeremiah, a family law claim totalling $2,500

4. To the plaintiff Rashida Jeremiah, a family law claim totalling $2,500

5. Post-judgment interest is to be awarded at a rate of 3 percent per year

Costs

[217] Absent an offer by the defendants exceeding the judgment amount, costs of the proceeding are to be paid to the plaintiffs by the defendants. Should the plaintiff and defendant not be able to agree to a costs amount, the parties are to arrange a hearing date to appear before me before November 30, 2018 in order to resolve the matter of a costs award.

Justice Antonio Skarica

Released: November 6, 2018