Court File and Parties

COURT FILE NO.: CR-18-50000320-0000 DATE: 20181003

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DAMION LEWIS Defendant

Counsel: Patrick Travers, for the Crown Alana Page, for the Defendant

HEARD: July 30, 31 and August 1, 2018

A. E. LONDON-WEINSTEIN, J.

Ruling on Voir Dire

[1] The evidence in regard to this pre-trial motion is subject to a publication ban which is extinguished only at the end of the trial for Damion Lewis. In addition, all of the evidence taken at the preliminary hearing is subject to a pre-existing publication ban issued under s. 539 of the Criminal Code prohibiting publication until the conclusion of the trial of Damion Lewis.

Ruling:

[2] This is an application by the defence to exclude evidence obtained pursuant to a search incident to arrest, which the defence maintains was unlawful in both its scope and in the manner of its execution, therefore resulting in breaches of s. 8 of the Charter which the defence argues should result in the exclusion of the evidence pursuant to s. 24(2) of the Charter. The defence concedes that grounds existed for the investigative detention of Mr. Lewis, but argues that police did not have reasonable and probable grounds to arrest Mr. Lewis. As a result, the defence argues that only a pat down search to ensure officer safety should have been conducted. The full search of Mr. Lewis conducted by Officer Green pursuant to his arrest for theft of mail was therefore unreasonable, according to the defence.

[3] For reasons below, I have found that in the context of all of the circumstances of this case, the police did breach the Applicant’s s. 8 rights in the manner in which they conducted the search of Mr. Lewis.

[4] Despite this breach of the Applicant’s right to be free of unreasonable search and seizure, I am unable, on the facts of this case, to conclude that the fruits of the search, including a loaded revolver, concealed on the Applicant’s body, should be excluded from evidence.

Evidence:

[5] The Applicant is charged with theft of mail and possession of a concealed, loaded, prohibited firearm along with other charges arising from an incident on February 6, 2017. In total, the Applicant faces 8 charges.

[6] Constable Green and Alexandre Poltavets responded to a “check address” call received just before 11 a.m., on February 6. Both officers had been on the force for around three years and were partnered at the time. Green is now with Halton Police Service. Their road sergeant, Antonio Frederick also later became involved in the call.

[7] The officers were greeted by a visibly shaken, and in the words of Officer Green, “super frantic” Bertha Cabral. The officers had a hard time figuring out what Ms. Cabral was trying to tell them, both due to her state of upset and the fact that English was not her first language. She told them that the man at the door had threatened her with a gun. She did not mention this when police first arrived, but disclosed it at a later point in the conversation.

[8] Ms. Cabral told the officers that her daughter’s boyfriend, whose name she said she did not know, had been at her door at 33 Greendale Avenue and had threatened her with a handgun. Her daughter, she said, had been arrested three weeks earlier for breaking into her mother’s home at that address. Ms. Cabral said the boyfriend had been present when that break and enter allegedly happened. Ms. Cabral’s daughter was in jail as a result of that charge, her mother told police.

[9] As a result of that alleged incident, Ms. Cabral had installed a camera recording system. Police were eventually able to view what had been recorded. The recording they viewed was made Exhibit 1 on this voir dire.

[10] Ms. Cabral said that the male had not only threatened her with a gun, but made a motion with his fore-finger and middle finger toward his own eyes and back at her in an “I’m watching you, or I have my eyes on you” gesture.

[11] The video shows a black male in a black vest, black ball cap and mustard coloured hoodie attending at the door, opening the screen door and knocking on the interior door. The male variously makes a gesture with his hand with his small finger and fore finger extended and his thumb up, in a clear “call me” gesture. He makes a gesture with palms out, arms extended, as though he were carrying two plates. This gesture could be interpreted as a “let’s be reasonable, or come let us reason together gesture.”

[12] He also makes a gesture with one hand where he extends his palm out, in what could be described as a dismissive gesture. He also makes a gesture when he is standing on the sidewalk in front of the house where he raises his hand briefly and then walks back toward the porch. In all he returns to the porch three times. He persistently opens the screen door and knocks on the interior door. On the third instance he drives his car into the driveway, exits the car and takes a white object which could reasonably be viewed as either an envelope, or a flyer, or a piece of paper from the mailbox of 33 Greendale. No gun is seen on the video, but only the left hand side of the male was visible due to the camera angle. Officer Green said that Ms. Cabral indicated she saw the firearm on the male’s right side. A loaded Magnum 357 revolver was eventually located on the right front groin/inner thigh area of Mr. Lewis.

[13] The male on the video, who it is agreed for the purposes of the voir dire was Mr. Lewis, does not at any time make the “I’m watching you” gesture described by Ms. Cabral. He appears calm, not aggressive but persistent, returning three times to open the screen door and knock on the interior door, despite the fact that Ms. Cabral clearly was not going to open the door.

[14] Constable Green notified his road sergeant Frederick of the status of their investigation. Green and Poltavets then conducted background searches of Ms. Cabral’s daughter’s known associates in order to try and determine the identity of the male.

[15] Through various background searches, police were able to locate the name and date of birth of Mr. Lewis along with a physical description. They eventually had access to a photo of Mr. Lewis which was in the police database.

[16] As a result of the background searches they conducted, police attended at 33 Gabian Way in Toronto. Sgt. Frederick thought he had seen the vehicle, which turned out to be an error. However, while Green and Poltavets were in the vicinity they located a 2007 green Pontiac G-6 parked in a handicap parking spot at an apartment building at 2468 Eglinton Avenue. The car matched the description of the car in the surveillance video at Greendale Avenue. There was no one in the car at the time.

[17] The 2007 green Pontiac was registered to a numbered company. The vehicle was listed in the police data base as being associated to Mr. Lewis. The car was also noted as being of interest to the Toronto Drug Squad. Further background searches revealed information linking Mr. Lewis to involvement in drugs.

[18] Officer Green and Poltavets updated Sgt. Frederick and commenced watching the vehicle. They were in a marked vehicle, as was Sgt. Frederick.

[19] Sgt. Frederick said he made a radio request for additional assistance. While police were observing the vehicle, a gray Volkswagen pulled up to the building at 2468 Eglinton Avenue. Sgt. Frederick testified that he thought Damion Lewis was driving, but admitted in cross-examination, after being shown a surveillance video of the parking lot of the apartment building, that in fact, Lewis was a passenger in the front seat of the vehicle.

[20] With police observing, Mr. Lewis exits the vehicle, opens the trunk of the Volkswagen, retrieves something from the trunk (it soon becomes apparent that this is a wheelchair belonging to Andre Mullings who was the driver of the vehicle) and walks toward the entrance to the apartment building. The driver of the car is in his wheelchair.

[21] At this point, Officer Green and Poltavets sprint from their car toward Mr. Lewis. The surveillance video of the apartment vestibule shows Mr. Lewis entering the vestibule first and turning to retrieve the key fob for the building from Mr. Mullings, who is following closely behind in the wheelchair, carrying the fob in his mouth. Poltavets had his firearm drawn out of his holster as he ran toward the vestibule. Sgt. Frederick also ran toward the vestibule with his firearm out of its holster.

[22] The video of the vestibule of the apartment shows that as Mr. Lewis enters the vestibule, he appears, for a split second, to be urging Mr. Mullings to give him the key fob. Police cruisers can be seen approaching at this point in the video. There is no sound on the video. However, when it becomes apparent that police are commanding him to freeze and keep his hands in sight, he stands stock still observing the approaching police.

[23] Officer Green had concerns that Mr. Lewis may try and get through the second door of the vestibule and enter the apartment building. He said he believed it possible that Lewis had a gun and the prospect of him being in the apartment building with that gun worried him. He said it appeared to him that Mr. Lewis was scrabbling to get through the doors. I recognize that I have the luxury of viewing and reviewing the entire incident which unfolded in seconds in real time for Officer Green, but Mr. Lewis is not scrabbling to get through the doors. The most that could be said is that he is trying to get the key fob from Mr. Mullings, and he clearly sees that police are descending upon the vestibule. As soon as he sees that they are there for him he freezes.

[24] Officer Green said that when he grabbed Mr. Lewis to arrest him, Lewis engaged in what Officer Green described as “active resistance” by using his body weight to make it more difficult for the officer to gain control of his arms and place him under arrest. Mr. Lewis was otherwise co-operative during the search. Officer Green said he pushed Mr. Lewis against the wall to overcome what he described as active resistance.

[25] Mr. Mullings did not fare so well. He was knocked out of his wheelchair to the ground as Poltavets, Green and Frederick entered the vestibule. Green placed Mr. Lewis under arrest for theft of mail. Poltavets placed Mr. Mullings under investigative detention, but did a complete search of Mr. Mullings, including searching his pockets. During the initial confusion in the vestibule, Mullings head was stuck in the doorway as he lay prone and helpless on the ground. His identification was seized and eventually returned.

[26] Officer Green placed Mr. Lewis under arrest for theft of mail. As he began his search, he said he found something hard in a shoulder pocket of a vest worn by Mr. Lewis. He said the item felt like ammunition to him as he touched it. The item turned out to be ammunition rolled tightly into a sock, which was folded and rolled back on to itself. Green gave the ammunition in the sock to Sgt. Frederick. Some marijuana was also located.

[27] A knife, which did not result in a criminal charge, was located in Mr. Lewis’ pocket. Mr. Lewis was then taken outside of the apartment building and searched against the back of a police vehicle. Officer Platte arrived at this point and assisted Officer Green with conducting the search.

[28] Mr. Lewis testified on the voir dire. He said that police did not injure him physically. He said that police were repeatedly yelling: “Where is the gun?” Mr. Lewis said that one of the officers had an assault rifle pointed at him and told him he would be shot if he moved. The crown conceded that if I were to accept the evidence of Mr. Lewis on this point, that this would not be reasonable, given that Mr. Lewis was handcuffed to the rear at the time he said it happened.

[29] Mr. Lewis said his back was on the scout car and Officer Green was searching the front of his pants when the gun was located on the front right side of his body, in his pants, between the mesh of a bathing suit type short he was wearing, and his under armour type underwear. The gun was a loaded 357 magnum revolver.

[30] Constable Green gave the firearm to Sgt. Frederick. Mr. Lewis was then provided with his rights to counsel and taken to the station to be paraded. Police sought and were given permission to do a level 3 search of Mr. Lewis. A level 3 search is essentially a strip search.

[31] In the booking video, Mr. Lewis can be seen to be complaining about his handcuffs being too tight and also querying why he had been arrested for theft of mail. He does not mention the officer pointing an assault rifle at him and threatening to shoot him if he moved.

Analysis

[32] In order for a search to be lawful it must be authorized by law, the law authorizing the search must be reasonable; and the manner in which the search or seizure is conducted must be reasonable. [1] If an individual is the subject of an investigative detention only, police are permitted to search, not for items of evidence, but only for weapons which may pose a threat to officer safety. This distinction between what is permissible is not mere legal semantics. The liberty interests of an individual are not less important than the power of law enforcement to maintain order. Both interests must be appropriately balanced within the context of all of the facts surrounding the incident in question.

[33] In the balancing between the right to privacy, including the right to be free of unreasonable search and seizure, against the need of law enforcement to remain safe while conducting investigations, an officer must have reasonable and probable grounds to believe that an indictable offence has been committed, before conducting a search for evidence.

[34] If an individual is merely under detention, the police cannot conduct anything beyond the type of search necessary to ensure officer safety. The rationale behind this rule ensures that an officer who lacks reasonable and probable grounds for arrest can ensure their own safety while conducting an investigation. At the same time, the search of an individual for evidence in the absence of any reasonable belief that a crime has been committed is prohibited. [2]

[35] In order to determine whether the search incidental to arrest was reasonable, the following questions must be answered:

[36] Did the police have reasonable and probable grounds to arrest Mr. Lewis for either theft of mail, or possession of a firearm?

[37] If reasonable and probable grounds for arrest existed, was the search conducted in a reasonable manner?

[38] If either of those questions is answered in the negative, the issue of whether the evidence should be excluded pursuant to s.24(2) of the Charter will have to be addressed.

[39] Officer Green did not believe that he had reasonable and probable grounds to arrest Mr. Lewis for possession of the firearm. Having reviewed the surveillance video provided by Ms. Cabral, he believed that he had reasonable and probable grounds to arrest Mr. Lewis for theft of mail.

[40] As the crown points out, while theft of mail may seem like an inconsequential charge when compared to the possession of a prohibited and loaded firearm, it is a hybrid offence, which is deemed indictable until election, technically providing the officers with legal authorization for a search incident to arrest.

[41] The defence points out that officers Green and Poltavets did not ever ask Ms. Cabral about her missing mail. The defence rightfully points out that the officers did not take steps to find out if Mr. Lewis may have been retrieving mail for his jailed girlfriend, who was Ms. Cabral’s daughter. Officers also did not take any steps to find out if what was taken from the mail box was actually mail. It is possible that there was some innocent explanation for Mr. Lewis removing what appeared to be mail from Ms. Cabral’s mailbox.

[42] I agree with the defence submissions on this point to a large extent, but it must be remembered that the standard to be met is not of a prima facie case. The standard of proof to establish reasonable and probable grounds is lower than a balance of probabilities. [3]

[43] An arresting officer must take into account both inculpatory as well as exculpatory evidence. An arresting officer must also make inquiry as the circumstances reasonably permit. [4] It would have been better police practice if the police had, having reviewed the video with Ms. Cabral, asked her about her mail.

[44] It would have taken mere seconds, and would have immediately ensured that a wrongful arrest did not take place. Police did not do that, but given all of the information that they did have, in my view they had enough information to establish the relatively low standard of reasonable and probable grounds.

[45] Police were aware that:

• Ms. Cabral did not want Mr. Lewis on her porch;
• Ms. Cabral’s daughter had been arrested for breaking and entering into her residence and Ms. Cabral indicated Mr. Lewis was present at that time;
• That Ms. Cabral’s daughter was in jail as a result of being charged in the break and enter. This last factor is significant as it indicates that Ms. Cabral regarded her daughter as an unwanted intruder who she was willing to have charged with breaking and entering into her residence. While it would have been better practice to have asked Ms. Cabral about the missing mail, before arresting Mr. Lewis for it, it was not an unreasonable inference for police to conclude that Ms. Cabral was not consenting to having any representative of her daughter retrieve property in the absence of consent for the purpose of formulating reasonable and probable grounds.

[46] An arresting officer may base his or her belief upon assumptions, but the belief cannot only be a hunch. The circumstances must be sufficient to convince a reasonably fair-minded person put in the same position as the officer that the grounds for his belief are reasonable.

[47] In my view, a reasonably fair minded person would not find it unreasonable that police believed that Ms. Cabral did not extend her consent to allow Mr. Lewis to take an item from her mailbox. A reasonably fair minded person would also not find it unreasonable that police concluded that the item that might have been mail, and is removed from a mailbox, was actually mail. I agree with the defence that it might have been something else, but mail is not an unreasonable conclusion given that it was a mailbox.

[48] Officer Green did not feel he had subjective grounds to arrest for possession of a firearm. As a result of his recognition that he did not have the appropriate authority to arrest Mr. Lewis for possession of firearm, he arrested him for theft of mail. He was correct to consider the inconsistencies of Ms. Cabral’s statement and the lack of visibility of the firearm in the video in determining that he did not have reasonable and probable grounds to arrest for possession of a firearm. While it would have been preferable to have asked Ms. Cabral about the mail, in all of the circumstances known to police in this case, it was not unreasonable to conclude that Mr. Lewis was unlawfully removing mail from the mailbox, at least to the level required to meet the relatively low standard of reasonable and probable grounds. I have concluded that Officer Green had both subjective and objective reasonable and probable grounds to arrest Mr. Lewis for theft of mail.

Manner of Search

[49] Given that I have determined that the search was lawful, consideration must also be given to the manner in which the search was carried out.

[50] The search of Mr. Lewis in the vestibule was executed with him being forced toward the wall. I agree with defence counsel that this would heighten his sense of vulnerability having his face within inches of the wall. In this case we had the luxury of a recording of the arrest as it occurred in the apartment building vestibule.

[51] Officer Green said that Mr. Lewis was not uncooperative, but he was resisting him through the use of his weight. No excessive force was used by Officer Green in the vestibule. Officer Poltavets conducted an illegal search of Mr. Andre Mullings and testified that he did so based on information provided to him by Sgt. Frederick that Mr. Mullings was dangerous and needed to be watched. Sgt. Frederick denied saying this to Officer Poltavets and said that he knew that Mr. Mullings had been involved in an incident involving police some 10 years ago which left him in a wheelchair, but that he did not consider Mullings dangerous and had never said anything about his potential danger to Officer Poltavets.

[52] I accepted the evidence of Sgt. Frederick. I found him to be a straightforward witness and I had no issues with his credibility. He was mistaken about who was driving the gray Volkswagen, but I was left with the impression that this was an honest mistake made perhaps as a result of his vantage point as he made his observations. He freely admitted that his formulation of grounds for arrest was almost exclusively based on information he received from Green and Poltavets.

[53] There can be no reconciliation between the evidence of Sgt. Frederick and the evidence of Officer Poltavets on the issue of what Officer Poltavets knew about Mr. Mullings. I have accepted the evidence of Sgt. Frederick on this point, as I found him to be credible. He did not give any indication that he was mistaken on this point.

[54] I have concluded that Officer Poltavets was not honest with the court in regard to the issue of what he knew about Andre Mullings. Of course, the Charter rights of Mr. Mullings are not at issue in this case. But whenever police officers engage in providing dishonest testimony, it casts a shadow on the administration of justice. I have found that Officer Poltavets lied to this court when he testified that Sgt. Frederick told him in the vestibule that Mr. Mullings was dangerous.

[55] Officer Poltavets also testified that he recalled from his background search that Mr. Lewis had involvement with drugs. When cross-examined as to whether there was any information in regard to Mr. Lewis and guns, Officer Poltavets said he could not remember. I had difficulty accepting this aspect of Officer Poltavets’ evidence as well. Given that police were most concerned about whether or not Mr. Lewis had possession of a firearm, it seems obvious that if such information were located that this would be something that police would recall. I have concluded that Officer Poltavets did not want to admit that no such information was located as he feared it may cast doubt on the grounds for the arrest of Mr. Lewis.

[56] Officer Poltavets and Sgt. Frederick were not involved in the search of Mr. Lewis at the scout car. Officer Green searched Mr. Lewis, and was assisted by Constable Charlene Platte, who arrived at the scene at the point when Mr. Lewis was at the scout car being searched by Officer Green.

[57] Mr. Lewis said that he was not only searched while he was facing the squad car, but that he was turned around with his back facing the squad car, and Officer Green searched the front of his body while his back was on the squad car. He was bent backward over the squad car, but his feet remained on the ground. He had already been handcuffed to the rear when being searched in the vestibule of the apartment building.

[58] Mr. Lewis testified that police were repeatedly screaming at him, asking him where the gun was located. The crown in this case asked Mr. Lewis why he did not simply tell police where the gun was located on his person. I did not require Mr. Lewis to answer this question, given his right to not incriminate himself to the police.

[59] Constable Platte ran up and seized Mr. Lewis’ wrist while Officer Green conducted a field search of Mr. Lewis, she said. She said that Officer Green was searching Mr. Lewis’ right side and yelled “gun” as he pulled out what she said was a black and silver revolver. She said Mr. Lewis stiffened for a second when Officer Green located the gun and she moved in to ensure that he did not move. Other than his stiffening, she described him as co-operative.

[60] Officer Platte confirmed that officers Benninger and Henschell were at the trunk of the scout car with C-8 assault rifles. She could not recall what these two officers were doing. She did not recall anyone asking questions of Mr. Lewis. She said Officer Benninger returned Mr. Mulling’s identification to him at just after 1 p.m. The search at the scout car took around five minutes. Officer Platte said she did not recall if Benninger or Henschell had a rifle trained on Mr. Lewis. She said she did not think they would, since she and Officer Green were in close proximity to Mr. Lewis as he was searched. Officers Benninger and Henschell were not called to provide evidence.

[61] Sgt. Frederick and Officer Poltavets both drew their firearms when approaching the vestibule. Sgt. Frederick thought he had submitted a use of force report, but the legal department for the Toronto Police Service indicated that they had not received the report. Officer Poltavets provided a report.

[62] The crown in this case submitted that I should reject the evidence of Mr. Lewis in regard to whether a C-8 assault rifle was pointed at him and whether he was told that he would be shot if he moved. The crown submitted that Mr. Lewis has a motive to cast the police in a bad light, as evidenced by his criminal record which includes entries for obstruction and assault police.

[63] I found that Mr. Lewis did not exaggerate his evidence. He did not claim that police injured him. Although neither Green nor Platte could confirm that police were shouting “where is the gun?” I did not have any difficulty accepting Mr. Lewis’ evidence that this is what happened. Police suspected that Mr. Lewis had a gun and were still searching for a gun after having found ammunition. It would not be surprising that they would be demanding that Mr. Lewis tell them where the gun was hidden.

[64] Mr. Lewis said that an officer who had a C-8 assault rifle trained on him told him that he would be shot if he moved. He was handcuffed to the rear at the time. I accepted Mr. Lewis’ evidence on this point. As I said, I found him to be not prone to exaggeration in any fashion. Officer Green did not find the gun during his initial search of Mr. Lewis in the vestibule, where Mr. Lewis was facing away from the officer. It seems logical to me that the officer, having still not found the gun initially when he searched Mr. Lewis with Mr. Lewis facing away from him on the squad car, would have turned the body of Mr. Lewis in order to better facilitate the search.

[65] Officer Green said he did not recall turning Mr. Lewis around to face him to search him. His evidence seemed to suggest that he may have “bladed” Mr. Lewis’ body by turning him partially sideways. Officer Green could not confirm whether a police officer had a C-8 rifle pointed at Mr. Lewis as his focus was on Mr. Lewis, he said. He also was not sure where exactly Officer Platte was located, as his focus was trained on Mr. Lewis.

[66] The evidence of Officer Green in regard to a rifle being pointed at Mr. Lewis does not contradict that of Mr. Lewis. Officer Platte also did not contradict his evidence on this point. While Platte doubted that this happened, she did not see what happened. The only person who was able to provide the court with direct observation of the rifle pointing incident was Mr. Lewis. As I said, I found him to be credible, not prone to exaggeration, and I accepted his evidence on this issue. Neither Benninger nor Henschell were called to testify on the voir dire.

Section 24(2) Charter Analysis

[67] I have therefore concluded that while police did have reasonable and probable grounds to arrest Mr. Lewis for theft of mail, the manner in which the search was executed was not reasonable. I am specifically referring to the police pointing an assault rifle at Mr. Lewis while he was handcuffed to the rear and informing him he would be shot if he moved. Having found a breach in the manner in which the search was conducted, I turn now to the analysis of whether the evidence should be excluded under s. 24(2) of the Charter.

[68] The seriousness of the Charter-infringing state conduct requires me to assess whether the admission of the evidence would bring the administration of justice into disrepute. The focus is on the severity of the state conduct. [5]

[69] In this case, I found the conduct of Green, who was the arresting officer, to be fair and appropriately attentive to the flaws in the information provided to him by Ms. Cabral. In my view, he was appropriately cautious in his approach to his formulation of reasonable and probable grounds for arrest. I found him to be a credible witness who did not attempt to deceive the court. Unfortunately, I cannot say the same thing about the evidence of Officer Poltavets, but Officer Poltavets had limited contact with Mr. Lewis.

[70] The fact that police strongly suspected that Mr. Lewis had a firearm concealed on his body does not justify pointing a firearm at him when he was handcuffed and advising him that he would be shot if he moved. This show of force was well beyond what was required, even on a possible gun call, bearing in mind that Mr. Lewis was handcuffed at the time.

[71] I find that this conduct, specifically pointing a firearm at Mr. Lewis and telling him that he would be shot if he moved, was serious and militates in favour of the exclusion of the evidence.

[72] I turn now to the Charter protected interests of Mr. Lewis. I do find that police repeatedly asked him where the gun was located. While this was an invitation for Mr. Lewis to incriminate himself, he declined to do so, thus minimizing the impact of the police conduct in regard to police asking him repeatedly where the gun was located while he was under arrest, but before he had spoken to counsel. The gun would have been inevitably discovered and police had a legitimate safety concern in regard to locating it without delay.

[73] The crown in this case argued that the impact on Mr. Lewis must have been minimal as he declined to mention the gun pointing incident before testifying on the voir dire. The crown pointed out that while Mr. Lewis mentioned the discomfort caused by his handcuffs, and the fact that he felt confused by being arrested for theft of mail when he was booked, he did not mention police pointing a rifle at him. I did not find this argument persuasive. Mr. Lewis did strike me as being fairly stoic and matter of fact when he testified about the gun pointing incident, but I don’t think I can conclude that because he did not mention this fact on his booking video, while he was in police custody, that I should reject his evidence on this point.

[74] The delay in reporting the incident is just one factor for my consideration in assessing credibility in this context, and it must be considered in light of Mr. Lewis’ right not to incriminate himself. The gun pointing incident was closely related to the search and location of the firearm. When I consider Mr. Lewis’ right to remain silent and not to incriminate himself, his failure to mention this incident on his booking video does not cause me concern in regard to his credibility. As I said, I found him to be a credible witness. I find that having a firearm pointed at him and being told that he would be shot if he moved while handcuffed to the rear had a significant impact on the human dignity interests of Mr. Lewis. The incident was brief, and I appreciate that police were responding to a gun call with all of the attendant safety concerns related to gun calls. However, this action of threatening a handcuffed man with being shot if he moved while he was under arrest was not necessary and violated Mr. Lewis’ right to the maintenance of his dignity as a human being. I find that this ground favours exclusion.

[75] I turn now to society’s interest in adjudication on the merits. This inquiry focuses on how reliable the evidence was in light of the nature of the Charter breach. This evidence is highly reliable. It is the heart of the Crown’s case. In addition, the proliferation of gun violence in Toronto at the present time is an unwelcome reminder that young people, in particular, are losing their lives at a rate that is unacceptable by any standard. In many recent cases, bystanders have also been either injured or put at serious risk of injury through cross fire. The city of Toronto continues to be plagued by violence involving firearms. Given the tragedies the city has experienced as recently as this past summer, I find that the community would have a heightened interest in a trial on the merits given that this case involves a loaded firearm.

Conclusion

[76] In weighing all of the factors I conclude that I cannot exclude this firearm. In reaching this decision, I am acutely aware that I have concluded that police pointing a firearm at a handcuffed young man and threatening to shoot him if he moves is an insufficient ground to warrant exclusion of a loaded firearm. As I indicated, the fact that police suspected, and in fact Mr. Lewis did have a loaded revolver on his person, does not justify this show of force. I have found that Officer Green, the arresting officer in this case, acted with good faith, and had no involvement in the threat to Mr. Lewis while he was handcuffed to the rear. The state is however, indivisible, and the actions of the officer who trained his rifle on Mr Lewis while he was handcuffed and threatened to shoot him if he moved cannot be erased from the equation. The fact that this incident was relatively brief does little to derogate from its seriousness. However, given the current issues facing the city of Toronto in regard to gun violence, and the fact that I concluded that the arresting officer in this case, Green, acted in a manner which was consistent with the preservation of Mr. Lewis’ Charter rights, I have declined, after considering and balancing all of the relevant factors, to exclude the loaded 357 Magnum revolver, or the ammunition. I note as well that the gun also would have been discovered absent the breach. Therefore, despite the seriousness of the breach, I have found, for all of the reasons discussed, that admission of the evidence would not, on balance, bring the administration of justice into disrepute. The application for exclusion of the evidence is dismissed.

A.E. London-Weinstein, J.

Released: October 3, 2018