THIS RULING WAS MADE AN EXHIBIT
COURT FILE NO.: CR-18-4227 DELIVERED ORALLY: Tuesday, April 9, 2019
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DYLAN LESLIE-JOHN TRAVIS
Counsel: Brian Manarin, for the Crown Maria V. Carroccia, for the Defence
HEARD: February 11 and 12, 2019
REASONS FOR RULING ON CHARTER APPLICATION
Howard J.
Overview
[1] The applicant accused, Dylan Travis, is charged on a six-count indictment with the following offences, alleged to have occurred in the early morning hours of New Year’s Day, January 1, 2017:
a. unauthorized possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, b. unlicensed possession of a prohibited firearm, contrary to s. 91(1) of the Code, c. unauthorized possession of prohibited ammunition, contrary to s. 86(2), d. possession of a weapon dangerous to public peace, contrary to s. 88(1), e. unauthorized carrying of a concealed weapon, contrary to s. 90(1), and f. possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] At the outset of the hearing of the application before me, Mr. Manarin on behalf of the Crown withdrew count six regarding the charges under the CDSA.
[3] In what began as a case of mistaken identity, with officers of the Windsor Police Services (“WPS”) investigating a reported case of domestic assault, officers approached the man they believed to be the subject of the investigation and whom, they had been advised, they had grounds to arrest. Upon seeing the approaching officers, the man immediately fled the area, and the officers then gave chase on foot.
[4] With the assistance of other attending officers, the fleeing man was apprehended and taken to the ground. Lying face down on the ground, the man resisted the officers’ attempts to handcuff him by keeping his right hand underneath his body. However, when the police were finally able to handcuff the man and they got him upright, the officers discovered two things: first, that the man was not the person they were looking to arrest for the domestic assault and, two, that the apprehended man, being Mr. Travis, had in his possession a fully-loaded Smith & Wesson .38 caliber revolver. The police then arrested Mr. Travis and conducted a search incidental to arrest.
[5] Mr. Travis now applies for an order finding that his rights guaranteed under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms have been violated and for an order pursuant to s. 24(2) of the Charter excluding from admission into evidence at trial the Smith & Wesson revolver and all evidence obtained by the police as a result of the alleged unlawful detention, arrest, and unreasonable search of Mr. Travis.
[6] It is common ground that the central issue on the voir dire is whether the police had reasonable grounds to arrest Mr. Travis.
[7] At the hearing of the voir dire, the court heard evidence from three witnesses, being Police Constables Matt Morenci and Steven Tucker, who were the officers who first approached the man later discovered to be Mr. Travis, and P.C. Jason Tarnopolsky, who assisted in the apprehension. The defence called no evidence on the voir dire.
Factual Background
[8] Police Constables Morenci and Tucker were working the midnight-shift on New Year’s Eve of 2017. They were both in uniform and on patrol in a fully marked WPS police cruiser.
[9] In the early morning hours of Sunday, January 1, 2017, the two police officers were dispatched to the area of Walker Road and Lappan Avenue in Windsor to speak with one Daymien Alexander Kennedy. The officers were advised that Mr. Kennedy was the subject of a WPS investigation for domestic assault. P.C. Morenci did not recall the precise time that they were dispatched to speak with Mr. Kennedy other than it was in the early hours of Sunday morning. However, P.C. Tucker recorded in his notes that they were dispatched at 3:13 a.m. that morning.
[10] The officers located Mr. Kennedy at a branch of the Canadian Imperial Bank of Commerce (“CIBC”) on Walker Road, located just north of Lappan Ave. and south of E.C. Row Expressway. P.C. Morenci recalled when they encountered Mr. Kennedy, he was coming out of the bank and getting back into a taxi-cab van operated by Veteran Cab, accompanied by a few other companions.
[11] P.C. Morenci testified that he had never had contact with Mr. Kennedy before. However, P.C. Tucker knew Mr. Kennedy from previous dealings with the police.
[12] The officers spoke with Mr. Kennedy at the CIBC branch to obtain his side of the story regarding the alleged incident of domestic assault. Both officers testified that Mr. Kennedy was wearing a black or dark hooded jacket and dark jeans when they spoke with him. The hood was pulled up over his head, covering portions of his face. P.C. Morenci described Mr. Kennedy as being of medium build, perhaps 190 lbs., and estimated that Mr. Kennedy was 5’8” in height, although he qualified his evidence by saying that he dealt with Mr. Kennedy for only a few minutes that night. P.C. Tucker testified that Mr. Kennedy was thin in build and, as compared to himself at 6’ in height, he estimated that Mr. Kennedy was maybe 5’8” or 5’9” in height.
[13] I note that the WPS “Booking Data Sheet” in respect of Mr. Kennedy, entered as Exhibit no. 3 on the voir dire before me, indicates that Mr. Kennedy was (at that time of the Data Sheet entry) 70 kg. (or 154 lbs.) in weight, and 175 cm. (or just less than 5’9”) in height.
[14] The evidence of P.C. Morenci was that he understood that as he and P.C. Tucker were speaking with Mr. Kennedy to get his side of the story of the alleged domestic assault, another unit was speaking with the complainant. P.C. Morenci testified that as he and P.C. Tucker were dealing with Mr. Kennedy, P.C. Morenci was in contact with P.C. Kerekes, who was directing or dealing with the domestic investigation, and P.C. Kerekes advised P.C. Morenci that the WPS had no grounds to arrest Mr. Kennedy.
[15] Accordingly, P.C. Morenci and P.C. Tucker released Mr. Kennedy and observed him get into the Vets Cab with his companions and depart the scene.
[16] Constables Morenci and Tucker then got back into their cruiser and resumed their regular duties.
[17] Both officers testified that shortly after they released Mr. Kennedy and departed the scene, within about five to ten minutes later, they were further advised by P.C. Kerekes that the other unit had spoken with the complainant on the domestic assault, and the police now had grounds to arrest Mr. Kennedy. Both officers testified that they understood at that point that they had grounds to arrest Mr. Kennedy.
[18] At that point, Constables Morenci and Tucker resumed their duties and dealt with other calls.
[19] Inquiries were made of Vets Cab by the police, and Constables Morenci and Tucker were subsequently advised that the taxi that had picked up Mr. Kennedy and his companions at the CIBC on Walker Road had dropped off passengers at the 2600 block of Lauzon Road in the east end of Windsor. The 2600 block of Lauzon Road was not far from where the officers were then patrolling.
[20] The recollection of P.C. Morenci was that they were advised that the drop-off was in the 2600 block of either Lauzon Road or Meadowbrook Lane, both of which run in the same direction, and both of which are south of but close to their intersection with Tecumseh Road East.
[21] P.C. Tucker recalled that the information they received was that the taxi dropped off passengers in the 2600 block of Lauzon Road. P.C. Tucker also recalled that after they received the information from Vets Cab, they attended to another unrelated investigation in the east end of Windsor in the Meadowbrook Lane and Hawthorne Drive area, which is not far from the intersection of Lauzon Parkway and Tecumseh Road East.
[22] The testimony of both officers was that P.C. Morenci was driving the cruiser at that point, and P.C. Tucker was in the front passenger seat.
[23] P.C. Morenci testified that he and P.C. Tucker drove around the 2600 block area for about 20 minutes looking for Mr. Kennedy. To the best of his recollection, P.C. Morenci believed they did not go to Mr. Kennedy’s last known home address or any specific address, but they drove around the 2600 block of Lauzon Road looking for him. P.C. Tucker gave similar evidence.
[24] P.C. Tucker testified that, had they seen Mr. Kennedy walking around the 2600 block, they would have arrested him based on the information that they had received from P.C. Kerekes that the police had reasonable grounds to arrest Mr. Kennedy.
[25] However, the officers did not see Mr. Kennedy in the vicinity, and they then turned to other duties and responded to other calls.
[26] That said, it was the evidence of both Constables Morenci and Tucker that it was about 4:58 a.m. that same Sunday morning that they had come to a stop in their cruiser, travelling northbound on Lauzon Road, at a red traffic light at the intersection with Tecumseh Road East, when looking eastbound to their right, they noticed a man who resembled Mr. Kennedy standing alone at the Burger King establishment, located on the southeast corner of Lauzon and Tecumseh. Being 4:58 a.m. on New Year’s Day, the Burger King was closed for business at that hour of the morning.
[27] Both officers testified that there was little vehicular or pedestrian traffic at that time of the morning.
[28] More specifically, P.C. Morenci testified that as they were stopped at the intersection of Lauzon and Tecumseh, it was P.C. Tucker who drew the attention of P.C. Morenci to the hooded figure standing at the Burger King, whereas P.C. Tucker testified that he could not remember who first saw the man at the Burger King as between P.C. Morenci and himself. In my view, these are the type of minor differences in the testimony of witnesses that the court would expect to hear from different witnesses attempting to recall the details of a specific incident.
[29] Both Constables Morenci and Tucker were agreed that the man at the Burger King was wearing a black or dark hoodie, with the hood pulled up over his head, and dark jeans – similar to the appearance of Mr. Kennedy that they had observed a couple of hours before at the CIBC. Further, both officers observed that the man at the Burger King was the same size and stature as Mr. Kennedy.
[30] Both officers also testified that neither one of them could observe the face of the man standing at the Burger King because he had his hood pulled up over his head.
[31] The officers decided to approach the hooded figure who, they thought, was Mr. Kennedy. P.C. Morenci turned eastbound on Tecumseh and then pulled the cruiser into the parking lot of the Burger King. As P.C. Tucker said, “we drove into the parking lot to approach who I thought was Mr. Kennedy.”
[32] However, as soon as the cruiser pulled into the parking lot and the man saw the police, the man immediately started to run southbound along the west side of the Burger King building. P.C. Tucker got out of the cruiser and yelled, “Windsor Police – Stop!” However, the man did not comply and did not break stride. He continued to run, turning left and running eastbound along the back of the building before turning left again and running northbound along the east side of the building through the Burger King drive-through. P.C. Tucker began to run after the man. P.C. Tucker said the man was quick.
[33] P.C. Morenci brought the cruiser to an abrupt stop, parked it in the parking lot, got out of the vehicle, and then he too joined the foot chase.
[34] The fleeing man continued to run northbound, running across Tecumseh Road East, and then into the parking lot of the Eastown Shopping Centre mall, with both P.C. Tucker and P.C. Morenci giving chase.
[35] As they were running, the officers radioed in for assistance. P.C. Morenci could not remember who actually notified WPS Dispatch but he recalled that both he and P.C. Tucker were on their radios. P.C. Tucker initially testified that it was he who called for assistance, but when pressed, he said he could not remember exactly who radioed in.
[36] P.C. Morenci testified that the man was about 100 feet ahead of the pursuing officers. P.C. Tucker said that the man was always in front of him, and he never lost sight of the man as they ran.
[37] Both officers observed that as the man was running, he was not swinging or pumping with both arms as he ran. Rather, the man was swinging his left arm only. P.C. Morenci believed the man was holding his jacket with his right arm. P.C. Tucker testified that he observed the man’s right arm holding on to the right side of his body. Observing the man’s movements, P.C. Tucker had the impression that the man was trying not to drop something in his pocket, but P.C. Tucker had “not a clue” what that something might be.
[38] P.C. Morenci estimated that the foot chase lasted for a few hundred yards before it ended, with the officers running the length of two football fields. P.C. Tucker testified that the officers never did close the ground between them and the fleeing man; in fact, they lost ground.
[39] However, as they were running through the Eastown parking lot, which was largely empty, both officers observed another unit responding to the call. That is, they both saw another WPS cruiser travelling northbound on Lauzon Road ahead of the man and the pursuing officers, and it then turned into the Eastown mall on the west side of the mall, coming to a stop just in front of the man.
[40] That other cruiser was being driven by P.C. Diane Donnelly, with P.C. Tarnopolsky in the passenger seat. P.C. Tarnopolsky recalled he and P.C. Donnelly had been proceeding westbound on Tecumseh Road East when they received a WPS radio broadcast to the effect that P.C. Morenci and P.C. Tucker were engaged in a foot pursuit of the subject of a domestic altercation investigation. Approaching the parking lot of the mall, P.C. Tarnopolsky said he could see a man running across the parking lot being chased by two officers, who were a good 30 feet behind the man.
[41] P.C. Tucker testified that as the other cruiser was approaching, the fleeing man cut in front of a gym in the mall, which is currently Crush Fitness, but he could not remember the name of the gym at the time of the events in question. P.C. Tarnopolsky’s notes indicated that at the time the establishment was called World Gym.
[42] P.C. Tucker said that as the man was running ahead of him, the man cut over towards a median in front of the gym, the other cruiser arrived from the north, pulling in front of the man and cutting him off. P.C. Tarnopolsky exited the vehicle from the passenger side about 20 feet in front of the man.
[43] P.C. Tarnopolsky made first contact with the man. P.C. Tarnopolsky said that P.C. Donnelly pulled their cruiser around so that as soon as he opened his door, he would be a short distance from the man. P.C. Tarnopolsky reached out and grabbed the man’s arm and coat, and he told the man to stop. P.C. Tarnopolsky recalled that as he grabbed the man, the man looked over his right shoulder with a defeated expression on his face that P.C. Tarnopolsky took to mean that “he did not look motivated to continue running.” P.C. Tarnopolsky and the man fell to the ground on the median outside World Gym.
[44] P.C. Tucker testified that when he saw P.C. Tarnopolsky push or take the man down to the ground, they were about 15 feet ahead of him. P.C. Morenci was within 50 feet when P.C. Tarnopolsky took the man down, and his recollection was that the man was almost falling down from exhaustion, as it had been a long foot chase, and P.C. Morenci himself said he was exhausted.
[45] P.C. Tucker was first to arrive at the median and assist P.C. Tarnopolsky. At that point, the man was lying prone on the ground with his face to the ground. P.C. Tucker testified that he gained control of the man’s left arm, and he placed his handcuffs on the man’s left wrist. However, the man resisted providing his right hand to the officers by keeping his right hand under his body as he lay face-down on the ground. The officers asked the man to give them his arm but he initially refused.
[46] P.C. Tarnopolsky’s recollection was that after he brought the man down to the ground and as he was lying face-down, P.C. Tarnopolsky told the man to remain calm and not to move, and the man was generally compliant. P.C. Tarnopolsky waited a moment for the other two officers to arrive, as he knew they would be there shortly.
[47] P.C. Tarnopolsky also recalled that the officers “had a little bit of difficulty getting the hands out from under him” and they asked the man to show them his hands but he did not comply instantly. P.C. Tarnopolsky said that seemed confusing to him because the man was generally not combative.
[48] All of the officers agreed, however, that it was not long before they were able to gain control of his right hand, and the man was then handcuffed with his hands behind his back. The evidence of P.C. Morenci was that the man was in handcuffs within a few seconds.
[49] Once the man was secured in handcuffs, the officers rolled him over onto his back, and it was then that they had their first opportunity to look at the man’s face. The evidence of P.C. Morenci was that as Constables Tucker and Tarnopolsky rolled him over, “I remember viewing his face and realizing as they’re turning him over that it wasn’t Daymien Kennedy.” P.C. Morenci further testified that as the officers turned the man over, “there was a distinct sound of metal hitting the cement” and P.C. Morenci then saw the revolver on the ground.
[50] To the same effect is the evidence of P.C. Tucker who testified that as he and P.C. Tarnopolsky rolled the man over and pulled the hood off his head, P.C. Tucker realized that it was not Daymien Kennedy, but then he also heard a “metal clinking sound” as something hit the ground and he then saw the gun. P.C. Tucker testified that he believed the gun had fallen out of the man’s right-hand jacket pocket when they rolled him over, but he conceded in cross-examination that he did not know for sure that the gun had been in the man’s pocket because he did not actually see the gun fall out of the pocket and, when pressed, he allowed that it “could have” just as easily been in his waistband. P.C. Tucker testified that he could not say who saw the gun first as between the three officers: “I don’t know who saw the gun first. When I heard the metal clank, I saw a gun.”
[51] The evidence of P.C. Tarnopolsky was that he also believed the gun had fallen out of the man’s coat, but he readily admitted that he did not see the gun fall out of the coat and he did not know where it had been. What P.C. Tarnopolsky said he does recall is seeing the face of P.C. Morenci and the look of surprise on his face, and then P.C. Tarnopolsky looked over and saw what appeared to be a black .38 revolver lying on the ground. P.C. Tarnopolsky testified that as the man was in handcuffs at that point, “safety wasn’t as much a concern, but it did lead me to understand why perhaps he wasn’t initially willing to release his hands in … concealing this item.”
[52] The officers moved the handcuffed man away from where the gun lay on the ground, and P.C. Tucker placed the man under arrest for unlawful possession of a firearm, ammunition, carrying a concealed weapon, and weapons dangerous.
[53] As the arresting officer, P.C. Tucker then conducted a search of the man incident to the arrest. To be clear, I find on the evidence before me that the search of Mr. Travis was conducted after the police observed the revolver on the ground. P.C. Tucker identified the man as Dylan Leslie-John Travis from the Ontario Driver’s Licence located in the man’s wallet.
[54] The Crown and defence are agreed that, as per Exhibit no. 1, the items seized by the police incident to the arrest of Mr. Travis were as follows:
a. a loaded Smith & Wesson five-shot, .38 caliber revolver (serial no. J744844), with five .38 caliber ammunition rounds loaded in the firearm; b. a quantity of money comprised of $60 in U.S. currency and $580 in Canadian currency in various denominations; and c. one clear plastic baggie containing six grams of cannabis marijuana.
[55] P.C. Tucker was asked about the total time elapsed from the time that he and P.C. Morenci dealt with Mr. Kennedy to the time that they first observed the man at the Burger King. P.C. Tucker replied that his notes record that he and his partner dealt with Mr. Kennedy at the CIBC at 3:13 a.m., and as referenced above, they saw the hooded figure standing at the Burger King at 4:58 a.m. Accordingly, a total of one hour and 45 minutes had elapsed.
[56] Before leaving my review of the facts of the case, I would comment on one aspect of the evidence of P.C. Tarnopolsky, which, in my view, was really the only major inconsistency in the evidence of the three police officers.
[57] To his recollection, P.C. Tarnopolsky believed that after he had taken the man down, it was P.C. Morenci who arrived first and came down to the ground to help him handcuff the man. In that regard, his recollection is inconsistent with the evidence of both P.C. Morenci and P.C. Tucker.
[58] To be clear, the evidence of P.C. Tarnopolsky as to the actual events of what transpired and, in particular, how the .38 revolver was discovered are consistent with the evidence of the other two officers; it is just the identity of the particular officer who assisted him on the ground – i.e., he recalls it was P.C. Morenci and not P.C. Tucker – that is inconsistent with the evidence of the other two officers.
[59] In this specific regard, I find the evidence of P.C. Tarnopolsky is not reliable and I do not accept his evidence on that point. In coming to this conclusion, I am persuaded by the following:
a. The evidence of both P.C. Morenci and P.C. Tucker was consistent on this point. P.C. Morenci testified that P.C. Tucker started running after the man first while he parked the cruiser, that P.C. Tucker reached P.C. Tarnopolsky and the man on the ground before he did, that P.C. Tucker was the faster runner as compared to him, and that he arrived last. P.C. Morenci testified that he stood back while Constables Tucker and Tarnopolsky placed the man in handcuffs, and that they did not need his assistance. To the same effect is the testimony of P.C. Tucker. Indeed, P.C. Tucker was asked in examination-in-chief whether P.C. Morenci was involved with any physical contact with the man prior to his arrest, and P.C. Tucker replied, “not that I recall.” I found both Constables Morenci and Tucker to be credible and reliable witnesses. b. I noted that P.C. Tarnopolsky appeared to have some difficulty recalling certain other basic events of the morning in question. In particular, I remember that when he was first asked who his partner in the cruiser was that morning, there was quite a long pause before P.C. Tarnopolsky recalled that it was P.C. Donnelly. c. As well, when P.C. Tarnopolsky could not recall other particulars of the events, he said, on at least two occasions, that he was unsettled by seeing the gun – and no doubt that is understandable – and he offered that as an explanation for his inability to recall certain details. As I say, I can well appreciate that P.C. Tarnopolsky would be unsettled by seeing the gun; indeed, given that P.C. Tarnopolsky took the man down by himself, and when one considers that the officer had no idea at the time he confronted the man that he had a loaded revolver, the realization that the outcome of the event could have been tragic would be most unsettling. Thus, while I can appreciate the officer feeling unsettled, I must also consider the impact on the reliability of his testimony. d. In fairness to P.C. Tarnopolsky, as he was the first person to come in contact with the fleeing man, and he was the one who brought the man down to the ground by himself, no doubt his attention was focussed on keeping the man under his control, rather than what was happening behind him as the other officers approached. e. P.C. Tarnopolsky testified that he made his notes of the events in question immediately after the scene was cleared, as he sat in his cruiser. P.C. Tarnopolsky was given leave to refer to those notes for the particulars of events when giving his testimony on the voir dire. During his testimony, the officer noted that there was at least one fairly significant error in his notes, in that, they record that his first involvement was at 5:03 a.m. when he and P.C. Donnelly heard the broadcast about the foot pursuit, and his last entry was that he cleared the scene at 5:10 a.m. when the prisoner transport departed. It was put to him in cross-examination that it was unlikely that the entirety of his involvement lasted only seven minutes. P.C. Tarnopolsky agreed that was not the case, that he was on the scene for considerably longer than seven minutes, and that there was an error in his notes.
[60] In view of these and other considerations, I find that the recollection of P.C. Tarnopolsky that it was P.C. Morenci who was assisting him on the ground is not reliable. Rather, I accept the evidence of Constables Morenci and Tucker on the point, who both testified that it was P.C. Tucker who first reached P.C. Tarnopolsky and assisted him in handcuffing Mr. Travis.
Issues
[61] The applicant Mr. Travis submits that the following issues arise on this application:
a. Was Mr. Travis detained by the police and, if so, was his detention contrary to s. 9 of the Charter? b. Did the police have reasonable and probable grounds to arrest Mr. Travis and, if not, was his arrest contrary to s. 9 of the Charter? c. If the detention or arrest of Mr. Travis was unlawful, did the police search of Mr. Travis constitute a violation of s. 8 of the Charter? d. If there was a violation of the rights guaranteed Mr. Travis under either ss. 8 or 9 of the Charter, should the evidence obtained as a result be excluded from admission at trial?
[62] That said, in my view, on the evidence before me, the only real live issue is whether the police officers had reasonable grounds to arrest the person they first saw at the Burger King and who turned out to be Mr. Travis.
Analysis
Was Mr. Travis detained by the police and, if so, was his detention contrary to s. 9 of the Charter?
[63] Recently, our Court of Appeal had occasion to describe the nature of police detention in its decision in R. v. Omar, 2018 ONCA 975, where the majority of the court discussed the Supreme Court of Canada’s seminal decision in R. v. Grant, 2009 SCC 32, in the following terms:
The majority of the Supreme Court [in R. v. Grant] reiterated the basic principle that while a police officer may approach a person on the street and ask him or her questions, the person has the right to refuse to answer and walk away. Detention occurs when that choice to walk away is removed, “whether by physical or psychological compulsion” (para. 21). Detention requires more than “a fleeting interference or delay” but less than “where the police take explicit control over the person and command obedience” (para. 24). The majority agreed, at para 28, with the holding in an early Charter case, R. v. Therens, …, that there is a detention when a person “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”
[64] In my view, this is not a case of investigative detention by the police as contemplated by the applicant’s materials. I reject the notion, as advanced in para. 13 of the applicant’s notice of application, that once Mr. Travis was ordered to stop by P.C. Tucker at the Burger King when he first began to run from the police, that there was a police detention or intention to detain within the meaning of s. 9 of the Charter.
[65] If, as the Court of Appeal said in Omar, detention occurs when a person’s choice to walk away is removed, in this case the clear choice – and manifest ability – of Mr. Travis to run away from the police at the Burger King demonstrates that there was no police detention when P.C. Tucker called for Mr. Travis to stop at the Burger King. In the language of R. v. Therens, no detention had occurred at that point because, clearly, by fleeing the scene, Mr. Travis did not submit or acquiesce in the deprivation of his liberty. Clearly, it cannot be said that Mr. Travis believed that “the choice to do otherwise” than submit to police control did not exist – precisely because he took to flight in the belief that he could evade police control. As such, there was no police detention at the time that P.C. Tucker called at Mr. Travis to stop at the Burger King.
[66] The evidence of both P.C. Morenci and P.C. Tucker was that they approached the hooded figure at the Burger King believing him to be Mr. Kennedy and with the intention to arrest him for the domestic assault, which intention solidified when he began to run from the police.
[67] As such, in my view, this is really not a case of police detention. On the facts of the instant case, Mr. Travis was not detained until he was brought to the ground by P.C. Tarnopolsky at the end of the chase. See R. v. Nesbeth, 2008 ONCA 579, at para. 17.
[68] I agree with Mr. Manarin that there is here no real issue that Mr. Travis was interdicted by the police for investigative detention. Rather, as I have said, the real question is whether the police had reasonable grounds to arrest Mr. Travis when they ultimately apprehended him.
Did the police have reasonable and probable grounds to arrest Mr. Travis and, if not, was his arrest contrary to s. 9 of the Charter?
[69] Mr. Travis asserts that arrest was unlawful, effected without reasonable and probable grounds, and in breach of his rights guaranteed by s. 9 of the Charter.
[70] Clause 495(1)(a) of the Criminal Code permits a peace officer to arrest, without a warrant, a person “who the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.”
[71] Pursuant to s. 34(1)(a) of the Interpretation Act, an offence is deemed to be an indictable offence “if the enactment provides that the offender may be prosecuted for the offence by indictment.” Under s. 266(a) of the Code, assault may be prosecuted by indictment.
[72] As such, if the police officers here believed on reasonable grounds that the person had committed an assault, the officers had authority to make a warrantless arrest.
[73] In its recent decision in R. v. Canary, 2018 ONCA 304, at paras. 21-23, the Ontario Court of Appeal had occasion to summarize the legal framework for determining whether the police have sufficient grounds to justify an arrest. Writing for the unanimous court in Canary, Fairburn J.A. summarized the framework in the following terms:
Where a peace officer believes on reasonable grounds that a person has committed an indictable offence, the officer may make a warrantless arrest: s. 495(1)(a) of the Criminal Code. There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer “must subjectively believe that there are reasonable grounds to make the arrest”: R. v. Saciragic, 2017 ONCA 91, at para. 16. To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, at pp. 250-51; R. v. Bush, 2010 ONCA 554, at para. 38; Saciragic, at para. 16. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: Storrey, at pp. 250-51.
When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, 2013 SCC 50, at para. 73.
The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Debot, at p. 1166; Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., at p. 167; R. v. Dhillon, 2016 ONCA 308, at para. 25; R. v. Muller, 2014 ONCA 780, at para. 33.
[74] Considering first the subjective requirement, it is clear on the evidence that both P.C. Tucker and P.C. Morenci held an honest belief that the person they believed to be Daymien Kennedy had committed the offence of assault. The officers had been tasked that night with speaking with Mr. Kennedy in furtherance of a police investigation of domestic assault. Shortly after they released Mr. Kennedy, they were subsequently advised by P.C. Kerekes that they have grounds to arrest Mr. Kennedy. As P.C. Morenci put it, P.C. Kerekes advised them that Mr. Kennedy was “arrestable for assault.”
[75] The testimony of P.C. Morenci in examination-in-chief was that he believed that the hooded figure he saw at the Burger King was Daymien Kennedy. P.C. Morenci further testified that when the man immediately began to run upon seeing the police, it “suggested to me that it was Daymien Kennedy.”
[76] In the same vein, P.C. Tucker testified in cross-examination that he believed the hooded figure at the Burger King was Daymien Kennedy and that is why he and P.C. Morenci approached the man. Later on in cross-examination, P.C. Tucker testified that when he put the handcuffs on the man lying prone on the ground, he believed it was Daymien Kennedy.
[77] As I have said, I found Constables Morenci and Tucker to be credible and reliable witnesses, and I accept their evidence in this regard. As such, given the information they received from P.C. Kerekes, I find that the officers subjectively believed that there were reasonable grounds to make the arrest.
[78] When considering whether the officers’ subjective belief is objectively reasonable, it is important to keep foremost in mind, as our Court of Appeal has repeatedly emphasized, the need to consider the totality of the circumstances. In its 2016 decision in R. v. Labelle, 2016 ONCA 110, the Court of Appeal held that:
When considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation: see R. v. Lawes, 2007 ONCA 10, at para. 4; R. v. Italiano, 2015 ONCA 179, at para. 8. See also R. v. Shepherd, 2009 SCC 35, at paras. 21-22.
[79] In this case, the police officers’ interaction with the hooded figure they believed to be Daymien Kennedy began with their attempt to take reasonable steps to ascertain the identity of the hooded figure. I have accepted the officers’ evidence that they believed the hooded figure to be Mr. Kennedy. I also note their evidence that their intent in pulling into the parking lot was to approach the man, ask him for his identification, and if it was in fact Mr. Kennedy, they were going to arrest him, given the information received from P.C. Kerekes. Indeed, the evidence of P.C. Tucker was that if that approach had taken place, and if the man had produced identification establishing that he was not Daymien Kennedy, P.C. Tucker would have wished him a good night, called him a cab if he needed one, and sent him on his way.
[80] However, none of that happened of course because Mr. Travis immediately ran from the police when the cruiser first entered the parking lot. That is, the decision of Mr. Travis to immediately take flight thwarted the police officers’ attempts to take reasonable steps to ascertain the identity of the person they believed to be Daymien Kennedy.
[81] I pause at that juncture to consider, given the situation then confronting the officers, what it is that we expect of our police officers. I do not think it reasonable to conclude that the officers should have done no more than shrug their shoulders and call it a night. I believe that right-thinking members of the community would expect that the officers would pursue the fleeing individual in order to ascertain his identify and confirm whether he indeed was the person suspected of committing an assault upon his partner. And that is exactly what the two officers did.
[82] I return, then, to the consideration of what a reasonable person, standing in the shoes of the police officers, would have believed. That reasonable person would be confronted with the following:
a. a crime of domestic violence was being investigated; b. the investigating officer had advised that, having interviewed the complainant of the domestic violence, the police had grounds to arrest Daymien Kennedy; c. having just spoken with the same Mr. Kennedy about an hour and 45 minutes previously, the reasonable person knew that Mr. Kennedy was wearing a black or dark-coloured hooded jacket and dark jeans; d. the hooded figure was then observed, less than two hours later, also wearing a black or dark-coloured hooded jacket and dark jeans; e. the hooded figure appeared to be of the same size and stature as Mr. Kennedy; f. when the reasonable person last saw Mr. Kennedy less than two hours ago, he was getting into a taxi van; g. less than two hours later, the hooded figure was observed in the same vicinity as where the same taxi van dropped off its passenger; h. the hooded figure is observed at 4:58 in the morning, standing alone outside of a restaurant establishment that is closed for business at that time of the morning on New Year’s Day, when there is very little other vehicular or pedestrian traffic; i. as soon as the hooded figure sees the police cruiser, he immediately runs away from the police; j. when a police officer yells at the fleeing figure to stop, the man ignores the command, keeps on running, and does not even break stride; and k. as the hooded figure continues to run from the police, he is observed to have a peculiar running gait, suggestive of the person carrying or protecting some object in his right-side jacket pocket.
[83] I would say something further about the man the police believed to be Daymien Kennedy taking flight. The Crown concedes the point made by Ms. Carroccia that anyone is entitled to run from the police. That said, I accept Mr. Manarin’s submission that, while the flight is not criminal conduct, it nevertheless bears some relevance in the overall factual matrix.
[84] I appreciate that while flight can support an inference of guilt, it is not the only inference available. As the Supreme Court of Canada said in R. v. White, at p. 74, in the context of considering post-offence conduct, “people sometimes flee or lie for entirely innocent reasons, and … even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried.”
[85] Having said that, the police in this case drew a particular inference from the fact that the hooded figure immediately fled upon seeing the police. Again, the evidence of P.C. Morenci was that when the man immediately began to run upon seeing the police, it “suggested to me that it was Daymien Kennedy.” While one should not disregard the possibility that there may be other possible innocent explanations for the flight, I believe that a reasonable person, standing in the shoes of the police officers, would conclude that the inference that the police drew was not unreasonable in the totality of the circumstances.
[86] For all of these reasons, and bearing in mind that the police are not required to establish a prima facie case for conviction before making the arrest, I conclude that a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. I find that the objective component has been satisfied.
[87] In sum, I conclude that the police had reasonable and probable grounds to arrest and detain the person they believed to be Daymien Kennedy but turned out to be Dylan Travis.
If the detention or arrest of Mr. Travis was unlawful, did the police search of Mr. Travis constitute a violation of s. 8 of the Charter?
[88] A search is reasonable within the meaning of s. 8 of the Charter if it is authorized by a reasonable law and is conducted reasonably. See R. v. Fearon, 2014 SCC 77, at para. 12, citing R. v. Collins, at p. 278; and R. v. Caslake, at para. 10.
[89] In R. v. Fearon, the Supreme Court of Canada explained the historical basis of the common law police powers to search incidental to a lawful arrest, as follows:
Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.
The Court affirmed the common law power of the police to search incident to arrest in R. v. Beare … . La Forest J., for the Court, noted that the search incident to arrest power exists because of the need “to arm the police with adequate and reasonable powers for the investigation of crime” and that “[p]romptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations.” … Thus, the need for the police to be able to promptly pursue their investigation upon making a lawful arrest is an important consideration underlying the power to search incident to arrest. R. v. Fearon, 2014 SCC 77, at paras. 16-17, citing R. v. Beare, at p. 404; and R. v. Debot, at p. 1146. [Citations omitted.]
[90] In its recent decision in R. v. Gonzales, 2017 ONCA 543, at para. 98, the Ontario Court of Appeal affirmed earlier case law that no further grounds need be established to justify the search of a person if the search is truly incidental to arrest, as follows:
It is beyond controversy that a search incident to arrest has its genesis in a lawful arrest. No further showing of reasonable grounds for the search itself is required: Cloutier c. Langlois … . However, the search must be truly incidental to the arrest. There must be some reasonable basis for the search, for example, to ensure the safety of the public and police; to protect evidence from destruction; or to discover evidence. To be truly incidental to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. This involves both subjective and objective elements. The police must have one of the purposes for a valid search incident to arrest in mind when conducting the search. And the searching officer’s belief that this purpose will be served by the search must be reasonable: R. v. Caslake, at paras. 19, 20 and 25.
[91] In the instant case, the police clearly had a reasonable basis to search Mr. Travis. When the officers handcuffed Mr. Travis and rolled him over, they discovered a loaded .38 caliber revolver on the ground. He was then arrested on weapons charges by P.C. Tucker, who then conducted a search of Mr. Travis incident to arrest. With the fully-loaded revolver still lying on the ground, it is plain that the police had a reasonable basis for the search, being to ensure the safety of the attending officers and the public.
[92] I conclude that in the circumstances at bar, the police conducted a valid search incident to arrest. They did not violate the rights of Mr. Travis under s. 8 of the Charter.
If there was a violation of the rights guaranteed Mr. Travis under either ss. 8 or 9 of the Charter, should the evidence obtained as a result be excluded from admission at trial?
[93] In light of my conclusion that the rights of Mr. Travis under ss. 8 and 9 of the Charter were not violated, I need not address the admissibility of the evidence seized under section 24(2).
[94] If I am wrong, however, and the rights of Mr. Travis under ss. 8 or 9 were violated, I would have gone on to find that the evidence should be admitted under s. 24(2) of the Charter. However, there is little point in setting out a full s. 24(2) analysis because in the event that my conclusion that there was no violation of Mr. Travis’s s. 9 rights are held to be in error, it is doubtful that my s. 24(2) analysis would be of assistance on appellate review.
Conclusion
[95] For all of the above reasons, I find that the police had reasonable and probable grounds to arrest Mr. Travis on January 1, 2017. As such, in my view, the applicant’s detention and arrest was lawful and not arbitrary in nature. Accordingly, I find that the police officers of the WPS committed no violation of the applicant’s rights under s. 9 of the Charter.
[96] Further, I find that the manner of the search incident upon arrest of Mr. Travis that was conducted by WPS officers was reasonable in the circumstances. As such, I find no breach of the applicant’s s. 8 Charter rights.
[97] Accordingly, for all of these reasons, I find that there has been no breach of the applicant’s rights under either ss. 8 or 9 of the Charter. Accordingly, the application to exclude evidence pursuant to s. 24(2) of the Charter is dismissed. The Smith & Wesson .38 caliber revolver and other evidence seized by the police upon the arrest of Mr. Travis is admissible in evidence at trial.
Original signed by Justice J. Paul R. Howard
J. Paul R. Howard Justice