Court File and Parties
COURT FILE NO.: CRIMJ(F)923/18 DATE: 20190604
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Robert Tremblay, for the Crown
- and -
MALCOLM WILLIAMS Brian Crothers, for the Accused
REASONS FOR JUDGMENT
BARNES J.
INTRODUCTION
[1] Malcolm Williams is charged with assault, contrary to the Criminal Code of Canada, R.S.C., 1985, c. C-46, and two counts of possessing cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] Mr. Williams concedes the allegations on the drug charges but seeks exclusion of the evidence on the basis that it was unlawfully obtained and admission will result in an unfair trial on the charges.
[3] On consent, the trial on the assault charge and the voir dire to determine the admissibility of the drug evidence proceeded as a blended proceeding.
AGREED FACTS
[4] The parties agree that Mr. Williams was arrested in the City of Brampton, Ontario, on November 11, 2016. Peel Regional Police Officers arrested him for assault at 9:21 p.m. Police searched him. They found him to be in possession of 2.2 grams of marihuana, 2.4 grams of cocaine and 28 grams of cocaine, and charged him with the drug offences.
[5] Mr. Williams admits that the drugs seized were in his possession for the purpose of trafficking. Mr. Williams conceded jurisdiction, identity and continuity of the drugs.
ASSAULT CHARGE
[6] The allegations stem from an interaction between Mr. Malcolm Williams and Mr. Jacob McNabb on October 11, 2016, at the Bramalea City Centre Shopping Mall. Mr. McNabb is employed as a security guard at the mall. He alleges that Mr. Williams shoved him by pushing against his left shoulder with his hand.
Jacob McNabb’s Testimony
[7] Mr. McNabb said that on November 16, 2016, he was working as a security guard at the mall. He received complaints that there were three males occupying one bathroom stall and there was smoke in the area above them.
[8] Mr. McNabb claims that he went to the washroom at approximately 5:14 p.m. He saw three males in the one stall, smelt an odour of marihuana and saw smoke.
[9] He said that his purpose was to obtain information from the men to see if they had been involved in previous incidents on the premises.
[10] Mr. McNabb testified that he identified himself as mall security and asked the men to exit the stall. It took about 30 seconds to a minute for them to comply. He asked them what had transpired, and two of the men ran past him. Mr. Williams was the third. Mr. McNabb stated that as Mr. Williams moved past him, he shoved him in the left shoulder, causing Mr. McNabb to lose his balance. Mr. McNabb then grabbed Mr. Williams’ hand. Mr. Williams resisted. Mr. McNabb said he called for assistance, and other security guards helped him take Mr. Williams into custody. He then arrested Mr. Williams for assault.
[11] Mr. Williams was taken into custody and declined medical attention. Peel Police were called at 5:21 p.m. Mr. Williams remained in custody until 9:21 p.m., when Peel police officer St. Clair took him into custody. According to Mr. McNabb, shortly after, he returned to the bathroom stall and observed some marihuana crumbs in the stall.
Malcolm Williams’ Testimony
[12] Mr. Williams confirmed that he was at the mall that day. He conceded that he is a cocaine dealer. He obtained his cocaine from a supplier called G. He said he had obtained 28 grams of cocaine on consignment, and his intention was to sell and double his investment. G was expecting $1,500 for the cocaine. He explained that it was not difficult to sell cocaine. It takes just a few days.
[13] Mr. Williams testified that he went to the mall at 4:00 p.m. to meet Delon Green. Upon arrival, he went window shopping and purchased hot chocolate from Tim Horton’s. He met Ty, who sells marihuana. Ty is a regular marihuana supplier. Mr. Williams said Ty was accompanied by an unknown male. Mr. Williams, Ty and Ty’s unknown male companion went into the mall bathroom stall to sample some of Ty’s marihuana.
[14] Once in the stall, Ty showed him the marihuana he had for sale. Mr. Williams said the marihuana was good quality, and he agreed to purchase two grams. Mr. Williams stated that this was the marihuana the police found on him when he was later arrested. He said none of them smoked marihuana in the bathroom stall. It was a quick “in and out” transaction.
[15] Mr. Williams testified that shortly after the transaction, the security guard knocked on the door of the stall. At that point, Ty panicked and asked him if he could hold his bag. He refused. Ty dropped his bag and then picked it up. Ty and his unknown companion left the stall, and he followed.
[16] According to Mr. Williams, the security guard was standing between the bathroom hallway and the sinks. There was plenty of room for him to walk by. Mr. Williams said he grabbed his hot chocolate and walked past Mr. McNabb. Mr. McNabb grabbed his shoulder. He was in shock and reacted by pushing Mr. McNabb in the shoulder. This was enough for him to get away, and as he moved away from Mr. McNabb, he was tackled to the ground by other security guards and handcuffed. He said that he did not require any medical attention.
[17] Mr. Williams did not recall if he was advised of his rights to counsel upon his arrest; however, he was told that the police had been notified and were on route to take him into custody. Later, he was told that the police had been delayed.
Analysis
[18] The Crown must prove beyond a reasonable doubt that Mr. Williams intentionally applied force to Mr. McNabb without his consent, directly or indirectly: Criminal Code, s. 265(1)(a).
[19] It has been shown beyond a reasonable doubt that Mr. Williams shoved Mr. McNabb – both Mr. Williams and the security guard agree on that fact. There is disagreement on whether Mr. Williams was the first to shove Mr. McNabb, or whether Mr. McNabb grabbed Mr. Williams first and Mr. Williams reacted.
[20] Mr. McNabb called out to the three men involved in a drug deal. The men panicked and ran out. Not only was Mr. Williams involved in a drug deal in the stall of a public washroom; he also knew he had a large quantity of cocaine on his person. Within this context, it is reasonable to conclude that Mr. Williams wanted to avoid any interaction with a security guard, namely Mr. McNabb.
[21] Mr. McNabb stated that it was his intention to speak to Mr. Williams and his companions to determine what happened; however, they were free to go if they wished. Mr. McNabb’s testimony gives the impression that even though he wanted to speak to the men, he did not attempt to grab them (including Mr. Williams). Against that backdrop, it is puzzling why Mr. Williams would strike Mr. McNabb, thus drawing further attention to himself in the face of a clear path to leave the washroom. It does not make sense that Mr. Williams, under those circumstances, would take additional action to put himself in further jeopardy.
[22] It is also possible that Mr. McNabb simply approached Mr. Williams with the intention of speaking to him to find out what had transpired and whether Mr. Williams had been the subject of previous incidents at the mall. Mr. Williams, with the knowledge of his recent drug transaction and the presence of a large quantity of cocaine on his person, was determined to flee and took pre-emptive, evasive action by shoving Mr. McNabb in order to make certain of his escape.
[23] It is also quite reasonable for Mr. McNabb to have instinctively reached out to grab Mr. Williams, so as to prevent him from running past him. Mr. McNabb wanted to speak to the three males, two of whom had already run past him.
[24] As such, several reasonable inferences can be drawn from the evidence. While I do not accept Mr. Williams’ testimony, it does raise a reasonable doubt. Therefore, Mr. Williams is found not guilty of assault.
POSSESSION FOR THE PURPOSE OF TRAFFICKING
[25] Mr. Williams seeks an exclusion of all evidence obtained from the police search on the basis that admission will create an unfair trial. He says that the actions of the security guards were abhorrent.
[26] The security guards are not government actors, and therefore no breach under the Canadian Charter of Rights and Freedoms can be asserted as a result of their actions. Mr. Williams therefore asks this court to exercise its common law jurisdiction to exclude the evidence because it will render the trial unfair. He submits that the police relied on the actions of the security guards to arrest and search Mr. Williams.
[27] Mr. Williams provided particulars of the abhorrent behaviour as follows: Mr. Williams was assaulted by a security guard, Mr. McNabb, in the washroom; he was violently arrested by a team of security guards; he was confined to a cell for four hours while the security guards waited for the police to arrive; and he had no means of contacting counsel or anyone else. Mr. Williams submits that the unlawful conduct of the security officers led directly to the police ultimately discovering the drugs on Mr. Williams’ person. Under all of these circumstances, the prejudicial effect of admission outweighs the probative effect, as admission will create an unfair trial.
[28] The Crown submits that Mr. McNabb’s arrest of Mr. Williams was lawful because Mr. McNabb was acting pursuant to s. 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “Act”). Mr. McNabb did not assault Mr. Williams. Mr. Williams assaulted Mr. McNabb, providing further grounds for his arrest.
[29] Mr. McNabb had the authority to detain Mr. Williams until the police arrived. He was not mistreated during the four-hour wait. The police had reasonable and probable grounds to arrest Mr. Williams for assault. There was no Charter breach, and even if there was, it was minor and the s. 24(2) Charter analysis favours inclusion of the evidence: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Discussion/Analysis
[30] By virtue of s. 32(1) of the Charter, the application of the Charter is confined to the actions of government actors: see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at pp. 597-9; and R. v. Harrer, [1995] 3 S.C.R. 562, at para. 12. The security guards are private actors, and therefore the Charter does not apply to them.
[31] The court has discretion under common law to exclude evidence where admission will render the trial unfair: Harrer, at paras. 23-24, 41-43; R. v. Potvin, [1989] 1 S.C.R. 525, at pp. 531, 547-8, 552; and R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 40. Examples of the use of this discretion include: the admission of otherwise inadmissible evidence, such as evidence of the prior sexual history of a complainant where necessary to make full answer and defence under s. 7 of the Charter, discussed in R. v. Seaboyer, [1991] 2 S.C.R. 577; the discretion to not admit evidence of prior testimony at a preliminary inquiry even though all statutory preconditions set out by s. 715 of the Criminal Code are satisfied, as noted in Potvin; the discretion to limit the powers under s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5, to cross-examine an accused on prior criminal convictions, discussed in R. v. Corbett, [1988] 1 S.C.R. 670; and the residual discretion of the judge to exclude otherwise admissible hearsay evidence. R. v. Bradshaw, 2017 SCC 25, [2017] 1 S.C.R. 865, at para. 24; R. v. B. (S.A.), [1994] 1 S.C.R. 701; and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49; R v Starr, 2000 SCC 40, [2000] 2 S.C.R.144.
[32] The Charter does apply to the actions of non-government actors where they are acting as agents of government actors: Harrer, at paras. 7, 12. In this case, Constable St. Clair testified that they arrived at the mall at 8:04 p.m. “to continue” the arrest of Mr. Williams, who had been arrested by the security guards for assault. This alone is not sufficient to support a conclusion that the security guards were agents of the police. There is no evidence that the security guards arrested, detained or continued the detention of Mr. Williams on instructions from the police. The security guards did not act as agents of the police. Thus, their actions are not subject to the Charter.
[33] Any person charged with an offence “has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”: Charter, s. 11(d). Section 11(d) transforms “this high duty of the judge at common law [to exclude evidence that will render a trial unfair] to a constitutional imperative”: Harrer, at para. 24. Therefore, Mr. Williams’ complaint is an assertion of a violation of his s. 11(d) right to a fair trial.
[34] What is under consideration is the impact of the admission of evidence on the fairness of the trial. This is distinct from an analysis under s. 24(2) of the Charter, which focuses on whether to accept or reject evidence wrongfully obtained. The focus of the trial fairness analysis “is not the remedy for a breach” under s. 24(2), but rather, on “the manner in which the trial must be conducted if it is to be fair”: Harrer, at para. 22.
[35] Under the “trial fairness” analysis, “evidence may be obtained in circumstances that would not meet the rigorous standards of the Charter and yet, if admitted in evidence, would not result in the trial being unfair”: Harrer, at para. 14. It follows that the corollary is correct: evidence obtained in a manner which does not meet the rigours of the Charter but will create an unfair trial if admitted should be excluded. Where the actor is a state actor, an analysis under s. 24(2) will be necessary.
[36] A contextual approach should be adopted on assessing whether the admission of evidence will result in an unfair trial. This requires striking a balance “between the interests of the individual and those of the state in providing a fair and workable system of justice”: Harrer, at para. 14, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539.
[37] Mr McNabb was engaged in the lawful execution of his duties under ss. 2(1), 9(1) and 9(2) of the Act when he sought to speak to Mr. Williams and his companions to determine whether they had been the subject of previous incidents in relation to the property. His authority to act under the Act is limited to what is permitted under the legislation: R v Aquire, 2006 CarswellOnt 8610 at para. 97. Section 2(1) states:
2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
[38] Sections 9(1) and (2) states:
9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
[39] Mr. McNabb received information from security dispatch that there were three males in a single stall in the public washroom. There was an odour of marihuana in the air. Mr. McNabb approached to ask the men what they were doing, and upon arrival he requested that they come out.
[40] Mr. McNabb’s said it was his intention to determine whether the men had been subject to previous incidents in the mall. Within that context, it is reasonable to conclude that he approached Mr. Williams to determine if that was the case. I cannot determine on balance whether he grabbed Mr. Williams first or whether Mr. Williams pushed him first. In any event, it is not disputed that Mr. Williams pushed Mr. McNabb.
[41] The reason given by Mr. McNabb for arresting Mr. Williams is assault. His authority to do so is derived from section 494(1) and (2) of the Criminal Code, which authorises an agent of the lawful owner of the property, (the mall) to arrest a person (Mr. Williams) without warrant, if he has reasonable grounds to believe that Mr. Williams has committed a criminal offence (assault) on the property: See also R v Asante Mensah, 2003 SCC 38, [2003] S.C.R. 3.
[42] The reasonableness of Mr. McNabb’s reasons for arresting Mr. Williams is assessed from an objective and subjective prospective, taking into account all of the other information available to him: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-1. On balance, I am satisfied that Mr. McNabb had reasonable grounds to believe that Mr. Williams was smoking marihuana on the premises and was in possession of marihuana, and that he had committed an assault when he pushed Mr. McNabb. The reason offered for the arrest was assault. Pursuant to s 494 of the Criminal Code, Mr. McNabb’s actions were lawful. On the evidence, I cannot conclude that Mr. McNabb grabbed Mr. Williams before Mr. Williams pushed him. Therefore, I do not conclude that Mr. McNabb assaulted Mr. Williams.
[43] Mr. Williams and his companion left the bathroom stall at about the same time, and yet two of his companions were able to evade security guards. Thus, I accept Mr. McNabb’s testimony that he called for additional guards during his interaction with Mr. Williams. In addition, the force utilized by the guards in arresting Mr. Williams was not excessive: he suffered no injuries and required no medical attention. There is no evidence of mistreatment while in the guards’ custody. Mr. Williams did not request to speak to anyone, or make any request that was denied.
[44] Mr. Williams was arrested at 5:15 p.m. Police were called minutes later, at 5:24 p.m. While four hours in the custody of security guards was longer than what one would expect, in the circumstances of this case, on balance, considering Mr. Williams’ and the state’s interest in ensuring that the system of justice is fair and workable, the admission of the evidence would not result in an unfair trial. My conclusion would have been different if any or all of these factors were present: if Mr. Williams was assaulted; if excessive force was utilized in arresting him; if he was mistreated while in the guards’ custody; or if the period of time in the guards’ custody was inordinately excessive.
[45] The police had reasonable and probable grounds to arrest Mr. Williams. Constable St. Clair was informed by Mr. McNabb that there were three men in a public washroom stall; he smelled marihuana; he went to investigate; and Mr. Williams pushed Mr. McNabb while Mr. Williams exited the washroom. The police grounds for arresting Mr. Williams were conceded and are not under scrutiny. Mr. Williams submits that it is the conduct of the guards and the police reliance on such conduct that is under scrutiny. Therefore, for the reasons articulated, Mr. Williams’ motion to exclude is dismissed. The evidence seized is admissible.
[46] Mr. Williams has admitted that he was in possession of cocaine for the purpose of trafficking. The Crown’s case against him on this charge is proven beyond a reasonable doubt. Mr. Williams is guilty of the two counts of possession of cocaine for the purpose of trafficking on the indictment.
Barnes J.