COURT FILE NO.: CR-19-1464
DATE: 20191128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Ryan Morrow
Respondent
- and -
Issak Khoshaba
Chris Rudnicki
Applicant
HEARD: October 28-31, 2019
RULING on CHARTER APPLICATION
Baltman J
Introduction
[1] This case presents familiar and disturbing allegations. Based on a hunch, police pursue a vehicle and detain the driver, claiming a traffic violation. When the driver fails to identify himself, police search his vehicle, ostensibly for his identification. Within, they discover a prohibited item, in this case a firearm. A Highway Traffic Act “investigation” has now morphed into serious criminal charges under the Criminal Code.
[2] Here the driver is Issak Khoshaba, who faces four charges related to a loaded firearm found in the car he was driving. He has applied to have the firearm excluded from evidence based on multiple Charter violations, including s. 9 (arbitrary arrest or detention); s. 8 (unreasonable search and seizure); and s. 10 (b) (right to counsel). The 10(b) application is conceded by the Crown, based on questions improperly put to Mr. Khoshaba while he was being driven to the police station and before he spoke to counsel.
[3] For the following reasons, both the s. 8 and s. 9 applications are allowed. As I describe below, this case reveals a blatant disregard for Charter rights, highly aggravated by the officers’ misleading testimony at this hearing.
Legal Framework and the Issues on this Application
[4] The two disputed breaches are unreasonable search and arbitrary detention, contrary to ss. 8 and 9. On these applications, the Crown has the onus of proving that the (warrantless) search was reasonable. As the authority relied on for the search in this case was an arrest, the Crown also bears the burden of proving that the arrest was lawful: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75; R. v. Busharah, 2010 SKCA 2, at paras. 32-36; R. v. Brown, [1996] O.J. No. 704 (C.A.), at para. 3.
[5] Therefore, the s. 8 and 9 breaches can both be decided by a single issue: whether the police had lawful authority to arrest Mr. Khoshaba. If they did, the Applicant agrees the search of his vehicle was a lawful exercise of the power to search incident to arrest. If they did not, then the arrest was arbitrary and the search was unreasonable, as the foundation for the search is the validity of the Applicant’s arrest.
[6] The issue of whether police had lawful authority to arrest Mr. Khoshaba also comes down to one question: did the arresting officers tell the truth about what happened that day? In particular, did they fabricate a Highway Traffic Act violation as a post facto justification for the arrest?
Evidence
a) Mr. Khoshaba’s evidence
[7] I heard two widely divergent accounts of what happened.
[8] Mr. Khoshaba was the first witness on the voir dire. He is a Canadian citizen whose parents are originally from Iraq. The family moved to Canada when he was nine months old. At the time of this incident he was 22 years old.
[9] Mr. Khoshaba testified that in the time period leading up to this incident he was employed as a plumber, working weekdays with the aim of acquiring his Red Seal, a plumbing certification. He was living at his parents’ home, at 5 Matthew Harrison St. in Brampton. He was also on a recognizance of bail at that time that required him to remain in his residence unless he was travelling to and from work.
[10] This incident occurred on Friday, October 19, 2018. Mr. Khoshaba was originally scheduled to work that day, but was informed he was not needed because the projects they were working on had been completed. Around noon he decided to drive over to a nearby convenience store for cigarettes and to top up the data for his phone.
[11] Mr. Khoshaba left his home in a black Chrysler rental and travelled east on Matthew Harrison. He stopped at the stop sign at the intersection of Matthew Harrison and Gardenbrooke Trail. From there, he had a clear view of Gardenbrooke Trail and oncoming southbound traffic. He saw a police cruiser approaching from that direction, to his left. Although he had time to turn before it reached him, he decided not to; he was on house arrest, and did not want to draw attention.
[12] As the police cruiser approached the intersection where he was stopped, it slowed down significantly, and he observed both officers looking directly at him. Once the police cruiser passed through the intersection, he turned left and proceeded north on Gardenbrooke Trail. In his rear view mirror he saw the police cruiser come to a complete stop at Mulgrave Street, the next street south of Matthew Harrison. There was no stop sign there.
[13] Now nervous about the police vehicle, Mr. Khoshaba decided to return home. He turned left onto Castle Oaks Crossing and followed it to Thorndale Road, where he again turned left. He did not see the police behind him. He turned left again back into Matthew Harrison, reverse parking into his driveway. He took the extra time to reverse park because he did not see the police in pursuit.
[14] As he completed his reverse park, the police cruiser came around the corner and parked across the bottom of his driveway, blocking him in. He got out of his car at the same time as the officers. One of the officers said “come here, I want to talk to you”, or words to that effect. Believing they had no basis to detain him, he ignored them and walked towards his front door, which was a short distance from the driveway.
[15] While Mr. Khoshaba was on the front porch, reaching for the door, the police grabbed him and forced his hands behind his back. He initially resisted, but after a short struggle he gave up. The officers cuffed him and began walking him toward the police cruiser. Up to this point, neither officer mentioned anything about a stop sign. Neither asked him to produce a driver’s license or otherwise identify himself.
[16] As the officers brought him to the cruiser, they asked for his name, which he refused to give, believing they had no reason to detain him. Constable Carroll searched him near the cruiser, removing items out of his pocket and then placing him inside the cruiser. Constable Dhami went searching for the car keys, which Mr. Khoshaba had dropped during the struggle. After he found them, he searched Mr. Khoshaba’s vehicle, where he found a loaded handgun. Mr. Khoshaba then revealed his name, which Constable Carroll ran in his system. Constable Carroll then advised Mr. Khoshaba that he was under arrest for possessing a firearm and for failing to comply with his recognizance.
[17] The first time Mr. Khoshaba learned anything about being charged with disobeying a stop sign or failing to identify himself was after he had been transported to the station and was sitting in the cells, and Constable Dhami came in with his appearance notices. Neither officer had made any mention of either charge in their interactions with him outside his home.
b) The Officers’ evidence
[18] Except where I indicate otherwise, the following summary is a compilation of the evidence from the two arresting officers, Constables Carroll and Dhami.
[19] Constables Carroll and Dhami are school resource officers employed by Peel Regional Police. On October 19, 2018, at approximately 12:15 p.m., they had finished their duties at one Brampton school and were en route to another, in a marked police cruiser. Constable Carroll was driving. As they were southbound on Gardenbrooke Trail approaching its intersection with Matthew Harrison Street, they saw a black Chrysler that had been travelling eastbound on Matthew Harrison race through the stop sign at Gardenbrooke without stopping. The Chrysler turned left (northbound) right in front of them, nearly colliding with their police cruiser and forcing Constable Carroll to brake hard. Then it sped away.
[20] In the midst of this near collision, Constable Carroll “glanced over and got the licence plate number”. While driving, he typed in the seven characters of Mr. Khoshaba’s licence plate into his on-board computer. At the same time, he was executing a U-turn to pursue Mr. Khoshaba’s vehicle. By the time he got the results, Mr. Khoshaba’s car was well ahead of them. He led them through a series of three more left turns, circling back onto Matthew Harrison. Mr. Khoshaba parked in his driveway and was getting out of his car just as they caught up to him.
[21] The officers got out of their cruiser and told Mr. Khoshaba that he was being stopped for refusing to obey a stop sign, and demanded identification. Mr. Khoshaba made for the door. They followed, continuing to demand identification at least another four times. When he continued to ignore them, they placed him under arrest for failing to identify himself under the Highway Traffic Act, and then brought him to the police cruiser. After a pat-down search produced no identification, Constable Dhami found Mr. Khoshaba’s keys and searched his car for the sole purpose of finding identification. Instead, he found a gun in the centre console. Mr. Khoshaba then identified himself. He was charged with unauthorized possession of a firearm and breach of recognizance, and given his rights to counsel. Mr. Khoshaba advised police he wished to speak with his lawyer, Chris Rudicki.
[22] Approximately 30 minutes later, another officer, Brandon Statham, took over custody of Mr. Khoshaba and transported him back to 21 Division. Despite being advised that Mr. Khoshaba wished to speak with counsel, and by then having five years of experience as a police officer, Officer Statham engaged Mr. Khoshaba in conversation about the firearm that had been discovered. At this hearing, Officer Statham candidly admitted that he should not have done that, and now knows that where an accused wants to speak with counsel he has a duty to hold off questioning.
Findings
a) Mr. Khoshaba’s evidence
[23] I find Mr. Khoshaba’s evidence highly credible and reliable. He freely acknowledged that he was in breach of his bail by heading out to the store that day, and made no excuses for it. Most importantly, his conduct accords with common sense and human experience. It makes sense that knowing he was in breach of his bail, he was anxious to avoid drawing any attention from the police. As defence counsel put it, “who in their right mind would blow through a stop sign and nearly strike a marked police cruiser when they were on house arrest bail?”
[24] It further makes sense that he changed his plan and decided to return home when he saw the police cruiser slow down and the officers look at him as they passed by. He could not risk an arrest for a breach.
[25] I also accept his evidence that he did not believe the police were following him as he circled back to his home. It is undisputed that he reverse parked into his driveway at 5 Matthew Harrison. That is not consistent with the mental state of someone who is fleeing from police at a rushed pace and trying to get into his home as quickly as possible.
[26] It also makes sense that police said nothing before they arrested him. The photographs of the exterior of the home show it is a very short distance from the end of his driveway to his front door. There was not enough time or space for the officers to 1) advise him he had disobeyed a stop sign; 2) ask him for his driver’s license; and 3) repeat their request for identification a further four or five times.
[27] The Crown suggests that because Mr. Khoshaba was prepared to breach his bail that day, his version of this incident cannot be believed. I disagree; it was precisely because he was breaching his bail that Mr. Khoshaba was very cautious about stopping at the stop sign.
[28] The Crown also stated, in its factum, that “the Applicant admitted that he was driving in a manner that may have piqued police interest”. The Applicant admitted no such thing. The only piece of evidence the Crown relies on to support that assertion is the Applicant’s testimony that he was likely driving 5-10 km over the speed limit as he circled back home, hardly something that any driver would imagine could pique a police officer’s interest.
[29] The Crown next suggested that “one can easily imagine how the Applicant could inattentively roll through a familiar intersection.” Not only is that utterly speculative, it is illogical in these circumstances where Mr. Khoshaba knew he was not supposed to be driving alone and saw the police cruiser approaching. Again, I accept his evidence that the last thing he wanted to do was draw attention to himself.
b) The officers’ evidence
[30] There are numerous aspects of the officers’ testimony that makes their version completely unreliable.
[31] First, I find it highly improbable that, while taking evasive action from a speeding driver blowing through a stop sign directly into his path, Constable Carroll was able to note and enter the driver’s licence plate. Constable Carroll agreed this all happened in a “split second”, and his paramount concern was safety. Yet, in the midst of that, he managed to look down and get the license plate number. He then, while continuing southbound, proceeded to type it into the computer.
[32] Second, it is unbelievable that in the circumstances described by these officers, they did not activate their vehicle’s lights and pull Mr. Khoshaba’s car over. I agree with the Crown that whether police should have attempted to pull Mr. Khoshaba over is a fact driven inquiry: Blaz v. Dickinson, [1996] O.J. No. 3397, paras 64-5. But here are the relevant facts for this case, as alleged by the police:
a) The officers were driving a marked police cruiser;
b) It was equipped with emergency lights and a siren that could have been activated at the push of a button;
c) The posted speed limit was 50 km per hour;
d) It was a clear day and the roads were straight. There was nothing obstructing their view and no vehicles between their car and Mr. Khoshaba’s;
e) They were following a vehicle that had blown through a stop sign, nearly collided with their cruiser, appeared to be evading police, and was travelling double the speed limit in a residential neighbourhood, just down the street from a school.
[33] Given those factors, I find it incredible that any officer would not have pulled Mr. Khoshaba over. I can only conclude that the police did not activate their emergency equipment because Mr. Khoshaba never drove the way they have described. They have invented that.
[34] The third troubling element with both officers’ testimony is the omission of the Toronto police checks from their notes and prior evidence. When Constable Carroll queried Mr. Khoshaba’s licence plate on October 19, 2018, he saw that the rental vehicle had been queried multiple times by Toronto Police in the past few days. Both officers failed to include that information in their notes and in their testimony at the preliminary hearing.
[35] I agree with defence counsel that these omissions were deliberate. The police did not want anyone to know that their decision to pursue the Chrysler that day was based on factors unrelated to any traffic infraction, including the fact that it had previously attracted police attention.
[36] The fourth and arguably most troubling issue is that neither officer made any mention of disobeying a stop sign or failing to identify as the basis for the arrest until after their briefing at the Criminal Investigation Bureau (CIB), which occurred at 2:46 p.m. that day. In accordance with standard procedure, both officers recorded notes in their memo book in the course of this investigation. The initial pages of their notebooks refer to the criminal charges, property that was found and seized, provision of rights to counsel, and handing Mr. Khoshaba over to Constable Statham.
[37] But neither officer made any mention of disobeying a stop sign or of failing to identify until after they met with three senior police officers at the CIB. This meeting took place approximately 2.5 hours after the arrest and lasted 40 minutes, even though the only matter discussed was the narrative of events leading up to Mr. Khoshaba’s arrest. And contrary to best practices for obtaining reliable statements, the officers were in the same room during the briefing, and could hear and see each other’s version: see Hill J. in R. v. Thompson, 2013 ONSC 1527, [2013] O.J. No. 1236 (SCJ), at para. 212.
[38] It was only after this meeting that the officers documented the grounds for arrest - the alleged traffic violation - in their notebooks, as a “late entry”. Their explanation - to the effect that their initial notes were focussed on the more serious handgun offence – ignores the obvious need to document what led them there in the first place. The alleged failure to stop and failure to identify were not peripheral facts. They were central to the investigation and arrest of Mr. Khoshaba. The failure to identify was the very authority on which they arrested him. Both were provincial offences charges and both were eventually laid on Mr. Khoshaba as he waited in a cell at the police station. And yet both offences are absent from their original notes. The irresistible inference is that Constables Carroll and Dhami invented the traffic violations during the 40-minute briefing with senior officers, when they realized that they needed grounds for detaining Mr. Khoshaba at the outset.
[39] The Crown’s main submission in support of the officer’s version is based on the timeline of the arrest. It is undisputed that:
• Mr. Khoshaba’s licence plate was queried at 12:20:25, which establishes the approximate starting point of the vehicle pursuit;
• Constable Carroll contacted dispatch at 12:22:55 and again at 12:24:04, reporting in the latter call that he had an individual in custody;
• Constable Dhami found the handgun at 12:25.
[40] This, the Crown points out, establishes that Constable Carroll reported Mr. Khoshaba’s arrest before Constable Dhami found the handgun in his vehicle. Based on that, the Crown argues that it is “absurd to suppose that they concocted a premise for the illegal arrest in the three minutes and thirty-nine seconds between running the Applicant’s license plate and reporting his arrest.” (Crown’s emphasis)
[41] This submission misses the point. No one is suggesting that the police concocted their story in that narrow time interval. Quite the contrary; the logical inference is that they came up with an excuse for the arrest much later, when they were being “debriefed” by senior officers in the CIB and realized they needed grounds for the arrest. That is precisely why it shows up as a “late entry”.
[42] Beyond those problematic elements common to both officers’ evidence, there were also individual problems with their evidence. Dealing first with Constable Carroll:
a) He testified that he did not see who was driving the black Chrysler before Mr. Khoshaba got out of the vehicle at 5 Matthew Harrison. Yet his notes indicate that when he saw Mr. Khoshaba exit the vehicle, “this is the same male who was driving the vehicle”. This supports Mr. Khoshaba’s assertion that the officers looked directly at him when they passed him at the stop sign;
b) At trial he claimed to be unaware that rental cars “are often associated with drug dealers”, even though he agreed with that suggestion at the preliminary inquiry;
c) Curiously, he refused to admit that he blocked in Mr. Khoshaba’s vehicle when he parked across the bottom of his driveway at 5 Matthew Harrison.
[43] As for Constable Dhami:
a) He also refused to admit that the cruiser blocked in Mr. Khoshaba’s vehicle when they parked across the bottom of his driveway at 5 Matthew Harrison, suggesting that Mr. Khoshaba could have driven onto the grass and over the curb;
b) He insisted he had no time to make notes of the grounds for the arrest before the CIB briefing, yet within that time he managed to make five pages of notes about the events outside Mr. Khoshaba’s residence;
c) He refused to admit that he fell short of observing the basic principle of policing that witnesses should not discuss their evidence together before writing it down when he discussed his evidence at the CIB briefing before making his notes.
Conclusion re Charter breaches
[44] For the foregoing reasons, I completely reject the officers’ version of this incident. Police arrested Mr. Khoshaba without reasonable and probable grounds. The lawful authority on which they grounded the search of his vehicle was a fiction. To compound matters, they failed to hold off eliciting incrimination information in the face of an explicit request to speak with counsel. These are clear breaches of ss. 8, 9 and 10 of the Charter.
24 (2) analysis
[45] The remaining issue to be determined is whether the gun should be excluded under s. 24(2) of the Charter. The first prong of the analysis established by the Supreme Court in R. v. Grant 2009 SCC 32, [2009] S.C.J. 32 requires an assessment of the seriousness of the Charter infringing state conduct. In this case the state conduct is on the very high end. All police know they require reasonable and probable grounds to believe an offence has been committed before they can make an arrest. The officers in this case not only ignored this standard, they lied about it after the fact to cover their misdeeds. Even worse, they tried to mislead the Court about what happened. As Cronk JA observed in the Court of Appeal decision in R. v. Harrison, 2008 ONCA 85, at para. 160, affirmed by the majority of the Supreme Court 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26:
The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority. Our system of criminal justice is fashioned on the collective expectation of the community that police officers who testify in a criminal case will do so honestly and impartially, unmotivated by self-interest or the desire to secure a conviction. The central importance of this expectation cannot be overstated where the testimony is received in a criminal trial involving allegations of serious constitutional violations by the police.
[emphasis added]
[46] See also R. v. Lai, 2019 ONCA 420, where our Court of Appeal affirmed that misleading evidence “does significantly aggravate the seriousness of the breach”, at para. 36.
[47] Applicant’s counsel argues that this was a “targeted detention of a young, racialized male on the basis of a hunch while knowing that there lacked reasonable and probably grounds for arrest” (my emphasis). Although I strongly suspect that police noted Mr. Khoshaba’s appearance when they initially approached the stop sign, and that may well have been a factor in their pursuit, I cannot on the evidence before me conclusively find that. But whether it was racial profiling, the fact that Mr. Khoshaba drove a rental that had been queried recently by police, or just a hunch, the result is the same. I find, without any doubt, that Mr. Khoshaba’s driving behaviour played no role whatsoever in justifying police pursuit, and that both officers knew that at the time. They invented this story after the fact to justify a blatantly illegal arrest and search, and then gave false testimony in court. It is grave misconduct.
[48] The second factor in the Grant analysis is the impact on the Charter protected interest of the accused. This was an intrusive and significant detention. Mr. Khoshaba was shoved against his door as he tried to go into his own home. He was then handcuffed and confined in the back of the police cruiser. Nor is this a case where the evidence would have been discoverable in any event. Had the police not infringed his rights, they would not have discovered the handgun.
[49] As in many cases, the third factor - society’s interest in an adjudication on the merits - points to admission, as without the gun the Crown has no case. Moreover, possession of a loaded handgun is a very serious charge, posing very serious harm to society: R. v. Omar, 2018 ONCA 975 at paras. 109-121 (per Brown JA in dissent), rev’d 2019 SCC 32 (adopting the reasons of Brown JA).
[50] Nonetheless, when balanced against the egregious misconduct seen here, I find without hesitation that the long-term interest in the due administration of justice requires the exclusion of the evidence. While Officer Statham was candid about his actions, and readily acknowledged that he had breached Mr. Khoshaba’s Charter rights, Constables Carroll and Dhami invented a story to justify their wrongful actions and then tried to deceive this court while under oath. That behaviour must be strongly sanctioned. In its factum, the Crown has essentially conceded this, stating “were Your Honour to conclude that the Constables perpetrated the exceptionally illegal arrest described by the Applicant and subsequently sought to mislead the Court, exclusion of the evidence would be the appropriate outcome.”
[51] The Application is allowed.
Baltman J
Released: November 28, 2019
COURT FILE NO.: CR-19-1464
DATE: 20191128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Issak Khoshaba
Applicant
RULING on CHARTER APPLICATION
Baltman J
Released: November 28, 2019