R. v McFarlane, 2020 ONSC 4695

COURT FILE NO.: CR-18-1254 DATE: 20200806

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Michael Morris, for the Crown, Respondent Respondent

• and -

HOPETON MCFARLANE Maurice J. Mattis, for the Applicant Applicant

HEARD: July 15 and 16, 2020

REASONS FOR DECISION Justice Tzimas

Introduction

1The Applicant, Hopeton McFarlane is charged with robbery using an imitation firearm. The incident is alleged to have taken place on April 10, 2017. The Applicant was arrested and charged on June 13, 2017.

2Originally, Mr. McFarlane brought an Application for an order declaring that his s.8 and 9 Charter rights were infringed by the police and a stay of proceedings. He alleged that his s.8 Charter rights were breached because the police relied on identification information that was improperly obtained for their investigation. In the absence of that information, in Mr. McFarlane’s view, the police would not have had reasonable and probable grounds to arrest the him. Accordingly, his s.9 Charter rights were also breached. Although Crown counsel agreed that he would not be relying on either the photograph of Mr. McFarlane or the various items that were seized from Mr. McFarlane’s residence to prove the charges, Mr. McFarlane submitted that such an agreement did not eliminate the fact that his Charter rights were breached and proceeded with the Application.

3The Court held a voir dire on November 18-21, 2019. In his testimony, Officer Westerbrook revealed that in the course of his investigation he received certain privileged information that he described as critical to his overall investigation and without which he would not have been in a position to formulate reasonable and probable grounds for Mr. McFarlane’s arrest.

4This evidence resulted in an adjournment of the Application to allow the Applicant to consider his options. Eventually, Mr. McFarlane reframed his Application and broke it down into two parts. The first part sought to challenge the Crown’s privilege claim. The second part sought to reargue the Charter breaches and reassert the request for a stay of proceedings in light of the existence and use by the police of the privileged evidence.

5The first part of the revised Application was argued on July 15, 2020 and my ruling was delivered orally on July 16, 2020. Mr.McFarlane challenged the Crown’s privilege claim and asked that the privilege be lifted to enable him to examine the additional information relied upon by Officer Westerbrook. I concluded that certain documents and communications were protected by both confidential informant privilege and public interest privilege.

6Following my oral ruling, defence counsel proceeded with the balance of the Application and submitted that the excluded documents made the concerns over the breach of the Applicant’s Charter rights all the more pronounced, meriting nothing less than a stay of the charges.

7The Crown disagreed; the exclusion of the privileged documents did not diminish the fact that by June 13, 2017, the Investigating Officer had accumulated reasonable and probable grounds to arrest Mr. McFarlane and that those grounds did not result from any Charter breach. He reiterated the concern that his agreement to exclude from the trial evidence a photo of Mr. McFarlane and the items that were seized from his residence ought not to be misconstrued as a concession of any Charter breaches and he asked that the Application be dismissed.

8For the reasons that follow I conclude that Mr. McFarlane’s s.8 and 9 Charter rights were not breached and accordingly, his Application is dismissed.

Background

a) Basic Chronology

9The following basic chronology is not materially in dispute.

10On April 10, 2017, Kyle Camplin was robbed in his residence at 1802-4 Hanover Road, Brampton, Ontario, by two individuals who were known to him only as “SA” or “Stunna” and “Speedy”. Mr. Camplin reported the incident to the police approximately 1.5 hours after the incident. He described “Speedy” as 17-19 years of age, black, shorter than 5’11”, wearing a black winter coat, black jeans, a red toque or hat, possibly black boots, and having a black/blue backpack.

11A photo line-up was conducted immediately following April 10, 2017. The photo line-up did not include any photo of Mr. McFarlane, and Mr. Camplin did not identify anyone as Mr. McFarlane.

12On May 12, 2017, Mr. McFarlane was arrested by the Peel Regional Police for an unrelated weapons matter. He was photographed but then released unconditionally. This incident was recorded in the Niche Records Management System.

13On May 18, 2017, the investigating officer, Adam Westerbrook was advised that the nickname “Speedy” was connected to Mr. McFarlane. He was given full particulars related to Mr. McFarlane, including his address, his date of birth and a description.

14On June 1, 2017, Mr. Camplin was asked to attend to a second photo line-up. This time, Mr. McFarlane’s photo was included and Mr. Camplin identified him as one of the two robbery suspects.

15On June 8 and 9, Officer Westerbrook conducted surveillance of the two individuals.

16On June 13, 2017, Mr. McFarlane was arrested at Mr. Christian’s place for the robbery of April 10, 2017.

b) Officer Westerbrook’s Evidence on the Voir Dire

17Officer Adam Westerbrook was the Investigating Officer. In his voir dire evidence, he testified that immediately following the reporting of the incident, his job was to collect facts and try to solve the case. During the course of his investigation he accumulated the grounds that eventually permitted him to develop reasonable and probable grounds for the arrest of the Applicant and one other person implicated in the incident, Roshawn Christian.

18At the very outset of his investigation, Officer Westerbrook said that he learned from Mr. Camplin’s statement to the police that that there were two suspects who were implicated in the incident. One person went by the nickname, “Stunna” or S.A. and the other went by the name “Speedy”. The description Mr. Camplin gave for Stunna was male, black, dark skin, five foot six, 19 to 20 years of age, and with a skinny build. He spoke with a Jamaican accent. Speedy was also male, black, dark skin, five feet in height, and 17 to 19 years of age. He had a slight accent, a pierced ear and a tattoo on one of his arms. The victim believed that Speedy lived somewhere by “the twin towers of Brampton”. Officer Westerbrook added that the victim reported that the two suspects were known to him and that they were associates of one another.

19Officer Westerbrook explained that the nicknames were queried at the beginning of his investigation but they did not yield any results. The police asked Mr. Camplin to view a photo line-up but he did not identify either Mr. McFarlane or the other individual who was implicated in the incident. Finally, he explained that the police obtained surveillance video from Mr. Camplin’s apartment that enabled him to identify what the suspects were wearing when they went to Mr. Camplin’s place.

20On May 18, 2017, Officer Westerbrook said he received an email communication from the crime analysist, Bonnie Sliwinski. She advised him that the nickname “Speedy” was connected to Mr. Hopeton McFarlane. That information permitted Officer Westerbrook to obtain information about Mr. McFarlane’s address, his date of birth and his physical description. He also obtained information that identified “Stunna” as Roshawn Christian. In his cross-examination Officer Westerbrook said that he was not prepared to divulge how Ms. Sliwinski obtained her information concerning the relationship between the nickname “Speedy” and Mr. McFarlane.

21Officer Westerbrook went on to explain that the information enabled him to continue with his own investigation, including his own search of records. From those searches, he learned that Speedy and Stunna were linked to each other in another robbery offence. This information corroborated Mr. Camplin’s evidence that the two suspects were associates. It also strengthened his belief that they were the persons who were responsible for the incident of April 10, 2017.

22Next, Officer Westerbrook undertook surveillance in the areas connected to the addresses for both individuals. Beginning on June 8, 2017, he saw Mr. Christian hanging out very close to the area associated with his address. He was hanging out with another individual and he matched the description he saw in the video stills. Then on June 9, 2017, he conducted surveillance at the address associated with Mr. McFarlane’s residence. At about 2:30 p.m. he saw Mr. McFarlane leave his residence and get into a car. He then described how the driver brought Mr. McFarlane close to Mr. Christain’s address and dropped him off.

23Officer Westerbrook explained that he could not follow Mr. McFarlane beyond the drop-off point because he did not want to inadvertently alert either Mr. McFarlane or Mr. Christian of his covert surveillance. That said, these observations continued to augment and enhance his belief that Mr. McFarlane and Mr. Christian were associates of one another and that they were the ones who robbed Mr. Camplin.

24A few days later, on June 13, 2017, at about 7:30 p.m., the tactical squad proceeded to execute search warrants at the residences for Mr. Christian and Mr. McFarlane. They began at the address associated with Mr. Christian. When the occupants of the premises were asked to exit the premises, Officer Westerbrook saw Mr. McFarlane come out with Mr. Christian. That observation crystallized his understanding that Mr. Christian and Mr. McFarlane were associates. He described that moment of realization as “everything jived”, from the victim’s statement, all through the background checks and then his observations. In that moment, he concluded that he had reasonable and probable grounds to arrest Mr. McFarlane for the robbery that occurred on April 10, 2017 at Mr. Camplin’s apartment and he gave the direction to another officer to arrest him.

25In the course of his testimony, Officer Westerbrook explained that there was a portion of his investigation that he did not include in his testimony that contributed very materially to the formation of his grounds. He explained that the privileged information, which he said was protected by “investigative privilege”, and which I upheld as privileged in my oral ruling of July 16, was a crucial puzzle piece in the formation of his reasonable and probable grounds. He explained that in the moment in time when he executed the search at Mr. Christian’s residence, absent his knowledge of the privileged information, he would not have had sufficient grounds to arrest Mr. McFarlane. He reiterated that when he saw Mr. McFarlane come out of Mr. Christian’s residence, his reasonable and probable grounds were strengthened. He emphasized that it was only after he saw the two guys coming out together that he gave the direction for Mr. McFarlane’s arrest.

26Apart from the noted chronology, Officer Westerbrook confirmed that Mr. McFarlane was arrested by Peel Regional Police on May 12, 2017 for an unrelated weapons matter but was later released unconditionally. Officer Westerbrook said that although he had no involvement with the investigation of that occurrence, he was made aware of it at some point during his own investigation. He could not recall if he read about this other occurrence somewhere or if he saw something. He added that he did not receive any information about Mr. McFarlane between May 12 and 17, 2017.

Position of the Parties

27Mr. McFarlane claimed that his section 8 and 9 Charter rights were breached such that the only appropriate remedy was a stay of proceedings. My finding that certain information relied upon by the arresting officer was privileged caused him even greater concern and reinforced his view that the only remedy to the breach rested with a stay of proceedings.

28Mr. McFarlane submitted that his section 8 breach Charter rights were breached when the police conducted the June 1, 2017 photo line-up using a picture of Mr. McFarlane that they should have used. Although there was some confusion over whether the photos used came from a youth record for Mr. McFarlane or from the photo taken on May 12, 2017, either way, that use amounted to a privacy breach. Counsel for Mr. McFarlane argued that the Crown’s concession not to rely on either the photograph used in the line-up or the items that were seized from Mr. McFarlane’s residence could not erase the said breach. Instead, he submitted that the Crown’s concession amounted to an admission that Mr. McFarlane’s s.8 Charter rights were breached.

29Mr. McFarlane’s s.9 Charter rights were breached because absent the privileged information, which counsel at one point suggested was the photograph, the police would not have developed reasonable and probable grounds for Mr. McFarlane’s arrest. He added that since the privileged information could not be tested, it had to be excluded from the court’s consideration of whether or not Officer Westerbrook had developed reasonable and probable grounds to arrest Mr. McFarlane. In counsel’s view, the officer would not have had anything else to rely on for Mr. McFarlane’s arrest.

30The Crown disagreed that his concession not to use the photo and the seized items amounted to any sort of a concession of a Charter breach. Counsel submitted that when he agreed that he would not introduce the impugned items into the trial evidence, he did so because he does not require that evidence to prove the charge against Mr. McFarlane. He expressly denied admitting to any Charter breach and he strongly insisted that the Court could not jump to any such conclusion just because of his decision not to use the impugned items.

31On the issue of the officer’s reasonable and probable grounds for Mr. McFarlane’s arrest, Crown counsel submitted that even if the officer held the subjective view that without the privileged information, he would not have had reasonable and probable grounds to arrest Mr. McFarlane, which Officer Westerbrook said was the case, having regard for all of Officer Westerbrook’s actions and incremental accumulation of evidence, his grounds were justifiable from an objective point of view.

32Counsel relied on R v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241 at paragraph 17 to argue that a reasonable person, placed in the position of Officer Westerbrook would be able to demonstrate reasonable and probable grounds for the suspect’s arrest. Building on that submission, counsel argued that there were numerous cumulative indicia to result in reasonable and probable grounds for Mr. McFarlane’s arrest, the most pronounced one being the finding of Mr. McFarlane at Mr. Christian’s residence on June 13, 2017.

33Finally, insofar as an applicable remedy is concerned, Crown counsel strongly rejected any suggestion that the alleged breaches, even if they occurred warranted a stay of proceedings. Relying on R v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, paragraph 58, he described a stay as the most drastic of remedies, reserved for only the “clearest of cases”. As for the exclusion of evidence, leaving aside the Crown’s agreement not to introduce into evidence the impugned items, Crown counsel submitted that a full review of the Applicant’s concerns would have resulted in a finding that one way or another, Mr. McFarlane would have been arrested and that the breach of any Charter-protected rights were of a minimal nature.

Analysis

34Even though the Application before the court kept getting modified, at its core, there were three issues for the court to determine:

a) Were Mr. McFarlane’s s.8 Charter rights breached?

35I will proceed to examine each of these questions.

36The overriding difficulty with the Applicant’s claim of such a breach is the lack of any foundation to the challenge. The Crown’s conclusion that it would not use any photograph for identification purposes or any of the items seized from Mr. McFarlane’s residence to prove its case eliminated the evidentiary foundation for any alleged breach. Although the agreement not to use the noted evidence may have the equivalent effect of a s.24(2) Charter exclusion, in the absence of an express concession by the Crown of such a breach, the Court cannot conclude that there was any such breach.

37Defence counsel advanced certain theories and drew certain inferences of how or what photograph the police may have used to conduct the photo line-up and undertake other investigative inquiries to result in the identification of Mr. McFarlane as one of the suspects of the April 10th robbery. However, there was insufficient evidence to come to any finding that Mr. McFarlane’s privacy was actually breached, or that he was subjected to any unreasonable search or seizure. More to the point, there was no evidence that the impugned items played any role in the identification of Mr. McFarlane as one of the two perpetrators.

38In the result, I am unable to make any finding that the police breached Mr. McFarlane’s s.8 Charter rights.

b) Did the police have reasonable and probable grounds to arrest Mr. McFarlane?

39Having regard for the evidence before the court as well as the parties’ submissions, I conclude that the police had reasonable and probable grounds to arrest Mr. McFarlane on June 13, 2017.

40Before I turn to the specific evidence in this case, it is useful to consider the guiding legal principles. To begin with, section 495 of the Criminal Code of Canada provides: “A peace officer may arrest without warrant (a) person … who, on reasonable grounds, he believes has committed … an indictable office.” The evaluation of whether there are objectively supported reasonable and probable grounds involves a contextual examination of all the circumstances surrounding the arrest and the facts known by the arresting police officer. An officer must have subjectively reasonable and probable grounds on which to base an arrest and the grounds must be objectively reasonable in the circumstances: R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241, at para. 17. This means that a "reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest." See also: R. v. Muller, 2014 ONCA 780, at para. 36.

41It must also be remembered that reasonable and probable grounds for an arrest do not require a prima facie case, see R v. Kanagasivam. The officer must take into account all of the information available to him or her: R. v. Golub, 1997 ONCA 6316, [1997] O.J. No. 3097 (C.A.), at para. 21; R. v. Bush, 2010 ONCA 554, at para. 44. Context is important: Golub, at para. 18; Bush, at para. 43. As noted by Doherty J.A. in Golub, it is important to keep in mind the volatile and fluid circumstances in which arrests often take place. Justice Doherty's practical observations follow:

The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

42Turning to the facts before the court, I find that Office Westerbrook’s reasonable and probable grounds were the result of an incremental accumulation of seven puzzle-pieces: 1. Mr. Camplin’s description of the two perpetrators; 2. Mr. Camplin’s knowledge of their nicknames; 3. Mr. Camplin’s knowledge that Mr. Christian and Mr. McFarlane were associates of one another; 4. the email communication from the crime analyst; 5. other privileged information that came to Officer Westerbrook’s attention; 6. Officer Westerbrook’s own covert surveillance and observations of the two suspects; and ultimately, 7. the finding of Mr. McFarlane at Mr. Christian’s residence on June 13, 2017, when the police attended at Mr. Christian’s premises to execute a search warrant.

43There can be no doubt that if viewed in isolation, the puzzle pieces would be insufficient for any reasonable person to formulate reasonable and probable grounds for an arrest. For example, Mr. Camplin’s description of the two perpetrators as young black men with heights in the 5 foot, 7 / 8-inch range, could not nearly go very far to constitute a reasonable and probable ground for an arrest. Similarly, the coincidence of two individuals being found together at a residence, in and of itself, could not amount to reasonable and probable grounds absent other information that they were associates. However, when the pieces of the puzzle are put together, a credible narrative quickly surfaces to lead to the conclusion that a reasonable person, with the said collection of information, would have reasonable and probable grounds to arrest the individual in question.

44Second, insofar as a significant amount of time was spent on Officer Westerbrook’s candid and frank admission that absent the privileged information that he received and reviewed, he would not have formulated reasonable and probable grounds for Mr. McFarlane’s arrest, I find it essential to consider that comment in its appropriate context and in light of the officer’s conduct before and after he received the sensitive information.

45In my review of evidence, it was not contested that from April 10 to May 18, 2017, Officer Westerbrook made very little progress in his investigation because the information he had to that point in time was insufficient for him to identify from either perpetrator. Once he received the email that connected Mr. McFarlane to the nickname “Speedy” and was advised of other privileged information, Officer Westerbrook was able to undertake additional investigative inquiries. But even then, those additional investigations straddled almost a four-week period before the officer could arrive at reasonable and probable grounds for Mr. McFarlane’s arrest. In other words, he did not set out to act on the email communication and the privileged information to arrest Mr. McFarlane. What Officer Westerbrook did was to build on that critical information to strengthen his investigation and his belief.

46Given that context, when Officer Westerbrook said that absent the privileged information, he could not have formulated reasonable and probable grounds, I understand him to mean that without those two critical puzzle-pieces, he would have been stuck with just the initial puzzle pieces and would not have been able to go ahead with any other inquiries or surveillance. He did not say that without those critical puzzle pieces he had no grounds. Nor did he ever suggest that the email and the privileged information were the only grounds for Mr. McFarlane’s arrest.

47To be clear, if the crime analysist’s email and / or the privileged information were Officer Westerbrook’s only elements to his reasonable and probable grounds for Mr. McFarlane's arrest, I may have been inclined to agree with defence counsel that their exclusion on the basis of privilege would make impossible to assess the existence of reasonable and probable grounds. In the same vein, had Officer Westerbrook acted on the privileged information alone and gone out to arrest Mr. McFarlane merely on the discovery of a name and an address, his reasonable and probable grounds would have been dubious.

48But this is not what occurred. Officer Westerbrook received what he described as critical information and then proceeded to conduct his own additional investigations that included the covert surveillance of both perpetrators. On June 13, 2017, when he attended on the search of Mr. Christian’s residence, he walked into a dynamic that offered him a windfall and enabled him to crystallize his reasonable and probable grounds to arrest both perpetrators. Mr. Camplin told them that Speedy and Stunna were associates and on June 13, 2017, there they both were, together! Given the way the events of that day unfolded, I have no difficulty accepting Officer Westerbrook’s evidence that when he saw Mr. Christian together with Mr. McFarlane, “things jived” and he then had all the information he required to formulate his reasonable and probable grounds to arrest Mr. McFarlane.

49In the result, contrary to Mr. McFarlane’s suggestion that all that Officer Westerbrook had to work with was Mr. Camplin’s initial statement to the police and the information from the crime analyst, I find that Officer Westerbrook added several more layers to his investigation before he formulated his reasonable and probable grounds to arrest Mr. McFarlane. In this regard, both subjectively and objectively, I find that Officer Westerbrook had sufficient information to form reasonable and probable grounds to arrest Mr. McFarlane. In the result, I am unable to find any breach of Mr. McFarlane’s section 9 Charter rights.

c) If the answer to either of these three questions is yes, then is a stay of proceedings in accordance with section 24(1) of the Charter warranted, or alternative should the evidence that resulted from the alleged breaches be excluded in accordance with section 24(2) of the Charter?

50In light of the foregoing findings there is no basis for a section 24 Charter analysis, much less a basis for a finding that the proceeding against Mr. McFarlane ought to be stayed.

Conclusion

Given my findings, the Application is dismissed.